UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
Faculty Library
-/:*>
.V
PRACTICE REPORTSv
CONTAINING CASES UNDER THE
CODE OK CIVIL PROCEDURE
THE GENERAL
STATE OF NEW YORK,
SELECT
DECISIONS
WITH A BRIEI; DIGEST OF ALL POINTS ToFT^PlwtW^WWrxirED IN THE
STANDARD NEW YORK REPORTS ISSUED DURING THE
PERIOD COVERED BY THIS VOLUME.
N EW S BRI ES.
VOL. II.
ALBANY, N. Y.
W. C. LITTLE & CO., LAW PUBLISHERS,
1886.
5 9 $4
. H6|
v. 7
Entered according to act of Congress, in the year eighteen hundred and eighty-five,
BY \V. C. LITTLE & CO.,
iu the office of the Librarian of Congress, at Washington.
TIIK AUOTS COMPANY.
PHINTKU* AND STRHKOTYPEUS,
AI.HANY, N. Y.
6195
TABLE OF CASES
EEPORTED IN THIS VOLUME.
A.
PAGE.
Aken agt. Kellogg and others. . 136
Alvord agt. lletsel 88
American Insulator Co. agt.
Bankers and Merchants' Tele-
graph Co 120
Armituge agt. Hoyle et al 488
B.
B&ker agt. Johns 464
Bannerman agt. Quackenbush
et al 82
Banuerman agt. Quackenbush
et nl 293
Bigart agt. Jones 491
Binney agt. Wheatar 519
I>onnell agt. Griswold 451
Bowe agt. United States Reflec-
tor Company and others 440
Bowker and others agt. Wells
and others 150
Bridgman agt. Hall 173
Briggs agt. The Titan 22
Burkhart agt. Babcock 512
c.
Campbell Printing Press Co.
agt. Altrogge 819
Carter agt. Talcott 852
Cole agt. Cole et al 516
Coon agt. Diefendorf 889
Crane agt. Evans 310
D.
Davidson agt. The Mayor, &c.,
of New York.., . 182
FAQS.
Dennison agt. Taylor 538
Dick agt. Livingston 10
Doctor agt. Schnepp 52
Dodge agt. Colby 475
Douglass agt. Macdurmid 289
Durant agt. O'Brien 313
E.
Early agt. Early 239
Eberle agt. Kauffeld 488
F.
Farnum agt. Barnum 396
Flanagan agt. Hollingsworth. . . 391
Foster agt. The New York Cen
tral and Hudson River Rail-
road Co 416
Frazer agt. Ward 47
G.
Goldsmith agt. Union Mutual
Life Insurance Co , 32
H.
Howe ag. Welch 507
Hughen agt. Woodward 127
I.
In the Estate of John Bair,
deceased 323
In re Mary Braiser 154
HOWARD'S PRACTICE REPORTS.
Cases Reported.
In the Estate of Cecelia L.
Booth, deceased IK'
In the Estate of Tunis Cooper,
deceased .... 8y
In the Estate of Ellis H. Elias,
deceased 15!S
In the Estate of Frederick Grote,
deceased 140
Isclin ct al. agt. Henelin et al. . . 21 1
In the Estate of Charles Morgan,
deceased 1 ( J .
J.
Jacqnin agt. Jacquin 51
Jacquin agt. Jacquin 2Gd
Jenkins agt. City of Hudson .. 211
Johnson and another agt. Dun-
can 36(>
K.
Kiernan agt. Renting 8'J
Kipp agt. Rapp et al 1(59
L.
Lee agt. Lee.
M.
Mason agt. Mason ct al
Matter of the Attorney General
agt. Atlantic .Mutual Life In-
surance 'Co
Matter of Caainano
Matter of Case agt. Campbell. .
Matter of Cohen & Company. . .
Matter of Goodrich
Matter of Henry
Matter of Karr
Matter of King
Matter of Lowell. . .
514
14C,
240
21)1
250
405
30?
285
PAGE.
Matter of Martin 26
Matter of Nassau Cable Co. .... 124
Matter of the New York, Lack-
a wanna and Western Railway
Co 225
Matter of Catharine Shaffer, de-
ceased 494
Matter of Smith 431
Matter of the Thirty-fourth
Street Railroad Company. . . . 3(59
McCredie agt. The City of Buf-
falo 33G
McKenna agt. Bolger 411
Moore agt. Taylor and another, 343
Morrison agt. Lawrence 72
Motel agt. Sixth Avenue Rail-
road Company 30
N.
Negley agt. The Counting Room
Co 287
Nelson agt. Tenney 272
o.
O'Donohue et al. agt. Simmons, 461
Olmstead agt. Keyes 1
Overheiser agt. Morehouse 257
P.
Pakas agt. Racy 277
Palmer agt. The Pennsylvania
Co 156
Payn agt. The Mutual Relief
Society of Rochester 220
People ex rd. Cole agt. Board
of Supervisors of Greene Co., 483
People ex rcl. Holler agt. Board
of Contract, &c., of the City
of Albany 423
HOWARD'S PRACTICE REPORTS.
Cases Reported.
PAGE.
People ex rel. Pres. , &c. , of D.
and II. Canal Co. agt. Roosa
and others. . ... 454
K.
Reyher agt. Reyher 74
Roof agt. Meyer 20
Rosenbaum agt. Union Pacific
Railway Company 45
s.
Schneider et al. agt. Altman. . . 448
Schroeder agt. Wanzor 13
Scott and others agt. Reed 52 1
Siedenbach agt. Riley 143
Staats agt. Wemple 161
Stark agt. Stark and another. . . 360
Stoughton agt. Lewis 331
Sayer agt. Mac Donald 119
Spencer agt. Wait 117
Sulton agt. .Newton 56
T.
Thatcher et al. agt. Rankin 459
Timerson agt. Timerson 526
The Mayor agt. Heuft 149
The National Bank of Port
Jervis agt. Hansa 200
The People ex rel. Cass agt.
Hosmer et al 472
The People ex rel. Lent agt.
Carr . . .501
The People ex rel. Pres. , &c. , of
D. and H. Canal Co. agt.
Keator et al 479
The People ex rel. Ray agt.
Davenport 17
The People agt. Seeley 105
The People agt. Wise 92
The People ex rel. Wright agt.
Common Council of Buffalo, 61
The People ex rel. Wright agt.
Geuung 324
Turuo agt. Parks et al 35
u.
United States Ice and Refriger-
ating Company agt. Read et al., 253
V.
Van Rensselaer agt. City of
Albany 42
Van Wyck agt. Horowitz 279
w.
Ward agt. Comegys et al 428
Ward agt. Ward and others... 345
Wells agt. Lachenmevcr 252
Westover agt. The ^Etna Life
Insurance Company 163
Westover agt. The /Etna Life
Insurance Company 1.S4
Wunncnberg agt. Geraty 131
Wyckoff agt. Devlin 333
TABLE OF CASES
CITED IN THE OPINIONS IN THIS VOLUME.
77 ^ Y 336 147
Mutual Life Ins. Co
A.
PAGE.
Abbott's Digest, 357, paragraphs 180, 1 81, 182 ...................... 59
Ackerman agt. De Lude ............ 20 Week. Dig., 544 ........... 390
Adams agt. Fields ................. 21 Vt. , 256 _____ .............. 114
Adams agt. Bush .................. 2 Abb. (N. S.), 112 ............ 229
Addison on Torts (3d ed.), 312 ................................... 304
Albany City National Bank agt. ) 93 N Y 363 339
City of Albany ................. f
Alden agt. Clark .................. 11 How., 269 ........ ' ......... 205
Allen agt. Everitt ................ 12 B. Munroe, 371 . ........... 114
Alston agt. Holland ................ 4 Chy. App. Cases, 168 ....... 436
American Mills Co. agt. Schnitzer. . . 1 Daily Reg., June 16, 1884. ... 55
American Union Telegraph Co. agt. ) n N" Y 408 477
Middleton ................... . . f
Anonymous ........................ 6 Cow. , 390 ................. 238
Armstrong agt. Armstrong ......... 29 Ala. (N S.), 538 ............ 114
Attorney General agt. Atlantic
Mutual Life Ins. Co ............
Ayers agt. Covill ........... ....... 18 Barb. ,263 ................. 100
B.
Babbitt et al. agt. Selectmen of Savoy, 3 Gush. ,530 ................ 340
Bailey on Principal and Agent, by Loyd, 327 ....................... 298
Baker agt. Baker ................... 23 Hun, 856 .................. 209
Baker agt. City of Utica ............ 19 N. Y., 326 ................ 66
Baker agt. Ludlow ................. 2 Johns. Cas., 289 ............ 394
Bancroft agt. The Inhabitants of | ..Q pink *n6 340
Lynfleld ..................... f
Bangs agt. Story ........... . ....... 7 Hill, 250; 4 N. Y., 315 ..... 205
Bank of Genesce agt. Spencer ....... 18 N. Y., 150 ................. 205
Bank of Chenango agt. Brown ...... 26 N. Y., 467 ............... 374
Bank agt. Simonton ................ 14 Rep., 315 .................. 436
Bank of California agt. Collins ...... 5 Hun, 209 ................... 452
Barbour on Parties, 3lil .......................................... 402
Barbour on Parties, 42, 43 ...................................... 172
Barnes agt. Newcomb .............. 89 N. Y., 108 ............... 146
Baring agt. Corry .................. 2 B. & Aid., 137 .............. 299
Baskin agt. Baskin ............ ..... 36 N. Y., 416 ............ 116, 497
HOWARD'S PRACTICE REPORTS.
Table of Cases Cited.
PAGE.
Bates agt, Plonsky T 28 Hun, 112 361
Bates agt. Rosekrans 4 Abb. (N. S), 276; 37 KY., 409, 430
Bates agt. Drake 53 N. Y., 21 1. . . .-. 435
Bates agt. Stearnes 23 Wend. ,482 470
Batsy agt, Briggs 56 X. Y., 407 493
Becket agt. Howe L. ,1. R. (X. S.), Prob. & M., 1, 11(5
Beddow agt. Beddow 9 Ch. Div. ,89 235
Beebe agt. Elliott 4 Barb. , 457 , 470
Bennett agt. Mathews 40 How., 428 240
Bettis agt. Goodwill 32 How., 14? 84
Bevan ct n.l. agt. Cooper c.t al 72 X. Y., 317 7(5
Beyer agt. The People 36 X. Y., 3G9 109
Binneyagt.LcGal j 1 *bb., 283; 10 How., 301; 19
( Barb., 592; 2 Law Bull., 55, 84
Bish. Crim. Law (7th ed ), sec. 533 100
Bish. Stat, Crimes (2d ed.), sec. 62 1 100
Bish. Stat. Crimes (2d ed ), sec. 225 100
Bliss agt. Bliss 7 Bosw., 339 299
Blodget agt, Conklin and Arnold 9 How., 4J2 238
Blount agt. Gobler 77 N. Y., 451 145
Boerumagt. Schenck 4i X. Y., 181, 190, 191 218
Bolen agt, Crosby 49 X. Y. , 183 453
Boiler agt. Mayor, &c 40 N. Y. Sup. Ct. R., 537 91
Bowen agt Id ley 1 Ed w. Ch. ,148 41
Bowman agt. Norton 5 C. & P. , 177 193
Boyce agt. Brown 7 Barb , 80 98
Boylan agt. Me A voy 29 How. , 279 40
Bradford agt. Bradford 19 Ohio State, 546 142
Broadbent agt. Barlow 3 DeGex, Fisher & Jones, 507, 43(5
Briggs agt. Wells 12 Barb., 507 470
Brown agt. Leavitt 26 Maine, 251 235
Brown agt . Lynch 50 X. Y. , 427 1 56
Brown agt. Riekerts !5 Johns. Ch , 553 402
Brown agt. Turner 15 A la , 832 524
Bull agt. Church 5 Hill, 206 515
Burke agt. Thome 44 Barb., 363 430
Butterficld agt, Forrester 11 East, 60 421
Butterworth agt, Gould 41 X. Y., 451 534
Butts agt. Wood 37 X. Y.,317 251
C.
Cagger agt. Lansing 64 N. V. , 4 1 7 470
Canclccugt. Hayward 37 N. Y., G53 340
HOWARD'S PRACTICE REPORTS. ix
Table of Cases Cited.
PAGB.
Carley agt. Hodges .19 Hun, 187 452
Carhart agt. Blaisdell 18 Wend., 531 59
Carlton agt, Carltou 85 N. Y.. 33 135
Carman agt. Townsend 6 Wend. , 206 524
Case agt. Campbell 17 Week. Dig., 473 180
Cassidy agt. Meacham 3 Paige, 312 213
Catlett agt. Catlett 35 Mo. ,340 114
Catlin agt. Billings 16 X. Y. , 622 361
Cavanah agt. Morrow 67 How., 1. 215
Chadwick agt. Bray 1 Civil Pro R., 425 90
Chaffee agt. The Baptist Missionary ) IQ p. V s~ 40T
Society '
Chapman agt, Lathrop 6 Cow., 110 299
Chase agt. Peck 21 N. Y., 581 367
Chen's Appeal 45 Penn. St , 228 142
Chipman agt. Montgomery 63 N". Y. , 221 66
Christman agt. Moran 9 Penn. St. , 233 235
Churchill agt. Prescott 2 Bradf., 304 197
City of Buffalo agt. Bellinger 76 N. Y. , 3!)3 339
Cily of Erie agt, Magill 101 Penn t filfj 420
Clark agt. Dakin 2 Barb. Ch., 36 213
Clark agt. Jacobs 56 How., 519 367
Clark agt. Woodruff 18 Hun, 423; 8:5 N. Y., 325. . . 402
Cocks agt. Weeks 7 Hill, 45 510
Cohen agt. Virginia 6 Wheat. ,420 506
Com. agt. Cooley 10 Pick., 37 It}
Com. agt, Macomber 3 Mass., 439 103
Com. agt, Kenniston . 5 Pick., 420 103
Com. agt. Tarbox 1 Cush. ,66 103
Com. agt. Wright 1 Cush.', 62 103
Commissioners of Excise agt. McGrath 27 Hun, 425 29
Commonwealth agt, Dallas 4 Dull., 518 505
Comfort agt. Rivett 2 M. & Sel.. 510 303
Compton agt. Mitton 7 Halst. ,70 116
Coleman agt, Second Ave. R. R. Co.. 38 X. Y., 201 254
Collyer on Part., sees. 123, 129 274
Coles agt. Trecothick 9 Ves. , 249 113
Cook agt. Parsons Finch's Prec. in Ch. , 185 113
Cook agt. Whipple 55 N. Y., 166 365
Cook agt, Turner 15 M. & W., 127 141
Cooley's Const. Lim. (5th ed.), 258 340
Cooper agt. Smith 43 Supr. Ct., 9 229
Cottle agt. Vanderlmyden 11 Abb. (N. S.), 17 195
Craig agt. Craig 3 Barb. Ch., 76, 94 348
Vor, II ii
HOWARD'S PRACTICE REPORTS.
Table of Cases Cited.
PAGE.
Crocker on Sheriffs (2d ed.), sec. 39 213
Cragin agt. Lovell 88 K Y., 258 476
Cribbenagt. Scbillinger 30 Hun, 284 53
Crogan agt, Livingston 17 X. Y., 223 41
Culler's Bankrupt Laws 299
Cushman agt. Addison 52 N. Y., 628 274
D.
Daggett agt. Mead 11 Abb. N. C., 116 263
Davidson agt. Alfaro 80 JN T . Y., 660 36
Davies, Mayor, etc., agt. City of I gg ^ y 397 339
New York )
Davis agt. Shields 26 N. Y., 352-358 115
Dayton on SUIT. (3d ed.), 396 409
Dawley agt. Brown 79 N. Y., 390 471
De Peyster agt. Michael 6 N. Y., 4G7, 492, 493, 494, etc., 330
Devlin agt. Bevins 22 How., 290 431
Dibble agt. Hathaway II Hun, 574-575 322
Dickinson agt. Gilliland 1 Cowen, 481 11
Dilleber agt. Home Ins. Co 87 N. Y., 7, 83 359
Dillon agt. Sixth Avenue R. li. Co. . 46 Supr. Ct., 21 43 1
Dimmick agt. Cooley 4 Civil Pro. Reps., 141 344
Dodge agt. Dodge 31 Barb., 413 515
Dos Passes on Stock Brokers and Stock Exchanges, 162-163.... 485
Downer agt. Eggleston 15 Wend. , 51 303
Downey agt. State 4 Mo. , 572 104
Dows agt. Congdon 16 How., 571; 28 N. Y.,122.. 11
Dunlop agt. Patterson Fire Ins. Co. . 74 N. Y., 145 49
Dunscombe agt. K Y., H: and/ g4 N y m _ _ 2M
N. R. R. Co )
Dupuy agt. Wurtz 53 N. Y., 556 112
Durkin agt, The City of Troy 61 Barb., 437 421
E.
Eagan agt. Moore 2 Civil Pro. R., 300 364
Eddington agt. Mutual Life Ins. Co., 67 N. Y., 196 167
Edington agt. ^Etna Life Ins. Co 77 N. V., 504 191
Edington agt. Mutual Life Ins. Co. . 67 N. Y., 185 191
Egbert agt. Wood 3 Paige, 517 274
Eland agt. Karr 1 East, 375 303
Elwes agt. Elwcs. 2 Lee's Cases, 573 196
Embury agt. Connor 1 Coiust., 511-517 443
Engel agt. Fisher 15 Abb. N. C., 72 341
HOWARD'S PRACTICE REPORTS. xi
Table of Cases Cited.
\
Equitable Life Assurance Society ) 75 N y 511 439
agt. Cuyler .................. )
Estate of Thorn .................. 4 Mo. Law Bui., 48 ........... 41
Eustice agt Holmes ................ 3 Denio, 244 ................. 1 45
Evanturel agt. Evanturel ........... L. R., 6 P. C., 1 .............. 142
Eversou agt. Gerham ............... 1 Abb., 167. . ................ 84
Ex parte Brown ................... 2 Bradf., 22 ................. 199
F.
Fadner agt. The People ............ 2 N. Y. Crim. Rep., 553 ...... 100
Fair agt. Mclver ................... 16 East, 130 .................. 303
Fairlee agt. Bloomingdale .......... 67 How., 292 ................ 51
Faucett agt. Vary ....... ........... 59 N. Y., 597 ................ 365
Favrill agt. Railway Company ...... 2 Exch R., 344 ............... 234
Ferris agt. Van Vechten ............ 73 N. Y., 113 ................ 436
Field's Lawyer's Briefs, vol. 3, sec. 538, ............................. 100
Ford agt. Whitridge ................ 9 Abb., 416 .................. 238
Fox agt. Hazeltine ................. 10 Pick. , 275 .......... . ...... 235
Frostman agt. Schaulting .......... 21 Weekly Dig., 358 .......... 344
Fredicanagt. Guardian Mutual Life | 63 N. Y., 392; 45 How., 462,
Ins. Co ....................... ) 230, 232
Fulton agt. Roosevelt .............. 1 Paige, 178 .................. 41
Gamble agt. Village of Watkins ____ 7 Hun, 448 ....... ............ 342
Garner agt. Gladwin ................ 12 Weekly Dig., 10 ........... 36
Garrison agt. Garrison ............. 67 How., ^71 ................. 84
Geib agt. Topping ................ 83 N. Y., 46 ................. 74
Genet agt. Davenport ............... 58 N. Y., 607 ................ 7
Gere agt. Gundlach ............... 57 Barb., 13 ................. 21
Gere agt. Gundlach ................ 57 Barb., 15 .................. 362
Gibbon agt. Ogden ................ 9 Wheat., 188 ............... 505
Glaubensklee agt. Hamburgh and | q . , , ,Q, I2j
American Steam Packet Co . . . . i
Godolphin, pt. 3, chap. 1, sec. 1 .................................. 409
Groff et ai. agt. Kinney ........... 1 How. (N. S.), 59 ............ 51
Grattanagt. Metropolitan Life Ins. Co. 80 N. Y., 281 .......... 191, 223
Greenbaum agt. Stein .............. 2 Daly, 223 ................. 229
Greenleaf on Evidence, sec. 243 ................................. J91
Guillane agt, Guillane ........... 3 Sw. & Tr., 200 ............ 116
Griffiths agt. De Forest ............. 16 Abb., 292 ............. 83
xii HOWARD'S PRACTICE REPORTS.
Table of Cases Cited.
H.
PAGE.
Hadsell agt. The Inhabitants of? Q r.. a[T r 7 o<n
Hr o Vjrray , J~ / .................. O-lvJ
ancock ...................... J
Hagadorn agt. Roux .............. 72 X. Y., 583-580 ............ 379
Hall agt, Edmunds ................. 07 How. ,202 ............ 58, 203
Hall agt. Templeton ................ 4 Weekly Dig., 120 ........... 237
Hall agt Robinson ................. 2 X. Y., 295 ................. 301
Hall agt. United States Reflector Co. 06 How , 31 .................. 445
Hammond agt. Hudson River I. ) , R , Q ~ Q
6 ' 8 ................
and M. Co
Hancox agt. Meeker ................ 95 X. Y., 528 ................ 292
Hare agt. Horton .................. 5 Barn. & Adol., 715 .......... 394
Hardenburgh agt. Crarey ... ....... 15 How., 307 ................ 247
Hallett agt. Ilallett . , ............... 2 Paige, 15 .................. 402
Harnett agt. Harnett .............. 55 Iowa, 48 ................... 527
Hassan agt. City of Rochester ....... 07 N. Y , 528 ................ 427
Ilatfield agt. Sneden ............... 42 Barb., 615 ..... ........... 493
Hathaway agt. Johnson ............. 55 N. Y. , 93 ................. 522
Hanley agt. Davis .................. 5 Hun, 042 .................. 291
Havens agt. Havens ............... 1 Sandf. Ch., 3 >A, 335 ........ 411
Haydock agt. Coope ............... 53 X. Y., 08 ................ 218
Head agt. Smith ................... 44 How., 470 ................. 229
Ilecrman agt, Clarkson ............ 64 X. Y., 171 .............. 342
Hellnigel agt. Manning ........... 97 X. Y., 60 ................. 307
Henderson agt. Bannister ........... 1 City Ct, R., 125 ............. 290
Henry agt. Salina Bank ............ 1 N. Y. , S3 ................. 130
Herman agt. Aaronson ............. 8 Abb. [X. S.], U>5 ............ 40
Her/ford agt. Davis ................ 102 U. S. R. , 235 ............ 322
High on Extraordinary Sureties, sec. 431 and cases cited in note ---- 71
Hilliard on Sales (3d ed.), 239 .................................... 304
Milliard on Sales (3d Ind. ed.), 309-405 ............................ 304
Hilton agt. Snishcimer .............. Daily Reg. , March 27, 1885 ---- 36
Hiltown Road ...................... 18 Pcnn. St., 233 ............. 235
Hitchcock agt. Peterson ............ 14 Hun, 38!) .................. 523
Hoag agt. Lamont ................. 00 N. Y. , 96 ................. 153
llodgc agt. Gallup .................. 3 Denio, 527 ................. 11
Hodges agt. Buffalo ................ 2 Denio, 110 ................ 342
Hogan agt Stroub .................. 24 Wend. ,458 ............... 299
Howe agt, Howe .................... 5 Weekly Dig, 400 ........... 210
Ilooley agt. Gieve ................. 9 Abb. X. C. , 41 ............. 435
Hopfensach agt. Hopfensach ........ 61 How., 498 ................. 416
Houghton agt, Mathews ............ 2 Bos. & P., 490 .............. 299
Howard agt, Tiffany .............. 3 Sandf., 095 ................ 98
Howard agt. Sexton ................ 1 Den., 440 .................. 247
HOWARD'S PRACTICE REPORTS.
Table of Cases Cited.
Hoystradt agt. King-man ............ 22 N. Y., 372 ................ 115
Hoyt agt. Thompson's exrs .......... 19 N. Y., 208 ............... 2,">6
Hoyt agt. Godfrey ................. 88 N. Y., 069 ........... _____ 523
Hurlburt agt. Durant .............. 88 N. Y., 121 ............. ____ 142
I.
Illinois Trust and Savings Bank agt. ) lg Federal ^ teFj 858 _ . 436
First National Bank .......... . >
Ilott agt. George .................. 8 Curt,, 172 .................. 116
In re Harbour ..................... 52 How., 94 ................ . . 21
In re Brady ........................ 66 N. Y., 215 ................. 241
In re N. Y., L. and W. R. R. Co.,
to acquire lands
In the Goods of Bosanquet .......... 2 Robt., 577 ................. 116
In the Goods of Janaway ........... 44 L. J., P. & M., 6 ........... 116
In the Matter of Benson ........... 10 Daly, 166 .................. 243
In the Matter of Fink ............... 59 How., 145 ................. 285
In the Matter of Fowler ............. 8 Daly ...................... 286
In the Matter of Roberts ............ 59 How., 136 ................. 243
In the Matter of the Will of Phillipps, 98 N. Y., 267 ................. 497
/
)
J.
Jackson agt. Westerfleld ............ 01 How., 399 ................. 141
James agt. Patten ................. 6 N. Y. , 9 .................. 1 15
Jar. on Wills (vol. 1, R & T. ed.), 145, ............................. 409
Jewett agt. Miller ................. 10 N. Y., 402 ................. 219
Johnson agt. Cornwall .............. 26 Hun, 499 .................. 352
Johnson agt. Johnson ............... 14 Wend. ,642 ............... 527
Jones agt. Fetch .................... 3 Bosw., 66 ................. 404
Jones agt. N. Y. and Erie R. Co ____ 29 Barb., 6:33-680 ............. 229
Jones agt. U. S. Slate Co ........... 16 How., 129 ................. 364
Judson agt. Stilwell ................. 24 How., 553 ................. 299
Juillard agt. Chaffee ................ 99 N. Y., 529 ................. 145
K.
Kaufman agt. The People .......... 11 Hun, 82 .................. 109
Keator agt. The Ulster and Dela- | ~ TT *, 047
ware Plank Road ............. i
Keiguin agt. Keiguin .............. 3 Gush., 611 .................. 116
Kennedy agt. Life Insurance Co. . . . 32 Hun, 35 .................. 135
Kennett agt. Robinson ............. 2 Id. Marsh. (Reg.), 84 ........ 301
Kent agt. Quicksilver Mining Co ... 78 N. Y. , 159 ................ 256
Kiefer agt. Webster ................ 6 Hun, 526 ................... 54
xiv HOWARD'S PRACTICE REPORTS.
Table of Cases Cited.
PAGE.
King agt. Brown .................. 3 Term, 574 ................. 70
Kingagt. Maldwin ................. 17 Johns., 384 ............... 527
King agt, Lynn .................... 2 Durn. & East, 314 .......... 16
Kipp agt. Bank of New York ....... 10 Johns., 63 ................ 435
Knowles agt. Gee ................. 8 Barb. ,300 ................. 98
Koppel agt. Hendricks ............. 1 Barb. 449 .................. 21
L.
Lampkin agt. Douglass ............. 27 Hun, 517 ................. 54
Lathrop agt. Clapp .............. 40 N. Y., 328 ................ 450
Lang agt. Wilbrahane ............. 2 Duer, 171 .................. 470
Law agt. Harmony. ............... 72 N. Y., 408 ................ 350
Lawton agt. Kiel .................. 51 Barb., 30 ................. 365
Lautz agt. Buckingham ............ 4 Lans , 484 .................. 16
Lawrence agt. Cooke .............. 32 How., 12(5 ............... 352
Leading Cases in Eq. (White & Tutor [4th ed.J ), vol. 1, 2:J7-259, 216
Le Couteulx agt City of Buffalo ____ 33 X. Y., 333 ............... 839
Ledwith agt. Union Trust Co ....... 2 Dem., 439 .................. 3U8
Le Fevre agt. Toole et al ........... 84 N. V., 95 .................. 76
Lemayne agt. Stanley .............. 3 Lev. , 1 .................... 113
Lent agt. Howard ................. 89 N. Y, 169 ................ 493
Levy agt. Levy ---- ............... 3 Madd. , 245 ................. 41
Lewis agt. Merritt .................. 98 N. Y., 206 ........... ... 414
Lewis agt. Smith ........... ....... 9 N. Y., 502 ............... 517
Like agt. McKinstry ............... 41 Barb., 186 .............. 477
Little agt. Lynch ................. 34 Hun, 396; 1 How (N. S.), 95, 71
Lobdell agt. Lobdell ............... 36 N. Y., 327 ................ 15
Loeschigkagt. Hadfleld ..... \ 51 K Y " Q '> 5 Robt 2(5: 19
I Abb., 169 ................... 274
Lowber agt. The Mayor, etc., of ) - Abb ^ 4g7 ^ 235
New York .................... )
Ludlow agt. Ludlow ............... 35 N. J. Eq., 489 ............. 116
M.
Malmesbury Railroad Co. agt, Budd, 2 Ch. Div., 113 .............. 235
Markham agt. Jandon .............. 41 N. Y., 2:J6 ................. 434
Marshall agt. Meech ................ 51 N. Y., 143 ................. 171
Martin agt. Hawks .................. 15 Johns., 405 ................ 171
Martin agt, Martin ................ 3 How. , 203 .................. 3<0
Mason agt. Jones ................... 2 Barb., 221) ................. 81
Matter of Baker ...... ............. 11 How., 418 ................. 87
Matter of Becker ................... 28 Hun, 207 .................. 40
Mutter of Case agt. Campbell ........ 17 Week. Dig., 473 ............ 87
HOWARD'S PRACTICE REPORTS.
Table of Cases Cited.
Matter of Curser 89 N. Y., 401 263
Matter of Application of Mayor f j. 49 N Y 150 232
New York '
Matter of Application of N. Y. C. ) ^ ^ y 64 233
andH. R. R ?
Matter of Davis 19 How., 323 87
Matter of Everett 10 Daly. 9!) 449
Matter of Kerrigan 2 Civil Pro., 334 308
Matter of Sarah Miles 4 Dana (Ivy.), 1. . . 114
Matter of North agt. Cary 4 N. Y. Sup. Ct. R., 357 178
Matter of Prospect Park and C. I. ) 05 JT y 489 23
R. R. Co )
Matter of Surplus Moneys, etc., in / 04 ]sr y gn r 517
estate of .lohn C. Zahrt f
Maxon agt. Scott 55 N. Y. , 247 520
Mayer agt. Mias 8 Moore, 275 ; 1 Ring ,311 304
McAdams Marine Ct. Pr. (2d ed ); 36 21
McFarren agt. St. John 14 Hun, 387 362
McKenzie agt. L'Armoreaux 11 Barb., 516 405
Mcllvaine agt. Hilton 7 Hun, 59 1 520
Me Murray agt. McMurray 41 How., 41 40
Mechanics' and Traders' Bank agt. ) u N y Week D - 120 _ m
Healey )
Meech agt. City of Buffalo 39 N. Y., 198 339
Meel agt. Brothers 10 Wend., 495, 496 299
Merchant agt. Sessions 5 Civ. Pro. Repts., 24 '. . . . 344
Merchants' Bank agt. Thompson. ... 55 N Y. , 12 367
Miallagt. Brain 4 Mad. Rep.. 119 518
Mickleagt. Mattock 17 N. J. Law, c8 116
Miller agt. Franklin Bank 1 Paige, 444 160
Miller agt. Miller 32 Hun, 481 57, 260, 263
Miller agt. Brenhams 68 N. Y., 83 508
Miner agt. Mechanics' Bank 1 Peters, 46, 64 378
Mitchell agt. Butel 10 Ward, 495 299
Mitchell agt. Van Buren 27 N. Y. , 30') 364
Mitchell agt. Mitchell 16 I lun, 97; 77 N. Y., 596. . . . 496
M'Mnlkin agt. Hovey 46 How. , 405 513
Mollen agt. Tusca 87 N. Y., 166 .217
Monarque agt. Monarque 80 N. Y. , 3 .10 3;> 1
Moore agt. Hageman 6 Hun, 290 404
Morgan agt Schuyler 79 N. Y. , 490
Morrison agt Tumour 18Ves.,176 113
Morse on Arbitration and Award, 104, 105, 536 253, 235
Moultrie agt. Hunt 23 N. Y., 394 Ill
xvi HOWARD'S PRACTICE REPORTS.
Table of Cases Cited.
PAGK.
Mott agt. The Union Bank 8 Bosw. , 591 ; 88 N. Y. , 18 238
Murray agt. Hanken 30 Hun, 37 53
Musgrove agt. Lusk 2 Tenn. Ch. , 576 41
N.
Nason agt. Luddington 56 How., 172 247
National Bank, &c. , agt. Temple. ... 39 How. , 432 522
Naylor agt. Lane 5 Civ. Pro Rep., 150 30
Neale agt. Neales 9 Wall. (U. S.), 1 15
Nelson agt. Bostwick 5 Hill, 37 .
Newman agt. Goddard 3 Hun, 70.
Newton agt. The Mutual Benefit ) lg Hun 5gf .^ _ lg( .
Life Ins. Co )
New York and Oswego Railroad f 57 ^ Y 473 44
Company agt. Van Horn f
Niles agt. Battershall.. . \ 2 Robt - 146 ' ]8 Abb -' 161 - 27
( How., 381 84
Noonan agt. The City of Albany 79 N. Y., 470 43
Norris agt. Beyea 13 N. Y., 273 493
o.
Ocean National Bank agt. Olcott. .... 46 N. Y., 12, 19 213
O'Donohue agt. Simmons 31 Hun, 267 462
O'Dougherty agt. Remington Paper ) Q[ ^ m ^
('o \
O'Jriara agt, Dudley 'Jo N. Y., 403 161
Oliver agt. King 8DeG., Mac. & G., 110 215
Orton agt. Orton 3 Keyes, 486, 488 409
P.
Parish Will Case 25 N. Y., 9 167
Park agt. Park 80 N. Y'., 156 '20!)
Parsons on Cont., 183 274
Parsons on Contracts (vol. 2), 516 ;!9.>
Patrick agt. Metcalfe 37 N. Y. , 332 534
Payne agt. Burnham 62 N. Y., 69 219
Peasley agt. Safety Deposit Life Ins.
Co
Penkernelli agt. Bischoff 2 Abb. N. C., 107 271
Penley agt. Waterhouse 3 Iowa, 418 510
People agt. Allen 42 Barb. ,203 178
People agt. Allen 51 How., 97, 99, 100 178
j. 15 Hun, 227 1(5(5
HOWARD'S PRACTICE REPORTS xvii
Table of Cases Cited.
PA(JB.
People agt. Atlantic Mutual Life I 74 N y 177 147
Ins. Co )
People agt. Brundage 78 N. Y., 403 506
People agt. Collins. 19 Wend. ,56 71
People agt. Common Council, etc. . . 45 Barb., 473; 3 Keyes, 81 69
People agt. Comstock 78 N. Y., 356 374
Peopleagt. Dowling 84 N. Y., 478 110
People agt. Draper 28 Hun, 1 109
People agt. Flagg 46 N. Y., 401 373
People agt. Gardner 45 N. Y., 812 503
People agt. Goodwin 50 Harb., 562 505
People agt. Green 2 Wend. , 274 500
People agt. Hall 80 N. Y., 117 340
People agt. Halsey 37 N. Y., 344 71
People agt. Isaacs IKY. Crim. R., 148 97
People agt. Jacobs 5 Hun, 428, 433; 66 N. Y., 8. . 209
People ex rel. Joyce agt. Brundage . . 78 N. Y., 403 504
People ex rel. Judson agt. Thatcher. . 55 K Y., 525 839
People agt, Lucas 25 Hun, 610 268
People agt. Mann 97 N. Y., 532 504
People agt. Marine Court 23 How., 427 21
People agt. Mayor 31 Hun, 296 88
People ex rel. Morris agt. Adams .... 9 Wend., 464 342
People agt. Reilly 25 Hun, 587 209
People ex rel. Steiner agt. Morrison. . 78 N. Y., 84 341
People agt. Stevens 5 Hill, 616 87
People agt. Supervisors 68 K Y., 11', 119 379
People agt. Supervisors 51 N. Y., 401 379
People agt. Supervisors 68 K Y., 115 388
People ex rel.The Albany and Green- )
67 How., 477; affirmed, 34 Hun,
bush Bridge Company agt. >
Weaver and others )
People ex rel. The Wallkill Valley x
Railroad Company agt. Keator - 67 How., 277 455
and others -
People agt. Vilas 36 N. Y., 459 339
Perry agt. Chester 53 N. Y., 241 36
Peters agt. Public Administrators. . . 1 Bradf., 200-207 199
Petrie agt. Lansing 66 Barb. , 557 403
Phelps agt. Phelps 6 Civ. Pro. R., 117 365
Phipps agt. Carman 23 Hun, 15 '; 84 N. Y., 650 ... 74
Phipps agt, Carman 26 Hun, 518 156
Pickard agt. Yencer 10 Weekly Dig., 271 173
Pickard agt. Yancer 21 Hun, 403 344
VOL. II Hi
xviii HOWARD'S PRACTICE REPORTS.
Table of Cases Cited.
PAGE.
Pier agt. George 8G 1ST. Y., 613 452
Pinney agt. Orth 88 N. Y., 447 414
Pierson agt. The People 79 N. Y., 424 191
Pleasant Valley agt. Calvin 13 N. W. Rep., 80 436
Pomeroy agt. Rickets 27 Hun, 242 55
Potter's Dwarris on Statutes, 156, 187 263
Powell agt. Powell 71 N. Y., 71 145
Powell agt. Fry 19 Hun, 600 271
Pratt agt. Adams 7 Paige, 639, 641 215
. o j 17 S. C. Rep., 428; S. C., 3 Am.
Pratt agt. McGee ] _,
( Prob. Rep., 171 410
Pritchard agt, Pritchard 4 Abb. N. C., 298 210
Prouty agt. Swift 10 Hun, 232 38
Pursell agt. Fry 19 Hun, 595 59
E.
Rabone agt. Williams 7 T. R., 360 298
Ramsey agt. Ramsey 13 Gratt. , 664 114
Randolph agt. Stedman 4 Abb., 262; 3 E. D. Smith, 648, 513
Rapalee agt. Stewart 27 K Y., 313 215
Redfield on Wills (vol. 3), 97 196
Redf. Surr. Pr., 243 ... 408
Regina agt. Mankelton 6 Cox Crim. Cases, 143 108
Regina agt, Timmins 8 Cox Crim. Cases, 401 108
Regina agt. Oliver 10 Cox Crim. Cases, 403 109
Remsen agt. Beekman 25 N. Y., 552 527
Rex agt. Morton 12 Cox Crim. Cases, 456 100
. ,., ( 54 How., 213; S. C., on appeal,
Reynolds agt. Mason { 6 W/i, 531.. . .I. ....... 452
Ricketts agt. The Mayor 57 How. , 320 183
Riggs agt. Weydell 17 Hun, 515 ; 78 N. Y. , 586 . . . 363
Roadley agt. Dixon 3 Russ. Rep., 192 518
Robert agt. Ditmas 7 Wend , 522 59
Roberts' Case 59 How., 136 286
Robert agt. Corning 8!) N. Y., 225 350
Rochester and G. V. R. Co. agt. ) co Barb 234 _ 229
Clark Nat. Bank '
Rodermuncl agt. Clark 46 N. V., 354 217
Uoper agt. Town of Launburg 90 N. C., 427; ;iO A. B. L. C.,:i03, 340
Ross agt. Crary 1 Paige, 416 402
Rouf agt. Meyer 2 How (N. S.), 20 362
Roy agt. Roy's Ex'rs 16 Gratt., 418 114
Rumsey agt. Goldsmith 3 Denio, 494.. ..r 497
HOWARD'S PRACTICE REPORTS. xix
Table of Cases Cited.
PAGE.
Russell agt. Hartt 87 K Y., 19. 112
Ryan agt. Kiiorr 19 Hun, 540 463
Ryder agt. Gilbert 16 Hun, 165 862
s.
Salisbury agt. McClaskey 26 Hun, 262 247
Saudford agt. Jackson and others. . . 10 Paige, 266 517
Sandford agt. Jackson 10 Paige, 270 513
Saunders agt. Gillette 8 Daly, 184 30
Saunders agt. Le Roy 23 Bosw., 228 83
Savage agt. Burnham 17 N. Y., 561 350
Savage agt. Burnham 17 N. Y. , 561 517
Schetler agt. Smith 41 N. Y., 828 79
Schincker agt. The People 83 N. Y., 194 109
Schriver agt. Schriver 86 N. Y., 575 367
Schuyler agt. Thompson 15 Abb. (N. S ), 230 247
Sehrner agt. Hawkins 2 Esp. N. P. , 626 303
Sedgwick on Statutory, etc., La\v, 92 _.. 66
Selden agt. Colter 2 Va, Cas , 53;J 113
Seligmau agt. Wullacb ,, .6 N. Y. Civil Pro. Rep., 202. . . 449
Settle agt. Van Evera 49 N. Y., 230 503
Shackleton agt. Hart 20 How., 39 172
Seymour agt. Billings 12 Wend., 285 090
Shank agt. Conover 56 How ,437 120
Sharp agt. Fancher 29 Hun, 193 28
Sheldon H. B. Co. agt. Eickmyer ' 90 N Y 607 256
H. B. Co i"
Sheppard's Touchstone (vol. 1), p. 400 409
Sherman agt. Smith 42 How. , 198 523
Shultz agt. Hoagland 85 N. Y., 464 219
Smith agt. Cutler 10 Wend., 589 232
Smith agt. Hall 67 N. Y., 48 145
Smith agt. Kidd 68 N. Y., 139 311
Smith agt. ftpooner 3 Taunton, 246 478
Stevenson agt. Abington 1 1 W. R , 935 142
State agt. Farrard 3 Halst., 333 99
State agt. Bean 19Vt.,539 104
Staunton agt. Parker 19 Hun, 59 167
Stephenson agt. Hanson 4 Civil Pro. Rep., 104 336
Stevens agt. Middleton 26 Hun, 470 5S
Stief agt. Hart 1 Couist. , 20, 30 66
Stoddard agt. Trenbath 24 Hun, 183 344
Stoddard agt. Clarke 9 Abb. (N. 8.), 314 390
xx HOWARD'S PRACTICE REPORTS.
Table of Cases Cited.
PAGE.
Stokes agt. Stickney 90 JS. Y. , 323 452
Story on Part., 346 274
Story on Agency (2d Am. ed.), 390 : 298
Southpark Comrs. agt. Kerr 13 Federal hep., 502 436
Sullivan agt, Sullivan 66 N. Y. , 37 515
Button agt. Newton 2 How. (N. S.), 56 260
Suydam agt. Belknap 20 Hun, 87 241 , 287
Swift agt. Swift 34 Beav., 266 439
T.
Tallcott agt. Hess 31 Hun, 282 219
Taylor agt. Okey 13 Ves., ISO 303
Taylor agt. Plumer 3 Maule & Selwyn, 562 436
Taylor agt. Porter 4 Hill, 141 443
Teho agt. Robinson 1 Eastern Rep. , 7U8 510
Terry agt. Wiggins 47 N. Y., 517 492
Tiemeyer Turnquist 85 N. Y., 516 520
The Board of Supervisors Orleans / . Lans 24 339
Co. agt. Bowen )
The Commercial Warehouse Co.
Grober.
j. 45 N. Y.,393 ................ 49
The King agt. The Inhabitants of / g Rarn & Ado]>> 6 - < 395
Sedgley ....................... '
The Smelting Co. agt. Richardson. . . 3 Bur. , 134 ................... 395
Thompson agt. Hickey ............. 8 Abb. N. C. , 159 ............. 16
Thompson agt. Brown .............. 4 Johns. Ch., 61!) ............. 402
Tobias agt. Ketchum ............... 32 N. Y., 319 ................. 350
Tobias agt, Ketcham .............. 32 N. Y., 319 ................. 517
Tolley agt. Greene ................ 2 Sandf. Ch. ,9 ............... 352
Tompkins agt. Brown .............. 1 Denio, 247 .................. 510
Trott agt. Skidmore .............. 6 Jur. (X. S.), 76 ' ............ 113
Truman agt. Richardson ............ 68 N. Y., 61 ; ................. 341
Tucker agt. Westgarth ............ 2 Add., 352 ................. 196
Turno agt. Parks ........ ........... 2 How. (N. S. ), 35 ............ 344
Tyler on Infancy and Coverture, 76 ............................... 278
Tyson agt. Blake ................... 22 N. Y., 558 ................. 493
V.
Van Rensselaer agt. Owen .......... 48 Barb., 61 .................. 470
Van Voorhees agt. Kelly ..................................... 88
Van Walhoffen agt. Newcombe ..... 10 Hun, 236 ................. 356
Vassear agt. Livingston ............. 3 Kern., 249, 252 ............ 430
Vernon agt. Vcrnon ................ 53 N. Y., 351 ............ 350, 515
HOWARD'S PRACTICE REPORTS. xxi
Table of Cases Cited.
PAGE.
Victor agt. Henlein 34 Hun, 552, 565 217
Vincent agt. The People 5 Park., 100 100
w.
Wade on the Law of Notices, sec. 1324 524
Wager agt. Wager 89 N. Y., 161 493
Wakeman agt. Sherman 9 N. Y., 85 510
Walcutt agt. Holcomb 31 N. Y., 125, 126 6
Walker agt. Frobister 6 Vesey, 70 232
Walker agt. Johnson 8 How., 240 290
Wallace agt. Bennett 41 Barb., 92, 95, 96 263
Waller agt. Lacy 1 Man. & Gr., 54 436
Waller agt. Waller 1 Gratt., 454 114
Walsh agt. Darrah 52 N. Y., 590 342
Walter agt. Sackwood 28 Bosw., 240 88
Washington agt. Buruhum 63 N. Y., 135 368
Week agt. Root 14 N. Y. Week. Dig., 90 493
Weeks agt. Southwick 12 How., 170 514
Wehle agt. Conner 83 N. Y. , 237. , 49
Weinbrenner agt. Johnson 7 Abb. (N. 8.), 202-207 214
Wells on Attorneys, sec. 373-379 171
Wells on Replevin, 399-551 304
Wells et at. agt. Wells et al 88 N. Y., 323 351
Wentzlar agt. Ross 50 How., .".97 55
Wetzell agt. Bussard 11 Wheat., 309 510
Werbolousky agt. Greenwich Ins Co., 5 Code Civ. Pro., 303 364
Wigram on Wills, Proposition I (2d Am. ed., 1872), 58; Proposition
II, Id., 66 408
Weismer agt. Douglass. 64 N. Y., 91-105 443
Wilbur agt. Baker 2-t Hun, 24 344
Wilkinagt. Raplee 52 N. Y., 248 156
Wilkins agt. Batterman 4 Barb., 47 171
Williams agt. Walker 2 Sandf. Ch., 325 311
Wms. on Exrs., (6th Am. ed.), 1113 -1051 409
Williston agt, Williston 41 Barb., 535 15
Willis agt. Mott 36 N. Y., 486 496
Wilson agt. White 7 Cow., 477 338
Williamson agt. Williamson 64 How., 450 365
Wilson agt, Little 2 N. Y., 448 435
Whalen agt. Supervisors 6 How., 278 247
Wharton's Grim. Law (vol. 2), sec. 1407 100
Whart. Prac and Pleadings (vol. 1, 4th ed.), 271, 281 100
Wharton on Evidence, sec. 591 167
xxii
HOWARD'S PRACTICE REPORTS.
Ixew York Revised Statutes Cited.
PASS.
Wheeler agt. Newbould 16 K Y., 398 435
Wooden agt. \Vaffle G How., 145 98
\Voodruffagt.ImpenalFireInsur-) on N' Y *521 4-t~
ance Co )
Wright agt. Delafield 25 X. Y., 266 430
Wright agt. Williams 2 Wend., 642 390
T.
Young agt. White 7 Beav., 506 , 299
z.
Zabriskie agt. Smith 13 K Y., 333..'. 453
Zimmerman agt. Erhard 59 How., 11 51
Zogbaum agt. Parker 55 N. Y., 120 36
CONSTITUTION OF NEW TORK CITED.
PAGE. PAGE.
Const. N. Y., art. 3, 18 182 Const. N. Y., art. 0, 13 502
art. 1, $$ 1 and 6, 443 art. 5, 5, 6, 12,14, 503
UNITED STATES EEVISED STATUTES CITED.
PAGE. PAGE.
U. S. R. S., 639 460 U. S. Statutes at Large, 330. ... 467
NEW YORK REVISED STATUTES CITED.
PAGE. PAOK.
1 R. S., 725, 30. 81 BANKS' SIXTH EDITION.
2 R. S., 65, 49 81 3 R. S. (Oth ed.), 128 159
617, $26 390 3 R. S. (7th ed.), 2291 195
308, 31 470
309, 36 470 EDMONDS' EDITION.
145, 145, sub. 2 526 2 R - s -> 91 258
92, 41 262
HOWARD'S PRACTICE REPORTS.
xxiii
New York Session Laws Cited.
2R.
1 R.
1R.
3R.
2R.
3R.
1845,
1847,
1848,
1848,
1849,
1850,
1857,
1869,
1870,
1870.
1870]
1871,
1871,
1812,
1873,
1873,
1874,
1875,
1877,
1877,
1877,
1879.
FIRST EDITION.
PAGE.
1R.
3R.
1R.
2R.
SIXTH EDITION.
S., 449, 8
PAGE.
. . 102
S 693 ^ 12 13 14. . .
... 138
SEVENTH EDITION.
S 1985 S 30
97
114
... 1.7
SECOND EDITION.
S., 114
... 177
S., 816, 817, g 8, 9. ....
389, g 42, 43, 44, 45.
390, 391, 392, 1, 5,
12, 16, 17....
. . 86
. . 100
6,
. . 101
S 444
178
R 438
246
376
. . 177
FIFTH EDITION.
S., 8, 42
... 246
S 992 17
. . 455
994 8
. 455
992, 17
. . 480
979, Sub. 15, g 2-5. .
. . 484
PAGE.
. . 16
NEW YORK
chap 150 S 6
SESSION
LAWS CITED.
PAGE.
468
1880,
1880,
1880,
1880,
1880,
1880,
1881,
1881,
1882,
1882,
1882,
1883,
1883,
1883,
1884,
1884,
1884,
1884,
1884,
1884,
1885,
chap. 566, 1
" 365 7
471
" 245
. . 58
" 105
109
" 56, 14
. 101
" 40 12
452
30, $ 3
. . 174
" 378
468
" 245
. . 263
140
372
" 269
. . 454
" 028
27
" 676, 649
. . 95
" 902 ^ 8
146
" 535
. . IPO
" 359 7 .
. . 159
" 417, 1701
. . 155
" 394
159
" 410, 223...
. . 159
" 598 4 20
174
" 410
. . 473
" 419 .
... 16
" 234
. 246
" 32
... 438
" 3o9 ...
. . 340
" 654
. . 325
" 298
. . 424
" 820
... 27
" 218, 1, 2
. . 17
" 136
. 335
" 410
. . 64
" 304
183
" 488
64
" 510 .
. 130
" 252
. 125
. . 319
" 417
... 57
" 315
" 817
58
". 252
. . 371
" 318
... 261
" 252
. . 423
" 310..
16
XXIV
HOWARD'S PRACTICE REPORTS.
Sections of the Code of Civil Procedure Cited.
SECTIONS OF THE CODE OF PKOCEDURE CITED.
PAGE.
Code, 308 . 513
317 57
Code, 317
321
PAGE.
260
6
SECTIONS OF THE CODE OF CRIMINAL PRO-
CEDURE CITED.
Crim. Pro., 275 104 Criin. Pro., 290
282 98
284 98
289 103
291
S 323
PAGE.
. 103
. 103
97
SECTIONS OF THE CODE OF CIYIL PRO-
CEDUPvE CITED.
Code C. P.
14
PAGE.
. . . 208
Code C. P.,
586
PAGE.
49
60
. .. 171
636
54
66
. 345
6
6-19
362
3 90 .
41
709
441
t$ 315
. . . 21
721
248
S, 370
512
is
723
21
390 . . .
508
8
723
365
S$ 420
289
724
... . 21
432, sub. 3..
. . 156
724
205
S 438
133
g
724
238
8, 439. .
. . 133
738
83
448
.. 403
8
738 . .
. . 290
449
. . 172
740
362
451
.. 294
8
779
. . . 156
(5 484
. 478
a
779
205
525
.. 122
8
797 . . .
525
526
.. 123
8
819
. 29
^ 528
. . 121
8
829. .
414
550..,
. 521
S
833..
. 191
HOWARD'S PRACTICE REPORTS.
Sections of the Pen al Code Cited.
Code C. P., 834...
PAGE.
190
Code C. P., 2472
PAGE.
. 308
834 ..
166
2508
41
. 41
835...
191
2511
835 ..
500
2512 .
41
3 837 ..
..130
2611 .
. Ill
1016. . .
248
2643. .
. 194
1166. . .
248
2690
. 323
1240. .
207
2706
. 159
1241
i 208
2710..
. 160
1245
21
2714
. 159
1278 .
83
2718
. 140
1533 . .
515
2814
. 323
1758 .
526
2817
. 308
1769. . .
207
2832
308
. 308
1773 . .
207
2858
1835 .
57
3017
. 117
1836
57
3160
. 334
1835 .
262
3169
. 55
1836
262
3169
. 335
1871
212
3234 .
. 389
1932...
83
3240
. 270
1932. . .
294
3246
57
1934...
294
346
263
1935...
294
3247
7
2239 .
89
3251
289
2243...
90
325 9
513
22-19...
90
3268
834
28
2265...
90
3271
2456...
40
3343
45
2458...
120
3343
. 209
2467. .
162
3352
7
2468...
162
3355
. 41
2476...
112
PAGE.
. 96
SECTIONS
Penal Code 94
OF THE PENAL CODE CITED.
PAGE.
96 Ppnnl fWIn. S 649
8549..
97
1175
68
VOL. II iv
ERRATA.
In Westover agt. The ^Eltna Life Insurance Company (ante, p. 193), in
thirteenth line from bottom of page, after the word " to " insert the words
" an action could make."
In Ward agt. Comeygs et al. (ante, p. 429), in first line from top of page,
after the word "reply" strike out "set up to the" and insert the words
"to an."
HOWARD'S
PRACTICE REPORTS,
YORK.
NEW SERIES
SUPREME COURT.
JOHN OLMSTBAD agt. MARY L. KEYES, HELEN M.
YOSBUKGH, ei al
Costs Who liable for, in case of transfer, &c., of cause of action Code of
Procedure, section 321 Code of Civil Procedure, sections b247, 3352.
Under section 321 of the Code of Procedure, one taking an assignment or
becoming in any manner possessed of a cause of action after suit
brought thereon is liable for all the costs of the action "the same as if
he were a party," as well those accruing before as after the assignment.
Section 3247 of fhe Code of Civil Procedure took effect September 1, 1880,
and at that date section 321 of the old Code was repealed, but section
3352 of the Code of Civil Procedure protects all rights lawfully accrued
or established previous to the repeal of section 321.
Where the right to the costs claimed had become fixed and established by
judgment, and the interest of the person, in the cause of action had been
acquired prior to the repeal of section 321, his liability for the costs
still continues.
Under the second subdivision of section 3247, it being the same as section
321 of the Code of Procedure, a person becoming in any manner
possessed of a cause of action after suit brought thereon is liable for all
the costs of the action " the same as if he were a party," as well those
accruing before as after he became so possessed.
Fifth Department, General Term, April, 1885.
Before BARKER, HAIGHT, BRADLEY and LEWIS, JJ.
APPEAL from an order of the Monroe Special Term deny-
ing the motion of Mary L. Keyes to compel Lemuel W. Bignall
to pay her the costs, etc.
VOL. II 1
HOWARD'S PRACTICE REPORTS.
Olmstead agt. Keyes.
Richard C. Steel, for Mary L. Keyes.
Zouis Marshall, for Lemuel W. Bignall.
HAIGHT, J. The plaintiff as trustee collected the sum of
$1,811 upon a life policy of insurance issued upon the life of
Lester V. Keyes. This money was claimed by the defendant
Helen M. Yosburgh and others, children of the deceased by
his first wife ; and also by the defendant Mary L. Keyes, his
widow.
This action was brought to determine their conflicting
claims. It was tried at the Cayuga special term and result-
ing in a judgment in which the defendant, Mary L. Keyes,
was awarded the money in question and costs against the other
defendants. Appeals were subsequently taken from the judg-
ment upon the part of the defendants, Helen M. Yosburgh
and others, children of the first wife, to the general term and
court of appeals, and the judgment was in each court
affirmed, with costs.
Motion was then made upon the part of Mary L. Keyes to
compel Lemuel W. Bignall to pay her the costs allowed her
upon the entry of the judgment of the special term, fifty-six
dollars and seventy-five cents, and also the costs allowed her in
the general term upon the affirmance of the judgment, seventy-
eight dollars and ninety-four cents, upon the ground that
Lemuel W. Bignall, after the entry of judgment and before
appeal was taken, purchased the interests of the children by
the first wife of the deceased and took an assignment thereof
and then prosecuted the appeal in their names. The motion
was denied, and from the order entered thereon this appeal
was taken.
The first question which it becomes necessary to determine
is, whether or not Bignall did in fact purchase the claim of
Helen M. Yosburgh and others, children by the first wife ?
The papers read upon the motion disclose the following facts :
Charles M. Baker's affidavit states that he was the attorney
HOWARD'S PRACTICE REPORTS.
Olmstead agt. Keyes.
for the plaintiff in the action : "And is informed and believes
that after the rendering and entry of the judgment and before
any appeal therefrom the rights and claims and cause of action
of the defendants Catherine C. Livingston, Helen M. Vos-
burgh, Eichard A. Keyes, Frederick A. Keyes, Cora lona
Keyes and Helen M. Vosburgh as administratrix of the goods,
chattels and credits of Huldah Keyes, deceased, became the
property of said Lemuel W. Bignall by assignment, purchase,
transfer or contract therefor, and that said Bignall acquired
his right, interest and property therein for the purpose of
taking an appeal from said judgment to the general term of
said court and also to the court of appeals, and did cause such
appeal to be taken in the names of said defendants, both to
said general term and court of appeals. That his information
is derived from the statements made under oath by one
Artemas C. Vosburgh, by one T. William Meacham and by
said Lemuel W. Bignall; said statements under oath were
made in course of proceedings supplementary to execution
taken under an order, of which schedule " B " hereto annexed
is a copy ; that he was present when each of said statements
were made, that they were reduced to writing and respectively
signed in his presence by persons making them."
He further states that in or about August, 1882, at Syracuse,
N. Y., he had a conversation with Lemuel W. Bignall in
relation to the action and the judgment for costs rendered
therein and in this conversation Bignall said : " That when
he acquired his interests in said action it was understood or
agreed that the defendants in whose names appeals were to
be taken were to be relieved and protected against liability
for further costs. Deponent then inquired what was the
arrangement as to costs already in judgment before appeal to
the General Term, to which said Bignall answered that
nothing was said about that.
In the proceedings supplementary to execution referred to
in the affidavit of Mr. Baker, the testimony of Artemas C.
Vosburgh appears, and is as follows : " I am husband of
HOWARD'S PRACTICE REPORTS.
Olmstead agt. Keyes.
Helen M. Vosburgh, one of the defendants in above entitled
action. "While the action of John Olmstead against Mary L.
Keyes and others was pending, I acted as gent for Frederick
A. Keyes, Eichard A. Keyes, Cora lona Keyes, Catherine C.
Livingston and my wife, and also Mrs. Vosburgh as adminis-
tratrix. I was authorized to act as agent for each one of the
above named defendants as their agent. I had a transaction
with Lemuel W. Bignall ; Mr. Bignall was to take the case
from where judge DWIGHT left it, to the general term, and if
necessary to the court of appeals, and in the event of his
winning the case he was to pay me, as the agent for the above
named parties, three hundred dollars, and in case of his losing
the case nothing. All above three hundred dollars he was to
keep for himself. I think a memorandum was written and
signed by Mr. Bignall and myself. * * * Mr. Bignall
was to take the case and I be relieved from any further
expense in the case. I communicated this agreement to all
whom I represented, and they ratified it."
T. William Meacham also testified in the proceedings as
follows : " I know Lemuel W. Bignall ; have had a conversa-
tion with him in reference to case of John Olmstead agt. Helen
M. Vosburgh and others. I signed a bond or undertaking in
this action for Mr.Bignall at his request ; my recollection of
it is he had purchased the claim of Mrs. Keyes' children that
is, Mrs. Huldah Keyes' children ; one was Mrs. Vosburgh, Mrs.
Livingston, Cora lona Keyes, and I supposed of Frederick
and Richard A. Keyes. He did not say when he obtained
his interest."
Lemuel W. Bignall himself also testified, in substance, that
while the case of John Olmstead agt. Mary L. Keyes and
others was pending in the supreme court he had a transaction
with Helen M. Yosburgh and certain other defendants in
relation to the matter in controversy ; that it was after judge
DWIGHT had rendered his decision and before the appeal was
taken to the general term ; that soon after judge D WIGHT
gave his opinion, Mr. Yosburgh, the husband of Helen M.
HOWARD'S PRACTICE REPORTS.
Olmstead agt. Keyes.
Yosburgh, stated to him that he was not going to appeal the
case ; that he, Bignall, reported the statement to Mr. Mai-shall
and that Mr. Marshall suggested that he should have Mr.
Yosburgh transfer the case to him so that the case might be
appealed to the general term and if necessary to the court of
appeals ; that in the transaction he dealt with both Mr.
Yosburgh and Mrs. Yosburgh ; that the paper delivered to
him was signed by Mrs. Yosburgh ; that the whole object of
the transfer was to enable Messrs. Ruger, Jenney, Brooks &
French to appeal the case to the general term and to the
court of appeals if necessary. That he thought the chances
of success were sufficiently sure to warrant his having it
transferred to him. In case they succeeded he was to pay
$300 in full payment. Otherwise the defendant's were not
to have anything. That his recollection is that Mrs. Yosburgh
signed the only paper that passed between them.
In opposition to the motion, Mr. Bignall read his own
affidavit in which he says that prior to January, 1879,
Yosburgh became indebted to him in a considerable sum of
money loaned to him which he could not Qplleet from Yos-
burgh ; that one day Yosburgh stated to him the facts in this
case and he became interested therein, believing that he
might possibly be able by the collection of the same, to receive
payment on his account. That after the trial and decision in
favor of Mary L. Keyes, Mr. Yosburgh was somewhat
discouraged, but that Messrs. Ruger and Marshall who had
become intensely interested in -the case and the questions
therein, were desirous of having the same tested in the
appellate courts ; that partly to please them and for the
purpose of securing the payment to himself of the indebtedness
to Yosburgh, and in the hope of obtaining some remuneration
for his trouble in the matter, he urged Yosburgh to continue
the action, and in mew of the facts agreed that he would take-
care of the charges of the form of Ruger , Jenney, JBrooks <&
French, and in case the suit terminated in favor of the children
of Huldah Keyes, Yosburgh was to have $300 ; that his object
HOWARD'S PRACTICE REPORTS .
Olmstead agt. Keyes.
was not to acquire by assignment the title to the cause of
action, but to secure himself for his claim and trouble, and to
do a favor to his friends Messrs. Ruger, Jenney, Brooks &
French ; that thereupon Mrs. Yosburgh alone executed a
paper in substance as stated, but that he does not believe that
it was in form an assignment ; that he has caused diligent
search to be made, but it cannot be found ; that his impression
is that it was a mere embodiment of the foregoing facts. He
also in his affidavit denies the statement sworn to by Mr. Baker
as to the conversation had with him.
It will be observed that the affidavit of Mr. Bignall, read in
opposition to the motion, modifies in some respects his testi-
mony taken in the supplementary proceedings, and that he
denies the statement sworn to by Mr. Baker. We are, how-
ever, of the opinion, after a careful reading of the affidavits,
that it must be found as a fact that he became a purchaser of
the claim of the children by the first wife to the money in
controversy after judgment and before appeal ; that he caused
the appeals to be taken and was to have the money in case he
succeeded ; that in consideration for the claim he was to pay
the expenses, and if successful, the sum of three hundred
dollars.
In the second place it becomes necessary to determine
whether he is liable for the costs under the facts as disclosed.
Section 321 of the old Code provides : " In actions in which
the cause of action shall by assignment after the commence-
ment of the action, or in any manner become the property of
a person not a party to the action, such person shall be liable
for the costs in the same manner as if he were a party, and
.payment thereof may be enforced by attachment."
In the case of Walcott agt. Holcomb (31 N. 7., 125, 126),
DENIO, Ch. J., says : The provisions of the Code of Procedure
in respect to the liability for costs of persons not parties to the
record, is broader than the former practice of the courts or
the corresponding provisions in the Revised Statutes. It
embraces in its language the case of one defending an action
HOWARD'S PRACTICE REPORTS.
Olmstead agt. Keyes.
in the name of the defendant on. the record, and of a respond-
ent on appeal.
In the case of Genet agt. Davenport (58 N. Y., 607), it
was held that under section 323 of the Code of Procedure,
one taking an assignment of a cause of action after suit
brought therein, is liable for all of the costs of the action the
same as if he were a party as well those accruing before as
after the assignment.
It appears that executions have been issued upon the judg-
ment against the judgment debtors residing in the state, and
that such executions have been returned unsatisfied, and that
Bignall is not an attorney or counselor of the courts in this
state. The section of the Code quoted, as construed by the
authorities referred to, appears to cover the case and to
establish the liability of Bignall, if the section in question
remains in force and unrepealed, so far as this case is concerned.
Section 3247 of the Code of Civil Procedure took effect
September 1, 1880, and at that date section 321 of the old
Code was repealed. Section 3352 of the Code of Civil Pro-
cedure, however, provides that " nothing contained in any
provision of this act other than in chapter fourth, renders
ineffectual or otherwise impairs any proceedings in an action
or a special proceeding, had or taken pursuant to law or any
other lawful act done or right, defense or limitation, lawfully
accrued or established before the provision in question takes
effect, unless the contrary is expressly declared in the provision
in question. As far as it may be necessary for the purpose
of avoiding such a result or carrying into effect such a pro-
ceeding or other act or enforcing or protecting such a right,
defense or limitation, the statutes in force on the day before
the provision takes effect, are deemed to remain in force, not-
withstanding the repeal thereof."
The cost on affirmance in the court of appeals is not asked
in the notice of motion herein. It is only the cost allowed
on entering judgment of the special term and affirmance in
the general term. The judgment of the special term was
HOWARD'S PRACTICE REPORTS.
Olmstead agt. Keyes.
entered May 19, 1879, and that of the general term
February 28, 1880, so that the right to these costs became
fixed by judgment before section 321 of the Code of Pro-
cedure was repealed. It is true the appeal in the court of
appeals was prosecuted afterwards, but it was not successful
and does not consequently affect the judgment theretofore
entered. An undertaking was given and a stay of proceedings
secured pending the appeal to the court of appeals. Had it
not been for the stay thus procured pending such appeal, this
motion might have been made and granted before the repeal
of section 321. To hold that Bignall is not liable under sec-
tion 321 would be to relieve him from liability, because of the
stay which he procured and which it is now determined was
without merit and improper. It is such a result that section
3352 was intended to prevent. That section protects all rights
lawfully accrued or established. The right to these costs had
become fixed and established by judgment, and the interest
of Bignall in the claim had been acquired prior to the repeal
of section 321, and it appears to us that his liability for the
costs still continues.
If, however, we are wrong in this conclusion, we are still of
the opinion that Bignall would be liable under section 3247
of the Code of Civil Procedure. That section provides :
" Where an action is brought in the name of another by a
transferee of the cause of action, or by any other person who
is beneficially interested therein; or where after the com-
mencement of an action, the cause of action becomes by
transfer or otherwise the property of a person, not a party to
the action ; the transferee or other person so interested is liable
for costs, in the like cases, and to the same extent as if he was
the plaintiff ; and where costs are awarded against the plaintiff
the court may, by order, direct the person so liable to pay
them. Except in a case where he could not have been
lawfully directed to pay costs personally if he had been a party
as prescribed in the last section his disobedience to the order
is a contempt of court. But this section does not apply to a
HOWARD'S PRACTICE REPORTS.
Olmstead agt. Keyes.
case, where the person so beneficially interested is the attorney
or counsel for the plaintiff if his only beneficial interest con-
sists of a right to a portion of the sum or property recovered
as compensation for his services in the action."
It will be observed that the first clause of the section pertains
to cases in which action is brought in the name of another by
a transferee or by a person beneficially interested, and that
the second clause pertains to cases where the cause of action
becomes the property of a person not a party after the
commencement of the action. This second clause of the section
is in substance a copy of section 321 of the Code of Procedure.
The wording is in substance the same, and in the cases in
which other words are made use of, they are used synonymously ;
as, for instance, the words " by transfer or otherwise " are used
in the place of the words " by asssignment or in any other
manner." This second clause is not modified by that which
follows, except that it does not apply where the person is
the attorney or counsel of the plaintiff, if he has no beneficial
interest aside from his compensation for his services in the
action. The second subdivision of the section, being the
same as section 321 of the Code of Procedure, the construction
01 that section as made in the case of Genet agt. Davenport
(supra) must control.
Order reversed, with ten dollars costs and disbursements,
arid the motion granted.
LEWIS, J., concurred ; BRADLEY, J., not voting ; BARKER, J.,
not sitting.
VOL. II 2
10 HOWARD'S PRACTICE REPORTS.
Dick agt. Livingston.
SUPKEME COURT.
WILLIAM H. DICK agt. HENRY "W". LIVINGSTON.
Complaint Demurrer Mortgage Owner of a junior mortgage not per-
mitted to single out one of several parcels covered by his and an oldar
mortgage and redeem tJiat one parcel Parties.
There is no general rules of law or equity which permits the owner of a
junior mortgage to single out one of several parcels covered by his and
an older mortgage and redeem that one parcel. His only right is to
redeem the whole. The foreclosure of the older mortgages though not
valid to cut off the younger is valid as a transfer of the rights of the
older mortgagee to the purchaser or purchasers at that sale, and from
them to their assignees. As the junior mortgagee or his assignee could
not redeem a single lot out of the several mortgaged, from the older
mortgagee, neither can he redeem a single lot from one who is the
assignee of the older mortgagee, because such assignee succeeds to all
the rights of the older mortgagee.
If a part of premises covered by a prior mortgage can be redeemed by a
junior mortgagee, all the parties who purchased at the prior mortgage
sale, or their grantees, and the prior mortgagees should be parties. In
such case it is always a question what amount shall be paid, and the
owner of every parcel covered by the prior mortgage and the plaintiff
in the foreclosure suit should be before the court.
Ulster Special 2 J erm, April, 1885.
DEMURRER to complaint.
C. A. Baurhyte and It. E. Andrews, for defendant.
Beale & JBeale, for plaintiff.
WESTBROOK, J. The owner of a junior mortgage, not
made a party to the foreclosure of two prior mortgages, brings
this suit against the defendant, who is the owner of one piece
of property covered by the three mortgages, which title of the
defendant is through the sale under the prior mortgages, to
redeem the one parcel. To this complaint there is a demurrer
which is well taken for two reasons.
HOWARD'S PRACTICE REPORTS. 11
Dick agt. Livingston.
First. There is no general rule of law or equity which per"
mits the owner of a junior mortgage to single out one of
several parcels covered by his and an older mortgage and
redeem that one parcel. His only right is to redeem the
whole. The foreclosure of the older mortgages though not
valid to cut off the younger is valid as a transfer of the rights
of the older mortgagee to the purchaser or purchasers at that
sale, and from them to their assignees. The defendant holds,
therefore, the one piece of property sought to be redeemed
with the same rights as against the younger mortgage which
the owner of the older mortgages had. As the junior mort-
gagee or his assignee could not redeem a single lot out of the
several mortgaged from the older mortgagee, neither can he
Tedeem a single lot from one who is the assignee of the older
mortgagee became such assignee succeeds to all the rights of
the older mortgagee. The cases cited by the plaintiff have
no application. Two of them {Hodge agt. Gallup, 3 Denio,
527 ; Dickinson agt. Oilliland, 1 Cowen, 481) relate to
redemptions by a mortgagee from a sale under a general
judgment which is regulated by statute ; and Dows agt.
Congdon (16 Sow., 571) simply decides that a railroad
.company which had acquired title to a part of premises
covered by a mortgage upon which it had erected valuable
improvements, was entitled to have the premises sold in the
inverse order of alienation, and if the parcels which should be
sold prior to that of the company did not pay the mortgage,
then the company could protect itself by paying the actual
value of the property without its improvements, which value
the court would ascertain without a sale. Even the doctrine
of the last case, adopted for reasons peculiar to that case, and
which reasons do not exist in this, is questioned with great
force by EMOTT, J., when the case was before the court of
appeals (28 N. Y., 122, 131, 133). The permission, however,
to a party to a foreclosure suit to pay his prop9rtion of a mort-
gage given, because the court supposed the owner had
peculiar equities entitling him to protection is a very different
12 HOWARD'S PRACTICE REPORTS.
Dick agt. Livingston.
tiling from allowing the owner of a junior mortgage to single
out one lot in regard to which he has no special equities, from
several covered by his and the prior mortgage and redeem that
one lot. To make the cases at all parallel his mortgage should
cover but the single lot sought to be redeemed and there
should be special equities favoring it ; and also all the parties
having an interest in the questions involved should, as they
were in Dows agt. Congdon, be before the court. The state,
ment last made brings us to the second ground for sustaining
the demurrer, which is :
Second. All the parties who purchased at the prior mort-
gage sale, or their grantees, and the prior mortgagees should
be parties. If a part of premises covered by a prior mortgage
can be redeemed it must always be a question what amount
shall be paid ? In that question the mortgagee, or if he has
parted with his interests, as he has in this case, the parties who
succeed thereto should be brought in. It is apparent in this
case, that even though the right to redeem exists, the owner
of every parcel covered by the prior mortgage, and the plain-
tiff in the foreclosure suit should be before the court. With-
out their presence the court cannot decide what sum should
be paid to redeem that one lot. Even though the party is
only obliged to pay the amount it brought at the foreclosure
sale, in the ascertainment of that sum all have an interest and
should be parties.
The defendant is entitled to judgment on the demurrer
with costs, on payment of which, in twenty days, the plaintiff
may serve an amended complaint.
HOWARD'S PRACTICE REPORTS.
Sckroeder agt. Wanzor.
SUPREME COURT.
ERNESTINE SCHROEDER, respondent, agt MOSES G. WANZOR,
impleaded, &c., appellant.
Cemetery lots Deed When cemetery' lots inalienable Complaint
Anstcer Form of denial in answer which does not put in issue material
allegations in complaint.
Where it appeared that a certain lot in Greenwood cemetery was
purchased by the husband of the plaintiff as a burial lot for herself, her
husband and their family, and that it had been greatly improved, not
only at his but at her expense, and their family dead had been placed in
the lot as their final resting place :
Held, that these facts were sufficient to disable the husband from
afterwards conveying it away to another person, and thereby devoting
it to a distinct and different purpose. The plaintiff had become so far
interested in the property by its improvement, and the interment of her
parents as to prevent her husband from making a legal or valid sale of it.
The case of Thompson, agt. Rickey (8 Abb. N. G., 159 ; opinion by VAN
VORST, J.) cited with approval.
A denial in an answer ' ' on information and belief of all the allegations
in the complaint contained not hereinbefore admitted or denied and not
containing the allegation that the defendant had not sufficient knowledge
or information to form a belief as to the other statements in the com-
plaint, and for that reason he denied them, does not put in issue a
material allegation of the complaint, and all such allegations will be taken
as admitted.
First Department, General Term, March, 1885.
Before DAVIS P. J., BRADY and DANIELS, JJ.
APPEAL from a judgment recovered on trial at the special
term.
George Bethwine Adams, for appellant.
Sidney H. Stuart, for respondent.
DANIELS, J. The controversy determinable by the judg-
ment relates to the title of Moses G. Wanzor to a lot of land
14 HOWARD'S PRACTICE REPORTS.
Schroeder agt. Wanzor.
in Greenwood cemetery. It was purchased, and a deed taken
for it from the Cemetery Association, by John Schroeder the
plaintiffs husband, and he executed and delivered a deed of
the same lot to the appealing defendant. The plaintiff
claimed to have become so far interested in the property by
its improvement, and the interment of her parents as to prevent
her husband from making a legal or valid sale of it. It was
alleged in the complaint that the lot had been purchased for
the sole and only purpose, and as a place of burial for the
dead of the family of the plaintiff and defendant, and that it
had afterwards been improved by them by the expenditure of
large sums of money, in caring for, beautifying and protecting
the lot, and erecting a monument thereon. And that in
addition to the interment of her parents, one of the sons
of herself and her husband, and a brother of her husband had
been interred in the lot. These allegations were not denied
in the answer of her husband, neither were they in the answer
of the other defendant. He did state in his answer
after making specific admissions that " on information and
belief he denies all the allegations in the said complaint con-
tained not hereinbefore admitted or denied." But this
statement neither denied directly the other allegations contained
in the complaint, nor did it contain the allegation that the
defendant had not sufficient knowledge or information to form
a belief as to the other statements in the complaint, and for
that reason that he denied them. And these are the only
forms of denial which the Code has provided may be inserted
in the answer. It has not permitted a material allegation in
the complaint to be put in issue by the form of denial adopted
by this defendant. He has neither made a direct denial of
the other allegations in the complaint, nor averred that he had
no knowledge' or information sufficient to form a belief as to
such statements. For that reason these allegations contained
in the complaint also stand admitted as to him, and the case
is to be considered and disposed of with these facts established
in that manner, in favor of the plaintiff. From them it
HOWARD'S PRACTICE REPORTS. 15
Schroeder agt. Wanzor.
appears that the property was acquired as a burial lot for the
plaintiff aud her husband, and their family, and that it had
been greatly improved, not only at his but at her expense,
and their family dead had been placed in the lot as their final
resting place. These facts were sufficient to prevent her
husband from making such a disposition of the lot as was
designed to be made in favor of the defendant, and which was
to be followed by the removal of these bodies from the ground.
For by the understanding that the lot was acquired as a
family burial place, and it had been improved by the expen-
diture of money by the plaintiff with that understanding, and
to beautify and adorn it, and it had been so used, her husband
had disabled himself from afterwards conveying it away to
another person and thereby devoting it to a distinct and
different purpose
And she became entitled to the judgment which was
recovered by her specifically devoting this lot of land to the
object for which it had been purchased and improved. In
this respect the case was brought within the principle of Lob-
dell agt. Lobdell (36 N. Y., 327), where a father had verbally
agreed to convey a piece of land to his son in case he entered
upon it and improved it. That, it is true, included the entire
legal title to the land, but if such an agreement can be held
valid as it then was, when it includes the legal title, by the
same reasoning upon which that can be accomplished, its
legality is capable of being sustained, where the agreement to
be implied may include an interest less than the legal title.
The same point was discussed in Neale agt. Neales (9 Wall.
U. S., 1) where it was declared that " equity protects a parol
gift of land equally with a parol agreement to sell it, if
accompanied by possession and the donee, induced by the
promise to give it, has made valuable improvements on the
property (Id., 9)." And this rule was followed in the decision
of Williston agt. Williston (41 Barb., 635).
Beyond that it would be offensive to the moral sense, and
therefore should not be sanctioned by the court, to permit this
16 HOWARD'S PRACTICE REPORTS.
Schroeder agt. Wanzor.
property to be made the subject of speculative disposition,
after these bodies had there been buried, with permission to
the purchaser to remove them from their resting place. Such
an interference with them was not sanctioned by the common
law (King agt. Lynn 2 Durn. de East, 344; Com. agt.
Cooly, 10 jPick., 37). And it was so considered in a very
appropriate opinion delivered by Mr. justice VAN YORST in
Thompson agt. Hiokey (8 Abb. N. O., 159). And the con-
clusion then and now arrived at, is in no manner impaired in
its strength by the case of Lautz agt. Buckingham (4 Lansing,
484), in which neither of the controlling circumstances was
presented which are included in this case. The defendant
appealing will not be deprived of the money paid by him as a
consideration for the deed by this determination, for as long
as he may be unable to obtain the land itself he will be at
liberty to recover the consideration upon a rescission of his
purchase. Good order, public decency and a just regard for
the repose of the remains of the dead, require, under the facts
of this case, that the judgment from which the appeal has
been taken, should be affirmed. And this policy has been
embodied in the legislative acts of the state for the manage-
ment and government of the property of rural cemetery associ-
ations. (Laws 1871, chap. 419; Laws 1879, chap. 310;
Laws 1880, chap. 566, Sec. 1.)
The judgment should be affirmed, with costs.
HOWARD'S PRACTICE REPORTS. 17
The People ex rel. Ray agt. Davenport.
SUPREME COURT.
THE PEOPLE ex rel. CORDELIA RAY agt. JOHN DAVENPORT, as
auditor, and LAWRENCE D. KJERNAN, as clerk to Board of
Education.
New York (city of) Colored schools Teachers in How to be removed
Mandamus.
By the act of 1884, chapter 248, the teachers in the colored schools, when
said act was passed were continued as such teachers in the ward schools
and primaries until removed in the manner provided by law.
The words ' ' removed in the manner provided by law," mean the manner
provided by the statutes relating to such removals. Those statutes
provide for a removal by the board of trustees, and by the board of
education, and a license of a teacher may also be revoked for any cause
affecting the morality or competency of such teacher.
The act of 1884 does not warrant the dropping of a teacher under a
provision of a by-law of the board of education. The clear intention
of the legislature was to continue the teachers in the colored schools
until they were removed for some misconduct.
New York Chambers, January, 1885.
LAWRENCE, J. The relator is, I think, entitled to a
peremptory mandamus in this case. Section 1 of chapter
248 of the Laws of 1884, provides that, " the colored schools
in the city oi New York, now existing and in operation, shall
hereafter be classed and known, and be continued as ward
schools and primaries, with their present teachers, unless such
teachers are removed in the manner provided by law, and
such schools shall be under the control and management of
the school officers of the respective wards in which they are
located, in the same manner and to the same extent as other
wards schools, and shall be open for the education of pupils
for whom admission is sought, without regard to race or color."
Section 2 repeals all acts or parts of acts inconsistent with
the provisions of said act.
It is niu claimed on the part of the board of education, that
VOL. II 3
18 HOWARD'S PRACTICE REPORTS.
The People ex rel. Ray agt. Davenport.
the relator has ever been removed from her position as teacher,
under the provisions of the statutes providing for the organi-
zation of the board of education and prescribing the powers
and duties of said board, and of the board of trustees of the
several wards. The provisions in respect to sucli removals are
contained in sections 1038 and 1042 of the consolidation act
(See Manual of the Board of Education, pp. 20, 34). Neither
is it alleged that the license of the relator has been revoked
for any cause by the written certificate of the city superin-
tendent and the written concurrence of two of the inspectors
for the district for which the teacher is employed, as
prescribed by section 1042 of the consolidation act (/See Manual
of 1884, jp. 32). It is however alleged that, by the provisions
of the act of 1884, the school to which the relator was attached
became a ward school, under the provisions of the by-laws of
the board of education relating to ward schools, and that by
those by-laws but one teacher could be allowed for every
thirty-five pupils of a grammar grade, and one for every fifty
scholars of a primary grade, and that additional teachers could
only be employed by the ward trustees, when authorized by
the committee on teachers of the board of education. The
respondents further aver, in their return, that the number of
pupils returned by the principal of the school in question for the
year 1883 was eigthy of the grammar grade, and that the number
of teachers allowed by the by-laws aforesaid was, therefore, two
only, and that two teachers, in said return named being senior
in rank to the relator, were assigned to the two positions of
first and second assistants, as prescribed by section 35 of the
by-laws of the board of education.
After examining the act of 1884, I am of the opinion that
the teachers in the colored schools, when said act was passed,
were continued as such teachers in the word schools and
primaries until removed in the manner provided by law.
I am also of the opinion that the words " removed in the
manner provided by law." mean the manner provided by the
statutes relating to such removals. As already shown, those
HOWARD'S PRACTICE REPORTS. 19
The People ex rel. Ray agt. Davenport.
statutes, provide for a removal by the board of trustees, and
by the board of education, and that a license of a teacher may
also be revoked for any cause affecting the morality or
competency of the teacher {See sees. 1038, 1040 and 1042 of
the Consolidation Act).
In this case the relator was dropped under a provision of a
by-law of the board of education, and not removed in the
manner prescribed by the statute above referred to.
This procedure I do not think was warranted by the act of
1884. I think that the clear intention of the legislature was
to continue the teachers in the colored schools until they were
removed for some misconduct.
If there is any inconsistency between the act of 1884 and
the by-laws of the board of education, the former must control,
particularly in view of the fact that the act of 1884 provides
that all acts or parts of acts inconsistent with the provisions
of said act are hereby repealed. If the by-law of the board
of education, upon which the learned counsel for the respondent
relies, has the force and effect which he attributes to it, it is to
my mind entirely inconsistent with the provisions of the act
of 1884, respecting the "present teachers" in the colored
schools.
Indeed, the effect of the by-law in question seems to me,
upon the facts stated in the return, to have been rather to
increase the salaries of the two teachers who were the seniors
in rank to the relator, than to " remove " the relator " in the
manner provided by law." The learned counsel for the
respondents has not furnished the court with a brief in this
case, and I have considered it solely upon the points neces-
sarily presented by the return to the alternative writ. No
objection was taken on the oral argument to the form of
remedy, and I have, therefore, assumed that no such objection
is intended to be urged.
Let an order be entered that a peremptory mandamus issue
to the effect prayed for by the relator.
20 HOWARD'S PRACTICE REPORTS.
Roof agt. Meyer.
CITY COUKT OF NEW YORK.
CLARENCE M. ROOF agt. PHILIP MEYER.
Jurisdiction City court of New York Code of Civil Procedure, sec-
tions 815, 723, 724.
Where a judgment was recovered and entered in the city court of New
York and execution issued thereon for more than $2,000, and the excess
was remitted and the judgment and execution was amended nuncprn
tune. On motion by a subsequent execution creditor to vacate the judg-
ment and execution for want of jurisdiction and other alleged defects
and irregularities :
Held, that the jurisdiction of this court extends to any action wherein the
complaint demands judgment for a sum of money only, whatever may
be the amount claimed. The amount claimed does not affect the juris-
diction of this court. If jurisdiction vests at the commencement of the
action, it cannot be ousted by any subsequent act, although entry of
judgment for the excess of its jurisdiction may have been an irregularity
which the defendant might have objected to, a third party cannot.
There being no want of jurisdiction, if there are any defects or irregulari-
ties in the judgment, or proceedings or execution, they can be taken
advantage of only by the defendant.
The alleged irregularities and informalities, may be amended or corrected
by an order to be entered herein.
Special Term, February, 1885.
MOTION by Charles Doll, a subsequent execution creditor
to vacate the plaintiffs judgment and execution.
HYATT, J. It appears from the moving papers that the
plaintiff had a claim against the defendant and that he brought
suit thereon by serving a summons and notice on the defend-
ant on January 23, 1885, three days prior to the commence-
ment of the Doll action ; the judgment which was entered
thereon was for more than $2,'000, but the excess was
remitted and the judgment and execution amended nuncpro
fame. The defendant does not object to the validity of the judg-
ment, execution and sale thereunder, nor does the moving
party herein attack the same upon the ground of fraud or collu-
sion. A subsequent judgment creditor is the only objecting
party. He alleges several grounds for setting aside the pro-
HOWARD'S PRACTICE REPORTS. 21
Roof agt. Meyer.
ceedings in this action ; one as to the jurisdiction of the court,
and the others relating to alleged defects and irregularities in
the proceedings. Section 315, Code Civil Procedure, provides
that the jurisdiction of this court extends to any action
wherein the complaint demands judgment for a sum of money
only. The language of this section is intended, as its terms
show, to include any money judgment action whatever may be
the amount claimed. This court has jurisdiction over all such
actions. That the amount claimed does not affect the juris-
diction of this court was held in In re arbour (52 How., 94) ;
People agt. Marine Court (23 How., 447). if jurisdiction
vests at the commencement of the action, it cannot be ousted
by any subsequent act (Koppel agt. Heindricks, 1 Barb., 449 ;
Me Adam's Marine (Jt. Pr. [%d ed.^\, 36). Jurisdiction having
been thus acquired in this action regularly, all subsequent
proceedings can be, at most merely irregular, and errors and
irregularities may be disregarded or amended. The court
cannot be ousted of jurisdiction. The court having jurisdic-
tion, its judgment is not void, as between the parties, and a
fortiori as to third parties. Entry of judgment for the excess
of its jurisdiction may have been an irregularity, which the
defendant might have objected to, a third party cannot.
Section 1245 of the New York Consolidation Act, provides
that any portion of a claim may be remitted in this court.
There being no want of jurisdiction in the case at bar, if
there are any defects or irregularities in the judgment or
proceedings or execution, they can be taken advantage of only
by the defendant. In the conceded absence of fraud, there
being no want of jurisdiction, a subsequent execution creditor
has no standing in court for the purposes of this motion
(Gere agt. Gundlach, 57 Barb., 13). The alleged irregularities
and informalities may be amended or corrected by an order
to be entered herein (Code Civil Pro, sees. 723, 724).
The motion to vacate the judgment is denied, with ten
dollars costs, and the stay of proceedings vacated.
NOTE. Affirmed March General Term. [Eo.
22 HOWARD'S PRACTICE REPORTS.
Briggs agt. " Tne Titan."
U. S. CIRCUIT.
FBEALON BKIGGS agt. " THE TITAN " and JOHN H. STAKRIN
and " THE HILLS."
Negligence Obscured liglits Look-out Speed Fellow servant Pilot not
a fellow-servant of a deck Jiand.
The pilot and the deck hand were not fellow-servants.
When a tow hides a light on a tug, the tug is liable.
The "Hills" is liable also for excess in speed and for not having a look-ou-t.
Both parties being to blame, neither may claim to be excused by the others
and the decree of the district court giving $3,000 damages, one-half
against the " Hills " and one-half against "The Titan" to the libel-
ant, Briggs, is affirmed.
Southern District of New York, February, 1885.
THE district court waived the point as to whether the deck
hand was a fellow-servant on " The Titan," but held as " The
Titan " was in fault and " The Hills " was also in fault, " The
Titan " had a right to claim an apportionment of the damages
on The Hills."
Peckham t& Tyler, for the libelant Briggs.
E. D. McCartv and P. C. Cantine, for " The Titan."
Owen & Gray, for " The Hills."
WALLACE, J. Upon the proofs it seems perfectly clear
that both the Titan and the Hills were in fault for the colli-
sion, by reason of which the libelant was injured. The
collision took place about seven o'clock in the evening of
September 22, 1882, in the Hudson river, about 1,000 feet
out from the Jersey shore, somewhat above the Pavonia
ferry slip. The tide was ebb, running about three miles an
hour. The wind was light and the night was gray, but fairly
clear. The Titan was proceeding up the river bound for
HOWARD'S PRACTICE REPORTS.
Briggs agt. " The Titan."
Hoboken, against the tide, at a speed of about four miles an
hour on a line with the westerly shore, but heading in some-
what towards the shore, towing the float Mohawk, which was
heavily loaded with two rows of railway ,cars and was lashed
to her starboard side. The float, as lashed, projected some
twenty feet beyond the bow of -the Titan and had an umbrella
or shed roof, which slopes on each side to within about six
inches of the top of the cars. This umbrella obscured the
green light on the starboard side of the Titan, so that it did
not show an uniform and unbroken light from right ahead to
two points abaft the beam on the starboard side and there was
no green light on the starboard side of the float. " The Hills "
had left the New York side at 23d street, bound for Jersey
City, light, and proceeded on her course down the river and
bearing to the westward at a speed of about fifteen knots with
the tide. She had no lookout but her pilot, who was acting
at the time as master and was at the wheel in the pilot house,
saw the Titan when nearly half a mile away. He was able to
see the vertical white lights of the Titan and the white light
of the float, but was unable to see the green light of the tug,
because it was obscured from view by the cars and the umbrella
of the float. Not seeing the green light he assumed the tug
and float were going down the river and kept rapidly
approaching them at full speed. Soon after seeing the tug
and float he observed the ferry-boat Gould, which had left
her ferry at Hoboken and was coming by the westward of
the Titan about 150 feet away and passed across the
Titan's bow, but as he supposed across her stern. The
Gould gave a signal of two whistles to the Hills and the
Hills responded by a like signal. The Titan supposing the
signal of the Hills in answer to the Gould was a signal to
herself, answered the Hills signal with two whistles, but the
pilot of the Hills supposed these were a signal to the Gould.
The Hills starboarded somewhat for the Gould and passed her
on her port side a couple of hundred feet away, and that her
pilot when within a hundred feet of the Titan, still assuming
24 HOWARD'S PRACTICE REPORTS.
Briggs agt. "The Titan."
that the Titan was going down the river and seeing that a
collision with her was imminent, hard-ported his wheel to go
under her stern. The result was that the Hills came into
collision with the bow of the float, and the shock was so
severe that the libelant, who was on the Hills, was thrown
down and his skull was fractured. The Hills could have
avoided the collision with proper effort at the time she came
abreast the Gould, being then about a hundred yards away from
the Titan. She maintained her full speed from the time her
pilot first saw the Titan until the time of the collision. If
the pilot in charge of the Hills was warranted in assuming
that the Titan was going down the river, as he was overtaking
and intending to pass her, he assumed the responsibility of
passing her safely, and unless he allowed ample distance for
the purpose he was bound to slacken speed and if need be to
reverse in order to avoid collision. In this behalf it was his
duty to maintain a diligent observation iu order to govern
himself as circumstances might require. Instead of doing this
he found his vessel within one hundred feet of the Titan
bearing upon her float amidship, and sought to save a collision
by the manoauvre in extremis of hard-porting his wheel. For
a distance of nearly half a mile his view was unobscured
except for the brief interval when the Gould was between him
and the Titan. Probably he relied upon his first observation
when he concluded the Titan was going down the river, and rely-
ing upon this permitted his attention to be distracted by
watching the Gould. Undoubtedly the appearance of the
Titan and the float with their vertical white lights apparently
in a cluster while the vessels were approaching each other, with
no back ground by which to determine readily in which direc-
tion the lights were moving, and no green or red light to
indicate that she was approaching, was well calculated to mis-
lead the pilot of the Hills. But it seems impossible to believe
that the real situation would not have been discovered if
proper diligence had been exercised. The Hills should be
held in fault for not having a look-out. It is only when a
HOWARD'S PRACTICE REPORTS. 25
Briggs agt. " The Titan."
look-ont would have been of no service in guarding against a
collision that his absence can be excused. The situation here
was peculiarly one in which the observation and judgment of
a look-out might have been useful. It was one of these doubt-
ful situations in which different points of observation might,
suggest different conclusions, and in which two men might
form a different opinion from the same standpoint. There
was enough in the rapidity with which the vessels were
approaching each other, to attract attention and suggest a
probability that they were not going in the same direction.
The Hil]s was also in fault for pursuing such a high rate
of speed at night, and with the tide, upon waters customarily
traversed by numerous vessels, when she was rapidly nearing
a tow. The situation required a high degree of vigilance
and circumspection, yet she disregarded every rule of prudent
navigation in reliance upon the hypothesis which might be
erroneous, and proved to be so. "While ordinarily a vessel
has a right to assume that another vessel is not derelict in the
observance of the rules of navigation, this presumption is not
to be carried so far as to exonerate her from ordinary precau-
tions on her own part, or to excuse her from the consequence
of a mistake when by slight exertion and without any peril to
herself or to other vessels she could certainly avoid hazard.
There was ample room, plenty of time and no intervening
obstacle in the way of perfect safety if the Hills had slackened
speed while she was passing the Gould. After this it was
obvious that the danger of collision with the Titan was
imminent and she should have been stopped and reversed.
Instead of doing this the pilot took the chances of a mano3uvre
which could only be justified by the certainty that he was cor-
rect in supposing the Titan was going away from him. The
Titan was in fault for so locating her starboard light that it was
not visible as required by the rules. No doubt is entertained
that it was obscured by the umbrella of the float and by the
cars on the float forward of the place on the tug where it was
located so that it was not visible to the pilot of the Hills.
VOL. II 4
HOWARD'S PRACTICE REPORTS.
Matter of Martin.
The rule requiring lights may as well be disregarded
altogether as to be only partially complied with and in a
way which fails to be of any real service in indicating to
another vessel the position and course of the one carrying
them.
The libelant was a deck hand upon the Hills, but was not
at the time on duty and had no part in her navigation. The
pilot was in command, within the case of Chicago, <&c., Rail-
road Company agt. Ross, decided recently by the supreme
court ; he was not a fellow servant of the libelant and the latter
is entitled to recover for the injuries he sustained by the colli-
sion against the Hills as well as the Titan. Treating the pilot as
the master he was responsible for the management and
navigation of his vessel. He was negligent in failing to have
a lookout stationed where he ought to have been, and negligent
otherwise. The collision was solely the result of his negligence
and the libelant had no part or lot in it.
The decree of district court is affirmed, with interest and
costs of appeal.
SUPEEME COURT.
In the Matter of HORATIO A. MARTIN.
Security for costs A person suing in the name of the* overseer of the poor, for
a violation of the excise law, cannot be required to give security for costs
Section 3271 of the Code of Civil Procedure does not apply Jurisdiction
Supreme court no jurisdiction by a mere notice of motion to make an order
in an action pending in a justice's court.
A person who brings an action in the name of the overseer of the poor
under chapter 628 of the Laws of 1857, as amended by chapter 820 of
the Laws of 1873, to recover penalties for a violation of the excise law
cannot be required to file security for costs under section 3271 of the
Code of Civil Procedure.
Section 3W1 does not apply (Sharp agt. Pancher, 29 Hun. 193, criticised
and not followed; Jioard of Commissioners of Excise agt. McGrtilfi, 27 Hun,
425, followed).
HOWARD'S PRACTICE REPORTS. 27
Matter of Martin.
The supreme court cannot obtain jurisdiction to make an order in an
action pending in a justice's court, by a mere notice of motion.
A party to an action pending in justices' court, cannot make a motion
in the supreme court to control the procedure in such action.
Ulster Special Term, March, 1885.
APPLICATION to compel one Luzerne J. Smalling, who is
prosecuting the petitioner before a justice of the peace of the
town of Windham, Greene county, in the name of the over-
seers of the poor of such town, for violations of the excise law,
to give security for costs.
D. H. Daley, for motion.
Gideon Hill, opposed.
WESTBROOK, J. Chapter 628 of the Laws of 1857, as
amended by chapter 820 of the Laws of 1873 (3 R. S. [1th.
ed.'], 1985, sec. 30), and which is the act to regulate the sale
of intoxicating drinks, provides, "in case the parties or
persons whose duty it is to prosecute for any penalty imposed
for any violation of the provisions of this act shall, for jthe
period of ten days after complaint to them that any person
has incurred such penalty, accompanied with reasonable proof
of the same, neglect or refuse to prosecute for such penalty,
any other person may prosecute therefor, in the name of the
overseers of the poor of the town in which such alleged
penalty was incurred, and in the manner provided by section 22
of this act as the same is amended by section 1 of this chapter. "
One Luzerne J. Smalling has commenced an action under
the clause quoted against the petitioner, Horatio A. Martin, to
recover penalties for alleged violations of the excise law in
the name of the overseers of the poor of the town of Windham,
before a justice of the peace of such town.
The defendant in such action by petition asks that said
Smalling may be compelled to give security for the costs of
such action.
28 HOWARD'S PRACTICE REPORTS.
Matter of Martin.
The motion should be denied for the following reasons:
First. Notwithstanding the decision of the general term in
this department, in Sharp agt. Fancher (29 Hun, 193), I should
be exceedingly loathe to hold that section 3271 of the Code
of Civil Procedure applies to a person who prosecutes to
recover penalties in the name of the overseers of the poor
incurred by violation of the excise act. That section authorizes
the court in its discretion to " require the plaintiff to give
security for costs " " in an action brought by or against *
a person expressly authorized by statute to sue or to be sued"
It is true the court in the case mentioned, which was an action
similar in all respects to the one now sought to be restrained,
say that the section referred to does cover an action of this
character, because it " could not be brought except by the
express authority of the statute," but the reason is based upon
a part, and not upon all the words of the section. It will not
be disputed that a statute gives the action, and that there is
"no common-law liability" apart from such statute, but in
the case referred to, and also in this, there neither was nor is
a motion to " require the plaintiff to give security for costs,"
as provided by the section of the Code already quoted. The
decision in the reported case was, as this is, upon a motion by
the defendant in an action to compel a person authorized to
sue in the name of the plaintiffs to give security for costs.
For that relief in such an action no provision is made by the
section. It simply provides that " in an action brought by or
against * * * a person expressly authorized by statute
to sue or to be sued * * * the court may in its discretion
require the plaintiff to give security for costs." This language
would certainly seem to be unmistakable. A statute which
authorizes a person " to sue or to be sued " confers only
authority to become plaintiff or defendant in an action, and
gives no right to bring suit in the name of another ; and the
power to require " tJie plaintiff" in an action " to give security
for costs " does not reach the case of an individual who is
authorized not to become a plaintiff, i. <?., " to sue," but to
HOWARD'S PRACTICE REPORTS. 29
Matter of Martin.
prosecute in the names of certain officers for penalties given
to such officers, and for which such officers have neglected to
prosecute ; and lastly, the provision in the excise act which
authorizes municipal officers to sue in their official capacity
and by their official titles is not a statute conferring upon " a
person " the right to sue, which it must be, if section 3271 of
the Code is to be made applicable to them. In such an action
in which the municipality is liable for costs, any requirement
compelling the officer to give security for costs would be worse
than useless because it would be a hindrance to the discharge
of official duty.
It is also difficult to say, even though this motion was made
in behalf of the overseers of the poor, upon what principle a
court can require a party, who is using the name of the overseers
of the poor as plaintiffs precisely as a statute authorizes to give
security for costs. The statute giving the right thus to
prosecute has imposed no such restriction, and because it has
not " it would seem to follow," as DANIELS, J., said in Com-
missioners of Excise agt. McGrath (27 Hun, 425), "that he
could not be required to give security for costs."
The views just stated are submitted to the general term if
the question shall there be again presented. If this motion
involved no other question than that which has been discussed
the decision in Sharp agt. Fancher would probably control
my action, although for the reasons given it seems to me to be
erroneous.
Second. The action in which the order is sought is pending
in justices' court, and this court cannot obtain jurisdiction to
make any order in that action by a mere notice of motion.
It is true that this court can, where it has jurisdiction over
parties by an action duly brought therein, under section 818
of the Code of Civil Procedure, " by order remove to itself "
an action " pending in another court," and may " consolidate "
that pending in another court " with that in the supreme
court," but a party to an action pending in justices' court can-
not make a motion in the supreme court to control the
80 HOWARD'S PRACTICE REPORTS.
Motel agt. Sixth Avenue Railroad Company.
procedure in such action, any more than a party to a suit in
any court of record other than the supreme court can make a
motion in the latter to control the practice in the former.
Third. The defendant does not need the security for costs
which he seeks. He has responsible parties to the record as
plaintiffs who are liable to him for costs if the action fails, and
the opposing affidavits show that the party prosecuting in the
name of the overseers, is pecuniarily responsible.
The motion, must be denied, with ten dollars costs.
COURT OF APPEALS.
CHAELES C. MOTEL, an infant, etc., respondent, agt. THE
SIXTH AVENUE RAILROAD COMPANY, appellant.
Negligence What amounts to contributory negligence in a child eight years old.
An infant, if sui juris, after he sees the approach of a car in time to avoid
it, cannot voluntarily assume the risk attending an effort to cross a rail-
road track and recover for an injury arising from the failure of his
experiment.
Decided Aptnl 27, 1885.
PLAINTIFF recovered a verdict against the defendant for
$10,000, and on appeal to the general term of the court of
common pleas the judgment was affirmed. Judge BEACH
wrote the following dissenting opinion :
BEACH, J. I cannot agree with the conclusion of my
learned brethren. The plaintiff was eight years old, had
often crossed Sixth avenue, and was chargeable with the
exercise of caution commensurate with his age. From his
own narration, he was about to cross between Fifty-third and
Fifty-fourth streets, from east to west, with one foot on the
east rail of east track ; he heard the bell and saw the car ad vane
ing very fast, nine feet and nine inches from him. In this
situation, by withdrawing one foot from off the rail, no harm
could reach him. The opinion prompting what he did is
thrice expressed in his testimony. In answer to the court :
HOWARD'S PRACTICE REPORTS. 31
Motel agt. Sixth Averrne Railroad Company.
" I tried to get across ; I thought I could get across before
the horses hit me."
" By the COUKT Where were you when you first saw the
horses ? Ans. I just put my foot on the track and then I
heard the bell ringing, and I turned around and I tried to
get across, but I couldn't."
" By the COUKT And, after you heard the bell, didn't
you know it was dangerous to try to go across before the car
passed 1 Ans. I thought I would try to get across."
No evidence on part of plaintiff changed the facts above
recited, and manifestly could not, relative to the time he first
saw the car and the action of his mind. The plaintiff was
walking, and in no situation forcing a sudden decision.
It seems to me reasonable minds could not differ, and must
draw like conclusions from this narrative. The boy, familiar
with the danger, voluntarily assumed the risk attending an
effort to cross. He, unfortunately, failed, but resulting
calamity should not be charged against the railroad company.
Those who travel the streets, if observant, see frequent
instances of persons attempting to cross, with advancing
vehicles in full sight, rather than await their passing. There
is no more reason for holding one free from contributory
negligence whose experiment fails than if he jumped from
a moving car because he thought it could be" done in safety.
In my opinion, the court below should have granted the
motion to dismiss the complaint.
The judgment should be reversed and anew trial ordered,
with costs to appellant to abide the event.
The defendant appealed to the court of appeals.
0. E. Bright, for respondent.
D. M. Porter, for appellant.
BY THE COURT Judgment reversed, new trial granted, costs
to abide the event, on foregoing opinion of BEACH, J., in
court below.
All concur, except DANFORTH, J., dissenting.
32 HOWARD'S PRACTICE REPORTS.
Goldsmith agt. Union Mutual Life Insurance Company.
SUPREME COURT.
DANIEL GOLDSMITH agt. THE UNION MUTUAL LIFE INSURANCE
COMPANY, aud LENA MANLY.
Insurance Divorce Husband and wife Effect of the divorce of a wife
for adultery upon a policy of life insurance taken out for her benefit by Tier
husband.
In an action by a husband to reform life insurance policies taken out in
favor of his wife, from whom he has since been divorced, on the
ground of mistake :
Held, that to justify a reformation the mistake must have been mutual.
The divorce from his wife cannot authorize or enable the court to
change the conditions and terms of the policies, unless, through a
mutual mistake, the intention of both parties have failed of expression. .
A mistake on one side is not enough.
As the husband accepted these policies at the time they were issued, and
has had them in his possession tor many years without objection, they
are presumed in law to express his intentions. If for any reason he
believed them to be wrong, he should have declined to pay the pre-
miums upon them year after year. Such voluntary payments are an
adoption of the terms of the policies as i ,sued.
As to the effect of the decree of divorce upon the rights of the divorced
wife under the policies, quaere.
Special Term, April, 1885.
ACTION to reform policies of life insurance.
Marsh, Wilson & Wallis, for plaintiff.
Merritt E. Sawyer, for the company.
W. L. Butler, for defendant Lina Manly.
YAN VOKST, J. In May, 1875, the plaintiff, who was
then the husband of the defendant Lina Manly, took out two
policies of insurance in the defendant company upon his own
life, one for $10,000 and the other for $5,000. By these
policies the defendant company agreed to insure the life of
the plaintiff in the amount named, "for the sole and separate
HOWARD'S PRACTICE REPORTS.
Goldsmith agt. Union Mutual Life Insurance Company.
use and benefit of his wife, Lina Goldsmith, but in case of
her previous death to revert to the insured." The plaintiff
paid with his own funds the sum necessary to meet the pre-
miums on the policies, and continued such payments there-
after down to the time lie obtained a decree of divorce dis-
solving the marriage bond, on account of the adultery of his
wife. He has always held the policies in his possession.
The plaintiff's wife knew of these policies after they were
issued.
The plaintiff brings this action to obtain a reformation of
these policies. In his complaint he asks that they be
reformed by inserting therein a provision to the effect " that
in case the said Lina Goldsmith should cease to be the wife of
the plaintiff during his lifetime, and the marriage between
her and the plaintiff should be dissolved by reason of her
adultery, then and in such case the benefit of the policies
should revert to the said plaintiff."
The plaintiff alleges in his complaint that it was not his
intention, in taking out such policies, to contract with the
defendant company that any loss which might accrue thereon
should be paid to the said Lina Manly, unless she should be
his wife at the time of his death, but that through the mutual
mistake and inadvertence on his part and that of the company
their common intention in that regard was not fully expressed.
Whatever may have been the intention of the plaintiff in
this regard, it cannot avail him to effect his present purpose,
unless it was stated to the company when the policies were
agreed to be issued. An undisclosed intention is no intention
in this connection. There is no claim of fraud. The ground
upon which this relief is asked is that of a mistake. To jus-
tify a reformation the mistake must be mutual. The divorce
from his wife cannot authorize or enable the court to change
the conditions and terms of these policies, unless through a
mutual mistake the intention of both parties have failed of
expression. A mistake on one side is not enough. The
applications of the plaintiff in writing, made to the company,
VOL. II 5
34 HOWARD'S PRACTICE REPORTS.
Goldsmith agt. Union Mutual Life Insurance Company.
do not express any such intention. The evidence adduced
upon the trial does not show that he disclosed to the agent of
the company, at the time he made his application for the
policies, the intention which he now alleges was then in his
mind. His directions, he says, were " general," and the lan-
guage was formulated by the agent.
As the plaintiff accepted these policies at the time they
were issued, and has had them in his possession for many
years without objection, they are presumed in law to express
his intentions. If for any reason he believed them to be
wrong, he should have declined to pay the premiums upon
them year after year. Such voluntary payments are an
adoption of the terms of the policies as issued.
Nor is it at all probable that the idea that his wife, for
whose benefit he was insuring his life, would, through a crim-
inal act, forfeit all claims upon him as a husband was present
to his mind. If plaintiff had supposed that she might become
so guilty it is not likely that he would have insured his life
for her sole advantage.
The husband of a divorced wife can omit to pay the pre-
miums on any insurance he may have taken for her benefit,
and thus end his obligation under the policy. He cannot be
obliged to keep it alive for one who has forfeited all claim
upon him. He might thereafter regard it in the light of a
wager policy. It is not necessary to determine the effect of
the decree of divorce upon the rights of the divorced wife
under the policies. A decree of divorce would not disturb
vested rights or executed gifts and contracts. I do not say
that these policies are in the category of such rights or
interests.
All that it is now necessary to decide is that there is no
such evidence of mutual mistake as will justify the court iu
changing the terms and conditions of these policies in the
manner in which we are asked to do.
The construction of the contracts, and the rights of the
parties thereunder, and the effect of the decree of divorce
HOWARD'S PRACTICE REPORTS. 35
Turno agt. Parks et al.
upon those rights, will be determined when a claim is legally
made under them at the time the insurance is payable.
For these reasons the plaintiff's complaint must be dis-
missed.
As to the defendant, Lina Manly, the dismissal is without
costs. As to the company, I will hear the counsel on the
subject of costs.
NEW YOEK CITY COURT.
CHARLES TURNO, Jr., agt. CHARLES T. PARKS et al.
Judgment Set-off Effect of prior assignment of judgment Attorney's
The taxable costs in an action are not subject to set-off.
An attorney has a lien for his services in a particular case, as a mechanic
would upon the product of his labor, and equity intervenes to save it
for him, but this lien would ordinarily be measured by his taxable
costs, but might embrace a further fee, and will not always be limited
to such costs if a special contract had been made in good faith between
the client and his attorney, but, it seems, it must refer to his services
in the particular action.
Where prior to the recovery of the judgment the plaintiff assigned to his
attorney herein all his interest in the cause of action in payment for
services in the suit of Parks agt. Turno, and also for money loaned, and
the attorney held this assignment prior to the recovery of judgment,
and due notice was given the defendants:
Held, that the equity of the attorney is superior to that of the plaintiff,
and no right of set-off exists.
Spec^al Term, April, 1885.
HA WES, J, It seems quite difficult to determine the
present rule of law governing this case. Whether a judg-
ment for costs, or so much of it as may embrace costs, is
subject to set-off in case of the insolvency of the party
would seem to be questionable, and still more so in a case
like the present, where the attorney claims to hold an assign-
ment of the entire claim prior to the recovery. Upon the
HOWARD'S PRACTICE REPORTS.
Turno agt. Parks et aL.
first question the court of common pleas, at general term, in
Saunders agt. Gillette (8 Daly, 184), expressly holds that the
lien of the attorney is subject to the equitable right of set-off
between the parties. It has been since held, however, by the
same court that the costs belong to the attorney, and his right
to them cannot be taken away by a set-off (See Hilton agt.
Sinsheimer, ALLEN, J., Daily Register, March 27, 1885).
The superior court, at general term (Naylor agt. Lane, 5
Civil Pro. Rep., 150), declares the lien of the attorney to be
an equitable assignment of the judgment to him, and not
subject to set-off, and that no notice to the other side is neces-
sary to protect his rights. The supreme court in this depart-
ment would seem to hold a contrary doctrine in the case of
Garner agt. Glad-win (12 Weekly Digest, 10), where it was
held that the right to set-off depended upon whether there
was or was not an assignment in fact from the party to his
attorney. This would clearly seem to negative the proposi-
tion that they were not inherently subject to set-off by reason
of being costs which the attorney could claim as a matter of
legal right.
The court of appeals, in Davidson agt. Alfaro (80 N. Y.,
660), declined to pass upon the question, stating that " it does
not seem as clear from the decisions as it ought to be how far
this right of lien will stand in the way of a set-off sought in
an equitable action ;" but as the court below recognized this
lien, so far as taxable costs are concerned, as not subject to the
right of set-off, it is fairly inferable from the context that
the court assented to the doctrine there enunciated. The
case of Perry agt. Chester (53 N. Y., 241) ; Zogbawn agt.
Parker (55 N. Y., 120), clearly support this view, and
I think it must he held that the taxable costs are
not subject to set-off. This, of course, does not exist
by reason of any legal right, for in law this lien would be
disregarded in an action to compel set-off (2 Robt., 670), but
is discretionary, as is suggested in Perry agt. Chester (supra),
and the courts equitably interfere to protect the attorney's
HOWARD'S PRACTICE REPORTS. 37
Turno agt. Parks et al.
interests ; but these interests are protected not because the
costs belong to the attorney, as is frequently suggested, but
because the courts will in equity preserve to the plaintiff or
defendant, as the case may be, so much of the judgment as
the lien attaches to. It is true that this is for the protection
and benefit of the attorney who, as an officer of the court,
claims special consideration, but it is purely incidental, and
does not arise by reason of any ownership by him of the costs.
He doubtless has a lien for his services in this particular
case, as a mechanic would upon the product of his labor and
equity intervenes to save it for him, but this lien would
ordinarily be measured by his taxable costs, although I am
inclined to think that it might embrace a further fee, and
would not always be limited to such costs if a special contract
had been made in good faith between the client and his
attorney, but it must, I think, refer to his services in this
particular action, and the reason of such distinction would
seem to be based upon the analogous principle above referred
to. It seems clear, therefore, that the taxable costs of the
plaintiff in this action will not be subject to set-off, and to that
extent at least the motion will be denied.
It is further claimed, however, by the plaintiff that prior
to the recovery of the judgment the plaintiff assigned to his
attorney herein all his interests in the cause of action, in pay-
ment for services in the suit of Paries agt. Turno, and also
for money loaned, and that as the attorney held this assignment
prior to the recovery of judgment no right of set-off exists, as
the judgment and all its incidents belonged to the at'torney, of
which due notice was given the defendants herein. There
seems to be no question as to the hona fides of this assignment,
the consideration was ample and the claim was admittedly
assignable. The legal title was in the attorney, and I do not
see how it can be defeated, unless exceptional equities exist
between the parties. If these existed at the time of the
transfer it is clear that they must prevail now, as the assignee
held no higher rights than his assignor.
88 HOWARD'S PRACTICE REPORTS.
In the Estate of Tunis Cooper, deceased.
Under the ruling in Davidson agt. Alfaro (supra), it must
be held that if botli actions grow out of the same contract,
and the party is insolvent, his assignee, with knowledge of
these facts, takes subject to an existing equity, and a set-off
under such circumstances will be allowed as against the party
holding the legal title. The rule applicable to such a state
of facts does not prevail in the case at bar, for although not
disconnected, they cannot be said to grow out of the same
contract under the restrictions which govern that class of
cases.
The equity of the attorney is superior to that of the
plaintiff, and the case falls within Perry agt. Chester (supra),
Zogbaum agt. Parker (supra), and Prouty agt. Swift (10
Hun, 232).
Motion denied, with costs.
SURROGATE'S COUET.
In the Estate of TUNIS COOPER, deceased.
Surrogate Jurisdiction Reference When order of reference and pro-
ceedings thereunder should not be vacated upon motion of a party who had
consented thereto wlien clerk or other person employed in the surrogate's
office competent to act as referee stenographer of surrogate's court not
within the scope of sections 90 or 2511 of the Code of Civil Procedure.
In a proceeding for the revocation of probate all necessary parties, includ-
ing the infant son of the decedent, were duly served with citation.
No application was made for the appointment of a special guardian for
such infant and none was appointed, but all the parties who appeared,
consented to the entry of an order directing the stenographer of the
surrogate's court to take testimony as a referee. The trial proceeded
before such referee, and, at its conclusion, the evidence was submitted
to the surrogate, who decided that the probate should be revoked.
The entry of a decree upon that decision being opposed by the respond-
ents, and it being contended that the order of reference was without
authority and that all proceedings subsequent thereto were void :
Held, that the order of reference and the proceedings thereunder should
HOWARD'S PRACTICE REPORTS. 39
In the Estate of Tunis Cooper, deceased.
not be vacated upon the motion of any party who had consented to its
entry and to the submission of its results to the surrogate for his
determination.
Held, also, that a special guardian should be appointed to represent the
infant, and to ascertain and report whether it would be for the best
interests of the infant that the proceedings should stand as theretofore
conducted, and a decree be entered accordingly, or that the trial should
be commenced de novo.
Held, also, that in view of section 3355 of the Code, sections 90 and 2511
must be construed as if they had simultaneously become law, and that
so construed, "a clerk or other person employed in the surrogate's
office " is competent to act as referee, in a proceeding pending in the
surrogate's court, provided he is appointed with the written consent of
all the parties appearing.
Held, also, that the stenographer of the surrogate's court is not within the
scope of section 90 or of section 2511.
New York County, April, 1855.
ROLLINS, 8. A paper purporting to be the will of this
decedent, was admitted to probate as such in May, 1881. In
April, 1882, a proceeding was commenced for revocation of
such probate. Citations were duly issued and duly served
upon all necessary parties, and, with the consent of all who
appeared and took part in the subsequent trial, Edward F.
Underbill, esq., was appointed referee to take testimony and
report the same to the surrogate. Mr. Underbill proceeded
with the examination of such witnesses as were brought
before him by the contending parties, and a large volume of
evidence was subsequently submitted for my consideration.
In July of last year I rendered a decision granting the peti-
tion for revocation. No decree, however, has as yet been
entered.
My attention is now called to the tact that decedent's infant
son has hitherto had no special guardian to represent him and
protec this interests. The alleged will names his mother, the
widow of the decedent, as its executrix, and also as one of its
chief beneficiaries. The widow and her co-executor protest that
no decree should be entered, and that, because of the failure to
40 HOWARD'S PRACTICE REPORTS.
In the Estate of Tunis Cooper, deceased.
appoint a special guardian for the infant, the order of refer-
ence and all subsequent proceedings were unauthorized, and
should now be set aside. Such a course would involve much
expense and long delay in settling the affairs of this estate.
It is for that reason greatly to be deprecated, and should not
be pursued unless it is absolutely unavoidable. May it not
be avoided ?
It is clear that, by the service of citation upon all the neces-
sary parties to this proceeding, including the infant, this court
acquired jurisdiction of the proceeding and of all parties
thereto (In Estate of Fenn, Daily Register, March 20, 1885,
and cases cited ). Any decree, therefore, that might be entered,
even while the infant was still unrepresented, would not be
absolutely void, but would merely be voidable at the infant's
instance {McMurray agt. Me Murray, 41 How. Pr., 41 ; 66
N. Y., 177 ; Matter of Becker, 28 Hun, 207 ; Boylan agt.
McAvoy, 29 How. Pr., 279). Nevertheless, these petitioners,
being named as executors in the disputed paper, and having
duly qualified as such, are justified in insisting upon such a
disposition of this controversy as shall be conclusive upon all
persons interested therein. Now, I do not think that, to
accomplish this result, it is essential that I should at once, and
without ascertaining whether or not such a course would be
advantageous for the infant, set aside all the proceedings
since and including the entry of the order of reference. If,
upon inquiry properly instituted for that purpose, it shall
appear that the best interests of the infant demand that
these proceedings shall stand, it will, in my judgment, be the
duty of the surrogate to make decree in conformity with his
recent decision.
It is insisted, by counsel for the respondents, that the entry
of the order of reference herein was unauthorized, in view of
the limitations upon the surrogate's authority that are estab-
lished by section 2546 of the Code of Civil Procedure. That
section declares that an appointment of a referee may be
made " on the written consent of all the parties appearing."
HOWARD'S PRACTICE REPORTS. 41
In the Estate of Tunis Cooper, deceased.
Such consent, in the present case, was given by the petitioners
and the respondents ; and I must certainly refuse to toss aside
as worthless the testimony taken in pursuance of that consent
until I am asked to do so by somebody who was not a party
to it (Musgrove agt. Lusk, 2 Tenn. Ch., 576). If the special
guardian whom I shall appoint to represent the infant shall
see fit to raise this objection, it will be again considered.
It is also urged by counsel for the respondents that the
referee herein was disqualified from holding that office by
reason of his being the stenographer of the surrogate's court.
This objection is somewhat ungracious, for counsel does
not claim that at the time he consented to Mr. Underbill's
appointment he was ignorant either of the fact that the
appointee was the court stenographer, or of the statute which
claimed to work the disqualification. But it is no more
ungracious than it is unsound. In view of section 3355 of
the Code, sections 90 and 2511 must be construed as if they
had simultaneously become law, and so construed they simply
forbid the appointment of " a clerk or other person employed,"
&c., except upon the written consent of all the parties
(Estate of Thorn, 4 Mo. Law Bui., 48). And besides, I am
of the opinion that the stenographer does not have such a
relation to the surrogate's court or office as to bring him
within the scope of either section 90 or section 2511 (See sec-
tions 2508 and 2512).
All in all, the disposition which the court shall make of
this whole matter must be governed entirely by what, upon
investigation, shall appear to be most advantageous for the
infant (Bowen agt. Idley, 1 Edw. Ch., 148 ; Crogan agt. Liv-
ingston, 17 N. Y., 223 ; Fulton agt. Roosevelt, I Paige, 178 ;
Levy agt. Levy, 3 Madd., 245).
If it shall appear that the infant's share in his father's
estate is greater in the contingency of his father's intestacy
than in that of the final establishment of the disputed paper
as his will and I am inclined to think that such is the case
then further litigation may be wisely avoided.
VOL. II 6
42 HOWARD'S PRACTICE REPORTS.
Van Rensselaer agt. City of Albany.
A special guardian will be appointed to ascertain and pro-
tect the interests of the infant ; and as his interests and those
of his mother are or may be adverse, the surrogate will
appoint such special guardian of his own motion after due
notice to the infant (In Estate of Fenn, supra).
SUPKEME COURT.
EUGENE YAN RENSSELAER and others agt. THE CITY OF
ALBANY.
Municipal corporation No right to construct sewers and discharge them
upon tfie premises of an individual Injunction Right to.
A municipal corporation has no right, by the grading of streets and the
construction of sewers, to gather the surface water and sewage from a
considerable territory, and through a sewer discharge them upon the
premises of an individual.
The casting upon the premises of such individual of the filth from such
sewers is a nuisance, and the municipality is liable therefor and can be
called upon to abate it.
There can be no xledication of land while the owners are continually
declaring a contrary intent, nor can a right to continue a nuisance be
established by user because no user will legalize a nuisance.
Ulster. Special Term, March, 1885.
APPLICATION by plaintiffs for an injunction.
L. G. Him, for plaintiffs.
8. W. Rosendale, for defendant.
r,
WESTBROOK, J. The case of the plaintiffs may be thus
briefly stated : The defendant, by the grading of streets and
the construction of sewers, gathers the surface water and the
sewage from a considerable territory, and through a sewer
discharges them upon the premises of the plaintiffs. The
plaintiffs ask that defendant be enjoined from continuing the
HOWARD'S PRACTICE REPORTS. 43
Van Rensselaer agt. City of Albany.
discharge and deposit of the filth of a city neighborhood upon
their property.
In Noonan agt. The City of Albany, which was an action
to recover damages for perpetrating a similar nuisance upon
the lands of the plaintiff situated in the same locality with
those of the present plaintiffs, and tried at the Albany circuit,
held in March, 1878, by the judge writing this opinion, it was
upon the trial decided that the city of Albany was liable for
the injury done to the property of the plaintiff in that action
by the emptying upon it of water and sewage by means of
the identical sewer and grading of which the plaintiffs in the
present action complain. The recovery of $1,500 as damages
by the plaintiff in that action was sustained both at general
term and in the court of appeals (79 N. Y., 470). In the
latter court (page 478) it was said : " The casting on the
plaintiff's premises of the tilth from the sewers was a nuisance,
and the defendant was bound to abate it." As this remark
was made of and concerning the same sewers and grading of
which the present plaintiffs complain, the defendant is liable
to them also for the same " nuisance," and can by them like-
wise be called upon "to abate it" unless there is some reason
which takes this case out of the rule laid down in the other.
The counsel for the defendant claims that there has been a
dedication of the lands of the plaintiffs to the public for the
purpose of depositing filth and sewage, and that they have
expressly assented to the acts complained of by paying an
assessment for the construction of a sewer which assists in the
emptying of sewage upon their land. The dedication consists
in the ownership of lands which are so situated as to receive
the water and sewage the defendant casts upon it. The com-
plaint avers, and this fact is undenied, that the plaintiffs have
again and again protested to the defendant against its acts, of
which they now complain, but have not until now brought an
action to recover compensation for, or to restrain the nuisance
which their papers in this case show. It would be difficult
to find a dedication of land for the maintenance of a nuisance,
44 HOWARD'S PRACTICE REPORTS.
Van Rensselaer agt. City of Albany.
if such a thing be possible, while the owners are continually
declaring a contrary intent ; and it would be equally difficult
to establish the right to continue a nuisance by user because
no user will legalize a nuisance, and also because the acts
which plaintiffs allege principally caused the injuries the
grading of Colonie street and the construction of the sewer in
Lark street, with which other sewers or drains were subse-
quently connected were committed during, and subsequent
to, the year 1871, a period of less than twenty years. As to
the payment of an assessment by the plaintiffs to construct a
sewer, which the defendant had a right to construct and
which the plaintiffs had reason to suppose would be emptied
when completed where it would be lawful to empty it, it is
not seen how that can be tortured into an assent by the plaintiffs
to the commission of a wrong upon them by the defendant.
It was also contended by the defendant that because many
of the owners of the premises, which are drained upon the
plaintiffs' lands, hold under deeds derived from the plaintiffs
or their ancestors, the natural flowage from which premises
are upon those of the plaintiffs, therefore the defendant may
empty the sewers which drain those, and also other premises,
upon the plaintiffs'. It is difficult to see how the rights of
other individuals to do acts upon the lands of the plaintiffs
can aid the defendant to do that which it has no right to do ;
and it cannot be held to be the law that, because the grantee
of premises has by necessity a right of drainage through those
of his grantor, or to permit a natural flowage from his
premises upon those of his grantor, that such right covers
and includes the privilege of gathering into an artificial sluice-
way or sewer all the filth and nastiness of his own premises,
and discharging and emptying it in one great volume upon the
land of his grantor. The right of drainage by and through a
pipe or sewer, over or across one's premises, or to allow water
to flow in its natural and usual channels upon it is one thing,
and the right of deposit upon the same premises, of filth
through an artificial channel constructed for that purpose, so
HOWARD'S PRACTICE REPORTS. 45
Rosenbaum agt. Union Pacific Railway Company.
as to create and maintain a nuisance thereon is quite a differ-
ent thing. It is of the latter and not of the former of which
the plaintiffs complain ; and they complain not against those
who suppose they have rights derived from them, but against
a municipality which has neither direct nor implied authority
to do what is sought to be enjoined.
The plaintiffs are clearly entitled to their temporary injunc-
tion, but'as the granting thereof, to take effect immediately,
would work serious injury to the public, it will issue to take
effect upon a future day to be designated in the order.
Obviously, the defendant should extend its sewers so as to
carry their discharge to a proper place of deposit. The maim-
tenance of the nuisance upon the premises of the plaintiffs,
which the papers disclose, is both a private and a public
.grievance which should not be continued. The order will be
settled on notice and is granted, With ten dollars costs to the
plaintiffs if they succeed in the action.
SUPREME COURT.
ALFRED S. ROSENBAUM, respondent, agt. THE UNION PACIFIC
RAILWAY COMPANY, impleaded, appellant.
HENKY C. ROSENBAUM, respondent, agt. THE UNION PACIFIC
RAILWAY COMPANY, impleaded, appellant.
Corporations their liability Code of Civil Procedure, section 3343, subdi-
vision 18 Domicile of federal corporation by what determined.
Under section 3343, subdivision 18 of the Code of Civil Procedure, the
location of a federal corporation is determined by the place of its prin-
cipal office. Its domicile is where its principal office is.
Where an act provides that corporations consolidated under it shall
assume as a condition of the right the payment of the liabilities of the
several corporations which are absorbed in the new corporation, each
holder of coupons in either of the corporations so absorbed is at liberty
to maintain an action directly upon contract against the new corpora-
tion, by reason of its having absorbed the one which issued the bonds.
46 HOWAKD'S PRACTICE REPORTS.
Rosenbaum agt. Union Pacific Railway Company.
First Department, General Term, May, 1885.
before DAVIS, P. J., BRADY and DANIELS, JJ.
APPEALS from orders denying motions to vacate attachments.
George H. Adams, for appellants.
E. L. Andrews, for respondent.
BY THE COURT (orally). We think these motions were
properly disposed of by the court below on the question of
residence. The appellant is unquestionably a foreign cor-
poration, because created by the laws ot the United States.
It is not a foreign corporation which has its location and car-
ries on its business in the city of New York. Within the
meaning of the law its domicile is where its principal office is
located. That does not appear, even by the original affida-
vits, to be in the city of New York. It is, in point of fact,
as shown by the papers, in the city of Boston. And if the
corporation has a location there it certainly has none here.
And as to the main questions, the act of the state of Kansas
in respect to the consolidation of corporations very clearly
provides that the corporations consolidated under it shall
assume, as a condition of the right, the payment of the liabili-
ties of the several corporations which are absorbed in the new
corporation. The effect of that is, as a matter of course, to
impose the liability, not as a statutory one, but as a contractual
one. The corporation that absorbs the consolidated corpora-
tion, thereby, under those statutes (which, of course, make
the contract lawful and not subject to any provision of any
statute of frauds), undertakes and promises to pay to every
holder of a debt of a corporation that is absorbed the obliga-
tion existing in his favor against the corporation that ceases
to exist, or the several corporations which cease to exist.
Each one, therefore, of the holders of these coupons is at lib-
erty, in our judgment, to maintain an action directly upon
HOWARD'S PRACTICE REPORTS. 47
Frazer agt. Ward.
contract against this corporation by reason of its having
absorbed the one which issued the bonds, because the statute
has so provided. Whether it be an express or implied con-
tract makes no difference in the eye of the law. It is still a
contract enforceable at law and recognized by the statute of
Kansas, and therefore to be recognized by our courts.
These orders are affirmed, with costs.
CITY COURT OF NEW YORK.
ALEXANDER FRAZER agt. CHARLES E. WARD.
Security for costs Money deposited m lieu of an undertaking, as security for
costs Not liable to seizure on other judgments.
A deposit as security for costs must be regarded, for all the purposes of
the action, as the property of the person making the deposit. But
"where the action results favorably to the plaintiff, and the litigation is
terminated, the deposit is not liable to seizure on other judgments if
the money, in fact, belongs to other persons who made the deposit,
subject only to the contingency stated.
Special Term,, May, 1885.
THE plaintiff brought an action in this court against the
defendant herein to recover $800. The trial eventuated in a
verdict for the defendu.it, on which judgment was entered
against the plaintiff for $270.64 costs. This judgment pro-
ceeded upon the sole ground that the action had been prema-
turely brought. After the claim became due, according to
this determination, the plaintiff brought the present action
for the same cause, and on the 8th of May, 1885, succeeded
in recovering a judgment against the defendant for the entire
amount of his demand and interest, viz., $896. In the
present action the plaintiff, who had become a non-resident,
deposited, under an order of the court and in lieu of an
48 HOWARD'S PRACTICE REPORTS.
Fra/.er ngt. M r ard.
undertaking, $250 as security for costs. On the 10th of
April, 1885, an order founded on the first judgment was
granted by judge HAWES, requiring John Reid, the clerk of
the city court, to appear and be examined in regard to prop-
erty said to be in his hands belonging to the judgment debtor ;
the object of the proceeding, as subsequently developed, being
to reach and apply on the first judgment in favor of the
defendant the money deposited by the plaintiff as security
for costs in the present action. Upon the examination of
Mr. Reid, he testified that he held $250 under the aforesaid
circumstances. An order was thereupon made on the 13th
of April, 1885, requiring Mr. Reid to pay over the deposit to
the defendant's attorney, and it was paid over accordingly.
The proceedings to obtain this application of the deposit
were ex parte, but are not on that account irregular.
The plaintiff now moves to set aside the order direct-
ing the payment over of the money, and for a direction
that the defendant's attorney restore the deposit. The
application is founded on an affidavit made by Ezra A.
Tuttle, one of the plaintiff's attorneys, in which he swears
that, pursuant to the order requiring security for costs,
or a deposit in lieu thereof, and not otherwise, " and for
the purpose expressed in said order, deponent deposited on
the 8th day of April, 1885, the sum of $250 with the clerk of
this court ; that said money was deposited in the name of
' Tuttle & Goodell, attorneys for the plaintiff,' and a receipt
therefore was taken by deponent ; that said money was not
the property of the plaintiff, nor was it deposited to the credit
of the plaintiff, nor in any manner subject to his control, but
was the property of said Tuttle & Goodell, and was deposited
and placed in the custody of the court for the purpose specified
in said order, and for no other purpose." The question pre-
sented is whether the money deposited under these circum-
stances became the property of the defendant only for the
limited purposes specified in the order, or generally for all
purposes.
HOWARD'S PRACTICE REPORTS. 49
Frazer agt. Ward.
Flwiders cfe Tuttle, for motion.
E. P. Wilder, opposed.
McADAM, G. J. Except in the instance provided in sec
tion 586 of the Code, a deposit in lieu of bail must be regarded
for all the purposes of the action as the property of the party
on whose behalf the deposit is made (8 Abb. \_N. &], 155 ;
45 N. Y., 393). Such money, although in custodia legis,
may be attached subject to the contingency on which the
deposit was made (74 N. Y., 145 ; 83 N. Y., at p. 237). If
the deposit is to be regarded for all purposes as the money
of the plaintiff, it follows that the order to pay over was legally
made ; for, assuming the money belonged to the plaintiff herein,
the only persons who could object to the application made of
it were the plaintiff and the defendant. The order to pay
over having been made on the application of the defendant,
concluded him as to its distribution, and it likewise concluded
the plaintiff, because it was founded on a legal proceeding
against him. It would not ordinarily prejudice the plaintiff's
attorneys on the question of liability for costs, because the
order requiring security was made and complied with. So
that, but for the question of title in the attorneys, which will
next be considered, there can be no doubt of the right of the
defendant to do what he did. The contingency on which the
deposit was made has happened. The plaintiff recovered a
judgment, and by force of it the plaintiff became entitled to
the return of his deposit. The deposit has answered all the
purposes for which it was made, and the requirements of
the law have been fully satisfied. But the difficulty which
arises is that the money deposited up till the time of the
deposit belonged to the plaintiff's attorneys. For the pur-
pose of securing the defendant against the costs of the present
action, the money deposited was to be deemed the property
of the plaintiff. But when it was demonstrated by the result
of the action that the defendant was not entitled to costs, and
no longer needed the required indemnity, the deposit ceased
to be security, and the plaintiff's attorneys, as the true owners
VOL. II 7
60 HOWARD'S PRACTICE REPORTS.
Frazer agt. Ward.
of the fund, became entitled to a return of their money. In
other words, it seems to me that an attorney for a plaintiff
may consent to deposit his own money as security for costs to
which his client may become liable in a particular action, with
the risk that if the plaintiff therein is defeated the money for
the purpose of satisfying the costs recovered by the defend-
ant is to be regarded as the property of the plaintiff. I think
he risks no more. The law is satisfied with this construction
of the liability assumed, and the defendant proceeded against
by the non-resident plaintiff is fully protected by it. If this
be so, the result would seem to follow, that after it has been
judicially determined that the defendant cannot by any possi-
bility recover costs in the action, that the money should go
back to the source from which it emanated, and to the parties
to whom it equitably belongs. The identity of the money
was not destroyed, but preserved. The identical money
which the plaintiff's attorneys deposited remained in the
hands of the clerk until he was ordered to pay it over. There
is no proof that it was loaned to the plaintiff, or was ever in
his possession. It was deposited by the plaintiff's attorneys
for a special purpose and at a specified risk, and when the
object of the deposit was satisfied, and the risk ceased, their
right to its return became complete. The plaintiff does not
question their right to it. The deposit was made in lieu of
an undertaking, and subject only to the risk which sureties
upon an undertaking would have assumed if an undertaking
had been given. Because money was deposited in lieu of an
undertaking there is no reason why friendly depositors, who
furnished the money instead of writings, should be subjected
to greater risk, or liability to loss, than if they had subscribed
the usual undertaking with which the law is satisfied. Under
the circumstances the conclusion seems inevitable that the
deposit must be restored to the clerk of the court, there to
remain subject to such application as may be made in respect
thereto, as the parties interested therein may be advised.
No costs.
HOWARD'S PRACTICE REPORTS. 61
Jacquin agt. Jacquin.
N. Y. COMMON PLEAS.
CHARLES JACQUIN agt. SOPHIA JACQUIN.
Husband and wife Business partnerships between them not authorized.
Business partnerships between husband and wife are not authorized.
Therefore a husband cannot claim under a business copartnership with
his wife, the right to a dissolution of the same and the appointment of
a receiver.
This is adverse to Zimmerman agt. Erhard and Dodge (59 How., 11) ; and
Graff et al. agt. Einney (1 How. [N. &], 59) ; see, also, Fairlee agt. Sloom-
ingdale (67 How., 292).
Equity Term, April, 1885.
THIS action is brought by a husband claiming under a
business copartnership with his wife the right to a dissolution
of the same and the appointment of a receiver.
LABREMORE, J. The enabling statutes in relation to the
authority of a married woman to hold property or transact
business have not expressly authorized a married woman to
enter into partnership with her husband, and, as I read the
decision, no such authority or right is conferred. In this case
it appears that the marital relation existed between the plain-
tiff and defendant, and I find no authority that authorizes
the husband to claim under a business copartnership with his
wife, the right to a dissolution of the same and the appoint-
ment of a receiver. In the absence of any statutory
enactment, the rule of the common law in relation to husband
and wife remains unchanged, and as no express provision is
made by statute for a business copartnership between husband
and wife, the old rule must prevail. The complaint,
therefore, must be dismissed, but without costs.
62 HOWARD'S PRACTICE REPORTS.
Doctor agt. Schnepp.
CITY COUKT OF NEW YORK.
MAX DOCTOR and SIMON HATCH, plaintiffs and respondents,
agt. JOHANN N. SCHNEPP, defendant and appellant.
Attachment Sufficiency of affidavit Code of Civil Procedure,
sections 636, 3169.
An affidavit for an attachment made by H. states as follows: " I am a
member of the firm of D. & Co., and one of the plaintiffs above-named,
the only plaintiffs so above-named being D. and himself , it is a fair
presumption that they constitute the firm. "
It is to be presumed that if counter-claims existed in favor of the defend-
ant, that some knowledge of that fact would have been possessed by
the plaintiff H. making the affidavit. For the purposes of the statute
his knowledge constituted that which was known to the plaintiffs, and
his allegation is a substantial compliance therewith.
An affidavit by B. which states that he was the bookkeeper of the plain-
tiffs and personally acquainted with the defendant ; that the defendant
had in his possession several statements showing a balance due to the
plaintiffs for the goods sold and delivered to him, and that he had fre-
quently acknowledged to the affiant his indebtedness to the plaintiffs
for the amount claimed, is sufficient to show the existence of a cause of
action in favor of the plaintiffs against the defendant.
An affidavit byB., which states that "a short time ago he (defendant)
represented himself to be a man of means," clearly indicates that he
had arrived at mature years and that he was an adult, and is a sufficient
compliance with subdivision 5 of section 3169 of the Code of Civil
Procedure.
General Term, May, 1885.
Before HYATT and HALL, JJ.
APPEAL from an order denying a motion to vacate an
attachment.
The motion was made on the papers on which the attach-
ment was granted.
Ira Leo Baniberger, for appellant.
Charles A. Hess, for respondents.
HOWARD'S PRACTICE REPORTS. 58
Doctor agt. Scknepp.
HYATT, J. The appellant contends, first, that the affidavit
of Simon Hatch does not state that the plaintiffs constitute
the firm of Doctor & Co., but merely that Hatch is a member
of the firm and one of the plaintiffs ; that this is not sufficient
*
to enable him to swear that the sum is due over all counter-
claims known to the plaintiffs, and further, that Hatch merely
swears that the sum is due over all counter claims known to
deponent, which is also insufficient.
Hatch swears that he is one of several plaintiffs. His dis-
tinct statement is : "I am a member of the firm of Doctor &
Co., and one of the plaintiffs above named." The only
plaintiffs so above named being Doctor and himself, it is a fair
presumption that they constitute the firm.
From the relation of the affiant to the parties and the sub-
ject matter in issue, it is apparent that he has knowledge of
the alleged transaction. The law will not infer that matters
positively sworn to were not within the personal knowledge
of the affiant, unless it is apparent that such knowledge is a
matter of impossibility. It is to be presumed that if coun-
ter-claims existed in favor of the defendant, that some
knowledge of that fact would have been possessed by the
plaintiff Hatch making the affidavit. For the purposes of
the statute, his knowledge constituted that which was known
to the plaintiffs, and his allegation is a substantial compliance
therewith (Stevens agt. Middleton, 26 Hun, 470).
The cases of Murray agt. Hanken (30 Hun, 37, Gen.
Term, 1st Dept), and GriWms agt. Schillinger (Id., 284),
cited by the defendant in support of his position, do not
avail him. In the first the affidavit was made by the agent of
the plaintiff, who swore that the sum was due overall counter-
claims existing in favor of the defendant to the knowledge
of deponent. The learned judge, writing the opinion of the
court, admitted that had this allegation been " to the
knowledge of the plaintiff," the affidavit would have been
sufficient. The learned chief justice, dissenting from the
decision of the court, suggested that the agent evidently had
64 HOWARD'S PRACTICE REPORTS.
Doctor agt. Schnepp.
better, or at least as good, knowledge of the condition of
things between the plaintiff and defendant as the plaintiff
himself, and that the affidavit was therefore sufficient.
In the second case the affidavit was made by the plaintiff's
attorney, alleging a sum due over claims, " known to the
plaintiffs or the deponent." The general term, fourth depart-
ment, there held that " the affidavit of the attorney might
have sufficed if it had appeared that he had knowledge as to
the existence of counter-claims, and perhaps would have been
enough (though as to that we express no opinion) if he had
stated that he was informed by his clients that none existed."
It is thus obvious that the above cases are inapplicable to
the case at bar.
However, irrespective of the strength of this affiant's posi-
tion, arising out of the fact that he was one of the only two
plaintiffs in the case, it would seem that his affidavit would
have been sufficient if it had not contained the precise words
used in the Code of Civil Procedure (sec. 636). If equiva-
lent words were used, and it furnished evidence from which
the judge might lawfully satisfy himself of 'the truth of the
matters required to be shown, and even if the words " known
to him " after the word " discounts," had been omitted, it
would not have affected its sufficiency (Larrikin agt. Douglass,
27 Hun, 517, Gen. Term, 3d Dept].
The affidavit on which the attachment was granted, states a
sufficient cause of action against the defendant (Kiefer agt.
Webster, 6 Hun, 526.)
It is true that the affidavit of Brown states the action to
be, for goods sold and delivered to the defendant, but whether
by the plaintiffs or some one else does not appear. It states
more, however, and precisely the facts necessary to show the
existence of a cause of action in favor of the plaintiffs against
the defendant, to wit, that the affiant was the bookkeeper of
the plaintiffs and personally acquainted with the defendant.
That the defendant had in his possession several statements
showing a balance due to the plaintiffs, for goods sold and
HOWARD'S PRACTICE REPORTS.
Doctor agt. Schnepp.
delivered to him ; that he had frequently acknowledged to
the affiant his indebtedness to the plaintiffs for the amount
claimed in the suit now pending.
The case at bar in this respect differs widely from that of
Pomeroy agt. Ricketts (27 Hun, 242), relied upon by the
defendant. In that case the allegations of the affiant simply
were that "the defendants owed my firm Si, 808, over and
above all counter-claims known to the plaintiffs and to me for
goods sold and delivered by my firm to the defendants " (Pom-
eroy agt. Ricketts, supra). This was held to be simply a
recital from which the plaintiff, making the affidavit, con-
cluded that such a right of action did exist.
In the case at bar, if the affiant Brown has sworn truth-
fully concerning facts peculiarly within his personal knowl-
edge, the defendant has conceded the existence of a course
of action as alleged in favor of the plaintiffs against him.
A further objection is advanced, that the affidavit does not
state that the defendant is an adult (sub. 5, sec. 3169, Code of
Civ. Pro.), and that this omission is a jurisdictional defect.
This court at special term has held that failure to so allege
is immaterial ( Wentzlar agt. Ross, 50 How. Pr., 397) ; subse-
quently a different view was entertained and this point sus-
tained at such a term of this court (American Mills Co. agt.
Schnitzer, \ Daily Reg., June 16, 1884).
In the latter case I apprehend that there was an entire
absence of proof upon which to found a legal presumption
that the defendant was an adult. In this case the affidavit of
Brown says, " a short time ago he (defendant) represented
himself to deponent to be a man of means." This would
clearly indicate that he had arrived at mature years, and that
he was an adult.
The order denying the motion to vacate the attachment,
must be affirmed, with costs.
56 HOWARD'S PRACTICE REPORTS.
Button agt. Newton.
SUPREME COURT.
CORNELIUS B. SUTTON agt. RACHEL A. NEWTON, as adminis-
tratrix of, etc., of HIRAM Du Bois, deceased.
Costs executors and administrators when prevailing party entitled to costs
and disbursements Code of Procedure, section 317 Code of Civil Pro-
cedure, sections 1835, 1836, 3246.
The repealing act of 1877 leaves section 317 of the Code of Procedure still
in force, and consequently, as provided thereby in a reference under
the Revised Statutes of a claim against a dead person's estate, the pre-
vailing party is entitled to recover the disbursements provided for by
that section.
Where, by agreement of the parties, an action is brought " in lieu of a
reference," that is to say, is substituted therefor, and the plaintiff is the
prevailing party, he is entitled to recover the fees of the referee and
witnesses and other necessary disbursements to be taxed according to
law.
Where the claim, as presented, was for f 4, 728. 78, and the defendant not
only rejected the entire claim of the plaintiff, but set up a counter-
claim against him for the sum of $2,624.55, for which sum she asked
an affirmative judgment against the plaintiff, with interest, besides
costs of the action and the referee appointed to hear and decide the
issues, rejected the counter claim entirely and found $621.55 due to the
plaintiff from the estate :
Held, that the attempt made by the defendant to recover judgment for a
large and independent claim against the plaintiff, in which she entirely
failed, constituted an unreasonable resistance to the demand of plaintiff
and entitled him to the costs of the action.
Held, further, that the attempt by the defendant to recover through the
suit brought against her a "large counter-claim against the plaintiff,
brings her within the cases provided for by section 1835 of the Code of
Civil Procedure, in which costs may be awarded to the plaintiff.
Ulster Special Term,, April, 1885.
MOTION for costs against the defendant.
Charles A. Fowler, for plaintiff.
A. Schoonmaker, for defendant.
HOWARD'S PRACTICE REPORTS. 57
Button agt. Newton.
WESTBROOK, J. After the presentation of the claim, to
recover which this suit was instituted by the plaintiff, to the
defendant it was agreed " that an action should be brought
instead of a reference with the view to a speedier trial, which
was desirable for all parties, and the action was brought upon
that understanding in lieu of a reference, and not because the
administratrix did not offer or was not willing to refer."
The extract just quoted from the affidavit of the counsel
for the defendant contains the agreement under which this
action was brought, and must be considered in disposing of
the motion which the plaintiff has made for costs.
Section 3246 of the Code of Civil Procedure, in connection
with sections 1835 and 1836, prescribes the rule for the
recovery of costs, " in an action brought by or against an
executor or administrator, in his representative capacity ; "
but does not affect the allowance of costs and disbursements
in a reference under the Revised Statutes. The contrary of
this was affirmed in Miller agt. Miller (32 Hun, 481), but
certain provisions of the law were, as it seems to me, so
clearly overlooked that the decision cannot be followed with-
out the reassertion by the general term of tho conclusion
therein stated, after its attention has been again called to the
subject.
By section 317 of the Code of Procedure it was declared
that in a reference under the Revised Statutes " the prevail-
ing party shall be entitled to recover the fees of referees and
witnesses, and other necessary disbursements to be taxed
according to law."
Chapter 417 of the Laws of 1877 repeals (sec. 1, sub. 4)
" all of the Code of Procedure, except the following sec-
tions and parts of sections thereof, to wit : " * * *
Sections three hundred to three hundred and twenty-two,
both inclusive." This makes it clear that the repealing act
of 1877 left section 317 of the Code of Procedure intact, and
consequently, as provided thereby in a reference under the
Revised Statutes of a claim against a dead person's estate, the
VOL. II 8
68 HOWARD'S PRACTICE REPORTS.
Sutton agt. Newton.
prevailing party recovered the disbursements provided for by
that section. Chapter 245 of the Laws of 1880, which, by
subdivision 4 of section 1, also repealed the act " called the
Code of Procedure " (page 369), further expressly declared
by subdivision 8 of section 3 (page 375) that such repeal did
" not affect the right of a prevailing party to recover the fees
of referees and witnesses, and his other necessary disburse-
ments upon the reference of a claim against a decedent, as
provided in those portions of the Revised Statutes left unre-
pealed after this act takes effect."
In construing the act of 1880 it should be borne in mind,
as has been shown, that when that act took effect, though the
Code of Procedure had been in part repealed by the act of
1877, yet section 317, which 'gave the disbursements in the
cases excepted out of the repealing act of 1880, was left
unrepealed and in full force. When, therefore, such act (that
of 1880) further repealed the same Code, but declared such
repeal should " not affect the right of a prevailing party to
recover the fees of referees and witnesses, and his other nec-
essary disbursements" in a reference of a claim against a
deceased person's estate under the Revised Statutes, such
declaration was only another mode of providing that the part
of section 317 of the Code which gave such disbursements
was unaffected by the repealing act of 1880, as it was by that
of 1877. Very clearly, then, so much of section 317 of the
Code of Procedure as gives disbursements in a recovery
against the estate of a deceased person upon a reference under
the Revised Statutes is not repealed, but is in full force and
effect (See Hall agt. Edmonds, 67 How., 202).
As, by agreement of the parties, the present action was " in
lieu of a reference," that is to say, its substitute, it follows
that the plaintiff, who was " the prevailing party," is, by the
unrepealed part of section 317 of the Code of Procedure,
" entitled to recover the fees of the referee and witnesses,
and other necessary disbursements to be taxed according
to law."
HOWARD'S PRACTICE REPORTS. - 59
Sutton agt. Newton.
The remaining question which the motion presents, to wit :
Is the plaintiff entitled to costs other than the disbursements ?
will now be considered. The referee, who was appointed to
hear and decide the issues in the action, has, by his report
dated January 8, 1885, found $621.55 due to the plaintiff
from the estate which the defendant, as the administratrix
thereof, represents. The claim presented was for $4,728.78,
and the large reduction of the demand of the plaintiff would
ordinarily, in an action brought against an executor or admin-
istrator to charge the estate he represents, prevent the recovery
f costs " (See many cases cited, 2 Ajb'botffs Digest, 357, para-
graphs 180, 181, 182). In a reference under the Revised
Statutes for which this action is a substitute, the rule, except
as to disbursements, is the same (Robert agt. Ditmas, 7 Wend.,
522; Carhart agt. Blaisdell, 18 Wend., 531; Pursell agt.
Fry, 19 Hun, 595). Indeed, the Revised Statutes, in pro-
viding for the reference (3 R. 8. [1th ed.'}, 2300, sec. 37),
declare " the court may * * * adjudge costs as in actions
against executors." The fact that the defendant did not,
upon the presentation of the claim, offer to pay anything,
gives no right to costs. This point was expressly decided in
Carhart agt. Blaisdell (18 Wend., 531), just referred to.
The defendants, however, not only rejected the entire claim
of the plaintiff, but set up a counter-claim against him for the
sum of $2,624.55, for which sum she asked an affirmative
judgment against the plaintiff, " with interest thereon from
March 3, 1877, besides costs of this action." The defense
then, which the defendant made to the action, was not only a
resistance to the claim of the plaintiff, but also the prosecu-
tion of an independent and distinct demand against him for
a large amount. If the defendant had sought to recover that
sum by an action against the plaintiff and had failed, she
would have been compelled to pay costs. The counter-claim
set up in the answer was really an independent action against
the plaintiff, and its resistance was the trial of another issue
than that presented by his demand against the defendant.
tiO HOWARD'S PRACTICE REPORTS
Button agt. Newton.
As the costs incurred in the successful defense of the claim
of the defendant form a very considerable part of the expend-
iture against which the plaintiff seeks indemnity, no good
reason is seen to refuse it. It is, therefore, held that the
attempt made by the defendant to recover judgment for a
large and independent claim against the plaintiff, in which
she entirely failed, constituted an unreasonable resistance to
the demand of the plaintiff. It was a resistance of the plain-
tiff's claim, because, before he could obtain a report in his
favor for that which was his due, the independent demand or
counter-claim of the defendant had to be defeated. If the
claim of the plaintiff had been reduced by allowing that of
the defendant, then it could not be said that the interposition
of the counter-claim was an unreasonable resistance to the
demand of the plaintiff, unless the latter had, in the presenta-
tion of his claim, credited that of the estate against him.
"When, however, as in this case, the claim which the defendant
seeks to enforce is without merit, and the plaintiff is com-
pelled to overcome and resist it before he can obtain payment
of that which is his due, then the interposition of such a
claim makes an unreasonable resistance by the defendant to
that of the plaintiff, and entitles the latter, when successful,
to the costs of the action.
The result of my examination is, that the motion for costs
to the plaintiff must be granted. Apart from the reason
hereinbefore presented for allowing disbursements, if the
action in which the motion is made is not to be deemed a
substitute for a statute reference, but as an action in which
the rule prescribed by section 3246 of the Code of Civil
Procedure applies, the motion should still prevail. The
attempt by the defendant to recover through the suit brought
against her a large counter-claim against the plaintiff, and its
failure brings her within the cases provided for by section
1835, in which costs may be awarded to the plaintiff.
HOWARD'S PRACTICE REPORTS. 61
The People ex rel. Wright agt. Common Council of Buffalo.
SUPREME COURT.
THE PEOPLE ex rel. ALFRED P. WRIGHT agt. THE COMMOW
COUNCIL OF THE CITY OF BUFFALO.
Mandamus Civil service Municipal corporation When citizen and toot-
payer may apply for a writ of mandamus.
By section 2 of chapter 410 of the Laws of 1884, it is the duty of the
mayor of each city to prescribe such regulations for the admission of
persons into the civil service of such city; and to carry out the design
and intention of the law it was provided that the mayor shall, from
time to time, employ suitable persons to conduct such inquiries and
make examinations; and the power to employ includes the obligation
to provide for their compensation.
Where, under the charter of the city of Buffalo, the mayor made the
estimate for what he considered would be the necessary expenses of
carrying these provisions of the laws of the state into execution, and
communicated and presented such estimate to the common council:
Held, that the common council had no power to wholly reject such
estimate. Although it may, alter or amend the estimate, it has no
authority to arbitrarily reject it. Its duty is to consider it in good
faith, with sound judgment and discretion ; and if any misapprehension
has intervened in its amount, to correct it and apportion it to the
probable necessities of the service.
A writ of mandamus is the appropriate remedy by which the common
council may be required to consider the estimate and vote the amount
thought necessary to carry out the law.
A citizen and a taxpayer has the power and right; to apply for the writ.
It is only when the application for the writ is made to secure some per-
sonal or private redress that the applicant must be shown to be inter-
ested in obtaining it before the writ can be directed to issue. Where
the act omitted to be performed affects the public interests generally,
and all citizens are equally concerned in securing its p'erformance, and
that has been enjoined by a law of the state, it is sufficient, to support
the application, that the applicant is a citizen and entitled to insist
upon the execution of the laws of the state.
Erie Special Term, April, 1885.
MOTION for a peremptory writ of mandamus to be directed
to the common council of the city of Buffalo, commanding
that body to consider and pass upon the estimate made by the
62 HOWARD'S PRACTICE REPORTS.
:
The People ex rel. Wright agt. Common Council of Buffalo.
mayor for salaries and expenses of executing the civil service
law, so far as it has been made applicable to the city of
Buffalo.
Ansley Wilcox, E. C. Sprague and Sherman S. Rogers, for
applicant.
Herman Hennig, city attorney, for common council.
DANIELS, J. The mayor of the city, in submitting to the
common council the estimates for his department, included
the sum of $1,250 for salaries and expenses of executing the
civil service law. This item was considered by the common
council at its regular meeting held on the 6th day of April,
1885, when, by its action as a committee of the whole, it was
stricken out of the estimate ; and it has been stated in one of
the affidavits on which the application has been made, that the
common council in its action was controlled by the determ-
ination to make no provision for salaries and expenses of
executing the civil service laws, and designed thereby to
nullify and prevent their execution. This has not been
denied, and the action taken by that body, or its members
tends to either sustain this conclusion, or that the common
council are acting under a misapprehension concerning
their duties and obligations under the law. And it is to cor-
rect their action in this respect that the writ of mandamus
has been applied for, directing the common council to con-
sider and sustain the estimate so far as it was made by the
mayor or may be required for the execution of the provisions
of the law relating to the city of Buffalo.
The application has been resisted on the ground that the
action which was taken was not that of the common council,
but of its committee ; but an answer to the objection is pre-
sented by the circumstance that the committee of the whole,
by which the action was taken, was made up of the members
of the common council, and in their action they officiated as
the common council of the city. Their powers and duties in
HOWARD'S PRACTICE REPORTS. 68
The People ex rel. Wright agt. Common Council of Buffalo.
this respect have been prescribed by section 6, title 5 of the
charter of the city of Buffalo, and that requires, when the
estimates shall be made and submitted, that the common
council shall proceed to consider the same, and whether it does
so nominally as a committee, or as the common council itself,
the exercise of the authority will be precisely the same. The
power has been conferred alone upon the common council,
and whether its members act under that name, or under the
name of a committee of the whole, can make no substantial
difference in the exercise of this authority; it will still be,
under this section, the action of the common council, although
it may not be so final in its character as to render further con-
sideration needless. That further consideration by the mem-
bers of the common council as such, or acting as a committee
of the whole, would change the result is extremely improba-
ble, inasmuch as the estimate was stricken out by the decisive
vote of thirteen to one. The probabilities, on the contrary,
are so decided, arising out of the action which has been
taken, as to support the conclusion asserted in the affidavit,
that it is the design of the common council to reject the
estimated item, and in that manner prevent the law from
being carried into effect. And these facts are sufficient to
entitle the application to be sustained if a legal right to the
writ has been made out and the applicant is authorized by law
to maintain the proceeding.
It is true, as has been urged on behalf of the common
council, that the writ is not to be issued in a doubtful case,
or where any other remedy for adequate redress shall be found
to exist. But no other remedy has been prescribed or pro-
vided by law for the redress of the wrong complained of as
the foundation of this action. And if the right is to be
clearly derived from the law, then neither of these objections
stand upon any legal foundation.
The right to the allowance of the estimate, or of some other
proper and adequate amount, depends upon the construction
which shall be given to chapter 354 of the Laws of 1883 as it
64 HOWARD'S PRACTICE REPORTS.
The People ex rel. Wright agt. Common Council of Buffalo.
has been amended by chapter 410 of the Laws or 1884. By
these acts very definite and broad provisions were first made
to" regulate the civil service of the state, and to provide for
promotions and appointments to certain public offices of the
state. This, so far as the laws were rendered applicable to
the city, was to be done by open and competitive examina-
tions, testing the fitness of the applicants for appointment in
the public service. It was not, in the first instance, rendered
obligatory upon the city, but the mayor was vested with the
authority to provide rules and regulations for carrying its
provisions into effect in the official civil service of the city so
far as the offices designated and mentioned in it were referred
to. The mayor of the city, it has been made to appear, did
provide such rules and regulations, and persons were employed
and selected to make investigations and examinations author-
ized by the law, and they have to the present time been con-
ducted without subjecting the city to expense. But by
section 2 of chapter 410 of the Laws of 1884, the mayor of
the city was no longer left at liberty to exercise his volition
upon the subject. But the duty was made mandatory, and
he was not only authorized but thereby directed to prescribe
such regulations as had previously been indicated in the law
of 1883, or to continue and carry those into effect which had
been previously adopted. And to carry out the design and
intention of the law it was provided that the mayor " shall
from time to time employ suitable persons to conduct such
inquiries and make examinations, and shall prescribe their
duties and establish regulations for the conduct of persons
who may receive appointments in the said service " (Laws
1884, 4S8, sec. 2). And to render the observance of this duty
still more imperative, if that could be done after the employ-
ment of this positively mandatory language, it was further
declared in the same section that " after the termination of
three months from the passage of this act (which took effect
on the 29th day of May, 1884) no officer or clerk shall be
appointed, and no person shall be admitted to or be promoted
HOWARD'S PRACTICE REPORTS. 65
The People ex rel. Wright agt. Common Council of Buffalo.
in either of the said classes now existing or that be arranged
hereunder pursuant to said rules until he has passed an
examination or is shown to be exempted from such examina-
tion in conformity with such regulations." These directions
are so clear and positive as to leave the mayor no discretion
upon the subject, but he must irom time to time employ suit-
able persons to conduct the examinations and make the
inquiries required. But neither this act nor the one preced-
ing it contains any express provision for compensating the
persons to be so employed by the mayor, and for that reason
it has been urged that their services were intended to be
obtained gratuitously. But the act has not so declared or
provided ; and by requiring the mayor to employ suitable
persons to perform these services, it is to be implied Irom
that language that it was intended that they should be reason-
ably remunerated for such services. For in no other manner
can persons be ordinarily induced to render services of the
description of those prescribed by the law. What the mayor
has been required to do is to employ suitable persons, and the
power to employ others to render services on behalf of the
municipality, includes the obligation to provide for their
compensation. The employment can usually be expected to
be secured in no other way ; and when a person or persons
are employed it is a reasonable, as well as a natural implica-
tion, that the services rendered in me course of the employ-
ment shall be reasonably or correspondingly rewarded. This
is the effect of employing others to render services in the
ordinary relations of business, and as the city has not been
exonerated from that effect it may be assumed that it was
designed that it should observe and fulfill the ordinary obliga-
tion arising out of the act of employment. In no other way
can the services of others be ordinarily secured. It is true
that they have been otherwise secured up to the present time
under the authority contained in the preceding law. But
there is no expectation that gratuitous services will be further
rendered for the city under this statute by persons whom the
VOL. II * 9
66 HOWARD'S PRACTICE REPORTS.
The People ex rel. Wright agt. Common Council of Buffalo.
mayor shall consider it his duty to employ. It has been
intimated that persons may be found who would be willing
to render the same service without compensation, but they
may not be persons whom the mayor, in the exercise of this
authority, would be willing to select or appoint. That cer-
tainly is his judgment, for he. made this estimated amount
upon the apparent understanding that it would become neces-
sary to enable him to carry into effect these provisions of the
statute. And where an appropriation of money is essential
for that purpose, although not so declared in the law itself,
the obligation to make it is to be derived by implication from
it. The rule upon this subject is, that " whenever a power is
given by statute everything necessary to make it effectual or
requisite to attain the end is implied ; " and " where the law
requires a thing to be done it authorizes the performance of
whatever may be necessary for executing its commands"
(Sedg. on Statutory, &c., Law, 92 ; 1 Kent [7th ed.~\, 513,
marg. p. 464). Steif agt. Hart (1 Comst., 20, 30) ; Chipman
^.Montgomery (63 N. Y., 221), and the case of Baker agt.
City of Utica (19 N. Y., 326), requires no different construc-
tion to be placed upon the statute. It is, on the contrary, an
authority in favor of the right of persons rendering services
to a municipal corporation to be compensated for the value of
such services where no specific provision of law has been
made declaratory of the right or extent of compensation. In
that class of cases the compensation is to be a reasonable
remuneration for the services rendered ; and it would be the
duty of the mayor, within these statutes, to confine the com-
pensation to such limits. What the law intended was that
the mayor should be obliged to employ the persons whose
services should be requisite to carry out its provisions, and to
exercise all the authority which should become necessary to
attain that end. And as the persons employed would be
entitled to be reasonably compensated for the services ren-
dered by them the obligation to provide for the payment of
that compensation has been included in the law. By omitting
HOWARD'S PRACTICE REPORTS. 67
The People ex rel. Wright agt. Common Council of Buffalo.
to provide the manner in which the money should be obtained
to make this compensation the end and purpose of the law
are not to be defeated ; for, as the services are on the employ-
ment of the mayor and on behalf of the city, the funds
required to remunerate the employment are necessarily a
charge upon the city, as all other expenses of the municipal
government have been made by the charter. Whatever may
be required to meet these obligations has been directed, by
title 2 of the charter, to be estimated by the heads of the
departments. This includes all expenditures considered to be
necessary for the ensuing fiscal year in the administration of the
affairs of the city government. This is such an expenditure,
and under this portion of the charter it was a proper subject
to be estimated, and estimated by the mayor, inasmuch as he
is the person who was to exercise this authority and employ
the persons required to render these services. Pursuant to
this obligation the mayor made the estimate for what he con-
sidered would be the necessary expenses of carrying these
provisions of the laws of the state into execution, and com-
municated and presented the estimate to the common council.
This body has been authorized by section 6 of title 5 of the
charter by a vote of two-thirds of all the members elected to
alter or amend the estimate. But where it has been made
pursuant to the direction of a positive statute, as it has been
in this instance, the common council has not been invested
with the power of wholly rejecting the estimate. It may
under the authority to alter or amend the estimate, extend,
modify or limit it, as that may appear to be justified by the
facts, but the common council has no authority arbitrarily to
reject the estimate. Its legal, as well as its absolute duty is,
on the contrary, to consider it in good faith, with sound judg-
ment and discretion, and if any misapprehension has inter-
vened in its amount, to correct it and apportion it to the
probable necessities of the service for which it may be
designed. This, according to the papers which have been
produced upon the application, has not been done. The esti-
68 HOWARD'S PRACTICE REPORTS.
The People ex rel. Wright agt. Common Council of Buffalo.
mate was not considered, but it was arbitrarily rejected, for the
purpose, as it lias been stated, of defeating the execution of
the law. That neither the members of the common council
nor any other official of the state or city has the right
or power to do. The government, whether general or local,
is one of laws, and when a law has been constitutionally
enacted it is the imperative duty of all public officers, and
this was expressly made so by the act itself, to carry its pro-
visions into effect. Every public officer is required, before
he can enter upon the discharge of his duties to take
his official oath that he will discharge the duties of his
office according to the best of his ability, and no official duty
is more imperative or important than those which the positive
laws of the*state have declared shall be observed and per-
formed. Beyond this the law has further re-enforced this
obligation by a very general provision declaring that " a pub-
lic officer or person holding a public trust or employment,
upon whom any duty is enjoined by law, who willfully neg-
glects to perform the duty, is guilty of a misdemeanor"
(Penal Code, sec. 1175). No public officer has been invested
with the discretion to omit to carry into effect a law of the
state for the reason that he may not approve of its object or
policy, or for any other reason. He is allowed to exercise no
such choice or authority, but the obligation is general and
imperative to carry the laws of the state into execution accord-
ing to their fair import, to be derived from the language
employed in their enactment.
By rejecting the estimate communicated in this manner to
the common council, the authority of the mayor to execute
this mandatory provision of the act of 1884 may be practi-
cally nullified. For no balance, it has been shown, will remain
of the estimate submitted for the expenditure of bis own
department in other respects, which could be appropriated to
the payment of persons employed by the mayor under the
authority of the law of 1884. And where that is the fact,
and no appropriation exists out of which payment can be
HOWARD'S PRACTICE REPORTS. 69 *
The People ex rel. Wright agt. Common Council of Buffalo.
made, by section 9 of title 5 of the charter contracts have
been prohibited from being made, and no liability for pay-
ment can be created when they may be made. And no war-
rant for the expenditure to be incurred in the performance of
any such contract, if it should be made, is allowed to be paid
by the treasurer of the city. By striking out this item from
the estimate of the mayor therefor, he will be deprived of
the ability to perform the duty which the act has declared
shall be performed by him, and in that manner this provision
of the law will be wholly defeated and rendered nugatory.
And that the members of the common council of the city can-
not, in the exercise of any legal authority with which they
have been invested, accomplish. The authority which has
been given them has been designed to promote and secure
the execution of the laws, and not their nullification by their
failure or refusal to act.
The case is not within section 4 of title 3 of the charter of
the city, for* the reason that the persons to be selected and
employed by the mayor will not be persons elected or appointed
under the charter of the city, but the power to appoint them
is wholly derived from the acts of 1883 and 1884, which have
already been mentioned.
That the writ of mandamus is the appropriate remedy by
which the common council may be required to exercise the
authority conferred upon it by law for the benefit of the public,
cannot admit of any serious question. It was employed to
secure the observance of a duty enjoined by the common coun-
cil of the city of New York, in People agt. Common Council,
etc. (45 Rarb., 4T3), which was afterwards affirmed by the
court of appeals (3 Keyes, 81). And as the case presented by
the facts supported by the affidavits has been made out, the
right disclosed by it may be enforced and maintained through
the instrumentality of this writ, under this authority.
The remaining objection to be considered is that involving
the power or right of the present applicant to apply for the issu-
ing of the writ. He is shown to be a citizen and taxpayer of the
70 HOWARD'S PRACTICE REPORTS.
The People ex rel. Wright agt. Common Council of Buffalo.
city, interested, therefore, in the orderly maintenance of its gov-
ernment. That result can only be secured, so far as these
legislative acts extend, by observing and conforming to their
provisions. If they are not complied with, then, so far as
public offices are to be filled to which they relate, they cannot
be supplied, and the government of the city to that extent
will be subverted. And every citizen has such an interest in
its affairs as to be entitled, by a proper application to the
court, to avert the occurrence of these consequences. It is
only when the application for the writ is made to secure
some personal or private redress that the applicant must be
shown to be interested in obtaining it before the writ can be
directed to issue. Where the act omitted to be performed
affects the public interests generally, and all citizens are
equally concerned in securing its performance, and that has
been enjoined by a law of the state, a different rule prevails.
There it is sufficient to support the application that the appli-
cant is a citizen and entitled to insist upon the 'execution of
the laws of the state. These laws are made for the promotion
of public order and individual security, and accordingly every
citizen lias a sufficient interest in their execution to entitle
him to prosecute an application of the description. Laws are
enacted for the well being, good order and security of the
community, and of its constituent members. Public officers
are provided for, elected and appointed to execute their pro-
visions, and where they designedly fail or intentionally omit
to do that, every citizen has the inherent right to apply to this
court and insist upon it that the writ of mandamus shall issue
in such a form as to secure the observance of that duty. The
authorities in this and several other states, and those also of
the court of kings bench in England, have gone very far in
supporting this proposition. In fact, the utmost limit of
judicial interference has been reached for the purpose of sus-
taining the right of private persons to insist upon the
performance of public duties by public officers. An extreme
case was that of the King agt. Broum* note of which will be
HOWARD'S PRACTICE REPORTS. 71
The People ex rel. Wright agt. Common Council of Buffalo.
found in 3 Term, 574, under the title of Rex agt. Smith.
where an application of this nature was sustained against the
common councilmen of York, because they had failed to
observe the requirement of an act of parliament declaring that
corporate officers generally, as a qualification for holding their
offices, should receive the sacrament within six months. The
interest of the applicant in the observance of this duty was
extremely insignificant, and yet the application was sustained
because it was made to enforce the observance of an act of
parliament which interested all the corporations in the king-
dom. This authority, as well as others maintaining the same
general conclusion, were fully approved in the case of People
agt. Collins (19 Wend., 56). And in the case of People agt.
Halsey (37 N. Y., 344), it was also held to be a matter of but
slight importance whom the applicant or relator should be, so
long as he does not officiously intermeddle in a matter with
which he has no concern. The rule, it was said, " that a
relator in a writ of mandamus must show an individual
interest to the thing asked, must be taken to apply to cases
where an individual right is alone involved, and not to cases
where the interest is common to the whole community "
(Id., 348 ; High on Extraordinary Remedies, sec. 431, and
cases cited in note). The rule is different in some of the
states, but here it has become fixed and established, allowing
every citizen the right to compel public officers, whose duty
it has been made to do so, to execute the laws of the state
enacted for the benefit of the community, and where the
government is solely one of laws, as that of the state and the
city most clearly are, the rule is one of a salutary and beneficial
character.
Neither of the objections, which have been taken to the
application, are capable of being maintained, and as the case
has been held over with the expectation that the action of the
common council might be voluntarily reconsidered in such a
manner as to secure the observance of the law without a resort
to this remedy, and that has not been done, no other alterna-
72 HOWARD'S PRACTICE REPORTS.
Morrison agt. Lawrence.
tive remains but to direct that the writ of mandamus shall be
issued. This writ will require the common council to pro-
ceed in good faith to the consideration of the estimate
submitted for this contemplated expenditure by the mayor,
and to allow it and include it in the estimates for the ensuing
fiscal year, so far as it may be found requisite to do so for the
maintenance and execution of the law. What the common
council will be required to do is to consider and dispose of
the estimate precisely the same as it does any other lawful
estimate submitted for its action ; to exercise its judgment
carefully and intelligently upon the subject and to allow the
estimate as it may have been submitted or as it may be altered
or amended solely pursuant to the exercise of that judgment,
guided by the facts which, in the faithful discharge of its
duty, may be found to exist.
The order to be entered will be settled on notice to the
city attorney.
SUPREME COURT SPECIAL TERM.
RODERICK MORRISON agt. LYDIA LAWRENCE and ISAAC
LAWRENCE.
Code of Oivil Procedure, section 1019 Rights of referees Wliat is a suffi-
cient compliance with the provisions of section 1019 as to delivery of report
When the sixty days begin to run Power of referee to enlarge time for
submission of briefs.
The sixty days in which a referee must make his report do not commence
to run until the cause is submitted.
Where briefs are to be submitted there is no submission of the cause
until the time to hand in the briefs is passed.
The referee has power to enlarge the time for the submission of briefs.
Having his report ready and tendering it on pajnnent of his fees, within
the sixty days, is sufficient. (See to tnme effect decision by general term,
first department , Lit.1l* agt. Lynch, 1 How. [N. S.], 95.)
Special Tfrm, June, 1885.
HOWARD'S PRACTICE REPORTS. 7ft
Morrison agt. Lawrence.
MOTION by plaintiff to set aside the report of a referee and
to vacate the judgment entered thereon on the grounds that
the report was not filed within the time prescribed by section
1019 of the Code.
The testimony closed before the referee February 13, 1885,
and at that time the counsel for the parties agreed to submit
the case on written briefs, to be handed in within twenty
days ; before the expiration of the twenty days the defend-
ants' attorney obtained from the referee an extension of the
time to the middle of March, and on the thirteenth March he
mailed his brief to the referee, which was received by him on
the next day. On the twentieth day of April the referee
notified the defendants' attorney that his report in favor of
the defendants was ready for delivery on the payment of his
fees. The defendants' attorney not having taken up the
report, the plaintiff's attorney, on the eleventh day of May,
served notice discontinuing the reference. On the twenty-
fifth of May the defendants' attorney took up the report and
served copy of the same on plaintiff's attorney on the next
day, and afterward entered judgment.
Joseph Merritt, for plaintiff.
James L. Stewart^ for defendant.
WESTBROOK, J. The motion presents a close question, but
I shall hold :
First. That the sixty days do not commence to run until the
cause is submitted.
Second. When briefs are to be submitted there is no submis-
sion of the cases until the time to hand in briefs is passed.
Third. That the referee has power to enlarge the time for
the submission of briefs, as he would have the power to postpone
the argument of the cause beyond the day fixed, if the cause
was to be submitted on oral argument. This is an inherent
right or power of the referee, and unless his discretion in this
VOL. II 10
74 HOWARD'S PRACTICE REPORTS.
Reyher agt. Reyher and others.
particular is abused, the court will not interfere with hia
action.
Fourth. Having the report ready and tendering it, on pay-
ment of his fees, within the sixty days is sufficient (Little
agt. Lynch, 34 Run, 396 ; Geib agt. Topping, 83 N. Y., 46).
These decisions are contrary to Phillips agt. Carman (23
Hun, 150), but they are more recent. It is true the latter
case was affirmed by the court of appeals (84 JW. Y., 650), but
the affirmance may have been on some other ground (see 34
Hun, 400) ; and indeed we must so suppose, for in the case
above cited from 83 New York, 46, the same court expressly
decided contrary to it.
Motion denied, without costs. The defendants must stipu-
late to enable plaintiff to review the judgment.
SUPREME COURT.
AGNES REYHER executrix, &c., agt. CAROLINE REYHER
and others.
Witt When real estate of the testator chargeable with payment of legacies.
The primary fund for payment of legacies is personal estate and realty,
cannot be charged with the burden unless by express direction or
clear intent drawn from the will, aided by outside circumstances if auy
there be.
The will or R., after directing the payment of his debts, directed his
executors to pay to his father, mother, brother and sister, certain sums
of money, and then directed that all the rest residue and remainder of
his estate, both real and personal, be equally divided between his
daughter and widow who was appointed executrix, giving her full
power to sell and convert all the estate into money. The personal
property was insufficient to pay the legacies in full :
Held, that the legacies were chargeable upon the real estate.
New York Special Term, April, 1885.
ACTION by the plaintiff for construction of the will of
August Reyher, deceased. After directing the payment of
HOWARD'S PRACTICE REPORTS. 75
Reyher agt. Reyhe: and others.
his debts the testator directed his executor to pay to his
father, mother, brother and sister, certain sums of money,
and then directs that all the rest, residue and remainder of hie
estate, both leal and personal, be equally divided between his
daughter and his widow the plaintiff who was appointed
executrix. The executor was given full power to sell and
convey all the estate into money. The personal property was
not sufficient to pay the legacies in full. A portion of the
real estate had been sold by the plaintiff under the power of
sale.
F. C\ Stefen, for plaintiff.
E. Beneviile, guardian ad litem, for infant defendant.
A. C Anderson^ for defendant, F. Bruckman.
R. Dulon, for other defendants.
BEACH, J. It would be satisfactory to the court to con-
strue this will in a way to increase the residuary estate for
widow and child, whose interests are provided for in the
residuary clause. To do so, however, would substitute
another's ideas for those of the testator, as construed by fre-
quent adjudication, and subvert legal authority often
announced and impossible to weaken or avoid.
The primary fund for payment of legacies is personal
estate, and realty cannot be charged with the burden unless
by express direction, or a clear intent drawn from the will,
aided by outside circumstances if any there be. The instru-
ment at bar gives the legacies, after payment of debts and
funeral expenses. The testator's parents, sisters and brothers
are the beneficiaries. A direction to pay all within one year
after death follows, and then a disposition of all the rest,
residue and remainder of his estate, both real and personal,
by division between wife and daughter.
This clause seems to contemplate a residuum of both real
and personal property, and the absence of any prior devise of
76 HOWARD'S PRACTICE REPORTS.
Lee agt. Lee.
realty to create a residue, supports the inference of intention
to charge it with the burden of legacies, should there be a
deficiency in personarty. The question has frequently been
before the courts, and I examined the adjudications in
Le Fevre agt. Toole et al. (84 N. J"., 95), when presented
at special term. The case of Sevan et al. agt. Cooper et
al. (72 N. Y., 317), countenances no different conclusion.
The intent of a testator is to be gathered from his will, con-
sequently the modes of expression vary in every case. In
the one last cited the residuary clause separated real from
personal estate ; there was a plain devise of realty, and the
legacies were given to strangers.
With due regard to controlling authority, I do not think
the conclusion can be avoided that the legacies here are
chargeable upon testator's real estate.
Decree ordered charging legacies upon real estate.
NOTE. No appeal was taken in the case. [ED.
SUPREME COURT.
HENRY "W. LEE, individually and as executor, etc., #gt. EMMA
F. LEE, individually and as administratrix.
Wttt Construction of.
It is the duty of the court to ascertain from the will itself the intention of
the testator, and if the provisions of the will are legal, to give effect to
them according to the intention of the testator. Invalid provisions,
as a matter of course, must fail.
By the will, one-half of the residuary estate was given to trustees, who
were directed to receive the income thereof during the lifetime of the
testator's son, H. W. L., and to pay the same to him so long as he
should live. But upon his death, leaving a wife him surviving, one-
quarter of the income was to be paid to her so long as she should
remain unmarried. On his death, without leaving a widow, the whole
of such share set apart for his benefit, or if he should leave a widow,
three-quarters of such share was given absolutely and in fee to his
HOWARD'S PRACTICE REPORTS. 11
Lee agt. Lee.
children. But should his son leave "a widow," then at her death or
remarriage the one-quarter of his share was disposed of in like manner
as the rest of the share. H. W. L was married at the time of his
father's death, and he, as well as his then wife, are still living:
Held, that it would be premature, at this time, to pronounce this portion
of the will invalid, for effect may be given to the testator's actual dis-
position of this one-quarter interest, in the event that H. W. L. should
leave no widow at his death.
But as to the one-quarter interest of the one-half of the residuary estate
continued in the trustees for the benefit of the widow of his son
S. A. L., in the event that he should die leaving a widow, the case is
different S. A. L. died after the testator's death, leaving a widow and
eeveral children. These facts present the alternative condition, upon
which the trust was to continue after the death of the testator's son,
and upon which the gift to the children was made, and such trust is
void, and as to this one-quarter of the one-half of the residuary estate,
the testator in law died intestate. (Citing Schetler agt. Smith, 41
N. Y., 328.)
Where the will contained a gift of $2,000, upon the death of the testator's
wife, to his grandchildren " in being " at that time, such of them, how-
ever, as were under the age of twenty-three years to be paid their shares
on arriving at that age :
Hcld,iha,t grandchildren born after the testator's death, but during the life-
time of the widow, take a share of this gift. Grandchildren born after
the death of the widow do not participate in this legacy. The statute
disposes of the shares of the grandchildren who died intestate during
the lifetime of the widow.
Held, also, that the grandchild H. F. L. , although born after the deatli of
his father S. A. L., is embraced within the terms of the gift to his
children " then in being," and within the provisions of the statute, and
the policy of the law should share equally with the brothers and sisters
in the share set to his father.
The after-added provisions of the will, near its close, by which it is
sought to continue the trust over the shares of minors in the residuary
estate, is void in so far as the $2,000 held for the life of Eliza Howe is
concerned. That portion of the residuary estate has already been sub-
jected to a trust for two lives.
The gift to the testator's grandchildren was made in absolute terms at
the time they were limited to take effect, and the latter-added invalid
trust may be dropped, and the principal sum should be paid to the per-
sons entitled thereto, when entitled, as though such latter trust had
not been attempted to be made.
Special Term, April, 1885.
78 HOWARD'S PRACTICE REPORTS.
Lee agt. Lee.
ACTION for the construction of the will of Frederick R.
Lee, deceased.
O. Sackett, for plaintiff.
Ira 0. Miller, for defendant Emma F. Lee.
C. M. Earle, for infant defendants.
Frank C. Lang, for other defendants.
YOBST, J. The will of Frederick R. Lee was written
by himself. It is drawn with a care not usually found in
testaments written by one unfamiliar with the law applicable
to wills, or the principles of construction which apply to such
documents.
This will is presented for construction, and it is urged, on
the behalf of the plaintiff and others interested in this con-
troversy, that some .of the provisions are ambiguous, and
others invalid. It is the duty of the court to ascertain from
the will itself the intentions of the testator, and, if the pro-
visions of the will are legal, to give effect to them according
to the intention of the testator. Invalid provisions, as a
matter of course, must fail.
The first question which arises is in respect to the direction
given to the principal sum of $2,000, ordered by the testator
to be invested for the benefit of the testator's sister, Eliza A.
Howe.
I am of the opinion that such principal sum is disposed of
after the death of the testator's sister by the residuary clause,
and goes to the persons entitled under the will to the residuary
estate. And if there be any invalidity in the disposition of
the residuary estate, the disposal of that sum is affected
thereby. The validity of the disposition of a part of the
residuary estate is, however, assailed.
One-half of the residuary estate was given to trustees, who
were directed to receive the income thereof during the life-
time of the testator's son Henry W. Lee, and to pay the same
HOWARD'S PRACTICE REPORTS. 79
Lee agt. Lee.
to him so Ions: as he should live. But upon his death leaving
a wife him surviving, one-quarter of the income was to be
paid to her so long as she should remain unmarried. On his
death without leaving a widow, the whole of such share set
apart for his benefit, or if he should leave a widow, three-
quarters of such share was given absolutely and in fee to his
children. But should his son leave " a widow," then at her
death or remarriage the one-quarter of his share was disposed
of in like manner as the rest of the share. It is urged that
as to the one-quarter of one-half of the residuary estate
reserved for the benefit of the widow of the testator's son
Henry W. Lee, should he leave a widow, the disposition made
thereof upon her death or remarriage is invalid. In support
of this contention I am referred to Schetler agt. Smith (41
N. Y., 328). That case has been repeatedly approved and
followed in subsequent decisions.
Henry W. Lee was married at the time of his father's death,
and he as well as his then wife are still living. Precisely
those conditions existed in Schetler agt. Smith (supra}. There
Lawrence Smith, the testator's son, had a wife and issue liv-
ing at the time of the making of the will, and also at the
death of his father. It was held in the case above cited that,
as the trust was to continue during the life of the widow of
the testator's son, if he left a widow, it would include " any
wife that might survive him." That it was possible that the
son, on the death of his then wife, might marry a woman,
" not in being " at the testator's death. And that under such
circumstances, and in view of such possibility, the trust was
void. The alternative condition, however, which ended the
trust, in the event that the testator's son should die without
leaving a widow, was held to be valid.
It would be premature, therefore, at this time to pronounce
this portion of the will invalid, for effect may be given to
the testator's actual disposition of this one-quarter interest,
in the event that Henry "W. Lee should leave no widow at
his death.
80 HOWARD'S PRACTICE REPORTS.
Lee agt. Lee.
The case is, however, quite different with regard to the
one-quarter interest of the one-half of the residuary estate,
continued in the trustees for the benefit of the widow of his
son Stephen A. Lee, in the event that he should die leaving
a widow.
Stephen A. Lee died after the testator's death, leaving a
widow and several children. And these facts present the
alternative condition, upon which the trust was to continue
after the death of the testator's son, and upon which the gift
to the children was made, and which, in the case above cited,
is declared to be void. The consequence is that, as to this
one-quarter of the oue-half of the residuary estate, the testa-
tor in law died intestate.
The language of GROVER, J., in Seheiler agt. Smith, is
express upon this point, for he says : " Should, therefore,
Lawrence die, leaving a widow him surviving, the trust to
convey to 1iis, or thp issue of the other children, being too
remote and void, it would follow that the testator died intes-
tate as to his portion of his estate, and that it would be dis-
posed of under the statutes provided for such cases."
The opinion of DANIELS, J., in the same case, pages 346
and 347, is to the same effect. He says : " The final vesting
of the will is rendered dependent upon the previous expiration
of the widow's life estate," and " if the life estate fails, of
course the remainder made dependent, and which it is pro-
vided shall take effect upon its termination, must also fall
with it, for the event can never in that view of the case arise
upon which the remainder was to become vested."
I am led to urge these last observations, because it has been
argued by the learned counsel for the children of Stephen
A. Lee, that the gift to them might still be upheld. Under
the above case it cannot. It is urged in their behalf that the
consequence of such decision will be to give the children of
Henry "W. Lee a portion of this quarter interest, and work an
inequality in opposition to the testator's intentions. But
such result cannot be avoided if the expressed intention,
HOWARD'S PRACTICE REPORTS. 81
Lee agt. Lee.
and we can gather the intention only from the will itself, be
illegal.
The will contains a gift of $2,000, upon the death of the
testator's wife, to his grandchildren " in being " at that time,
such of them, however, as were under the age of twenty-three
years to be paid their shares on arriving at that age. Two
grandchildren, Eliza C. and Frederick R. Lee, were excepted.
Grandchildren born after the testator's death, but during
the lifetime of the widow, take a share of this gift. Grand-
children born after the death of the widow do not participate '
in this legacy. The statute disposes of the shares of the grand-
children who died intestate during the lifetime of the widow.
The grandchild Herbert F. Lee, although born after the
death of his father Stephen A. Lee, is embraced within the
terms of the gift to his children " then in being ; " and within
the provisions of the statute and the policy of the law should
share equally with his brothers and sisters in the share set
apart to his father (1 R. 8., 725, sec. 30 ; Mason agt. Jones,
2 Ba/rb., 229 ; 2 R. , 65, sec. 49).
The after-added provisions of the will, near its close, by
which it is sought to continue the trust over the shares of
minors in the residuary estate is void in so far as the $2,000,
held for the life of Eliza Howe, is concerned. That portion
of the residuary estate has already been subjected to a trust
for two lives.
The gift to the testator's grandchildren was, as has been
already seen in a previous part of the will, made in absolute
terms at the time they were limited to take effect. And the
latter added invalid trust may be dropped, and the principal
sum should be paid to. the persons entitled thereto, when
entitled, as though such latter trust had not been attempted
to be made.
The testator omitted to name trustees over the share in the
estate designed for his son Henry W. Lee, but there is suf-
ficient in the will to indicate the persons intended by him to
act as such trustees. Such persons were clearly Hiram M.
VOL. II 11
82 HOWARD'S PRACTICE REPORTS.
Bannerman agt. Quackenbush et al.
Forrester and Marcus Sackett, and the blanks left in the will
should be considered as filed with the names of three persons
evidently in the testator's mind at the time he executed the
will.
There was no equitable conversion of the real estate into
personalty, as the power to sell was not imperative.
I think that the foregoing sufficiently covers all the ques-
tions which have been discussed, and will enable the counsel
engaged to prepare the necessary findings of fact and conclu-
sions of law.
The findings and conclusions should be made to carry out
the views above expressed, and should be submitted to all the
counsel engaged before being presented for signature, which
may be done on the first Monday of May next.
CITY COURT OF NEW YORK.
BANNERMAN agt. QUACKENBDSH et al.
Goats Taxation of Offer of judgment by one of several partners Code of
Civil Procedure, sections 738. 1278, 1932.
Where defendants were sued as partners upon a partnership indebtedness,
and one appeared and defended the action, the other defendant not
being served with process and not appearing, the one appearing served
an offer to allow judgment to be taken "against him" for sixty-five
dollars and fifty-four cents, with interest and costs. The plaintiff
recovered a judgment against the defendants "jointly" for seventy-two
dollars and ninety-one cents, but this included interest, so that the
judgment, " in amount," is not more favorable than the offer:
Held, that a joint judgment could not have been entered upon the offer;
and, therefore, the recovery is more favorable, as it is enforceable
against the joint property of both defendants, as well as the property
of the defendants served, and the plaintiff is entitled to tax his costs.
Special Term, July, 1885.
Me A DAM, C. J. The defendants are sued as partners upon
a partnership indebtedness. The defendant John E. Quack-
HOWARD'S PRACTICE REPORTS. 83
Bannerman agt. Quackenbush et al.
enbush appeared and defended the action. His co-defendant
was not served with process and did not appear. John E.
served an offer to allow judgment to be taken " against him "
for sixty-five dollars and fifty-four cents, with interest from
January 27, 1883, with costs. The plaintiff recovered a
judgment against the defendants " jointly " for seventy-two
dollars and ninety-one cents, but this included interest, so that
the judgment, " in amount," is not more favorable than the
offer. The question presented is, whether the circumstance
that the judgment recovered is a joint judgment against both
defendants makes the recovery more favorable to the plaintiff
than the offer of John E., which, in terms, was to allow judg-
ment to be taken against " him " only. This depends upon
the legal effect of the offer made. If a joint judgment could
have been entered upon the offer, the judgment recovered is
not more favorable. If a joint judgment could not have
been entered on the offer, the recovery is more favorable,
because it is enforceable against the joint property of both
defendants, as well as the separate property of the defendant
served (Griffiths agt. De Forest, 16 Abl. Pr., 292).
The Code (sec. 1278) provides that "one or more joint
debtors may confess a judgment for a joint debt, due or to
become due. Where all the joint debtors do not unite in the
confession, the judgment must be entered and enforced
against those only who confessed," &c. The Code, in regard
to offers to allow judgment (sec. 738), provides that " the
defendant may, before the trial, serve upon the plaintiff's
attorney a written offer to allow judgment to be taken against
him for a sum, or property, or to the effect therein specified,
with costs. If there are two or more defendants, and the
action can be severed, a like offer may be made by one or
more defendants, against whom a separate judgment may be
taken." The present action was not severed, nor was it
capable of severance, so that a separate judgment could have
been taken against the defendant who made the offer
(Code, sec. 1932; NiUs agt. JBattershall, 2 Bobt., 146; 18
84: HOWARD'S PRACTICE REPORTS.
Bannerman agt. Quackenbush et al.
Abb. Pr., 161 ; 27 How. Pr., 381 ; Nelson agt. Bostwick, 5
Hill, 37).
There seems to be no reported case construing this pro-
vision of the Code, excepting Garrison agt. Garrison (67
How. Pr., 271), wherein it was decided that there is no
statutory authority allowing one joint debtor or partner to
make an offer of judgment in behalf of his joint debtor or
copartner, and that section 738 only applies to cases where a
separate judgment must be taken against him who makes the
offer ; and that section 1392 of the Code, allowing judgments
to be entered in form against both joint debtors when one
only is served, does not relate to judgments entered upon
offers. This construction seems to be in harmony with the
evident intention of the codifiers, and accords with JEverson
agt. Gehrman (1 Abb. Pr., 167); Binney agt. Le Gal. (Id.,
283; 10 How. Pr., 301 ; 19 Barb., 592 ; 2 Law Bull., 53).
Offers to allow judgment are to be construed most strongly
against the parties making them, as they have it in their
power to choose their own language and make them definite
and in accordance with every requirement (Bettis agt. Good
will, 32 How. Pr., 142). Under the circumstances the joint
judgment recovered by the plaintiff was more favorable than
the offer, and it follows that the plaintiff is entitled to tax his
costs.
The taxation by the clerk in favor of the defendant will,
therefore, be reversed and the clerk ordered to retax in accord-
ance therewith.
HOWARD'S PRACTICE REPORTS. 86
Matter of Case agt. Campbell.
SUPKEME COUKT.
In the Matter of the Application of BENJAMIN CASE agt.
ANDREW CAMPBELL for the delivery of books and papers.
Appeal Stay of proceedings Officer Books and papers proceedings by
officer to compel delivery of books not to fa used to try title to office.
A stay of proceedings should not be vacated pending appeal when
such an appeal presents reasonable questions for review.
A person who takes proceedings under the Revised Statutes, to compel
the delivery by another to him of the books and papers of an office,
should at least show a prima facie title to the office, and this would be
properly proved by the official canvass showing claimant to have
received the greatest number of votes.
Such proceedings to compel the delivery of books, &c., are not to be
used to try the title to an office ; and when the result of an election is
declared by the official canvassers, a county judge has no power, upon
such an application,, to take evidence and determine the result of an
election.
Ulster Special Term, May, 1883.
MOTION to vacate a stay pending an appeal to the general
term of this court, from an order of the county judge of
Sullivan county.
Mr. Butts, for motion.
Mr. Thomson, opposed.
WESTBROOK, J. On the 23d day of April, 1883, the Hon.
William L. Thornton, the county judge of Sullivan county,
made an order that Andrew Campbell deliver over to Benja-
min Case, as the supervisor of the town of Forestburgh, Sul-
livan county, the books and papers belonging to the office of
supervisor of such town. From that order an appeal was
taken in behalf of Campbell to the general term of this court,
and a stay of all proceedings before the county judge, pend-
ing such appeal, was granted by the judge writing this
86 HOWARD'S PRACTICE REPORTS.
Matter of Case agt. Campbell.
opinion on the 24th of April, 1883. A motion is now made
to vacate such stay.
Stays of the character sought to be vacated should not, as
will be conceded, be granted unless there is reasonable cause
for the appeal. Without intending in the slightest degree to
prejudice the .proceeding taken in behalf of Mr. Case, or to
criticize the decision of the county judge, it is proposed very
briefly and succinctly to state the reasons why such stay
should be continued.
Mr. Andrew Campbell, it is admitted, was duly elected
supervisor of the town of Forestburgh in March, 1882.
Both he and the applicant, Benjamin Case, were candidates
for the office at the town meeting held March 6, 1883. At
the close of the poll on that day each, according to the can-
vass then made, received 105 votes. Two ballots folded
closely together were not then opened or counted, and the
board adjourned to March 10, 1883, for further consultation.
On the tenth the ballots were opened and found to be for
Case. The board did not decide whether the ballots should
be counted or not, being equally divided in opinion.
The provisions of the statutes (1 R. S. [7th ed.~], 816, 817),
are:
" SEC. 7. At the close of every election by ballot the
presiding officers shall proceed publicly to canvass the votes,
which canvass, when commenced, shall be continued without
adjournment or interruption until the same be completed.
SEC. 8. Before the ballots are opened they shall be counted
and compared with the poll list, and the like proceeding shall
be had as to ballots being folded together, and as to difference
in number, as are prescribed in the fourth title of the sixth
chapter of this act.
" SEC. 9. The canvass being completed, a statement of the
result shall be entered at length by the clerk of the meeting.
in the minutes of its proceedings to be kept by him as before
required, which shall be publicly read by him to the meeting,
and such reading shall be deemed notice of the result of such
HOWARD'S PRACTICE REPORTS. 87
Matter of Case agt. Campbell.
election to every person whose name shall have been entered
on the poll list as a voter."
From the foregoing facts and the extracts from the statutes,
it will be seen that the county judge did not have before him
any certificate or statute evidence showing that Case was
elected supervisor. He proceeded, however, by an inquiry
into the election to ascertain and determine the result. In
other words, he determined that the two ballots folded
together should have been counted for Case, and that the
board of inspection erred in not so counting them, and in
failing to have the clerk record the result as the statute
directs. This was, I think, beyond the power of the county
judge upon this summary application. If Case had held the
legal evidence of election he would have been justified in
making the order, and if Campbell had been dissatisfied his
remedy would have been an action in the name of the people
to recover the office. But in the absence of the prima facie
evidence of Case's election, there was no power vested in the
county judge to ascertain and declare the result of the elec-
tion (The People agt. Stevens, 5 Hill, 616; see, also, opinion
of KENT, Civ. J., in same case in note on pages 633, 634- ;
Matter of 'Baker, 11 How. Pr. R., 418 ; Matter of Davis,
19 How., 323). "When neither party has the legal evidence
of his election to office, the remedy of the one desiring to
obtain possession is by action.
No opinion is expressed upon the merits of the election,
nor as to the propriety of the allowance of the votes to Mr.
Case, but as to such allowance there is also some question
{See sec. 8 of R. S., above quoted; also same volume of
statutes, pp. 388, 389, sec. 37).
The result of my examination is that the stay should not
be vacated pending the appeal, as such appeal, in my judg-
ment, presents very reasonable questions for review.
NOTE. The general term reversed the decision oj: the county judge in
the above case (17 Weekly Digest, 473), thereby sustaining the reasoning of
the foregoing opinion. [ED.
88 HOWARD'S PRACTICE REPORTS.
Alvord agt. Hetsel.
SUPREME COURT.
SUSAN ALVORD, plaintiff, agt. JOHN HETSEL, defendant.
Complaint Necessary averments in action to recover real estate.
The complaint in an action to recover real estate ought to aver that the
plaintiff is the owner or seized in fee, and is entitled to the possession
or that defendant wrongfully or unlawfully witholds possession from
plaintiff.
Montgomery Special Term, April, 1885.
DECISIONS on demurrer to complaint.
John M. Gardner, for plaintiff.
E. Blair, for defendant.
FISH, J. I think the complaint in an action to recover
real estate ought to aver that the plaintiff is the owner or
seized in fee, and is entitled to the possession, or that defend-
ant wrongfully or unlawfully withholds possession from
plaintiff.
The complaint is defective in these particulars. The
defendant may be rightfully in possession even though the
fee is in the plaintiff (14 How. Pr., 439 ; Ensign agt.
Sherman, 4 Abb. Pr. R., 307 ; 16 How., 308 ; Saunders agt.
Leroy, 23 Bosw., 228 ; Walter agt. Sackwood, 28 Bosw., 240 ;
People agt. Mayor, 31 Hun, 296 ; Van Vwrhees agt. Kelly,
opinioji by DANIELS, /.).
Demurrer sustained.
NOTE. Abbot's Forms (pp. 513, 514) unfavorably affected by decision.
[ED.
HOWARD'S PRACTICE REPORTS. 89
Kiernau. agt. Reming.
NEW YORK SUPERIOR COURT.
PATRICK KIERNAN, plaintiff, agt. MARGARET KICMINO,
defendant.
Injunction in summary proceedings Code of Civil Procedure, sections
2239 to 2265.
The court may restrain, by injunction, summary proceedings, if the
justice goes beyond his jurisdiction, either in taking cognizance of the
proceedings or while he is acting in it, and if it appears that the justice
who granted the warrant, the enforcement of which is sought to be
restrained, was without jurisdiction, the injunction should be continued.
A justice has no power in summary proceedings to adjourn the same
except for the purpose of enabling a party to procure his necessary
witnesses.
Where, upon the return of the precept, the tenant filed a verified traverse
of the return and moved to dismiss the proceedings, and the justice,
after hearing the testimony of the parties as to the service of the pre-
cept instead of rendering his decision upon the close of the evidence,
adjourned the proceedings for the purpose of decision :
Held, to operate as a discontinuance of the proceedings.
A justice, other than the one before the precept is returnable, has no
jurisdiction to issue the warrant.
Special Term, June, 1885.
MOTION to continue injunction to restrain the defendant
from enforcing a warrant to dispossess the plaintiff from
certain premises under a final order.
The opinion states the facts.
William H. Kelly and Leonard A. Giegerich, for plaintiff
and motion.
Henry C. Botty and John W. Goff, for defendants and
opposed.
INGRAHAM, J. Summary proceedings for the recovery of
the possession of real property in the city of New York are
regulated by the Code of Civil Procedure. By sections 2239
VOL. II 12
90 HOWARD'S PRACTICE REPORTS.
Kiernan agt. Reming.
and 2265, inclusive, the proceedings statutory must be strictly
followed to give the court jurisdiction.
In Chadwick agt. Bray (1st Code of Civil Pro. R., 425)
it is held that if the justice goes beyond his jurisdiction,
either in taking cognizance of the proceeding or while he is
acting in it, the court may restrain, and if it appears that the
justice who granted the warrant, the execution of which is
sought to be restrained, was without jurisdiction, the injunc-
tion should be continued.
Section 2243 provides that at the time the precept is
returnable the petitioner must, unless the adverse party
appears, make due proof of the service of the precept. In
this case the adverse party appeared, but for the purpose of
objecting to the service, and the court proceeded to take
proof of the service of the precept.
Section 2249 provides when a final order awarding the
petitioner the possession of the property shall be granted.
First, If sufficient cause is not shown upon the return of
the precept, and
Second. Where there is a verdict of the jury, or a decision
of the justice upon the trial in favor of the petitioner.
In this case no answer was interposed and there was no
trial before the magistrate. It was the duty, therefore, of
the justice present when the precept was returnable, if suffi-
cient cause was not there shown, to have made the order
awarding the petitioner the possession of the property. Such
an order was not made, however, and an adjournment waa
taken for the purpose of decision. This adjournment was
not taken at the request of the plaintiff, nor with his express
consent. He insisted at the time that the proceeding should
be dismissed.
It has been decided by the general term of this court, that
where there is no provision of the statute authorizing an
adjournment and an indefinite adjournment or postponement
is taken for deliberation and decision, that the proceedings
are discontinued and the justice or the court loses jurisdiction.
HOWARD'S PRACTICE REPORTS. 91
Riernan agt. Reming.
(Boiler agt. Mayor, etc., 40 N. Y. Supr. Ot. Repts., 537.)
The only provision for the adjournment of these proceedings
is contained in section 2248 of the Code, which provides that
at the time when issue is joined, the judge or justice may in
his discretion, at the request of either party and upon proof
to his satisfaction by affidavit or orally, that an adjournment
is necessary to enable the applicant to procure his necessary
witnesses, or by consent of all the parties who appear, adjourn
the trial of the issue.
This section would not authorize the adjournment in the
case at bar. There no answer was interposed. There was
no issue joined, and there could be therefore no necessity for
an adjournment to procure witnesses.
In Boiler agt. Mayor (supra} it was held that by expressly
authorizing, an adjournment for a specific purpose, and on
a specific condition the statute impliedly prohibited all adjourn-
ments except such as are expressly authorized, and that by an
unauthorized adjournment the magistrate before whom the
proceedings were pending exceeded his jurisdiction, and his
future proceedings are void. The adjournment in this case,
therefore, under this authority worked a discontinuance of
the proceedings, or at any rate a justice, other than one
before whom the precept was returnable, had no jurisdiction
to issue the warrant. The warrant issued, therefore, was void.
I think, however, the security given by the plaintiff is
insufficient, and the plaintiff should give an undertaking in
the sum of $2,500, that he pay all damage sustained by the
defendant in case it should finally appear that he was not
entitled to an injunction. On giving such a bond the injunc-
tion is continued, plaintiff to have ten dollars costs of this
motion to abide the event.
$2 HOWARD'S PRACTICE REPORTS,
The People agt. Wise.
COURT OF SESSIONS.
THE PEOPLE agt. JAMES J. WISE.
Indictment must show on its face a criminal offense Election law Penal
Code, section 94 Offense under Penal Code, section 649 What cages
it covers Repugnancy a fatal objection to an indictment.
The provisions of the Code of ( 'riminal Procedure relating to indict-
ments should be construed with the common law principles of plead-
ing, and where no provision is made by the Code, the common law
rule should prevail.
The Code has not changed the common law rule that an indictment must
show on its face a criminal offense.
Under the general election laws the return of the results of an election to
be given to or filed with the supervisor of the town or ward in which
the election was held, must be the original return and not a mere cer-
tified copy.
Accordingly, where it appeared on the face of an indictment that a copy
of a return was given to and filed with the supervisor of a ward, and
that it was mutilated by him, no offense is shown under section 94 of
the Penal Code, as it was not filed or deposited with him "by authority
of law."
To constitute an offense against a statute for the protection of a docu-
ment or paper of any kind, it must appear to be the kind of document
or paper specified in the statute.
Section 649 of the Penal Code covers only cases of a messenger appointed
by authority of law, or any person who interferes with such messenger.
Repugnancy (there being two inconsistent allegations in one pleading)
is a fatal objection to an indictment since, as before the Code of
Criminal Procedure.
Cases stated as to how and when the words and figures of a document or
paper should be set forth in an indictment
Albany county, June, 1885.
Before Hon. J OHN C. NOTT, county judge, and associates.
THE defendant filed a demurrer to the indictment found
against the defendant. The indictment is as follows :
The grand jury of the county of Albany, by this indict-
ment, accuse James J. Wise of the crime of willfully and
HOWARD'S PRACTICE REPORTS.
The People agt. Wise.
unlawfully, feloniously injuring and mutilating a document
and paper filed with a public officer by authority of law, in
violation of section 94 of chapter 676 of the Laws of the
state of New York, passed July 26, 188 L, entitled " an act to
establish a penal code," committed as follows : The said James
J. Wise, on the 7tb day of November, 1884, at the city of
Albany, in this county, was a public officer of the state of
New York, to wit : was the supervisor of the Twelfth ward
of the city of Albany, in the county of Albany, in said state
of New York, and had therefore duly qualified, and was then
and there acting in the discharge of the duties of such super-
visor and public officer, and while he, the said James J. Wise,
was so acting as aforesaid, he did then and there have in his
possession and custody a certain paper document instrument
and writing which he, the said James J. Wise, as such super-
visor, had theretofore duly received from the inspectors of
the western election district of the said Twelfth ward of the
said city of Albany, the same purporting to be and being the
statement of the canvass of the votes cast at an election held
in the said western election district of the said ward, on the
4th day of November, 1884, in the said city of Albany, and
which said paper document instrument arid writing, so
described as aforesaid, was theretofore duly delivered to and
filed and deposited with him, the said James J. Wise, as such
supervisor and public officer, by authority of law, by the said
inspectors of election, and was, in the words and figures and
in substance following to wit :
"CEKT1FICATE OF CANYASS.
" Statement of result of a general election held in and for
the western election district of the Twelfth ward of the city
of Albany, held November 4, 1884.
(Then follows the vote in detail, concluding with two certi-
ficates as follows) :
" We certify that the foregoing statement is correct in all
respects." (Dated and signed by inspectors.)
94 HOWARD'S PRACTICE REPORTS.
The People agt. Wise.
" We certify that the foregoing is a true copy of the
original statement for the board of county canvassers.
" Dated this 4th day of November, 1884." (Signed by the
inspectors.)
And the said James J. Wise, on the said 7th day of Novem-
ber, 1884, of the city and county aforesaid, did unlawfully,
fraudulently, deceitfully and^'elonionsly injure, mutilate, oblite-
rate and alter, and did willfully, unlawfully, fraudulently,
deceitfully and feloniously cause to be injured, mutilated, oblite-
rated and altered, the said insrtument, writing, document, paper
and statement so described as aforesaid, and did willfully and
unlawfully aid and assist in the .injuring, mutilating, obliterat-
ing and altering of the same by falsely making, forging and
willingly acting and assisting in the false making and forging on
the eighteenth line of the third page thereof, the words four
hundred and ninety-nine and the figures 499 ; and on the nine
teenth line of the said third page thereof, the words two hun-
dred and twenty-nine and the figures 229 ; and on the fourth
line of the fourth page thereof, the words six hundred and
seven and the figures 607 ; and on the fifth line of the said
fourth page thereof, the words one hundred and eighteen and
the figures 118, and did falsely fraudulently, unlawfully and
willfully mutilate, obliterate and destroy, on the said eight-
eenth and nineteenth lines of the &aid third page thereof, the
words four hundred and fifty-nine and the words two hundred
and sixty-nine, and the figures 459 and the figures 269, and
did alter and change the same willfully and unlawfully, and
did willfully and unlawfully substitute in lieu thereof respect-
ively the words four hundred and ninety-nine and the figures
499 on the said eighteenth line, and the words two hundred
and twenty-nine and the figures " 229 " on the said nine-
teenth line thereof, and did fraudulently, unlawfully and
willfully mutilate, obliterate and destroy on the said fourth
and fifth lines of the said fourth page thereof, the words five
hundred and forty-four and the words one hundred and
HOWARD'S PRACTICE REPORTS. 95
The People agt. Wise.
eighty-one and the figures 544 and the figures 181, and did
then and there change and alter the same and did cause the
same to be changed and altered, and did then and there will-
fully and unlawfully substitute and cause to be substituted
instead and in lieu thereof respectively the words six hundred
and seven and one hundred and eighteen, and the figures 607
and 118 respectively, and did then and there aid, abet and
assist in the willful and unlawful ^mutilation, obliteration,
concealment and destruction of the words and figures so
described as aforesaid, and the false and fraudulent altering
and changing of the same, and the willful and unlawful sub-
stitution instead and in lieu thereof of the words and figures
so described as aforesaid, with the intent to defraud.
Second. And the grand jury aforesaid, by this indictment,
accuse James J. Wise of the crime of willfully and feloniously
mutilating and defacing, obliterating and destroying a certifi-
cate of a statement relating to the result of an election, in
violation of section 649 of chapter 676 of the Laws of the
state of New York, passed July 26, 1881, entitled an act to
establish a penal code, committed as follows : The said
James J. Wise, on the 7th day of November, 1884, at the
city of Albany, in this county, did have in his possession a
certain instrument, writing, document and paper commonly
called and known as a certificate of canvass, the same being
then and there and purporting to be the certificate of a state-
ment relating to the result of an election, duly made and
signed by the inspectors of election of the twelfth ward,
western district of the said city of Albany, and which said
election was had and held in the said western district of the
said twelfth ward of the said city of Albany, for the said dis-
trict, ward and city and for the said county of Albany and
state of New York, on the 4th day of November, 1884, and
at which said election there was to be elected a county
treasurer and a coroner, and for which said offices there were
candidates voted and balloted for, and the said certificate of
canvass contained and purported to contain a true statement
HOWARD'S PRACTICE REPORTS.
The People agt. Wise.
of the ballots and votes cast for each candidate for said offices,
and was in the words and figures and substance following,
to wit : (Same as in first count.)
And he the said James J. Wise, so as aforesaid having the
said certificate of canvass and statement so described as
aforesaid in his possession, and did then and there willfully,
unlawfully and feloniously mutilate, tear, deface, obliterate
and destroy the same find especially did willfully mutilate,
tear, deface, obliterate and destroy, and did willfully cause to
be mutilated, torn, defaced, obliterated and destroyed, and did
willfully, and unlawfully, and feloniously aid, abet and assist
in the mutilation, tearing, defacing, obliteration and destruction
of the eighteenth and nineteenth lines of the third sheet and
the fourth and fifth lines of the fourth sheet thereof by
falsely, fraudulently, willfully and feloniously, erasing, oblite-
rating, changing, altering, destroying and defacing in the lines
aforesaid, and on the sheets aforesaid the words and figures
thereon placed, and substituting in lieu and instead thereof
unlawfully and willfully other words and figures of a different
import and conveying a different meaning, and did willfully
cause the same to be erased and mutilated, obliterated, defaced,
changed, altered and destroyed, and the said substitution to
be so made as aforesaid, and did willingly, feloniously and
willfully, aid, abet and assist the erasing, mutilating, oblite-
rating, defacing, changing, altering and destroying the said
words and figures on the lines and sheets aforesaid, and did
willingly, feloniously and willfully, aid, abet and assist in the
substituting therefor the other words and figures of a different
import as aforesaid as to the relative number of ballots and
votes respectively cast for the candidate for the offices aforesaid
described and referred to said certificate of canvass."
Edward J. Meegan, for defendant.
D. Cody JJerrick, district attorney, for the people.
NOTT, Co. J. The indictment contains two counts predicated
on sections 94: and 649 of the Penal Code, respectively. To
HOWARD'S PRACTICE REPORTS. 97
The People agt. Wise.
the indictment and severally to each count the defendant
demurs, and specifies grounds authorized by section 323 (subs.
4 and 5) of the Code of Criminal Procedure. The points
made to sustain the demurrer are briefly these :
First. That the indictment should set forth, and also pur-
port to do so, the election returns alleged to be forged and
destroyed, and that the words of the indictment, " and was in
the words and figures and in substance following, to wit," are
insufficient.
Second. That the first count is defective because there was
authority of law for the defendant as supervisor to receive the
original returns only from the inspectors, whereas the paper
set forth in the indictment is merely a certified copy of the
original.
Third. The second count is not brought within the
language of section 549 of the Penal Code, and is void for
repugnancy.
The district attorney answers these points by claiming that
the arguments to sustain them are mere legal refinements and
are inconsistent with the provisions of the Code of Criminal
Procedure.
Independent of the recent authority of the People agt.
Isaacs (1 N. Y. Crim. 7?., 148), which enforces the common
law rule of pleading in reference to explaining an ambiguous
expression by an innuendo, and sustaining a demurrer to an
indictment for libel for its absence, I should be disinclined to
hold that it was the intention of the legislature in enacting
the Criminal Code to prohibit courts from looking at and
applying well-settled rules of the common law to present
criminal pleadings and practice, and substitute a practically
undefined system necessarily so from the absence of pre-
cedents, involving us in doubt and uncertainty for the plain
and logical rules of the common law. When the Code
directly or indirectly makes any provision, it must prevail ;
but if it is silent, good sense requires we should take our
learning and rules from decisions of the courts.
VOL. II 13
98 HOWARD'S PRACTICE REPORTS.
The People agt. Wise.
The Code of Civil Procedure, adopted in 184S, was fully as
sweeping as the recent Code of Criminal Procedure ; and in
construing it the courts hold, in this language : " The legisla-
ture, in adopting the Code of Procedure, intended to preserve
as many of the rules of the common law as are consistent
with the new form of pleading" (Knowles agt. Gee, 8 Bar!).,
300 ; Boyce agt. Brown, 1 id., 80 ; Howard agt. Tiffany, 3
Sandf., 695 ; Wooden agt. Waffle, 6 How. Pr., 145).
Under the Code of Criminal Procedure, an indictment must
contain " a plain and concise statement of the act constituting
the crime, without unnecessary repetition " (sec. 275) ; and
words used in an indictment must be construed in their usual
acceptation in common language, except words and phrases
defined by law, which are to be construed according to their
legal meaning (sec. 282) ; and, also, words used in a statute to
define a crime need not be strictly pursued in an indictment,
but other words conveying the same meaning may be used
(Sec. 283). By sections 289, 290 and 291, special rules are
provided for certain contingencies in cases of forgery and
perjury. An indictment is declared to be sufficient if the act
or omission charged as the crime is plainly and concisely set
forth, and is stated with such a degree of certainty as to
enable the court to pronounce a judgment upon a conviction
according to the right of the case (Sec. 284). I take it that
these provisions of the Code require that an indictment should
show upon its face a criminal offense, and should do so with
reasonable certainty ; otherwise the section of the Code pro-
viding for a demurrer would be meaningless, for section 323
provides, as a good ground of demurrer, " that the facts stated
do not constitute a crime."
If on an examination of the indictment I find that no
offense is charged by it, and with reasonable certainty, it will
be the duty of the court to sustain the demurrer. If, on the
contrary, the indictment fairly construed in the light of the
Code provisions and the rules of common law so far as appli-
cable, sufficiently charges a crime or crimes, the demurrer
HOWARD'S PRACTICE REPORTS. 99
The People agt. Wise.
must be overruled. I do not think that judges should be
over-nice in looking for loop-holes to set aside indictments,
but if fundamental principles are violated there should be no
hesitation in doing so.
Does the first count charge a criminal offense ? The inten-
tion of the pleader evidently is, and as it is expressed in the
count, to make out a case under section 94 of the Penal Code;
that section enacts, "a person who willfully and unlawfully
removes, mutilates, destroys, conceals or obliterates a record,
map, book, paper, document or other thing filed or deposited
in a public office, or with any public officer, by authority of
law, is punishable," &c. This count, in brief, charges a
mutilation by the defendant of a return of the western
election district of the twelfth ward of the city of Albany,
filed with him as supervisor of that ward, and sets forth a
copy of the return, which it avers was filed with him, and at
the end and as a part thereof has a certificate in these words :
" We certify that the foregoing is a true copy of the original
statement made by us for the board of county canvassers.
Dated this 4th day of November, 1884," and signed by three
inspectors of election.
In order to bring a case within this section of the Penal
Code, it must appear that the instrument mutilated was filed
or deposited with the defendant as a public officer by author-
ity of law, unless therefore the return filed with the defend-
ant was the one the law required him to receive, any mutila-
tion thereof is not within this section. The section does not
denounce the mutilation of every paper, but only where the
paper is filed or deposited " by authority of law." In the State
agt. Farrard (3 Hals., 333) it appears that a statute existed
punishing as a crime to " willfully, unlawfully and maliciously
tear, cut, burn, or in any other way whatever destroy any
transfer or an assurance of money stocks, goods, chattels or
other property whatsoever." Farrard having tore an instru-
ment which acknowledged the receipt of certain rye to be
sown on shares, it was held, first, it was not an instrument
100 HOWARD'S PRACTICE REPORTS.
The People agt. Wise.
within the statute and hence no crime was committed, and,
secondly, that the instrument set out in the indictment must
appear to be papers of which the crime can be committed.
In Ayers agt. Covill (18 Barb., 263) it was held that under
the statute for stealing a record, etc., if the paper was wholly
unauthorized and void it was not within the statute ; that the
instrument must be the one prescribed by the statute in
order to make a crime (See Rex agt. Morton, 12 Cox's Crim.
Cases, 456.) The elementary writers are equally explicit.
" When the statute makes a forgery of a particular kind
indictable, the indictment must show it to be such, and a vari-
ance is fatal " (2 Wharf. Crim. Law, sec. 1467 and canes).
Though an allegation cover the statute, still if it contains also
allegations which shows the acts are not within the statute, it
will be insufficient (fiish. Stat. Crimes [2d ed^], sec. 621.)
The same author says the act forbidden by a statute must
be fully done in all its parts, else the offense is not complete
(Bisk, on Stat. Crimes, sec. 225). Jn Fadner agt. The People
(2 N. Y. Crim.. Rep., 553) the defendant was indicted for
the forgery of a certificate of a county clerk to an alleged
copy of a decree of divorce ; the certificate was not in the
form prescribed by the Code, and it was held to be void, and
therefore did not furnish the basis for an indictment for for-
gery (3 Fields^ Lawyers' Briefs, sec. 538 ; 2 Bish. Crim. Law,
[7th ed.~], sec. 533 ; 1 Whart. Prac. and Pleadings \th ed.~],
pp.21\, 281 ; Vincent agt. The People, 5 Park., 100).
An examination of the statutes prescribing the duties of
inspectors of election and of supervisors, as affecting election
returns, must now be made, that we may determine the kind
of return that should have been filed or deposited with the
defendant.
The duties imposed upon inspectors of election in relation
to canvass and returns are as follows :
(1.) The canvass shall be completed by ascertaining how
many ballots, etc. (1 R. S. [1th ed.~], 389, sec. 42). (2.) A
separate canvass shall be made of presidential and vice-presi-
HOWARD'S PRACTICE REPORTS.
The People agt. Wise.
dential ballots (Id., sec. 43). (3.) The statement to be made
by inspectors of the result of the election shall contain a cap-
tion stating the day on which, the number of the district, the
town or ward and the county at which the election was held,
in relation to which such statement shall be made. Also,
showing the whole number of ballots taken for each person,
designating the office for which they are given, and at the
end thereof a certificate that such a statement is correct in all
respects, which certificate shall be subscribed by the inspectors
{Id., sec. 44). (4.) " A true copy " of the several statements
made by the inspectors shall be made and certified by them
and immediately filed by them in the office of the clerk of
the town or city (Id., sec. 45). (5.) The original statement,
duly verified, shall be delivered by the inspectors, or by ore
of them, to be deputed for that purpose, to the supervisor of
the town or ward within twenty-four hours after the same
shall have been subscribed (Id., sec. 45). In addition to the
foregoing a duplicate return is to be filed in the county clerk's
office. (Laws of 1880, chap. 56, sec. 14, p. 158). To sum-
marize, the inspectors must (1), as a body, or by one deputed
for that purpose, deliver the original statement, duly certified,
to the supervisor of the ward ; (2) file a true copy of the
statement, duly certified by them, in the town or city clerk's
office ; (3) file a duplicate return in the county clerk's office.
Referring to the duties of supervisors in referen<?e to elec-
tion returns, the statute is clear and distinct, requiring the
original statement or return to be delivered to the supervisor,
and in no case does it contemplate or authorize him to receive
a copy thereof (1 R. S. \lth ed.~], 390, 391, 392, sees. 1, 5, 6,
12, 16 and 17). The statutes recognize four several different
forms of returns : First. An original to be given to the sup-
ervisor. Second. A true copy to be filed in the town or city
clerk's office. Third. A certified copy to be obtained by the
county clerk when the county canvass cannot proceed for
lack of returns. Fourth. A duplicate under the act of 1880,
to be filed in the county clerk's office.
102 HOWARD'S PRACTICE REPORTS.
The People agt. Wise.
It appears on the face of the indictment that the return
charged to be mutilated was not an orginal return, but a cer-
tified copy thereof. A copy could not take the place of the
original, so far as the supervisor was concerned. As the
paper set forth in the first- count was not such an one as the
defendant, as supervisor, should have filed, as deposited with
him " by authority of law," the first count cannot consistently,
with the common-law rules of pleading, or under the provi-
sions of the Code, be sustained, and the demurrer to this count
must therefore be allowed.
The second count proceeds under section 619 of the Penal
Code, which provides : " A messenger appointed by authority
of law to receive and carry a report, certificate or certified
copy of any statement relating to the result of any election,
who willfully mutilates, tears, defaces, obliterates or destroys
the same, or does any other act which prevents the delivery of
it as required by law ; and a person who takes away from
such messenger any such report, certificate or certified copy,
with intent to prevent its delivery, or who willfully does any
injury or other act in this section specified, is punishable,"
etc. This section is evidently leveled against two classes of
persons : first, a messenger appointed by authority of law ;
second, any person who interferes with such messenger.
It is modeled on 1 Revised Statutes (Qth ed.\ page 449,
section 8, which was directed against misconduct of mes-
senger or those who interfere with them. The words " or
O
who willfully does any injury or other act in this section," do
not enlarge the scope of the section, or affect any person
except one who interferes with a messenger. This becomes
plain when we recall that section 94 of the Penal Code makes
provision for all cases of injury to returns, whether copies or
originals, as they must be file< q and deposited in a public office
or with a public officer, and it would be unreasonable to so
construe section 649 as to make a double crime of one act.
The law forbids that statutes are to be so construed as to
multiply crimes or felonies. (Bish. St. Or. [2<# ed.~\, sec. 218 ;
HOWARD'S PRACTICE REPORTS. 103
The People agt. Wise.
Com. agt. Macomber, 3 Mass., 439 ; Com. agt. Keniston, 5
Pick., 420.) The necessity for section 649 becomes apparent
when it is remembered that section 94 does not cover the
case of a messenger, who may not in certain cases be a public
officer, but may be a mere servant or employe of a public
officer.
This count fails to allege (1) that the defendant was a
supervisor, or (2) that he was a messenger, or (3) that he took
the certificate from a messenger, or (4) that the certificate was
to have been used for any legal purpose, or that such use was
prevented ; and, therefore, it appears on the face of this
count, in the language of the Code, " that the facts stated do
not constitute a crime " (Code of Grim. Pro., sec. 323).
It was a well settled rule of common -law pleading, that
when the words of a document are essential ingredients of an
offense, as in forgery, passing counterfeit money, selling
lottery tickets, sending threatening letters, libel ( Whar. Cr.
PI. and Pr. [Sth ed.'], sen. 167), or a challenge to fight, or for
printing, publishing or distributing obscene papers (Com. agt.
Tarbox, 1 Cush., 66 ; 66 n), the document should be set out
in words and figures, and the indictment must profess to set
out the paper (Com. agt. Wright, 1 Cush., 62 ; 2 field's
Lawyers' Briefs, sec. 348; 3 id., sec. 543); and the words
" in substance" was not complying with the rule (Com. agt.
Wright, supra}, nor was " purport " sufficient (1 Wharf. Pr.
and PI. [fh ed.~\, 264), and the words " to the tenor follow-
ing," or " as follows " were the proper words to use (1 Wharf.
Pr. and PI., supra). If it was intended by the legislature
to abolish these rules, it seems strange that special provision
should be made in the Criminal Code for pleading in cases of
libel (sec. 289), loss or destruction of papers in cases of
forgery (sec. 290) and in perjury (Sec. 291).
It seems to me that the safer rule in all these cases not
expressly provided for in the Code, is to follow the mandates
of the common law pleading. If these rules prevail, both
counts of the indictment would fail.
104 HOWARD'S PRACTICE REPORTS.
The People agt. Wise.
The defendant claims that the second count is bad on its
face for repugnancy, -which is defined to be " two inconsistent
allegations in one pleading " (1 Bisk, on Grim. Pr., sec. 489),
and the argument is that as both allegations cannot be true,
and there is no means of ascertaining which is meant, the
whole will be as though neither existed, leaving the indict-
ment inadequate. (1 Blah. Grim.. Pr., supra). I am of
opinion this rule is still in force. The Code commands the
crime to be stated in the indictment plainly and concisely,
and without unnecessary repetition (sec. 275), and if there be
inconsistent and incongruous allegations in a count, the crime
cannot be said to be stated plainly or at all.
The defendant's argument is that the charging part of the
indictment alleges a tampering with a certificate of a state-
ment relating to the result of an election, and afterwards sets
forth a mere copy of a statement.
In Roberts agt. State, an indictment for forgery alleged
the purport of the forged instrument to be a " check for
money on the City Bank of Dallas," and also set out the
instrument hcec verba, thereby showing it to be a check on a
" city bank " without designation of place. It was held bad
(2 Texas Court of Appeals, 4 ; State agt. Bean, 19 Vt., 539 ;
Hearts Cr. PL, 130; Downey agt. State, 4 Mo., 572).
This count was drawn on the theory that there was no dis-
crimination in the form of returns ; but there is a marked
difference, and if the rules of the common law were to be
applied, this count falls within the rule.
In determining this demurrer we are confined to what
appears on the face of the indictment. We cannot look
beyond it, nor inquire as to proof, or what testimony might
be offered. No authority is given the court to wander from
the record before it, and it is upon the record, unaided by
extrinsic matter, the questions raised must be decided. In
allowing the demurrer, as the court feels bound to do, it is
proper to say that the district attorney is no way responsible
for this result. It is not his duty to make the returns of
HOWARD'S PRACTICE REPORTS. 105
The People agt. Seeley.
election officers. When criminal offenses are charged to
have been committed, he must take the papers as they are,
and the responsibility for errors committed must be upon the
parties who are by law required to prepare the returns.
An order will be entered allowing the demurrer.
SUPREME COURT.
THE PEOPLE OF THE STATE OF NEW YORK, respondents, agt.
EDWARD SEELEY, appellant.
Abduction Penal Code, section 282, subdivision \ What constitutes the
crime of abduction under this section Counts in indictment Irregu-
larities of jury for which new trial will not be granted.
It is not necessary, to constitute the crime of abduction, as denned by
subdivision 1 of section 283 of the Penal Code, that the accused
should in any case use any force or practice any fraud or deception, and
it is sufficient within the statute if the female is induced by his request,
advice or persuasion to go from the place where the accused met and
approached such female with the request and solicitation for her to
accompany him, or meet him at some other place indicated by the
accused, with the intent and purpose there to accomplish the act of her
defilement.
The offense may be accomplished without an actual manual capture of
the female, nor is it necessary that she should be taken against her will,
nor is it necessary that the girl should be taken from her parents or
other custodian of her person.
The action of a jury in getting books of the law and consulting them
while engaged in their deliberations in regard to a verdict, although
irregular, is not sufficient to warrant a new trial.
Where there are three counts in an indictment the omission of the jury
. to render a verdict upon the second and third counts is not such an
irregularity as should lead to a new trial, for the omission to find one
way or the other is equivalent to an acquittal on those counts, and a
judgment as to them is a bar to further prosecution.
Fifth Department, General Term, March, 1885.
Before SMITH, P. J., BARKER, HAIGHT and BRADLEY, JJ.
VOL. II 14
106 HOWARD'S PRACTICE REPORTS.
The People agt. Seeley.
THE appellant was convicted at the Monroe oyer and term-
iner for having abducted Lena Smith, a girl under the age
of sixteen years, for the purpose of having sexual intercourse
with her.
In the first count in the indictment it is charged that the
defendant unlawfully and feloniously did take Lena Smith, a
female under sixteen years of age, for the purpose of having
sexual intercourse with her. This count is framed under
subdivision 1 of section 282 of the Penal Code, as amended
in 1884. The second and third counts charge offenses as
defined in subdivisions 2 and 3 of the same section. The
jury rendered a verdict of guilty, as charged in the first
count, and in their verdict did not find either way on the
other counts. Lena Smith, the prosecutrix, lived with her
parents in a house near the grounds or yards of the city hos-
pital in the city of Rochester. The accused had charge of
the yards, and was acquainted with her and occasionally met
Lena on the street in front of her father's house. She testi-
fied in substance, that on the evening of the day mentioned
in the indictment she was on the street in front of her home
in company with another girl, Jennie Brooks, of the age of
twelve years, with whom sha was acquainted, when the defend-
ant came to them and commenced a conversation, and pro-
posed to her that she go with him into the hospital grounds-)
and she refused, and he then walked away. He soon returned
to the same place and renewed the request, addressing himself
to the prosecutrix, and asked her to go into the hospital yard
and there have sexual intercourse with him, and offered to
give her a dollar, which he said she could divide with her
companion, Jennie Brooks.
The prosecutrix then consented, and the defendant directed
the way and the gate through which she should pass into the
grounds, and the girl Jennie Brooks accompanied her and he
went by another way, passing through an alley, and they soon
met in the grounds at the place designated by the defendant,
a secluded part of the inclosure. While in the grounds the
HOWARD'S PRACTICE REPORTS. 107
The People agt. Seeley.
defendant had sexual intercourse with both girls. They then
separated and the girls returned to the sidewalk, in front of
Lena's home, where the accused soon joined them and he
gave Lena fifty cents, which she shared with the girl Jennie.
The prosecution called the latter as a witness and she fully
corroborated the prosecutrix in her evidence, and the defend-
ant's confessions were proved, which also tended to establish his
guilt and confirm the story of the witnesses for the prosecution.
One of the points made by the appellant's counsel on the
trial was that the evidence did not constitute an offense within
the sense and meaning of the statute.
William Henry Davis, for appellant.
W. H. /Shaffer, assistant district attorney, for respondent.
BARKER, J. The statute creating and defining the offense
of which the defendant was convicted, is terse in expres-
sion as well as plain in its provisions. It declares that " a
person who takes a female under the age of sixteen years
for the, purpose of prostitution or sexual intercourse, or with-
out the consent of her father, mother, guardian or other
person having legal charge of her person, for the purpose of
marriage, * * * is guilty of abduction and punishable
by imprisonment for not more than five years, or by a fine of
not more than one thousand dollars, or by both."
The only serious question presented is as to what acts on
the part of the accused person will constitute an unlawful and
criminal taking within the sense and meaning of the statute.
We think it clear, in view of the nature of the wrong which
the statute intended to punish, that it is not necessary to
constitute the crime that the accused should in any case use
any force or practice any fraud or deception, and that it is
sufficient within the statute if the female is induced by his
request, advice or persuasion to go from the place where the
accused met and approached the prosecutrix with the request
and solicitation for her to accompany him or meet him at some
108 HOWARD'S PRACTICE REPORTS.
The People agt. Seeley.
other place indicated bj the accused, with the intent and pur-
pose there to accomplish the wicked act of her defilement.
The offense may be accomplished without an actual manual
capture of the female, nor is it necessary that she should be
taken against her will. The section, as originally adopted,
required that the taking should be without the consent of the
father, mother, guardian, or other person having legal charge
of the prosecutrix. To constitute the offense, as the statute
now reads, it is not necessary that the girl should be taken
from her parents or other custodian of her person. If the
construction which we have placed upon the statute, is the
correct one, then the evidence was sufficient to sustain the
conviction and the defendant's guilt was established beyond
much, if any, doubt.
As the unlawful act mentioned in the statute constitutes the
crime of abduction, we are aided in giving construction to the
statute by the definition and meaning of the phrase abduction,
as the same is used by jurists, law writers and lexicographers.
Blackstone defines abduction to be the taking and carrying
away of a child of a parent, or the wife of a husband, either
by fraud, persuasion or open violence. (3 Blacks. Com.,
139, 140.)
When the word is used as a law phrase, Webster adopts
and approves of this definition.
The English statute on the same subject (9 Geo. I V., chap.
31, sec. 20), provides : " If any person shall unlawfully take
or cause to be taken any unmarried female, being under the
age of sixteen years, out of the possession and against the
will of her father or mother, or of any other person having
the legal charge of her person, shall be guilty of a misde-
meanor." The English courts, in giving construction to this
statute have frequently held that there need be no force, actual
or constructive, and that slight enticement and persuasion, by
which the female either accompanies or meets the abductor
is sufficient (Regina agt. Mankelton, 6 Cox Crim. Cases, 143 ;
Regina agt. Timmins, 8 Cox Crim. Cases, 401). In Regina
HOWARD'S PRACTICE REPORTS. 109
The People agt. Seeley.
agt. Oliver (10 Cox Crim. Cases, 403), the court said that if
the prosecutrix acted under the advice and persuasion of the
accused, it constituted an unlawful and criminal taking within
the meaning of the statute.
Upon the trial of an indictment founded upon a section of
the Revised Statutes, which enacts that every person who
shall take any woman, unlawfully against her will, with intent
to compel her by force, menace or duress to marry him, or to
marry any other person, or to be defiled, it was held that it
was not necessary for the prosecution to show that actual
physical violence had been used by the prisoner, to constitute
a taking of the prosecutrix against her will, within the mean-
ing of the section, but that it was sufficient if she had been
induced by deceit or false pretenses of the prisoner, to go
to the place, and proof that she had been induced to go there
on the pretense that she could find employment as a servant
constituted a violation of the statute, and brought the case
within the sense and meaning of the law and justified a con-
viction (Beyer agt. The People, 36 N. Y., 369 ; Schineker agt.
The People, 83 N. Y., 194).
We have looked into the case of Kaufman agt. The People
(11 Bun, 82), where the indictment was founded on chapter
105 of the Laws of 1848, and we are unable to find any point
adjudicated contrary to the views which we have expressed.
The charge of the court was fair and intelligent, clearly
presenting for the consideration of the jury all the legal pro-
positions involved, to which the defendant interposed no
exceptions, and we are unable to discover any reason for
reversing the judgment after considering the legal questions
presented.
The motion for a new trial after the verdict was rendered,
upon the ground that the jury were guilty of misbehavior was
properly denied, and in reaching a conclusion on this question
we follow the case of the People agt. Draper (28 Hun, 1),
which is a decision of this court.
The omission of the jury to render a verdict upon the
110 HOWARD'S PRACTICE REPORTS
In the Estate of Cecilia L. Booth, deceased.
second and third counts is not such an irregularity as should
lead to a new trial, for the omission to find one way or the
other is equivalent to an acquittal on those counts, and a
judgment as to them is a bar to a further prosecution (People
agt. Dowling, 84 N. F, 478.)
As judgment has been pronounced upon the conviction,
and there does not appear that there has been any stay in its
execution, it is only necessary for us to order an affirmance.
Judgment and order affirmed.
All concur.
SURROGATE'S COURT.
In the Estate of CECILIA L. BOTH, deceased.
Surrogate Jurisdiction over will of resident of New Jersey leating personal
property in New York county Sufficiency of execution sJwuld be tested by
laws of New Jersey What is a sufficient execution.
A paper purporting to be the will of a resident of New Jersey who died
in that state leaving personal property in the county of N ew York, was
propounded in that county for probate. Such paper was not subscribed
by its maker, but her name appeared in her own handwriting in its open-
ing sentence, which began: " If I, Cecilia L. Booth, should die," &c.
The instrument from first to last was written by the decedent while two
persons were in attendance at her request for the purpose of attesting
it. They duly subscribed their names as witnesses, and she acknowl-
edged in their joint presence that the paper so authenticated was her
will, at the same time displaying it so that they saw her name as written
upon its face:
Held, first, that the surrogate of this county had jurisdiction in the premises.
Second. That the sufficiency of the execution of the disputed paper should
be tested by the law of New Jersey, and not by that of New York.
2hird. That the instrument was duly executed within the New Jersey
statute of 1851, which required that a will should be "signed by the
testator,'' and that such signature should be made by him, or the
making thereof acknowledged by him in the presence of two witnesses.
New York county, June, 1885.
HOWARD'S PRACTICE REPORTS. Ill
In the Estate of Cecilia L. Booth, deceased.
ROLLINS, S. On the 10th of August, 1884, this decedent
died at Long Branch, N. J., where s:ie had resided for several
years. A paper purporting to be her last will was propounded
in this court on the 16th of August, 1884, and a petition was
filed praying for its admission to probate. Objections were
duly interposed and the issues thus raised were afterwards
brought to a trial which is now concluded. The instrument :
in controversy is in words following :
" If I, Cecilia L. Booth, should die within the year 1884,
I leave to my sister Geraldine Josephine Timoney, all the
money due me from my late father's deceased will, also my
wearing apparel and furniture, and I also leave to my little
nephew Albert Philip Timoney, all money deposited in the
Emigrant Savings Bank in my maiden name Cecilia L. Hatfield.
" Witnessed by Amelia Kurrus, Mamie Clifford, June 16,
1884."
It appears in evidence that the whole of this instrument,
except the names of the two attesting witnesses, is in the
handwriting of the decedent ; that those names were written
by Amelia Kurrus and Mamie Clifford respectively, at dece-
dent's express request ; and that while these two witnesses
were together in her presence she declared the paper to' be her
will. Its admission to probate is resisted upon the following
grounds :
first. It is claimed that as the decedent at the time of her
death was domiciled in New Jersey, there executed the dis-
puted paper and there died, the surrogate of this county has
no jurisdiction to grant probate to such paper, in the first
instance, and before it has been submitted to the proper judicial
tribunal of decedent's domicile.
Whatever authority the surrogate has in the premises is
derived from the Code of Civil Procedure. Section 2611 of
that Code declares, among other things, that a will executed
without the state of New York, and within the United States,
in accordance with the laws of the place of its execution, may
be proved in the state of New York.
112 HOWARD'S PRACTICE REPORTS.
In the Estate of Cecilia L. Booth, deceased.
Section 2476 confers upon the surrogate's court of this
county jurisdiction to take proof of the will of a non-resident
testator who has died without the state, leaving personal
property within such county. That the decedent, in the case
at bar. left personal property in the county of New York is
alleged in the petition, and is not denied. The respondent's
contention as regards jurisdiction is therefore overruled (See
Russell agt. llartt, 87 N. Y., 19).
Second. It is insisted that the evidence fails to show the
due execution of the paper which has occasioned the present
controversy. The strength of this objection must be tested
not by the laws of New York, but by the laws of New Jersey
(See Moultrie agt. Hunt, 23 N. Y., 394 ; Dupuy agt. Wurtz,
53 N. r., 556).
The act entitled "A supplement to the act entitled 'An act
concerning wills," was passed by the New Jersey legislature
in 1851 and has been in force ever since (Nixon's Digest,
1032). Its first section is as follows : "All wills and testa-
ments * * shall be in writing and shall be signed by
the testator, which signature shall be made by the testator, or
the making thereof acknowledged by him, and such writing
be declared to be his last will in presence of two witnesses
present at the same time, who shall subscribe their names
thereto as witnesses in the presence of the testator."
The contestant insists that the paper here in controversy
fails to conform to the requirements of the foregoing statute
in two particulars :
First. Because it does not bear the " signature " of the
alleged testatrix, and,
Second. Because the name of Cecilia L. Booth, which
appears in the body of the instrument, and which is relied
upon as the decedent's signature, is not satisfactorily shown
to have been written by her in the presence of the two sub-
scribing witnesses, or jn their presence to have been acknowl-
edged as her signature. The reports of judicial decisions in
the State of New Jersey are silent with respect to the mean-
HOWARD'S PRACTICE REPORTS. 113
In the Estate of Cecilia L. Booth, deceased.
ing of the words " signed " and " signature " in the statute
of 1851, of the word " signed" in the statute of 1850, and of
the same word in the statute of 1714. The last named act (1
Laws of N. J., 7) provided that wills should be in writing and
should be " signed " by the testator. When that act went into
operation the statute of frauds (29 Charles II, chap. 3) was
nearly forty years old. That statute had prescribed by its fifth
section that all devises and bequests of lands should be "in writ-
ing and signed by the parties so devising the same," * * *
and should be " attested and subscribed by three or four
credible witnesses." As early as 1680 the court of king's
bench decided that, within the meaning of section 5, the
position of the testator's signature was immaterial (Lemayne
agt. Stanley, 3 Lev., 1). It was hold by all the judges that
the words, " I, John Stanley," written by John Stanley him-
self in the exordium of his will, constituted a valid signature
" within the statute, which does not appoint where the will
shall be signed, at the top, bottom or margin, and, therefore,
a signing in any part is sufficient."
This decision has been adversely criticised by writers of
legal treatises ; but the interpretation which it fastened upon
the statute of frauds was stoutly upheld in the English courts
for more than a century and a-half, and, until the enactment of
the statute of 1 Victoria (chap. 26), a subscription by the testator
at the foot or end of his will was never deemed essential to its
validity (see Cook agt. Parsons, Finch's Prec. in Ch., 185;
Coles agt. TrecothicJc, 9 Ves., 249 ; Morrison agt. Tumour,
18 Ves., 176 ; Trott agt. Skidmore, 6 Jur. \_N. ], 760.)
The American courts have generally followed in the path
of these decisions, though at times somewhat grudgingly. It
was declared by the general court of Virginia, in 1815 (Selden
agt. Colter, 2 Va. Gas., 553), that in interpreting the statute
of wills of that state (a statute which was admittedly bor-
rowed from 29 Charles II, chap. 3), the doctrine of Lemayne
agt. Stanley (supra} should be accepted as authoritative.
PARKEE, J., pronouncing the opinion of the court, said that
VOL. II 15
114 HOWARD'S PRACTICE REPORTS.
In the Estate of Cecilia L. Booth, deceased.
the word " signed," as used in the Virginia "Wills act, must be
taken as having the legal sense that had been stamped upon
it by the English courts, and declared it to be settled law
that the insertion of a testator's name in the beginning of a
holographic will constituted a sufficient signing. To similar
effect see, also, Matter of Sarah Miles (4 Dana [-fiy.], 1);
Adams agt. Fields (21 Vt., 256); Allen agt. Eoeritt (12 B.
Monroe, 371) ; Armstrong agt. Armstrong (29 Ala. [N.
.], 538).
These cases fully establish the proposition that where the
testator's signature is made one of the essential features of
the valid execution of a will, his name need not be subscribed
at the foot or end of such will, but if written in any part of
the instrument will constitute a sufficient signature, provided
that such instrument is in the handwriting of the testator
himself, and that by inserting his name he has designed to
authenticate such instrument without further signature, and
provided, also, that such insertion of his name has been made
by the testator in the presence of the attesting witnesses, or
has in their presence been duly acknowledged.
Several of the cases above cited go much further than this ;
few have fallen under my observation that do not go as far;
In Catlett agt. Catlett (35 Mo., 340), cited by the contest-
ant, the so called will was not in the handwriting of the
testator and was not put upon paper in his presence. Besides,
the testimonium clause clearly indicated that the introduction
of his name at the beginning of the instrument was not
intended to take the place of a more formal signature. In
Waller agt. Waller (1 Graft., 454), also cited by contestant,
the paper in dispute was holographic, but though it concluded
with an unfilled attestation clause it bore the names of no
witnesses. From these facts the court inferred that the
instrument was deliberative merely, and that in its unfinished
state its maker could never have intended it as a completed
will.
Ramsey agt. Ramsey (13 Gratt., 664) and Roy agt. Roy's
HOWARD'S PRACTICE REPORTS. 115
In the Estate of Cecilia L. Booth, deceased.
Etfrs (16 Graft., 418), are decisions interpretative of the
Virginia "Wills act of 1849. That act required not only that
a will should be signed by the testator, but that it should be
signed " in such manner as to make it manifest that the name
was intended as a signature." In view of the exactions of
this statute, the courts held in the two cases just cited that the
act of a testator in writing his name at the commencement of
a holographic will was an equivocal act, and would not con-
stitute a sufficient signing, unless the testator's intention to
give it effect as a signature was somehow made apparent on
the face of the paper. Whatever construction I might give
to the words " signed," and " signature," in the New Jersey
statute of 1851, if the question of their meaning were now
res Integra, the weight of authority fully sustains the pro-
ponent's claim that Mrs. Booth's insertion of her name in the
opening sentence of the paper before me constituted, when
taken in connection with the attendant circumstances, a valid
and sufficient signing.
In Hoysradt agt. Kinginan (22 N. Y., 372), DENIO, J.,
referring to the re-enactment in this state of the statute of
frauds and to the decisions of the English courts interpreting
that statute, declared that those decisions were " authority
with us to the same extent as in the English courts."
In Davis agt. Shields (26 N. Y., 352-358), our court of
errors clearly recognized the technical distinction between the
word "sign" and the word "subscribe." So also did our
court of appeals in James agt. Patten (6 N. Y., 9). So did
the legislature of this state when, in 1830, the existing wills
act was placed upon the statute book. The express direction
in that act contained, that a testator's name must thenceforth
be subscribed at the end of his will, was avowedly inserted to
prevent the recurrence of the mischiefs that were supposed
to have resulted from the loose interpretation of the word
sign in the statute of frauds.
Similar restrictive provisions were enacted in Pennsylvania
three years later, and by the British parliament in 1837. It
116 HOWARD'S PRACTICE REPORTS.
In the Estate of Cecilia L. Booth, deceased.
was after these conspicuous events that the legislature of New
Jersey addressed itself in 1851 to the modification of the
statute of 1714, respecting the execution of wills. The word
" signed " had then a precise technical meaning which had
been firmly established by a long line of adjudications.
Surely that much construed word would not have been made
to do duty in the amended statute if the legislature had
intended to prescribe more stringent rules than had thereto-
fore existed respecting the place of a testator's signature.
Third, The evidence does not distinctly show that the wit-
ness Mamie Clifford saw the name of Cecilia L. Booth written
by the decedent ; and it is possible that at the time it was
written Miss Clifford was not in the same room with the
decedent, but in the room adjoining. Under all the circum-
stances, however, the signature was probably made in her
presence within the decisions of Compton, agt. Mitton (7
Hoist, 70); Mickle agt. Matlock (17 N. J. Law, 88), and
Ludlow agt. Ludlow (35 N~. J. Eq., 489). Besides, there can
be no doubt that when Mrs. Booth was writing the will both
the witnesses were at hand for the purpose of attesting it ;
and that when in their presence she declared it to be her will,
she intentionally placed it before them so that her name stood
revealed. This was a substantial acknowledgment of the sig-
nature (Beckett agt. Howe, 39 L. J. R. [N. ], Proh. & M.,
1 ; In the Goods ofJanaway, 44 L. J., P. & M., 6 ; Ilott agt.
George, 3 Curt., 172; Keigwin agt. Keigwin, 3 Curt., 611 ;
In the Goods of Bosanquet, 2 Rob., 577 ; Gwillam agt.
Gwttlam, 3 Sw. & Tr., 200; Raskin agt. Baskin, 36 JV.
Y., 416).
Petition granted.
HOWARD'S PRACTICE REPORTS. 117
Spencer agt. Wait.
SUPKEME COURT.
GORDON P. SPENCER agt. ELIZA WAIT.
Justices' court Judgment Effect of filing justice's transcript in county
clerk's cffioe Code of Procedure, section 63 Code of Civil Procedure,
section 3017.
The filing of a justice's transcript in the county clerk's office, makes the
judgment of the justice a judgment of the county court for all purposes.
The statute of limitations applicable to such a judgment, is the statute
applicable to judgments rendered in courts of record.
Jefferson Circuit, June, 1883.
ON the 15th day of November, 1867, one Henry G. P.
Spencer recovered a judgment in justices' court of Jefferson
county against Eliza Wait, defendant, for forty-four dollars
and seventy-three cents damages and three dollars and fifty
cents costs. On the second day of December thereof, a
transcript of said judgment was duly filed in the Jefferson
county clerk's office. On April 20, 1883, H. G. P. Spencer
assigned to plaintiff said judgment. This action, which is
on said judgment, was commenced April 23, 1883.
James A. Ward, for plaintiff.
Charles D. Wright, for defendant.
YANN, J. Although the judgment sued upon in this
action was rendered in a court not of record, it became the
judgment of a court of record upon the filing of the tran-
script. In the language of the statute, "thenceforth the
judgment is deemed a judgment of the county court of that
county " (Code of Civil Pro., sec. 3017). For what purpose ?
If no particular purpose is specified it must be for every
purpose. Is any purpose specified ? No purpose is directly
specified, and no limitation is made. Is the statute to be
construed as impliedly specifying the purpose of enforce-
118 HOWARD'S PRACTICE REPORTS.
Spencer agt. Wait.
ment? If the legislature had intended that the judgment
should thenceforth be deemed the judgment of the county
court for the purpose of enforcement only, would it not have
said so ?
The Revised Statutes formerly provided that a justice's
judgment, docketed by a county clerk, should " be a lien on
the real estate of the defendant within the county in the same
manner and with the like effect as if such judgment had been
in the court of common pleas " (2 72. S. [1st ed.], 24:8, sec. 128).
The legislature thus intended to give a justice's judgment,
upon being docketed with the county clerk, the effect of a
judgment of the court of common pleas to the extent spe-
cified. By the Code of Procedure a change was made, as
section 63 provided that upon filing the transcript " the
judgment shall be a judgment of the county court." The
legislature did not enact that if should have the effect of a
judgment of the county court, but that it should be one.
The Code of Civil Procedure provides the same in substance,
by section 3017, which should be construed in the light of
the previous legislation upon the same subject. If the judg-
ment in question is deemed a judgment of the county court
without any specified limitation, it is, by the force of the
statute, a judgment of the county court for all purposes. As
a certain act makes it a judgment of the county court, it is
by thai act that the judgment is given or rendered in that
court. A judgment is rendered when it is completed or per-
fected in the manner pointed out by statute or the practice of
the court. In this case it was perfected by filing the tran-
script and docketing the judgment. There was no judicial
determination by the county court ; and there is none when
judgment is entered by default upon a verified complaint on
account. In both cases the action of the clerk was purely
ministerial ; still judgment is rendered by virtue of the statute
in each case.
There should be judgment for the plaintiff, with costs, and
findings may be prepared accordingly.
HOWARD'S PRACTICE REPORTS. 119
Sayer agt. MacDonald.
CITY COURT OF NEW YORK.
WILLIAM M. SAYER, Jr., and another, agt. JOHN J.
MACDONALD.
Supplementary proceedings Sufficiency of affidavit to obtain order for
examination of judgment debtor Code of Civil Procedure, section 2458.
It is not necessary to state in the affidavit to obtain order for examination
of a judgment debtor, in proceedings supplementary to execution, that
the city court of New York is a court of record, that no previous appli-
cation for an order to examine judgment debtor has been made in the
action or that the judgment was rendered upon the judgment debtor's
appearance or personal service of the summons upon him.
General Term, July, 1885.
Before McADAM, C. /., NEHRBAS and HYATT, JJ.
THIS was an appeal from an order denying a motion to
vacate order for examination of judgment debtor in proceed-
ings supplementary to execution, on the grounds that the affi-
davit on which said order was obtaineJ did not state that the
city court is a court of record, that no previous application for
an order to examine judgment debtor had been made in the
action, and that the judgment was rendered upon the judg-
ment debtor's appearance or personal service of the summons
upon him.
John L. B rower, for plaintiffs and respondents.
J. P. Michelbac/ier, for defendant and appellant.
McADAM, (7. J. The affidavit proves a judgment recov-
ered in the city court, and it was not necessary to allege that
the city court is a court of record. The Code supplies proof
of that fact. It was not necessary to allege that no previous
application had been made for the order (Shank agt. Conover,
120 HOWARD'S PRACTICE REPORTS.
American Insulator Co. agt. Bankers and Merchants' Telegraph Co.
56 How. Pr., 437). The only other point tnade by the
appellant is that the affidavit does not allege that the judg-
ment was recovered upon the personal service of the sum-
mons on the defendant or on his appearance (Code, sec. 2458).
The Code is silent as to how this fact is to be established
when called in question, and the inference is that the judg-
ment-roll, which proves itself, is the evidence to which resort
must be had.
The judgment on which the plaintiffs found their supple-
mentary proceedings was, as before remarked, recovered in
the city court, which on inspection proves " that the sum-
mons was personally served on the defendant on the 12th
of August, 1884, at 1556 Third avenue, in the city of New
York." The judgment-roll on file proves the reqiiirements
of section 2458 (supra) in regard to personal service. The
roll is referred to in the affidavit, and may be inspected to sus-
tain the order. "We are of the opinion, therefore, that the
order appealed from should be affirmed, with costs.
NEHRBAS and HYATT, JJ., concurred.
N. Y. COMMON PLEAS.
AMERICAN INSULATOR COMPANY, plaintiff and appellant, agt.
THE BANKERS AND MERCHANTS' TELEGRAPH COMPANY,
defendant and respondent.
Answer What is sufficient verification by corporation Code of Civil Pro-
cedure, sections 525, 526.
A verification of a pleading made by the secretary of a domestic corpora-
tion in the usual form, as required by the Code, when a pleading is
verified by the party, is a sufficient verification.
It is only agents or attorneys that are required, when verifying pleadings,
to set forth the grounds of their belief as to all matters not stated upon
their knowledge, and the reason why the verification is not made by
HOWARD'S PRACTICE REPORTS. 121
American Insulator Co. agt. Bankers and Merchants' Telegraph Co.
the party. A corporation cannot take an oath, and the statute points
out the way in which it must verify a pleading. Such verification is
the verification of the corporation and a verification by the party.
General Term, June, 1885.
Before DALY, C. J., and ALLEN, J.
ALLEN, J. This is an appeal from an order of the general
term of the city court of New York, affirming an order of
the special term of that court vacating a judgment in favor of
the plaintiff as having been irregularly entered.
The defendant served its answer on the 12th of September,
1884, and on the 13th of September the plaintiff mailed to
the defendant's attorney a notice, pursuant to section 528 of
the Code of Civil Procedure, that it elected to treat the
answer as a nullity. On the fifteenth of the same month the
plaintiff returned the answer with the reasons for so doing
indorsed thereon, viz. : " That the verification did not state
why the same was not made by the party defendant."
" Second. That it did not state the ground of the belief of
the person making such verification as to the matters not
stated upon his knowledge."
The verification was made by the secretary of the defend-
ant, which is a domestic corporation, and was in the usual
form as required by the Code, where a pleading is verified by
the party. The plaintiff thereupon entered judgment. The
judgment was, on motion, set aside, and the plaintiff appealed
to the general term of the city court, where the order
vacating the judgment was affirmed.
The verification was sufficient. In Glaubensklee agt. Ham-
burg and American Steam Packet Company (9 Abb. Pr.,
104), the court says: "When a corporation is a party the
verification of the pleadings may be made by any officer
thereof; and the officer making the verification is not
required to state the grounds of his belief. His verification
is that of the party." This decision was made under the old
VOL. II 16
122 HOWARD'S PRACTICE REPORTS.
American Insulator Co. agt. Bankers and Merchants' Telegraph Co.
Code. Whether the rule laid down in this case controls now
can be ascertained by comparing the section of the Code in
force at the time of this decision and the provisions of the
Code of Civil Procedure as they now exist.
Section 525 of the Code of Civil Procedure is as follows :
" The verification must be made by the affidavit of the party,
or, if there are two or more parties united in interest, and
pleading together, by at least one of them who is acquainted
with the facts except as follows :
First. Where the party is a domestic corporation the verifi-
cation must be made by an officer thereof.
Second. Where the people of the state are, or a public officer
in their behalf is, a party, the verification may be made by
any person acquainted with the facts.
Third. Where the party is a foreign corporation ; or
where the party is not within the county where the attorney
resides, or if the latter is not a resident of the state, the county
where he has an office, and capable of making the affidavit ; or,
if there are two or more parties united in interest and pleading
together, where neither of them acquainted with the facts is
within the county and capable of making the affidavit ; or
where the action or defense is founded upon a written instru-
ment for the payment of money only, which is in the posses-
sion of the agent or attorney ; or where all the material
allegations of the pleading are within the personal knowledge
of the agent or the attorney ; in either case the verification
may be made by the agent or the attorney for the party."
The section of the Code in force when the case above
referred to was decided is as follows : " When the pleading is
verified by any other person than the party he shall set forth
in the affidavit his knowledge or the grounds of his belief on
the subject, and the reason why it is not made by the party.
When a corporation is a party the verification may be made
by any officer thereof. "
It will be seen nat the second paragraph of section 526 of
the present Code is the same in substance as the first para-
HOWARD'S PRACTICE REPORTS. 123
American Insulator Co. agt. Bankers and Merchants' Telegraph Co.
graph of the section of the old Code above quoted, and that
the last paragraph of the section of the old Code applies to
all corporations and provides that the verification may be
made by any officer thereof, while subdivision 1 of section 525
applies to domestic corporations and provides that the verifi-
cation must be made by an officer thereof. The second para-
graph of section 526 unquestionably refers to subdivision 3 of
section 525. It is only agents or attorneys that are required
when verifying pleadings to set forth the grounds of their
belief as to all matters not stated upon their knowledge, and
the reason why the verification is not made by the party. A
corporation cann ot take an oath, and the statute points out
the way in which it must verify a pleading. Such verifica-
tion is the verification of the corporation and a verification by
the party.
I do not find that there has been any change in the law in
reference to the verification of pleadings which affects the
^decision in Glaubensklee agt. The Hamburgh and American
Steam Packet Company. That case prescribes the rule cor-
rectly as the law now stands.
The verification being sufficient, it is not necessary to dis-
cuss the question of due diligence in returning the answer.
The order appealed from should be affirmed.
DALY, C. J., concurs.
124 HOWARD'S PRACTICE REPORTS.
Matter of the Nassau Cable Company.
SUPKEME COURT.
In the Matter of the NASSAU CABLE COMPANY in the city
of Brooklyn.
Eailroads Laws of 1884, chapter 252 Commissioners to determine as to
whether a street railroad ought to be constructed and operated No neces-
sity to confirm an adverse decision.
Where commissioners were appointed under chapter 252 of the Laws of
1884, by the general term of the supreme court on the application of a
railroad company to determine on the use of certain streets, and they
reported against the application and in favor of the property owners :
Held, that as the report was adverse to the company there was no neces-
sity for its confirmation by the court.
It is made a condition precedent to a right to construct such railroad for
the company to either obtain the consent of the property owners or a
favorable report of the commissioners, confirmed by the court. There
is no occasion for action by the court, except to confirm a favorable
report or to refuse confirmation.
The court has power to determine whether the commissioners have pe%
formed their duties under the statute, and should it appear that they
had refused to hear the parties or take any evidence, or the report was
such as to plainly show fraud or irregularity, the report may be sent
back. But an erroneous ruling in excluding testimony, or, in admit-
ting immaterial, or even incompetent or hearsay evidence is not suffi-
cient to warrant sending a case back for future hearing.
/Second Department, General Term, May, 1885.
THE general term appointed three commissioners on the
application of the company to determine on the use of several
streets in the city of Brooklyn for a cable street railroad. The
commissioners reported against the application and in favor of
the property owners, who defended. The company appealed
froui the commissioners' report.
James A. Nelson and Charles P. Shaw, for company,
appellants.
B. D. Silliman, T. C. Cronin, Mr. Moore, D. Benedict^
S. D. Morris, Mr. Fisher, Mr. Arnold, Mr. Lowell, Mr.
HOWARD'S PRACTICE REPORTS. 125
Matter of the Nassau Cable Company.
Coggswell, Mr. Shiller, Mr. Chittenden and Mr. Osborne, for
property owners, respondents.
PKATT, J. This proceeding was instituted under chapter
252 of Laws of 1884. Section 5 of that act provides that a
general term of the supreme court shall appoint commis-
sioners, who, under section 4 of said act, shall determine
whether such road ought to be constructed.
Section 6 thus provides : " The commissioners shall determine,
after such public hearing of all parties interested, whether such
railroad ought to be constructed and operated, and shall make a
report thereon, together with the evidence taken, to said general
term, and their determination that such road ought to be con-
structed and operated, confirmed by said court, shall be taken in
lieu of the consent of the property owners before mentioned."
There seems to be no occasion for action by the court,
except to confirm a favorable report or to refuse confirmation.
It is made a condition precedent to a right to construct such
railroad for the company to either obtain the consent of the
property owners or a favorable report of commissioners con-
firmed by the court. It is plain, therefore, there is nothing
before the court to be confirmed as the report is not favorable.
The next question relates to the power and propriety of
sending the report back for future hearing or the appoint-
ment of other commissioners to rehear the matter ; and this
question depends in a large measure upon the nature and
duties of the commission appointed by the court. If these
commissioners constitute a judicial tribunal, bound to proceed
according to technical rules in hearing the parties, then palpa-
ble errors in ruling upon questions of evidence or refusing to
regard the weight of evidence would be just cause for setting
aside the report and sending the matter back to the same or
other commissioners. But if the statute was intended to
provide for a tribunal like a town meeting or a legislative
committee, not bound to regard rules of evidence strictly,
then the objections here raised will not avail to petitioners.
126 HOWARD'S PRACTICE REPORTS
Matter of the Nassau Cable Company.
I think the latter view is the correct one. The commissioners
can take into consideration all matters material to determine
whether the road ought to be constructed as proposed. They
may view the matter, and their eyes and judgment as men
may testify and furnish grounds upon which to base their
determination. But they must give all interested an oppor-
tunity to be heard, as provided in the statute, and conduct the
proceedings in a regular and orderly manner.
Inasmuch as their report requires confirmation to give it
validity, there is an implied power granted to the court to
determine whether the commissioners have performed their
duties under the statute. In case it should appear that com-
missioners had refused to hear the parties or take any evidence,
or the report was such as to plainly show fraud or irregularity,
to hold that it could not be sent back would deprive the peti-
tioner of a statutory right. An erroneous ruling in excluding
testimony, or in admitting immaterial or even incompetent or
hearsay evidence, is not sufficient to warrant sending a case
back for future hearing. All that the commissioners passed
upon was the precise application as made, and all that need
be said upon the subject is that they have failed to make a
favorable report, and the same is not in any manner impeached
for fraud or irregularity. The commission was required to
pass upon the petition as a whole, and they have done so.
Whether it was competent for the commission to decide upon
each street separately we are not called upon now to decide,
all that need be determined is that it has not done so ; and
that having failed in so doing is not error calling for any
action by this court. We do not deem it necessary to advert
to the assignment of various errors committed by the commis-
sioners, or to discuss the conclusions of fact which it is claimed
ought to have been found. All we decide is that in our view
there is nothing before the court calling for any action as the
report is not favorable, and no such fraud or irregularity is
shown as to warrant sending the report back.
Motion denied, without costs to either party.
HOWARD'S PRACTICE REPORTS. 127
Hughen agt. Woodward.
CITY COURT OF NEW YORK.
SAMUEL HUGHEN, respondent, agt. EDWARD H. WOODWARD,
impleaded, appellant.
Corporations Actions against trustee to recover corporate debts as penalty
for failure to file annual reports Such actions are strictly penal Party
as witness excused from testifying Code of Civil Procedure, section 837.
Actions against trustee to recover corporate debts as a penalty for failure
to file annual reports are- " penalties," within the meaning of section
837 of the Code of Civil Procedure. In such actions a party defendant
is privileged from answering any question concerning the facts alleged
in the complaint and cannot be compelled to answer upon an examina-
tion before trial any question which would support the claim of the
plaintiffs, either against himself or his co-defendants.
General Term, June, 1885.
Before HAWES, HYATT, and BROWNE, JJ.
THIS action was brought against this defendant impleaded
with two others, as three trustees of a manufacturing corpora-
tion, to recover a debt of the corporation by reason of the
failure of the trustees to file an annual report. An order was
obtained, ex parte, to examine the defendant Edward H.
Woodward before trial. Upon the examination he was asked
as to who were the other trustees of the corporation. He
declined to answer on the ground that he would thereby
expose himself to a penalty. The referee before whom he was
examined overruled the objection, and application being made
by the plaintiff to the court" at special term to compel him to
answer, the motion was granted and an appeal was taken.
Further facts appear in the opinion.
James B. Dill (Dill & Chandler), attorneys for the appel-
lant, argusd that under the common law a witness was excused
from answering any question which might expose him to a
penalty or forfeiture and the rule extending to every thing in the
128 HOWARD'S PRACTICE REPORTS.
Hughen agt. "Woodward.
nature of a penalty or forfeiture (Livingstone agt. Tompkins,
4 Johns. Ch. ft., 415), and the privilege extended not only to
the main fact, but also to any one of a series of facts which,
united together, might prove a fact which would subject him
to a penalty or forfeiture (Henry agt. Salina Bank, I .2V. Y.,
83). The Code has preserved this same rule (Sec. 837). This
action is a penalty or forfeiture within the meaning of section
837 of the Code. It is a penalty, and all the privileges of a
penal action are extended to the defendant (Halstead agt.
Dodge, 68 How. Pr. E., 170 ; Vernon agt. Palmer, 48 N.
T. Supr. Ct. R., 231).
Section 383 of the Code of Civil Procedure in providing
for the short statute of limitations, uses precisely the same
language in describing actions for a penalty or forfeiture ;
and an action of this nature under this statute has been
uniformly held to be a penalty within the meaning of section
383 of the Code (Merchants' Bank agt. Bliss, 35 N. Y., 412).
The witness is excused from answering any question which
would tend to prove a trusteeship of the other defendants,
because a judgment against them would render him liable to
an action for contribution (Chapter 510 of the Laws of 1875).
Henry M. Briyham, for the respondent, argued that while
the action was in the nature of a penalty, it was remedial as
to the creditors and not strictly a penalty (Jones agt. Barlow,
62 N. Y., 202). That this was not a penalty within the
meaning of section 837 of the Code (Geisenheimer agt. Dodge,
68 How. Pr. R., 264).
BROWNE, J. The action is in its nature penal, being to
charge the three defendants sued as trustees of a corporation,
personally, with the debt of the corporation upon the ground
of its failure to file its annual report. The complaint alleges
that the three defendants were trustees of the corporation.
The defendants answered separately, each interposing a dif-
ferent defense, the defendant "Woodward being silent in his
HOWARD'S PRACTICE REPORTS. 129
Hughen agt. Woodward.
answer on the subject of his trusteeship, neither denying nor
in terms admitting the allegation.
An order to examine him before trial was granted and the
two questions asked, which are involved in this appeal, were :
First. " Who were the other acting directors of the company
at the beginning of the year 1882?" And the second:
" Who were the acting directors, who continued to act during
1882, from the beginning of the year until the 1st day of
July, 1883 ? " Both questions the witness declined to answer
on the ground that the answer would expose him to a penalty.
The court overruled his objections to answer and he appeals
from such ruling. The learned justice bases his ruling on the
ground that the witness had, by his answer interposed to the
complaint, admitted his trusteeship and thus settled the ques-
tion of exposing himself to a penalty ; and further, that by
this admission he had waived his privilege.
My opinion is that the questions propounded to the witness
were objectionable. The examination of his pleading will
disclose that the witness did riot, in terms, admit his trustee-
ship, his admission being inferred from his failure to deny
the allegation in the complaint. His answer is silent on the
subject ; but for the purpose of pleading and of the issues to
be tried, his silence is to be taken as an admission that he
was such trustee at the times alleged in the complaint ; and
no doubt a like rule applies to his silence in respect to the
plaintiff's allegation that the other defendants were also trus-
tees, but this admission does not involve more than the first
pleaded. To the facts pleaded in the complaint, upon which
the answer is silent, the defendant will not be heard to deny.
Hence, there is no necessity for interrogating him as to those
facts, and beyond them he is protected.
I am convinced, however, that the questions he is asked to
answer are more comprehensive than a mere inquiry as to
whether the other named defendants were trustees, and the
form of the questions suggests to me an attempt on the part
of the plaintiff to discover if others than the parties named
VOL. II 17
130 HOWARD'S PRACTICE REPORTS.
Ilughen agt. Woodward.
were trustees. To name jother trustees or directors of the
company, covering the period when the witness was trustee,
would be to furnish the plaintiff with evidence upon which to
base a prosecution against them for a penalty sued for, which,
if recovered against the persons so disclosed by the witness,
would render the latter liable to contribute as co-trustees
towards the payment of any judgment recovered (Chap. 510,
Laws of 1875). This might prove a link in the chain of
facts resulting eventually in exposing the witness to contribute
towards the payment of the penalty. Against this liability
he is protected by law (Code Civ. Pro., sec. 837 ; Henry agt.
Salina Bank, 1 N. Y. J2., 83).
It may be said that, because defect of parties defendant
has not been pleaded, the presumption arises that no other
trustees are liable ; but this is without force iu face of the
fact that this action is for a penalty and the defendant is not
obliged to admit any liability, nor is he called upon to inform
the plaintiff of such defect. In any event, we should not
speculate in theories to sustain the defendant's position, it
being sufficient that by express affirmative enactment this
privilege is accorded to the witness.
When the court is satisfied that the question is within the
exception, it is sufficient that the witness claims the benefit
thereof, without inquiring in what manner he would be
prejudiced by his answer.
Under all the circumstances, I think the witness should be
sustained in his refusal to answer the question. The order
appealed from should be reversed and an order entered sus-
taining the objections, with ten dollars costs and disbursements
to appellant.
HOWARD'S PRACTICE REPORTS. 131
Wunnenberg agt. Gerarty.
SUPREME COURT.
WuNNENBERG agt. GERARTY.
Summons Service by publication WMt is sufficient service by publication
under the Code of Civil Procedure, sections 438, 439.
Where there was furnished to the judge who made the order for the
service of a summons by publication a verified complaint showing a
sufficient cause of action against the defendants to be served, and
positive proof by affidavit that they resided in Ireland, and that the
attorneys for the plaintiff delivered copies of the summonses to B.
with directions to serve them ; proof by the affidavit of one of the
attorneys for plaintiff that he was informed and believes that the sum-
mons could not, after due diligence, be served on the defendants,
supplemented by the affidavit of B., who was charged with the duty
of making the service ; that he had served the summons on a number
of the defendants, but that he had been unable, with due diligence, to
make personal service on the three defendants named, and he also
proved their non -residence :
Held, that the statutory requirements of the Code of Civil Procedure
have been complied with, and that the affidavits are sufficient.
The statutes do not require extreme diligence or extraordinary exertion.
They only'require proper and suitable diligence, such as the circum-
stances of the case require.
Second Department, General Term, July, 1885.
Boardman & Boardman, for plaintiffs, appellants.
John F. BulwinTde, for purchaser and respondent.
DYKMAN, J. This is an action for the f orelosure of a
mortgage. A sale of the property has been made under the
judgment to George Malcolm, who refuses to complete
his purchase. His refusal was based on the insufficiency of the
affidavits on which was founded an order for the service of
the summons by publication on certain defendants in the
action. The specific objections to the affidavits is that they
182 HOWARD'S PRACTICE REPORTS.
Wunnenberg agt. Gerarty.
do not show that the plaintiff was unable, with due diligence,
to make personal service of the summons.
A motion was made to compel the completion of the pur-
chase, which was denied, and the case came to us on appeal
from that order. The material portion of the affidavits on
which the order for service by publication was made are as
follows :
One of the attorneys for the plaintiff says in his affidavit,
" that since the commencement of this action he has made
and caused to be made inquiries as to the residence of the
said defendants, and that he has examined documentary evi-
dence as to their names, ages and residences;"
"that said defendants Elizabeth Boylan, Catharine Boylan
and John Boylan are each non-residents of the state of New
York, and that said defendants each reside at Ballybag, county
Monaghan, Ireland ; that the said defendant Elizabeth Boylan
is of full age, and that the defendants Catharine Boylan and
John Boylan are each infants over the age of fourteen years.
Deponent further says that, as he is informed and believes,
the summons herein cannot, after due diligence, be served on
said defendants or either of them, and that it is necessary to
serve the summons on them by due publication thereof."
The persons named in this affidavit are the defendants who
were served by publication.
There was also presented at the same time an affidavit of
John E. Burke, who swears therein that " he was directed by
the plaintiff's attorney to serve the summons herein on the
defendants herein, and for that purpose received copies of
said summons ; * * * that deponent has served said
summons upon a number of the defendants herein ; * * *
that the plaintiff has been unable, with due diligence, to make
personal service of the summons herein on the defendants
Elizabeth Boylan, Catharine Boylan and John Boylan, or
either of them, and that deponent cannot, after due diligence,
serve the same upon said defendants, or either of them.
"Deponent further says that said defendants Elizabeth
HOWARD'S PRACTICE REPORTS. 133
Wunnenberg agt. Gerarty.
Boylan, Catharine Boylan and John Boylan are non-residents
of the state of New York, and that they each reside at Bal-
ly bag, county Monaghan, Ireland."
There was also a verified complaint showing a sufficient
cause of action. The sufficiency of these affidavits must be
tested by the requirements of the Code of Civil Procedure.
Section 438 provides that an order directing the service of
a summons upon a defendant without the state, or by publi-
cation, may be made where the defendant to be served being
a natural person is not a resident of the state.
Section 439 requires the order to be founded upon a verified
complaint, showing a sufficient cause of action against the
defendant to be served, and proof by affidavit of the addi-
tional facts required by the last section, and also where the
application is made, as it was here, upon the ground that the
defendant is not a resident of the state, that the plaintiff has
been or will be unable, with due diligence, to make personal
service of the summons.
Thus it appears that in the case of a non-resident defend-
ant these sections require a verified complaint containing a
cause of action against the defendant to be served, proof by
affidavit of the non-residence, and the plaintiff has been or
will be unable, with due diligence, to make personal service.
In the case before us there was furnished to the judge who
made the order a verified complaint, as required, and positive
proof by affidavit that all the defendants to be served by pub-
lication resided in Ireland.
In addition to that he had positive proof that the attorneys for
the plaintiff delivered copies of the summons to John Burke,
with directions to serve them, and thus he had proof of some
exertion and diligence to make a personal service i also he had
proof by the affidavit of one of the attorneys for the plaintiff,
that he was informed and believed that the summons could not
after due diligence be served on the defendants, arid this was
supplemented by the affidavit of Burke, who was charged
with the duty of making the service, that he had served the
134 HOWARD'S PRACTICE REPORTS.
Wunneuberg agt. Gerarty.
summons on a number of the defendants, but that he had
been unable with due diligence to make personal service on
the three defendants named, and he also proved the non-resi-
dence of those defendants.
If these statutory provisions are to receive a practical con-
struction, they have been satisfied in this case. They do not
require extreme diligence or extraordinary exertion. They
only require proper, suitable diligence such as the circum-
stances require and what was required in this case.
After it was ascertained that the defendants to be served
resided in Ireland the strong natural presumption arose that
they were there and could not be found in this state. Still
the efforts to make personal service did not cease, and a com-
petent person was charged with the duty of finding all the
defendants and making personal service. He received the
summons and commenced the performance of his duty and
found a number of the persons to be served, but was unable
after due diligence to find the three defendants named. Was
not this reasonable diligence ? Did the circumstances of the
case require more ? If so, what more ? No diligence could
result in personal service within the state, for the persons to
be served were in Ireland. An effort was made to serve all
the defendants personally within this state, and in view of the
non-residence of the defendants in question, that attempt
amounted to due diligence, and was all that could be required.
These defendants resided in Ireland, and while that fact
did not dispense with the necessity for some effort to make
personal service in this state, yet it does assist in the solution
of the question of due diligence, and under all the circum-
stances of this case we conclude that the order of publication
was founded on proof sufficient to sustain its validity.
We cannot overlook the fact that objection to this order of
publication is technical, and that title to real estate depends
upon the validity of this judgment, nor to that other import-
ant fact that ample and liberal provision is made by. section
445 of the Code to open the judgment for defendants served
HOWARD'S PRACTICE REPORTS. 135
Wunnenberg agt. Gerarty.
by publication and permit them to defend even seven years
after the filing of the judgment-roll.
Such are our conclusions, based on the peculiar features of
this case, and although we have examined all the cases, we
find ourselves antagonistic to no decision on the subject.
The statutes in question have received practically the same
construction in all the cases, although the orders have some-
times been held invalid by reason of the insufficiency of the
proof on which they were founded.
In the case of Kennedy agt. Life Insurance Company (32
Hun, 35) no fact was stated in the affidavit from which it
could even be inferred that an attempt had been made to
serve the defendants personally within this state, and it was
held to be insufficient.
In the case of Carlton agt. Carlton (85 N. Y., 33) the affi-
davit simply stated that " the defendant has not resided
within the state of New York since March, 1877, and depo-
nent is informed and believes that defendant is now a resident
of San Francisco, California." There was no allegation in the
affidavit that the summons had been placed for service or that
any effort had been made to accomplish personal service
within the state, and it was held insufficient.
So we are in conflict with no decision, and we believe our
construction to be reasonable and the only one under which
these statutes could be operated in actual practice.
The order appealed from should be reversed, with ten
dollars costs and disbursements, and the motion to compel th,e
purchaser to complete his purchase should be granted, with
ten dollars costs.
136 HOWARD'S PRACTICE REPORTS.
Aken agt. Kellogg and others.
SUPKElVrE COURT.
ALLETTA A. AKEN agt. SARAH A. KELLOGG arid others.
Dower When witt provides for wife in lieu of dower action must be taken
within one year Alleged fraud cannot alter or change statute
Complaint Demurrer.
Where provision by a will is made for a woman in lieu of dower, she is
required by statute to make an election between the provision and the
dower, and she shall be deemed to have elected to take such jointure,
devise or pecuniary provision, unless within one year after the death of
her husband she shall enter on the lands to be assigned to her for her
dower, or commence proceedings for the recovery or assignment thereof.
Alleged fraud cannot alter or change the statute. Fraud may relieve a
person from an agreement, but it cannot extend the statute for bringing
an action or making an election. If an actionable fraud has been per.
petrated, damages by way of compensation may be awarded, but the
court cannot relieve from a statute bar.
Where the complaint alleged fraud, there should also be an averment that
the statement made to the plaintiff was for the interest or purpose of
influencing her action, as the fraud is not a statement of a fact, but
the expression of an opinion.
Where a wife has received a part of the income of the estate under the
will, she is in no condition to repudiate the election which she made
without restoring or offering to restore its fruits.
Ulster Special Term, May, 1885.
DEMURRER to complaint.
F. Laflin, for defendant and demurrer.
Ward <& Cameron, for plaintiff and opposed.
WESTBROOK, J. The plaintiff, as the widow of Benjamin
Aken, deceased, brings this action to recover dower in the
real estate described in the complaint of which her husband
died seized, and alleges the following facts :
By the will of Benjamin Aken, which is made a part of the
complaint, the testator gives to his k ' beloved wife, Alletta A.
HOWARD'S PRACTICE REPORTS. 137
Aken agt. Kellogg and others.
Aken, one-third part of" his "personal property absolutely ;"
also the one-third part of his real estate to Asa B. Kellogg,
his son-in-law and executor, in trust to pay over the rents,
issuse and profits thereof unto his said " beloved wife,
Alletta A. Aken, during her natural life, and upon her
death, to distribute said real estate between " his " daughter
Sarah A. Kellogg, and the issue of " his " son, Theodore
Aken, so that " his " said daughter, Sarah A. Kellogg, shall
receive one-half thereof, and the issue of said Theodore A.
Aken one-half thereof, share and share alike."
The testator by his will declares : " The provision above
made for my said wife is made and is to be received by her in
lieu of dower."
The will also gave to his daughter Sarah A. Kellogg, wife
of the executor Asa B. Kellogg, another one-third part of all
his " estate both real and personal wherever situate, absolutely
and at all events ; and also to his executor the remaining one-
third of all his estate real and personal in trust, to pay over
the rents, issues and profits thereof to his " son Theodore
Aken during his natural life, and upon his death to distribute
and divide said estate among his lawful issue then living,
share and share alike."
The complaint avers that Asa B. Kellogg, the husband and
agent of Sarah A. Kellogg, the defendant, " stated and repre-
sented to the plaintiff that it would be much more advan-
tageous to this plaintiff to accept the provisions of said will
than to claim her right of dower in the estate left by the said
Benjamin Aken, and that such representations and statements
were made to this plaintiff by the said Asa B. Kellogg in the
presence of the defendant Sarah A. Kellogg, acting as her
agent arid for her benefit ; " and that the executor has paid
to the plaintiff, who has received the same, portions of the
income of the estate of her deceased husband under the will.
It also charges that in consequence of the statements made
to her by the executor, which both said executor Asa B.
Kellogg and his Avife Sarah, knew to be false, the plaintiff
VOL. II 18
138 HOWARD'S PRACTICE REPORTS.
Aken agt. Kellogg and others.
omitted to take any steps whatever to possess or recover her
dower in any of the lands of which her husband died seized,
and that in consequence of the insolvency of the estate of
Benjamin Aken she will receive nothing under the will.
Wherefore she asks that she may "be relieved from the
penalty imposed by statute for not having, within one year
after the death of her husband," rejected the provisions of
the will made for her benefit in lieu of dower, and that she
be now allowed to make her election under the will, to
renounce the provisions therein made for her benefit, and
to recover her dower in the premises.
To this complaint there is a demurrer upon the ground that
such complaint shows no cause of action, and the question
which it presents arises under the Revised Statutes (1 ed.,
693, sees. 12, 13 and 14), which provides that when provision is
made for a woman in lieu of dower, and she is required by
such statute to make an election between the provision and
the dower (and this is such a case), "she shall be deemed to
have elected to take such jointure, devise or pecuniary provi-
sion, unless within one year after the death of her husband
she shall enter on the lands to be assigned to her for her
dower, or commence proceedings for the recovery or assign-
ment thereof."
It is proposed in this opinion to state briefly the reasons
why the demurrer should be sustained, without any formal or
elaborate argument :
first. The alleged fraud of Sarah A. Kellogg and her
husband cannot alter or change the statute. Fraud may
relieve a person from an agreement, but it cannot extend the
statute time for bringing an action or to make an election one
day. To recover her dower the plaintiff was bound to com-
mence her action or proceeding within one year after the
death of her husband and the court is powerless to extend the
time. If an actionable fraud has been perpetrated, damages
by way of compensation may be awarded, but the court can-
not relieve from a statute bar.
HOWARD'S PRACTICE REPORTS. 139
A ken agt. Kellogg and others.
Second. Even though the -court could enlarge the time to
recover dower against the perpetrators of the alleged fraud
Sarah A. Kellogg arid her husband it could not do so
against parties not implicated therein. The defendants Edna
Aken and Maud C. Aken, grandchildren of the testator, are,
according to his will, equally interested with the defendant
Sarah A. Kellogg in the premises in which the dower is asked
to be assigned. There is no allegation in the complaint that
their interest has been assigned by Sarah A. Kellogg. It is
true, it is averred, that said Sarah " claims the title to all of
said lands and premises," but it is not charged that the interest
of the grandchildren has been transferred to her ; on the
contrary, it is charged k ' that the defendants Edna' Aken and
Maud C. Aken have, or claim to have, some title or interest
in said premises." As these parties are implicated in no
fraud, the plaintiff cannot have the relief she asks because
thereby as against confessedly innocent parties, the statute
time for bringing an action is enlarged.
Third. There is no averment in the complaint that the
statement made to the plaintiff was for the intent or purpose
of influencing her action ; and it was not the statement of a
fact, but the expression of an opinion.
Fourth. The plaintiff has received a part of the income of
the estate under the will, and she is in no condition to
repudiate the election which she made, without restoring or
offering to restore its fruits.
For these reasons the demurrer must be sustained, with
costs, the plaintiff to be allowed, on payment of costs, to
serve an amended complaint.
140 HOWARD'S PRACTICE REPORTS.
In the Estate of Frederick Grote, deceased.
SUEEOGATE'S COTJET.
In tlie Estate of FREDERICK GROTE, deceased.
Witt Opposing probate of will by legatee when not a forfeiture of a legacy
Code of Civil Procedure, section 2718 When proceedings should be dis-
missed in accordance with this section.
During the pendency of proceedings for the probate of an alleged will,
the contestant, who was one of the next of kin of the decedent and was
named in the disputed paper as a legatee, applied for an order direct-
ing the payment of a sum of money to be charged against her legacy or
her distributive share accordingly as the disputed paper might there-
after be granted or refused probate. Such paper contained a provision
declaring that any legatee or devisee who should contest its validity
should forfeit thereby the bequest or devise in his favor.
The respondents having filed an answer setting forth the foregoing facts
and alleging that because of them the legality and validity of the
petitioner's claim was doubtful.
Held, that under section 2718 of the Code of Civil Procedure the applica-
tion must be dismissed.
New York county, June, 1885.
EOLLINS, S. The daughter of this testator is opposing the
probate of the paper propounded as his will. Pending the
controversy she asks that out of the assets of the estate there
be paid to her a sum of money, to be reckoned as part of her
distributive share as next of kin, in case her contest shall
prove successful, and in case it shall fail, to be reckoned as
part of her legacy.
The proponents dispute the petitioner's claim, and set forth
facts that, as they contend, make its validity and legality doubt-
ful. It is insisted in their behalf that, under these circumstances,
the surrogate should dismiss the proceeding in accordance
with the express directions of section 2718 of the Code of
Civil Procedure. The grounds upon which the proponents
attack the contestant's right to take any benefit from her
father's will are these :
The paper in controversy contains the following provision :
ARTICLE 34. "Should any legatee or devisee contest the
HOWARD'S PRACTICE REPORTS. 141
In the Estate of Frederick Grote, deceased.
validity hereof, or any of the provisions herein contained,
then any bequest or disposition herein made in favor of any
such contestant shall thereupon cease, and be immediately
revoked, canceled and annulled, and all gifts, bequests, &c.,
'herein given to any such contestant shall thereupon imme-
diately become and form a part of the rest, residue and
remainder of my estate, &c.
Now, if the provision just quoted is valid and effectual, the
proponents are obviously correct in claiming that in case the
paper of which it forms a part shall be established as the
testator's will, the contestant will be discovered to have no
interest whatever in the estate.
The force and effect of article 3-t cannot, of course, be finally
determined upon this application ; but the matter ' must,
nevertheless, be provisionally considered for the purpose of
ascertaining whether the contestant's action in opposing pro-
bate has rendered " doubtful " her claims as legatee.
The validity of such a condition as burdens the dispositions
of the paper before me has not, so far as I am advised, been
passed upon by the court of appeals of this state or by any of
our appellate tribunals.
In Jackson agt. Westerfield (61 How. Pr., 399), an action
for the construction of a will, it was held by YAN YORST, J.,
that a clause in the disputed paper which imposed restraints
upon proper inquiry into testamentary capacity and the
legality and validity of dispositions of property should not be
favored. The learned justice cited in support of that propo-
sition several English cases, holding that such conditions
were to be treated so far as regards bequests of personalty,
and in cases where there was no gift over, as not obligatory
but as in terrorem only, and he held that non-compliance
with the conditions would not work a forfeiture where there
was probdbilis causa litigandi.
It has already appeared that in the present case there is an
express direction that any forfeited bequest or devise shall
go to the residuary legatees and devisees. Now, there are
142 HOWARD'S PRACTICE REPORTS.
In the Estate of Frederick Grote, deceased.
many decisions in the English courts which sustain the right
of a testator to provide that for unsuccessful opposition to
the probate of his will, one named as a beneficiary shall
forfeit his devise or legacy, and this especially when the
testator has provided for a gift over.
Aside from other and earlier cases that support this propo-
sition may be cited Cooke agt. Turner (15 M. & W,, 127);
Stevenson agt. Abington (11 W. R., 935), and Evanturel agt.
Evanturel (L. R., 6 P. C., 1).
The validity of such conditions as are here under discussion
was maintained by the supreme court of Ohio in Bradford
agt. Bradford (19 Ohio State, 546), and was denied by the
supreme court of Pennsylvania in Chew's Appeal (45 Penn.
St., 228.)
It is unnecessary to pursue the subject further. I certainly
should not feel justified, in the present state of the law, in
holding that the question whether the contestant has forfeited
all claim as legatee under the will is entirely free from doubt,
and must therefore, in obedience to section 2718, as inter-
preted by the court* of appeals in Hurlburt agt. Durant
(88 N. Y., 121), dismiss this petition, without prejudice to
any claim that the contestant may hereafter make after the
probate proceedings have terminated.
\
HOWARD'S PRACTICE REPORTS. 143
Siedenbach agt. Riley.
SUPREME COURT.
Louis SIEDENBACH, plaintiff and appellant, agt. J ULIA A. RILEY,
as administratrix, &c., of THOMAS M. RILEY, deceased,
defendant and respondent.
Replevin TJie issms capable of being tried in such an action.
Where a sheriff has attached goods under process against one Toledo, and
the plaintiff claims title through the same person, it is entirely irrelevant
who owns the goods if Toledo does not.
A denial of plaintiff's title alone is not a good defense.
If the bill of sale to plaintiff was bonafide and was followed by possession,
plaintiff is entitled to recover.
These are questions for the jury.
A failure to give possession only raises a presumption of fraud which may
be rebutted by proof that the transaction was fair.
No need of a demand if the complaint averred an unlawful detention.
Seoond Department, General Term, May, 1835.
Us/ore BARNARD, P. J., and DYKMAN, J.
APPEAL from judgment dismissing the complaint and
directing judgment against the plaintiff for $7,440.
The action was brought to recover certain chattels, of which
the plaintiff claims to be the owner, of the value of about
$7,500, and for damages for the detention thereof. The chat-
tels consisted of 1,000 Remington rifles, etc.
The answer made by the intestate, who was the sheriff of
the county of Kings, denied the wrongful detention, averred
that the defendant had not any knowledge or information
sufficient to form a belief that the goods, or any part of them,
were the property of the plaintiff, and then proceeded to set
forth that, as sheriff of Kings county, on the 29th day of
December, 1879, he had seized the property under a warrant
of attachment issued in an action in which De Witt C. Far-
rington was plaintiff and Roderigo Toledo was defendant, and
that at that time the said property was either the property
HOWARD'S PRACTICE REPORTS.
Siedenbach agt. Riley.
of said Toledo or that he had a leviable interest therein.
The answer did not deny the taking of said property ; nor
did it allege ownership in the republic of Honduras.
The plaintiff derived his title to the rifles, &c., by a bill of
sale dated 21st July, 1879, from said Toledo, which it was
claimed was followed by change of possession within a day or
two thereafter, and at the time of the levy of the attachment
the chattels were at the Brooklyn Navy Yard on storage, to
the order and credit of plaintiff.
On the 29th day of December, 1879, some six months
later, the attachment before referred to was levied on said
chattels, the sheriff claiming they were the property of said
Toledo, or that he had an attachable interest therein.
At the trial term, at the close of all the evidence on both
sides, the court below dismissed the complaint and directed
the jury to award judgment in favor of the defendant (the
sheriff) for $7,4iO, the value of said rifles.
The ground upon which the court directed a verdict dis-
missing the complaint, was that by the terms of the contract
between " D. W. C. Fan ington, treasurer of the Lowell Bat-
tery Gun Company and R. Toledo, esq., special commissioner
for the republic of Honduras," the property in question was
owned by said republic of Honduras, and denied leave to the
plaintiff to go to the jury upon the question whether the
title to the property was in Toledo at the time he sold it to
plaintiff.
Charles Blandy, of counsel for appellant (Richard .
Newcorrtbe, attorney).
Benjamin F. Butler, of counsel for respondent (Morris &
Pearsall, attorneys).
BARNARD, P. J. Both parties claim under the same title
The plaintiff claims under a bill of sale from one Toledo, and
the defendant under an attachment against Toledo. It is
entirely irrelevant who owns the goods under the pleadings
HOWARD'S PRACTICE REPORTS. 145
Siedenbach agt. Riley.
if Toledo does not. The evidence at least presumptively
showed a title in the plaintiff derived from Toledo and
accompanied bj possession. The defendant levied upon the
property as property of Toledo, and there is no claim of title
through any other party authorizing the creditor to attack
Toledo's title (Smith agt. Hall, 67 N. Y., 48). It was
always a law in this state that a denial of plaintiff's title
alone is not a good defense (Eustice agt. Holmes, 3 Denio, 244).
This conclusion leaves only questions of fact in the case.
"Was the bill of sale a genuine, real bona fide bill of sale ?
Was the possession given over of the goods ? If these two
questions are answered affirmatively, the plaintiff is entitled
to recover for the plaintiff's bill of sale and the delivery if pos-
session under it ante-date the levy. Both questions are for a
jury (Blount agt. Gobler, 77 JV. Y., 451 ; Juillard agt.
Cha/ee, 92 N. Y., 529 ; Powell agt. Powell, 71 N. Y., 71).
If the change of possession was not absolute and immediate
and continued, the good faith of the transaction may still be
shown to the jury, for the failure to give possession only
raises a presumption of fraud which may be rebutted by
proof that the transaction was fair. In the evidence as taken
the proof of change of possession is abundant. If the proof
is to be credited all dominion over the property was delivered
to the plaintiff and received by him. There was no need of
an amendment of the complaint in respect to a demand. An
averment in a complaint that the defendant unlawfully detains
the plaintiff's property is made out by proof of a demand.
It is never necessary to plead the evidence.
The judgment should be reversed, with costs to abide event,
and a new trial granted.
DYKMAN, J., concurs ; PRATT, J., not sitting.
VOL. II 19
HC HOWARD'S PRACTICE REPORTS .
Matter of the Attorney-General agt. Atlantic Mutual Life Insurance Co.
SUPEEME COURT.
In the Matter of the ATTORNEY GENERAL agt. THE ATLANTIC
MUTUAL LIFE INSURANCE COMPANY. (Petition of WILLIAM
BARNES.)
Corporations Receiver When and Jiow far corporations attacked by the
state for insolvency may use their corporate funds after the appointment of a
receiver.
Corporations attacked by the state for insolvency can, even after a
receiver is appointed, use their corporate funds for their own protection
in the litigation if their action is taken in good faith and with a
reasonable hope of success in the controversy.
Third Department, General Term, June, 1885.
Before LEARNED, P. </., BOCKES and LANDON, JJ.
LANDON, J. Reviewing the discretion exercised by the
special term in allowing to the petitioner compensation for
his services rendered for the company after the receiver of
its property had been appointed, we conclude that a case was
presented justifying an allowance within the opinion of the
court of appeals in Barnes agt. Newcoirib (89 N. Y., 108),
rendered upon the claim in question.
First. The company appears to have been deprived of its
property and business upon a contested allegation of insolv-
ency. The property was great, and there were reasonable
grounds for the company to hope that upon appeal the order
' depriving it of its property would be reversed.
Second. After the appointment of the receiver the statute
(chap. 902, sec. 8, Laws 1869) required that a competent actu-
ary should examine the condition of the company and report
whether its assets were sufficient to enable it to meet its obli-
gations matured and to mature. The liabilities of the com-
pany upon existing policies could, from the nature, of the
HOWARD'S PRACTICE REPORTS. 147
Matter of the Attorney-General agt. Atlantic Mutual Life Insurance Co.
case, only be estimated. The actuary made his report. It
was adverse to the company. But the principles upon which
he made the estimate of maturing liabilities were at that time
not well established. If a different basis had been adopted,
the solvency of the company would have been shown, and
thereupon it would have been competent for the court in its
discretion to reinstate the company in its property and
business. That the company should contest the accuracy of
this report in the courts was a natural and reasonable step for
it to take in its struggle for existence.
Third. Pending the litigation, the assets of the company so
appreciated in value that they appeared to exceed its liabili-
ties. Upon this ground the company applied to the .court to
be restored to its possession and be allowed to resume business.
The effort was unsuccessful, mainly because it was felt by the
court that a life insurance company, discredited by hostile
litigation at the suit of the state, could not with safety to its
policyholders be permitted to resume business (74 N. Y.,
177 ; 77 id., 336).
Tims the company struggled under circumstances which,
gave some promise of success in every way open to it to recover
its vast property and resume its business. Its entire good faith
in making the struggle is found by the court below, a finding
which seems unquestionable under the circumstances.
Order affirmed, with costs and disbursements.
BOCKES, J. Under the order of reference the referee,
after a full hearing, has, as he was authorized to do, certified
to the court the value of the services in controversy and his
opinion as to the amount the applicant should receive or be
paid, and further, that the services and disbursements incurred
in connection with them were rendered and made in good
faith, and with the reasonable and well grounded belief that
the proceedings would benefit the company, its stockholders
and policyholders ; and there is no question but that the pro-
ceedings were taken under the sanction of the officers of the
148 HOWARD'S PRACTICE REPORTS.
Matter of the Attorney-General agt. A-tlantic Mutual Life Insurance Co.
corporation, with the belief and hope that the company
should in justice be* restored to its corporate rights. The
special term has given sanction to these conclusions of the
referee, and for myself I cannot well say, after looking
iflto the proof, that an error has been committed in that
regard. The case then is brought directly within the princi-
ple laid down in Barnes agt. Newcomb (85 N. Y., 108), to
the effect that the trustees of a corporation whose existence
is attacked, should be afforded the means of resistance as far
as the facts justify, and that justice requires that an allowance
should be made for such amount as would afford a reasonable
compensation therefor. The steps necessary to the determin-
ation of these questions have here been taken, and the justice
and reasonableness of the claims, as well to the items as to the
aggregate, have been established. Nor am I able to say,
under the rule laid down for our guidance by the court of
appeals, that any one of the proceedings for which an allow-
ance was made was unreasonable to an extent making it
absolutely improper ; nor can I well say under the proof that
the amount certified as justly due for the services performed,
or for any item of those services, is in excess of what should
be allowed. I must concur in the opinion of my brother
LANDON, and vote for an affirmance of the order directed by
the special term.
LEARNED, P. J., not acting.
HOWARD'S PRACTICE REPORTS. 149
The Mayor agt. Heuft.
NEW YORK COMMON PLEAS.
The MAYOR agt. HEUFT.
New York (city of) Common council no power to pass ordinance which in
effect gives a person the right to maintain an incumbrance for any period
less than ten days.
To an action brought for a violation of a corporation ordinance, the
defense set up a resolution, passed by the common council on Septem-
ber 18, 1884, providing that the corporation attorney, before the com-
mencement of any action for the violation of any of the ordinances of
the city, shall give notice in writing ten days before instituting suit, to
every delinquent.
Held, that the common council had no power to pass such ordinance.
General Term, July, 1885.
Before VAN HOKSEN and ALLEN, JJ.
PER CURIAM. It is true that this ordinance does not
deprive the department of public works of its power to
remove encroachments, but it does attempt to take away the
right to punish the person who creates the incumbrauce, for
it provides that no one shall be sued for placing an incum-
brance on a street unless lie persists in maintaining it for a
certain period after he had notice to remove it. The ordi-
nance in effect gives to any person the right to maintain an
incumbrance for any period less than ten days, for it declares
that unless he maintains it for ten days after having been
notified to remove it he shall not be liable to an action. He
may maintain an encroachment on the street for nine days, or
nine days and a half, without being liable to any action what-
ever if this ordinance be valid. This cannot be. The common
council is forbidden to permit any encroachment except the
temporary occupation of such part of a street as may be adja-
cent to a lot on which a building is in course of construction.
It is true that the ordinance does not expressly declare that
encroachments are authorized, but it does forbid prosecution
150 HOWARD'S PRACTICE REPORTS.
Bowker and others agt. Wells and others.
of those who are guilty of encroaching. It is a familiar saying
that there can be no law without a sanction. Where a right
exists there must be a way of protecting it, and of punishing
those who violate it. "When you take away the means of
enforcing the right you destroy the very right itself. When
the common council, therefore, ordained that a man might
keep up an encroachment for any period less than ten days
without being liable to an action, it virtually gave to all persons
the liberty to encroach at their pleasure on the streets for less
than ten days at a time.
It is argued that justice GEDNET intended to decide that
the defendant did not in fact ever encroach on the street, and
there are parts of the record that give color to that argument ;
but other parts of the record seem to show that he meant to
decide that the ordinance was valid.
We think it better, therefore, to reverse the judgment and
to order a new trial, without costs.
SUPREME COURT
RICHAED R. BOWKER and others, as executors, &c., plaintiffs,
agt. DAVID A. WELLS and others, defendants.
fpjra Construction of Trust When not raited on face of will Moral
obligation does not creat a trust.
The courts recognize a difference between the intent of a testator to create
a legal direction on his devisee and the intent solely to create a moral
obligation; the latter does not create a trust.
While a secret trust to apply devised property to an illegal purpose will
render the devisee a trustee for the heirs-at-law or next of kin, the trust
must be established in such a manner that if legal it would be binding
upon the trustee.
D. by her will gave the bulk of her estate to four persons, or such of them
as might survive her and be of sound mind, absolutely, as joint tenants
and nat as tenants in common (expressing a wish although stating that
it was not to be taken as a legal direction), the estate so bequeathed and
HOWARD'S PRACTICE REPORTS. 151
Bowker and others agt. Wells and others.
devised should be applied by these four gentlemen as they might deem
wise to the promotion in the United States of sound political knowledge.
In an action to construe the will :
Held, that the language of the will, if directed toward a purpose capable
of legal enforcement, would not have created a trust, and as there is no
promise shown de hors the will to apply the devised property to such
purpose, the devise is valid and the devisees take the property absolutely
as their own (O'Hara agt. Dudley, 95 N. T., 403, distinguished).
Kings Special Term, June, 1885.
ACTION by the executors of the will of Jane M. Dugdale
for a construction of the fifth clause thereof.
The clause of the will under discussion was as follows :
" Fifth. All the remainder of my estate, real and personal,
together with the rents, issues and profits thereof, I hereby
give, bequeath and devise to David A. Wells, of Norwich,
Conn., and Richard Rogers Bowker, Worthington C. Ford and
Edward M. Shepard, ol the city of Brooklyn, or such of them
as may survive me, and at the time of my death shall be sound
in mind, as joint tenants, and not as tenants in common, to
have and to hold to them, their heirs, executors, administra-
tors and assigns, forever. I direct, however, that until after
the death of two of them no one of them shall have any power
to maintain actual partition or any other proceeding to set off
or separate any individual share ; but this shall not prevent or
affect any sale or other disposition of the said remainder of
my estate, or any part thereof, by the said four gentlemen,
or any suit or proceeding to procure such sale or disposition ;
nor shall such direction prevent the release and conveyance
by any one of the said four gentlemen to any of the others of ,
his interest and estate in the said remainder of my estate.
" This bequest and devise I make absolute in order that
there may be no legal or technical difficulty or embarrassment
in effecting the end I desire, and having entire confidence
that those four gentlemen will, although under no legal obli-
gation so to do, observe my wishes ; and my wish is (although
this is not to be taken as a legal direction) that my residuary
152 HOWARD'S PRACTICE REPORTS.
Bowker and others agt. Wells and others.
estate so bequeathed and devised, and any proceeds thereof,
shall, under the name of ' The Richard L. Dugdale Fund,' % be
applied as those four gentlemen, or such persons as they may
associate with them, or a majority of them may deem wise,
to the promotion in the United States of sound political
knowledge and opinions. I should be especially glad if this
fund could promote a work similar to that done by the Society
for Political Education.
" This bequest and devise I make, first, because I have no
near relations, my only relations being those residing abroad
whom I have not known for many years, and because there
are no persons having just claims on me for whom I have
not properly provided ; and, secondly, because I am greatly
attached, as was my brother Richard (the memorial of some
of whose work is found in the book called ' The Jukes'), to
the work which I have desired the four gentlemen last named
to conduct."
Nelson S. Spencer, for plaintiffs.
Samuel H. Ordway, for defendants' residuary legatees.
Coudert Brothers, for defendants Chanet and others, heirs
and next of kin.
C. & C. E. Tracy, for defendants Cuddon, heirs and next
of kin.
CULLEN, J. This case differs from CPHara agt. Dudley
both in the form of the action and in its facts. This suit is
brought to construe the will of the testatrix, and the validity
of the provisions of that will must be determined on the face
of the will. The action in O ' Ilara agt. Dudley was to declare
a trust in favor of the heirs in consequence of the promise
made by the devisees, and the action was decided in favor of
the heirs solely on account of such promise. No promise is
alleged or shown in this case. Nor can there be said to be a
HOWARD'S PRACTICE REPORTS. 153
Bowker and others agt. Wells and others.
trust raised on the face of the will, for the testatrix declares
that she intends to make the gift absolute, and that there
should be no legal obligation upon the devisees to comply with
her wishes as to the eventual disposition of the property. As
she has said in the plainest terras there shall be no trust, the
courts cannot say there is such a trust. Further, there is no
illegality or contravention of public policy in affecting the
object she sought to attain. In this respect also the case
differs from that which the court of appeals interpreted as the
intention of the testator in O'llara agt. Dudley,
Miss Dugdale wished no accumulation of the fund ; she
suggested no restraint upon its absolute disposition for any
period but two lives in being, and not necessarily for that time.
In fact, if there were a trust it would be inoperative because
the beneficiaries would be indefinite. But this the testatrix
knew, and she did not intend to cast upon the courts the duty
of seeing that her wishes were carried out, but left that solely
to the sense of propriety her devisees might possess. If that
sense of propriety does not dictate a disposition of the fund
in accordance with the testatrix's w r ishes, that is exactly what
the testatrix intended they should do in that contingency,
though she hoped the contingency would not occur. In such
case it cannot be said that any fraud is practiced on the testa-
trix, for the devisees never made any promise to her.
"Without reviewing the decided cases at length, two princi-
ples seem established by them : First. The courts recognize
the difference between the intent of a testator to create a legal
direction on his devisee and the intent solely to create a moral
obligation, and that the latter does not create a trust (1 Jar.
on Wills, p. 385). Second. That while a secret trust to apply
the devised property to an illegal purpose will render the
devisee a trustee for the heirs at law or next of kin, the trust
must be established in such manner that if legal it would have
been binding upon the trustee (1 Jar., p. 233).
As is my judgment the language of the will, if directed
toward a purpose capable of legal enforcement, would not
VOL. II 20
154 HOWARD'S PRACTICE REPORTS.
In re Mary Hrasier.
have created a trust, and as there is no promise shown de hors
the will to apply the demised property to such purpose, it fol-
lows that the devise under discussion is valid, and that the
devisees take the property absolutely as their own.
Costs of all parties to be paid out of the fund.
N. Y. COMMON PLEAS.
In re MARY BRASIER for leave to prosecute the official bond
of CORNELIUS FARLEY, a city marshal.
Marshals official bond Liability of sureties Judgment for costs on inter-
locutory order Code of Civil Procedure, section 779.
The sureties on the official bond of a city marshal are not liable until
after a valid judgment has been recovered against their principal.
A judgment entered on an interlocutory order awarding costs is not a
valid judgment. Such costs are practically motion costs, and must b
collected as such.
General Term, June, 1885.
E. P. Wilder, for appellant.
J. Geo. Flammer, for respondent.
ALLEN, J. We are of the opinion that the order of the
special term granting to the petitioner leave to prosecute the
official bond of Cornelius Farley, one of the marshals of the
city of New York, ought to be reversed, for the reason that
the court below was without jurisdiction to enter the judgment
for appellate costs, which forms the basis of the application
for the order, and that the judgment, being unauthorized by
law, is a nullity. We have no doubt that the sureties on the
bond would be liable for all costs that accrued in the action,
which resulted from the official misconduct of the marshal,
whether they were costs of trial or costs of appeal, so long as
HOWARD'S PRACTICE REPORTS. 155
In re Mary Brasier.
such costs were incorporated in or formed a valid judgment
within the jurisdiction of the court.
The act of 1882 (Laws of 1882, _p. 417, sec. 1701) provides
that only a person who shall have first obtained a judgment
against the marshal for official misconduct may move for
leave to prosecute his official bond. Of course, the judgment
contemplated by this statute is a lawful and a valid judgment.
From the papers before the court it appears that action
was commenced by the petitioner against the marshal to
recover possession of personal property which had been taken
from her by him while acting under an execution against one
Ing. The action was tried and resulted in a verdict for the
plaintiff, and a judgment was entered for the return of the
property and for $136.82 costs.
A motion to vacate this judgment for an alleged irregularity
in the taxation of costs was made by the said marshal. The
motion was denied, from, which decision an appeal was taken
to the general term of the city court, and from thence to the
general term of this court, in both of which the order appealed
from was affirmed, with costs ; and upon the rernittitur going
down a judgment was entered in the city court in favor of
the plaintiff, and against Farley, as marshal, for seventy-six
dollars and ninety-six cents costs.
The original judgment for $136.82 trial costs was paid and
the property sued for restored to the petitioner. The appli-
cation for leave to prosecute is founded upon the judgment of
seventy-six dollars and ninety-six cents for costs of appeal
from the order above referred to. We 'do not think there is
any authority in law for the entry upon the rernittitur of this
court affirming the order of the city court of the judgment of
seventy-six dollars and ninty-six cents for the costs of the
appeal. An entry of judgment for costs upon an interlocutory
order or upon an order of the general term affirming the
order affecting a question of practice is nowhere authorized.
A judgment cannot be perfected for costs of this character.
The appeal here was in fact a continuation of the motion on
156 HOWARD'S PRACTICE REPORTS.
Palmer agt. The Pennsylvania Company.
appeal, and the costs of the successful party are motion costs
within the meaning of section 779 of the Code of Pro-
cedure, and are to be collected as other motion costs are
collected (Phipps agt. Carman, 26 Hun, 518; Brown agt.
Lugh, 50 N. Y., 427 ; Wilkin agt. RapUe, 52 N. Y., 248).
As this point was not raised upon the argument of this motion
in the court below, no costs of this appeal are allowed.
SUPREME COURT.
JOSEPH "W. PALMER agt. THE PENNSYLVANIA COMPANY.
Foreign corporation Service of process on managing agent Code of Civil
Procedure, section 432, subdivision 3.
Defendant issued a freight receipt with the name of person served upon it aa
agent; receipt to be signed for agent not for company; receipt printed
in blank with " Form 21, N. Y.," at head:
Held, that the Code does not specify agency, except person served must
be managing agent. * * * Every object is attained when the agent
served is of sufficient character and rank to make it reasonably certain
that the defendant will be apprised of service made. The statute is
satisfied if he be managing agent to any extent.
Dutchess Special Term, November, 1884.
Grant B. Taylor, for plaintiff. (70 N. Y., 227 ; 87 N. Y.,
137 ; 9 How. Pr., 448 ; 2 E. D. Smith, 519 ; 57 Barb., 438;
49 How. Pr., 117; 1 Keyes, 347.)
Jt. F. Wilkinson, for defendant. (5 How. Pr., 183 ; 6 How.
Pr., 308; 8 Abb. Pr., 427; 13 Hun, 150 ; 17 Hun, 3L6.)
BARNARD, J. The sole question on this motion is one of
fact. Under subdivision 3 of section 432 of the Code service
may be made upon a foreign corporation which has property
within this state upon a " managing agent of the corporation
within this state." The service of the summons was made
HOWARD'S PRACTICE REPORTS 157
Palmer agt. The Pennsylvania Company.
upon Thomas C. Pollock. Pollock is employed by the Penn-
sylvania Railroad Company and paid by them, but he has the
right to do something for the defendant. The moving affida-
vits leave it in doubt as to the precise extent of his powers.
As a matter of convenience between the two companies he
is authorized to transact certain details in connection with
the business of the defendant. These details are not given
beyond an expression in the moving affidavits, " such as the
transmission of reports" to the defendant. The opposing
affidavits show that the defendant has issued a form of freight
receipt, "Form 21, N. Y .," which contains thereon a printed
statement upon its side : " Thomas C. PoPock, agent. Office,
New Pier 28, North River, New York." At the bottom
there is printed the words, " Received payment for the Com-
pany for agent." Pollock used this form of
receipt. In the absence of explanation this receipt imports
enough to make out a managing agency.
The Code does not specify the extent of the agency beyond
the fact that the person upon whom service is made shall be a
managing agent. The defendant would be bound by Pollock's
contracts for freight sent as well as by his receipts for freight
received. I think this is enough to make the service good.
Motion denied, with ten dollars costs to abide event.
Second Department, General Term, February, 1885.
PRATT, J. There is no doubt that defendants hold Pollock
out to the world as their agent in the city of New York. It
is plain that he has a large authority, and within a wide Held
his acts are binding on defendant.
The Code does not specify the extent of the agency required
to bind defendants by service of process, except that the per-
son upon whom the service is made must be managing agent.
"Were the rule to be established, as contended by appellants,
that the agent must have charge of the whole business of the
corporation the statute would be a dead letter, for such an
158 HOWARD'S PRACTICE REPORTS.
In the Estate of Ellis H. Elias, deceased.
agency seldom, if ever, exists. Every object of the service is
attained when the agent served is of sufficient character and
rank to make it reasonably certain that the defendant will be
apprised of the service made. The statute is satisfied if he
be a managing agent to any extent.
Order affirmed, with costs.
DYKMAN, J., concurs.
SURROGATE'S COURT.
In the Estate of ELLIS H. ELIAS, deceased.
'Public administrator Procedure of, to cause inquiry to be instituted as to
the atteged withholding or concealment of properly belonging to an intestate's
estate Code of C'inil Procedure, sections 2706-2714.
First. It is by sections 2706-2714 of the Code of Civil Procedure, and not
by section 222 of chapter 410 of the Laws of 1382, that the procedure
is now regulated by which the public administrator can cause inquiry
to be instituted into the alleged withholding or concealment of property
belonging to an intestate's estate, whereof such public administrator is
in charge by virtue of letters issued to him by the surrogate.
Second. The interposition of an answer such as is contemplated by section
2710 bars all inquiry concerning property to which the respondent by
such answer properly claims title.
2hird. But where the applicant alleges that the person cited has in his
possession or control certain specified articles of property belonging to
the decedent at the time of his death, and the respondent asserts his
title to a portion of such property only, such an answer does not
effectually bar all further inquiry.
Fourth Whether an affidavit is an "answer" within the meaning of
section 2710, qucere.
New York county, July, 1885.
ROLLINS, S. On the twelfth of May last the public
administrator, to whom the surrogate lately granted letters as
administrator of this estate, filed in this court the affidavit of
William M. Elias, which alleged upon information and belief :
First. That this decedent at the time of his death, in June,
HOWARD'S PRACTICE REPORTS. 159
In the Estate of Ellis H., Elias, deceased.
1881, had in his possession or under his control United States
government bonds of the value of about $150,000, and,
Second. That at the time of the making of such affidavit
such bonds were in the possession or under the control of
decedent's widow, Maggie Elias.
The public administrator, upon filing this affidavit, applied
for a citation directing the said Maggie Elias to appear before
the surrogate at a time and place specified, and to "' testify
concerning the property of Ellis H. Elias, deceased." Such
a citation was duly issued and served. On the day appointed
for its return the respondent appeared by counsel, filed an
affidavit, whose contents will presently be stated, and moved
that the proceedings be dismissed. Shall this motion be
granted ?
The provision by which the public administrator of this
county was formerly authorized to institute, in his official
capacity, an inquiry concerning property of a decedent, not
satisfactorily accounted for by persons who were about him
in his last sickness, was section 8, title 6, chapter 6, part 2 of
the Revised Statutes (3 Banks' th ed., 128). This provision
was re-enacted by section 222 of the consolidation act (Laws
of 1882, chap. 410). By the act of April 22, 1870 (chap. 359,
Laws of 1870, sec. 7), executors and administrators in general
in the county of New York were granted substantially the same
rights and privileges for the discovery of property concealed
or withheld, as had theretofore been accorded to the public
administrator. By chapter 394 of the Laws of 1870, the
benefits of chapter. 359 were extended to executors and.
administrators throughout the state. The statute law in this
regard remained unchanged until the adoption of the Code
of Civil Procedure, and in that Code its provisions were
substantially re-enacted (Sees. 2706-2714).
It does not clearly appear whether the present proceeding
is claimed to be instituted under the Code or under section
222 of chapter 410 of the Laws of 1882. It seems to me,
however, that as the public administrator is in charge of this
160 HOWARD'S PRACTICE REPORTS.
In the Estate of Ellis H. Elias, deceased.
estate, not virtute officii, but by investiture of letters of
administration issued to him by the surrogate, the course
which he must here pursue for the discovery of property of
his intestate's estate, claimed to be concealed or withheld, is
fixed by the Code of Procedure (Miller agt. Franklin Bank,
1 Paige, 444).
The Code provisions upon this subject were amended by
chapter 535 of the Laws of 1881, and the following words
were added at the close of the 2710th section : " In case the
person so cited shall interpose a written answer, duly verified,
that he is the owner of said property, or is entitled to the
possession thereof by virtue ol any lien thereon, or special
property therein, the surrogate shall dismiss the proceeding
as to such property so claimed"
In the case at bar the person cited has interposed an answer
in words following :
" I am the widow of said Ellis H. Elias. During his life-
time he gave me from time to time United States bonds, and
at the time of his death I had in my possession, as a part of
said bonds so given to me, about $30,000. I have no property
of said Ellis H. Elias in my possession or under my control.
I have property which I received from him. He gave it to
me for myself, and I make claim to be" the owner of all the
property in my possession which I received from him."
Counsel for the moving party makes, as it seems to me, a
just criticism upon the allegations of this affidavit. He insists
that the respondent does not declare herself to be the owner
of the " about $150,000 " whose whereabouts he is seeking to
discover. So far as she asserts a claim to any sum whatever,
parcel of such $150,000, she maintains her ownership of no
more than " about $30,000." Her insistence of title to that
sum is only a pro tanto bar to the petitioner's proposed
inquiry. If she had absolutely denied her possession or con-
trol of any property whatever belonging to the decedent at the
time of his death, it is very clear that such a denial would
not have blocked her way to further investigation in this.
HOWARD'S PRACTICE REPORTS. 161
Staats agt. Wemple.
court. By the denial that she has in fact interposed, she has
obstructed such investigation only so far as concerns the
$30,000 whicb she claims as hers.
I must hold, therefore, that, as regards her possession or
control of any property held by this decedent at the time of
his death, other than the sum of $30,000 in United States
bonds, this proceeding has not lost its vitality. The respond-
ent is allowed one week within which to file, if she sees fit to
do so, and if the facts will warrant it, an answer which will
require the absolute dismissal of this proceeding.
I commend to the consideration of her counsel the peti-
tioner's suggestion, that the paper by which it has been
attempted to oust the surrogate of jurisdiction in this matter,
is in the shape of an affidavit, and is not strictly an "answer,"
such as is contemplated by the Code.
In case the respondent shall again seek to avail herself of
her privilege under section 2710, it may be well for her to
assert it in more formal fashion.
SUPREME COURT.
JAMES B. STAATS agt. MARION E. WEMPLE.
Supplementary proceedings When title to personal propeny vests in receiver
appointed in Code of Civil Procedure, sections 2467, 2468.
The title to the personal property of a judgment debtor, residing in
another county than that in which the judgment-roll in the action is
filed, is not vested in a receiver in supplementary proceedings until the
order appoioting him has been filed in the office of the clerk of the
county where the judgment-roll is filed, and a copy of the order, certi-
fied by that clerk, is filed with the clerk of the county where the
judgment debtor resides.
And until then the receiver is not entitled to an order requiring the
judgment debtor to deliver his personal property to him.
Kings Special Term, May, 1885.
VOL. II 21
HOWARD'S PRACTICE REPORTS.
Staats agt. Wemple.
THIS was a motion to compel the defendant, judgment
debtor, to deliver certain personal property to a receiver
appointed in supplementary proceedings, based upon the
judgment rendered in the action against the defendant, who
resided in Kings county. The action was brought in the
supreme court for and the judgment-roll filed and judgment
docketed in Albany county. A transcript was filed and judg-
ment thereon docketed in Kings county. An execution was
issued to and returned unsatisfied by the sheriff of that
county. An order in supplementary proceedings was granted
in Kings county, by one of the justices of the supreme court,
referring the examination and returnable before him in that
county. An examination was had and return made. Upon
the return an order was granted at a special term held in
Kings county, appointing a receiver of the property of the
defendant. The motion papers did not disclose whether the
order appointing the receiver had been filed in the office of
the clerk of Albany county, and a copy certified by the clerk
of that county filed in the office of the clerk of Kings county.
Horace G. Lansing, for the motion.
Rollin Tracy, opposed. The receiver has not become
vested with any title in this personal property, and, therefore,
is not entitled to an order requiring its delivery to him (See
Code Civ. Pro., sees. 2467, 2468, sub. 2). The statute must
be strictly followed, and nothing will be presumed to have
been done (Dubois agt. Cassidy, 75 N. Y., 298).
CULLEN, J. I think that under sections 2467 and 2468 of
the Code of Civil Procedure, the order appointing the receiver
must be filed in Albany county and a certified copy filed in
Kings county, before the receiver obtains title.
Motion to compel defendant to deliver the personal property
to the receiver denied, with ten dollars costs. "
_
HOWARD'S PRACTICE REPORTS. 163
Westover agt. The ./Etna Life Insurance Company.
SUPREME COURT.
ROBERT R. WESTOVER as executor of HIRAM GOVE, deceased,
respondent, agt. THE ^ETNA LIFE INSURANCE COMPANY
appellant.
Insurance (Life) Construction of question as to insanity Code of Civil
Procedure, section 834 Physicians not to disclose professional information
Right of executors to waive provisions of statute Evidence Insanity.
In an action upon a policy of life insurance where the contract was based
upon a written application made by the insured and presented to the
company in which the applicant made representations as to the state of
his health at that time and previous thereto. In reply to an interroga-
tory, the insured stated that he had never been insane. Another ques-
tion in the application was : " Have they, (parents, brothers or sisters)
died of, or been afflicted with insanity, epilepsy * * * or other
hereditary disease?" to which he answered no. The policy contained
an express condition and agreement that all the answers, statements and
representations should constitute a part of the contract and were
warranted by the insured to be true in all respects, and if they were not,
then the contract to be absolutely null and void. One of the defenses
interposed by the company was that a sister of the insured was, and
had been at the time the application was made and the policy issued,
insane, and evidence was given to prove the truth of the answer.
Held, that if it was a fact that the sister was, or had been, at time of the
application insane, and the same was of a temporary character only
produced by physical causes at that time existing, it would not consti-
tute a breach of any condition of the policy and thereby render it void.
That to bring the case within the limits of the contract in this respect,
so as to constitute a defense and defeat a recovery, it must be made to
appear that the insanity which afflicted the sister of the insured, was
constitutional and hereditary in its nature and character.
The contract of insurance contained a condition that if the insured should
commit suicide or die by his own hand the policy should become void.
The defendant proved and the plaintiff conceded that the insured did
die by his own hand. The plaintiff sought to prove that the insured
was insane at the time, and that in a legal sense he did not commit
suicide or die by his own hands, and called the physician who attended
the deceased during all the period of his mental disturbance, on this
question. Defendant objected to this evidence on the ground that he
, was not competent by reason of the prohibition contained in section
884 of the Code of Civil Procedure :
HOWARD'S PRACTICE REPORTS.
Westover agt. The JStna Life Insurance Company.
Held, that as the evidence was produced for the purpose of protecting-
the estate of the deceased, and to uphold a contract made by him in his
lifetime with the defendant, he executors, as his personal representa-
tives, possessed the right and privilege of releasing the physician from
the statutory obligation of secrecy, and defendant had no ground for
an exception.
After the plaintiff had introduced all his evidence o th question of he
insanity of the deceased, and had rested his case for the second ime,
the defendant offered evidence to show the nature of the insanity of
deceased, and that the insanity with which he was afflicted was heredi-
tary in its character. The offer was rejected upon the ground that the
defendant's case had been rested, and that it haf. not been pleaded:
Held (BARKER, ,T.), that the first reason for rejecting the evidence w r as not
well founded for the reason that prior to the time of thjs offer it would
not have been pertinent for the defendant to give any evidence on the
subject of the insanity of the insured, as no question had then been
made as to such insanity. The plaintiff raised that question and gave
evidence tending to prove the insanity of the insured at the time he
took his own life, with a view of avoiding the legal effect of the act,
and the defendant sought to meet this position of plaintiff and to show
the nature and degree of the insanity, and this made the evidence
offered material and competent (SMITH, P. J., and HARDIN, J., du-
senting).
Held, further (BARKER, J.), that the other ground was equally without
foundation, as it is set forth in the answer that it was a condition oi
the contract, in case the insured should commit suicide or die by
his own hand, the policy of insurance should become null and void,
and it is also alleged he did commit suicide and did die by his own
hand.
Fourth Department, General Term, October, 1883.
Before JAMES C. SMITH, P. J., HARDIN and BARKER, JJ.
APPEAL from an order denying a new trial, founded on the
judge's minutes. Since then a case has been made containing
the evidence produced on the trial.
The action is founded on a policy of insurance issued upon
the life of the deceased, the plaintiffs being the executors of
his last will and testament.
The verdict was in the plaintiff's favor for the sum of
$4,188.
HOWARD'S PRACTICE REPORTS. 165
Westover agt. The J&tna, Life Insurance Company.
Itollin Tracy, for appellant.
S. E. Payne, for respondent.
BARKER, J. The contract of insurance was based upon a
written application made by the insured and presented to the
company, in which the applicant made representations as to
the state of his health at that time and previous thereto.
Such statements and representations were made by way of
answer to written questions propounded on behalf of the
company. In reply to an interrogatory the insured stated
that he had never been insane. This answer was followed by
an inquiry put in this form : " Has either of the parents,
brothers, sisters or other near relations of the party been
afflicted with rheumatism, insanity or with pulmonary,
scrofulous or any other constitutional disease hereditary in its
character?" This question was answered in the negative.
The policy contained an express condition and agreement
that all the answers, statements and representations should
constitute a part of the contract, and were warranted by the
insured to be true in all respects, and if they were not then
the contract to be absolutely null and void.
One of the defenses interposed by the company is that
Mrs. Branch, a sister of the insured, was, or had been at the
time the application was made and the policy issued, insane,
and on the trial gave evidence tending to prove the truth of
the answer in this respect.
In the charge as given to the jury they were instructed in
substance that if they- found as a fact that Mrs. Branch was
or had been at time of the application insane, and the same
was of a temporary character only pioduced by physical
causes at that time existing, it would not constitute a breach
of any condition of the policy and thereby render it void ;
that to bring the case within the limits of the contract in this
respect so as to constitute a defense and defeat a recovery,
it must be made to appear that the insanity which afflicted
166 HOWARD'S PRACTICE REPORTS.
"Westover agt. The ^Etna Life Insurance Company.
the sister of the insured was constitutional and hereditary in
its nature and character.
In Peasley agt. Safety Deposit Life Insurance Company
(15 Nun, 227) this court held, in a case in every respect simi-
lar to this question, that such was the true construction to be
placed upon the question and answer. A similar interpreta-
tion was given to a like question and answer (Newton agt.
The Mutual Benefit Life Insurance Company, reported in,
the same volume, p. 595). The defendant proved, and it was
conceded by the plaintiff to be true, that the insured did clio
by his own hand by the act of hanging himself by the neck.
The contract of insurance contained a condition that if the
insured should commit suicide or die by his own hand the
policy should become null and void.
The plaintiff, with a view of meeting and avoiding the legal
effect of this undisputed fact, sought to prove that the
deceased did not voluntarily take his own life ; that by reason
of insanity he did not have sufficient mental capacity to
understand the physical nature and consequences of his act,
and that he was impelled to the act by insanity, and in a legal
sense he did not commit suicide or die by his own hands.
Among the witnesses called by the plaintiff on this ques-
tion was the physician who attended the deceased during all
the period of his alleged mental disturbance. The defendant
objected to the evidence of this witness on the ground that
he was not competent, by reason of the prohibition contained
in section 834 of the Code, and the same was overruled and
an exception was taken. The physician testified as to the phys-
ical and mental condition of the deceased, as he ascertained the
same during his frequent professional visits, by conversations
had with and communications made to him by the deceased,
upon which the witness based and expressed the opinion that
the deceased was laboring under mental delusion and was in
fact insane.
As the evidence was produced for the purpose of protecting
the estate of the deceased, and to uphold a contract made by
HOWARD'S PRACTICE REPORTS 167
Westover agt. The ^Etna Life Insurance Company.
him in his lifetime with the defendant, the executors, as his
personal representatives, possessed the right and privilege
of releasing the physician from the statutory obligation of
secrecy, and the defendant has no good ground for an
exception.
In Staunton agt. Parker (19 Hun, 59) it was held that
where the patient was dead the provisions of the statute
could be waived by his representatives. The question there
presented came upon a contest over the probate of the will
of the deceased, and it was determined by the court, the
heirs-at-law being the persons who succeeded to the real estate
of the testator, they in their own behalf were competent to
release the physician from all obligation imposed by the stat-
ute, and a mere stranger to the estate could not interpose the
provisions of the statute as an objection to his competency.
In Eddington agt. Mutual Life Insurance Company (67
N. Y., 196), in discussing the statute, the court remarked
that the seal which the law fixes upon such communications
remains unless removed by the party himself or his legal
representatives (See Parish Will Case, 25 N. Y., 9 ; Whar-
ton on Evidence, sec. 591 ; 1 Greenleaf, sec. 243).
After the plaintiff had introduced all his evidence on the
question of the insanity of the deceased, and had rested his
case for the second time, the defendant called a witness to the
stand who stated that he knew the decedent for many years,
and was acquainted with his father and mother, and had an
acquaintance with four of the uncles of the deceased on his
mother's side and gave their names. He was then asked the
following question : " Did you know of any peculiarity in
either of these men ? " The plaintiff's counsel then interposed
an objection, without stating the grounds on which the same
was based. The defendant's counsel then stated to the court
that he offered the evidence as bearing upon the nature of the
insanity of Hiram Gove, whose life was insured, and to show
that the insanity with which he was afflicted was hereditary
in its character. The case states that the offer was rejected,
168 HOWARD'S PRACTICE REPORTS.
Westover agt. The ^tna Life Insurance Company.
upon the ground that the defendant's case had been rested and
that it had not been pleaded. To this ruling an exception
was taken by the defendant.
The first reason assigned for rejecting the evidence is not
well founded, for the reason prior to the time of this offer it
would not have been pertinent for the defendant to give any
evidence on the subject of the insanity of the insured. When
the defendant first rested the case no question had been made
as to the insanity of the deceased. The plaintiff raised that
question and gave evidence tending to prore the insanity of
the insured at the time he took his own li|e, with a view of
avoiding the legal effect of the act, and the defendant sought
to meet the position contended for by the plaintiff and to
show the nature and degree of the insanity which afflicted
the deceased. This made the evidence offered material
and competent. The question was quite unimportant stand-
ing alone, yet as a preliminary inquiry it was proper and
pertinent, and if the defendant had been allowed to
proceed we may assume the examination would have dis-
closed facts bearing on the issue favorable to the defendant.
The question was not objected to because it was in any
respect improper or immaterial, or the witness was not qual-
ified to testify on the subject, but the same was excluded for
the reason the defendant was in no position to claim as a
right, at that stage of the trial, the production of competent
evidence on the question of the insanity of deceased.
As to the other grounds stated it seems to be equally with-
out foundation, for it is set forth in the second paragraph of
the answer th_at it was a condition of the contract, in case the
insured should commit suicide or die by his own hand, the
policy of insurance should become null and void, and it is
also alleged he did commit suicide and did die by his own hand.
The exclusion of the evidence was plainly erroneous and
manifestly detrimental to the defendant, as it excluded
material evidence upon the vital question in dispute. For
this error a new trial should be granted.
HOWARD'S PRACTICE REPORTS. 169
Kipp agt. Rapp et al.
SMITH, P. J. I think the case was well tried. As to the
ruling which my brother BARKER considers erroneous, I
am of the opinion that the only line of proof which was open
to the defendant at the stage of the trial when that ruling was
made, was to disprove the alleged insanity of the deceased.
The testimony offered and excluded did not tend in that
direction, but on the contrary the offer assumed the fact of
the alleged insanity and related to the character of it only.
In this judge HARDIN concurs.
The judgment and order affirmed with costs.
CITY COURT OF NEW YORK.
DAVID KIPP agt. J. H. RAPP et al.
Code of Civil Procedure, sections 66-449 Attorney's lien How enforced
When action on undertaking on appeal cannot be brought by attorney in his
client' t name.
The lien of an attorney attaches to the cause of action; but if the client
has no cause of action at the time of suit brought, there is nothing to
which the lien attaches unless it be the papers in the case.
If a judgment be recovered wholly for costs, it belongs to the attorney,
who is regarded as the equitable assignee thereof, and he may prose-
cute in his own name the undertaking given to secure its payment.
When the plaintiff in an action, after recovering judgment therein,
assigned his cause of action, &c., to one "P.," and the action was
thereafter continued in the name of the original plaintiff, and a judg-
ment for costs in his favor recovered in the court of appeals, which he
also assigned to said "P.," and thereafter an action was brought in the
name and with the consent of the original plaintiff by his attorney,
who was the attorney of record for the respondent on said appeal, to
recover from the sureties on appeal the amount of said judgment:
Held, that the action could not be maintained ; that the attorney, being
the equitable owner of the judgment, should have brought the action
in his own name.
In such a case, the fact that the attorney obtained an order, after issue
joined, permitting him to prosecute the action for the enforcement of
his lien, did not alter the legal status of the parties to the action, or
vest in the plaintiff a cause of action.
Trial Term, June, 188,*
VOL. II 22
170 HOWARD'S PRACTICE REPORTS.
Kipp agt. Rapp et al.
ACTION to recover on an undertaking on appeal to the court
of appeals. The trial of this action was commenced before
chief justice Me AD AM and a jury. After the evidence was
all in, there being no disputed questions of fact, the jury
was discharged and the case submitted to the court upon the
questions of law involved. The facts are sufficiently stated
in the opinion.
Nelson Zabriskie. for plaintiff.
H. B. Kinyhorn, for defendant.
Me ADAM, C. J. The plaintiff commenced an action in
this court against one David W. McLean, May 12, 1880.
After two trials the plaintiff obtained a judgment in October,
1881, which was affirmed by the general term of this court
in March, 1882 ; by the common pleas in June, 1882, and by
the court of appeals in January, 1885. The right of action
was transferred to Peter Smith Parker by assignment, dated
December 3, 1881, but the action was continued in the name
of the original plaintiff until its conclusion in January, 1885.
The costs of affirmance in the court of appeals amount to
$127.14, and judgment was entered therefor January 24:,
18S5. The present action is brought to recover the amount
of this judgment from the defendants, who were the sureties
on the appeal to the court of appeals. The sureties plead by
way of defense the transfer to Parker, and a release from him
to them prior to the commencement of the present action,
and also plead an assignment of the judgment in the court of
appeals, executed by the plaintiff to said Parker.
The assignments above referred to were produced upon the
trial, and their production in evidence established the fact
that Kipp, the plaintiff, had no cause of action at the time
the present suit was commenced.
The plaintiff's attorney obtained an order after issue joined
permitting him to prosecute the action for the enforcement
of his lien, but this circumstance does not alter the legal
HOWARD'S PRACTICE REPORTS 171
Kipp agt. Rapp et al.
status of the parties to this action, and does not vest in the
plaintiff a cause of action, if he had none at the time suit
was commenced. The lien of the attorney attaches to the
cause of action (Code, sec, 66) ; but if it be made to appear
upon the trial that the plaintiff had no cause of action at the
time he commenced his suit, there is nothing to which the
lien can attach. The plaintiff's attorney has misconceived
the practice. The judgment being for costs only, the attorney
is to be regarded as the equitable assignee thereof, and the
record is in itself legal notice of the lien, which cannot be
discharged by payment to any one but the attorney (Marshall
agi. Meech, 51 N. Y., 143; Martin agt. Hawks, 15 Johns.,
405; Wilkins agt. Batterman, 4 Barb., 47; Wells on Attor-
neys, sec. 379, and cases cited). The attorney, in other words,
became by force of law the owner of the judgment, entitled
not only to enforce it, but every security given to insure its-
payment. Such being the legal effect of the judgment, the
plaintiff's attorney should have brought the present action in
his own name, as equitable owner of the judgment. If the
transfer or release had been given after suit brought, a dif-
ferent question would have been presented Kipp would
have had a good cause of action at the time of suit brought,
and the attorney's lien upon the cause of action would have
been protected from any subsequent acts of the parties in
fraud of it. For the purpose of protecting such a lien, i. e. y
on the cause of action, an order permitting the attorney to
prosecute the action for its enforcement would have been
proper, and upon establishing a cause of action at the time
suit was brought the judgment recovered might have been
enforced to the extent of the lien established. But the
trouble in the present case is that the plaintiff had no cause
of action whatever when the suit was brought, and conse-
quently there is nothing to which the lien of the attorney can
attach, except perhaps the papers in the case, which the attor-
ney is authorized to retain until his claim is satisfied ( Wells
on Attorneys, sec. 373).
172 HOWARD'S PRACTICE REPORTS.
Kipp agt. Rapp et al.
The attorney in this case did not need any equitable aid in
asserting his lien ; he did not require the use of his client's
name as ft party plaintiff; he was the equitable owner of the
judgment and the real party in interest at the time the action
was commenced, and it should have been prosecuted in his
name as plaintiff (Code, sec. 449). In such an action the
transfers by his client might have been held inoperative, as
they could not defeat a recovery by the attorney. But as the
person in whose name the action was commenced had no
interest whatever in the cause of action at the time suit was
brought, the action so commenced cannot be maintained. In
fact, it is only on the theory that the plaintiff had no interest
in the cause of action at the time suit was commenced that
the attorney can avoid the effect of the transfers made by his
client ; for, if he had any interest therein, it passed to Parker
by virtue of the assignments before referred to, and has been
fully discharged by him.
The plaintiff's attorney cites Martin agt. Hawks (15 Johns.,
405) and Wilkins agt. Batterman (4 Barb., 47), holding that
an attorney, as equitable assignee, may maintain an action in
the name of his client for the enforcement of the attorney's
lien. But these decisions were made before the Code and at
a time when choses in action were not assignable at law, so as
to entitle the assignee to sue in his own name, and when he
was on that account permitted to sue in the name of the
assignor. The Code changed this rule by directing that every
action shall be prosecuted in the name of the real party in
interest, whether he be a legal or equitable assignee of the
cause of action (Code, sec. 449 ; Barbour on Parties, 42, 43).
In ShacUeton agt. Hart (20 How. Pr., 39), the action was
brought in the client's name to enforce the attorney's lien, but
in the language of the report, it was commenced " avowedly
to collect for the attorney's own benefit." There is no such
avowal in the plaintiff's complaint, nor do I think such an
avowal would have aided him. The Code has left the attorney
free to prosecute in his own name all actions in which his
HOWARD'S PRACTICE REPORTS. 173
Bridgman agt. Hall.
rights as legal or equitable assignee have been injured or
- require legal redress.
In Pickard agt. Yencer (10 Weekly Dig., 271), like the
cases in 10 Abb. N. C., 393, the settlements designed to
defeat the attorney's lien were made after suit brought, and
the attorney was allowed to continue the action for the enforce-
ment of his lieu, but the principles decided there have, for the
reasons before stated, no application here. It follows that the
complaint must be dismissed, with costs.
In the Matter of the Application of JOHN F. BRIDGMAN agt.
BENJAMIN H. HALL.
Office and officer Books and papers When application (under art. 5, title
6, chap. 15, part 1, R. 8.) by an officer to compel the delivery of books and
papers should be denied.
It is only in a clear case, or in one free from reasonable doubt, that the
authority conferred upon the court by the Revised Statutes to compel
the delivery of books and papers in the possession of one officer to the
custody of another will be exercised. The remedy is only given where
the case is so clear that the conduct of the party, in refusing to deliver,
could be called willful or obstinate, and not in a case in which a person
in good faith holds possession of an office supposing himself to be its
lawful incumbent, and with that possession the custody of books and
papers essential to the proper discharge of its duties.
Do the provisions of the Revised Statutes under which this proceeding
is instituted apply to the office chamberlain or treasurer of a muni-
cipal corporation created by special charter which each of the parties
to this proceeding claim to be entitled to?
/Special Term, June, 1885.
APPLICATION for books and papers under article 5, title 6,
chapter 5, and part 1 ol the Revised Statutes (1st ed., 114; 1
R. 8. [2d ed.], 114 ; 1 R. S. [7th ed.], 376).
_/?. A. Parmenter, Mr, Griffith and Mr. Merritt, for
Bridgman.
Esek Cowen, for Hall.
174 HOAVARD'S PRACTICE REPORTS.
Bridgman agt. Hall.
WESTBROOK, J. Mr. John F. Bridgman, claiming to be
the chamberlain of the city of Troy, applies for an order
compelling Mr. Benjamin H. Hall, who also claims title to,
and is in the actual possession of, such office of chamberlain,
to surrender to him. the books and papers appertaining to
eaid office.
The claim is based upon the following facts : The charter
of the city of Troy creates the office of chamberlain (chap.
30, Laws of 1880, sec. 2), who, unless he is removed in the
manner specified in such charter, holds the office for three
years.
The chamberlain is nominated by the mayor and confirmed
by the common council of the city. A person, however, who
is nominated by the mayor to the common council "shall be
deemed to be confirmed by said common council, from the
date of said nomination, unless within ten days after said
nomination shall be sent to the common council the said com-
mon council shall, by a vote of two-thirds of all the members
elected, reject the said nomination and so notify the mayor
of such rejection" (Chap. 30, Laws of 18SO, sec. 3).
" In the event of the sickness or absence of the chamber-
lain, if he shall neglect to appoint some suitable person to
discharge the duties of the office, the mayor may appoint
some suitable person, to be approved bv the common council,
to discharge the duties of such office during such sickness or
absence" (Charter of Troy, Laws of 1870, chap. 598. tit. 2,
sec. 4).
In September, 1877, Mr. Henry S. Church was made
chamberlain. On October 7, 1SS1, said Church was nominated
and confirmed for the second term. He qualified under his
second appointment, but having given no new bond his sub-
sequent action as chamberlain must probably be deemed to
have been under the original and not the new appointment
(Charter, chap. 598, Laws of 1870, tit. 2, sec. 4, and sec. 20,
tit. 6, sec. 6).
On the 7th of February, 1884, Church absconded, being a
HOWARD'S PRACTICE REPORTS. 175
Bridgman agt. Hall.
defaulter to a large amount, and did not return to the city of
Troy until the latter part of March, 1884, when he was brought
there as a prisoner.
On that day (Feb. 7, 1884), Mr. Edward Fitzgerald, the
mayor of the city, addressed a communication to the common
council in which he stated to that body it was his " painful
duty to inform" them "that Henry S. Church, the chamber-
berlain of the city, has abandoned his office and, according to
all accounts, has left the city. A partial investigation and
examination of his accounts this day made render it morally
certain that he is a defaulter to the city in a large amount.
Under these circumstances and in pursuance of the provisions
of the chaiter, I do hereby appoint, subject to your approval,
Benjamin H. Hall, to discharge the duties of the office of
chamberlain during the absence of the said Henry S. Church."
This appointment was approved by the common council,
and under it Mr. Hall is exercising and discharging the duties
of chamberlain, claiming to be the lawful possessor of the
office and the proper custodian of its books and papers.
In the latter part of March, 1884, as has already been
stated, Church was brought back to the city of Troy under
arrest. On April 2, Ib84, he transmitted to the mayor (Fitz-
gerald) a resignation of the office of chamberlain. Some
time prior to January 15, 1885, this resignation was accepted
by the mayor, who on that day sent a communication to the
common council in which were detailed all the circumstances
attending Mr. Hall's appointment, which he claimed was
" temporary," and concluded as follows : " In view of these
facts, I have the honor to nominate to the office of chamber-
lain, for the ensuing term of three years, John F. Bridgman,
and the same is respectfully submitted to your honorable body
as provided by law."
This nomination was not rejected by a two-third vote and
in consequence thereof, as claimed in behalf of Mr. Bridgman,
the nomination was confirmed.
After an attempt under this appointment to obtain posses-
176 HOWARD'S PRACTICE REPORTS.
Bridgman agt. Hall.
sion of the office by force, which was partially successful,
which attempt was, however, restrained by this court and the
possession of the office restored to Hall in a suit brought by
Hall against Bridgman, an action by the people on the relation
of Bridgman against Hall, for the purpose of ousting Hall
from the office and also placing Bridgman in possession thereof,
was commenced.
This action was brought to trial at the Rensselaer circuit in
May, 1885, and resulted in a verdict in favor of the defendant
upon both issues, upon which judgment was perfected which
adjudges and decrees " that the relator, John F. Bridgman, is
not the chamberlain of the city of Troy, and that the defend-
ant, Benjamin H. Hall, is the chamberlain of the city of
Troy and has been such chamberlain since the 26th day of
January, 1885."
The judgment also contains this further clause : " But
nothing herein contained shall prejudice any right on the
part of the people of the state of New York, or any person
who, since the rendition of the verdict herein, shall have been
or shall hereafter be duly appointed to the office of cham-
berlain of the city of Troy, and shall qualify as required
by law."
On May 21, 1885, mayor Fitzgerald addressed another
communication to the common council of the city of Troy,
in which he recites the various matters hereinbefore detailed,
and concludes thus : " Now, therefore, I have the honor to
nominate John F. Bridgman, of this city, as chamberlain of
the city of Troy for the ensuing term of three years.''
The vote of the common council, which was immediately
taken, was two in favor of confirmation and ten against it.
The president announced that the nomination was confirmed
because not rejected by a two-third vote.
Under this last appointment, Bridgman having qualified
and given a .-bond, which has been duly approved, claims the
office of chamberlain of the city of Troy, and institutes this
proceeding, after Mr. Hall had, on demand made, refused to-
HOWARD'S PRACTICE REPORTS. 177
Bridgman agt. Hall.
surrender them to him, to obtain the books and papers belong-
ing to such office.
A preliminary objection made in behalf of Mr. Hall must
be first considered, which is this : Do the provisions of the
Revised Statutes under which this proceeding is instituted
apply to the office chamberlain or treasurer of a municipal
corporation created by special charter which each of the
parties to this proceeding claim to be entitled to ?
If this was an original question, now for the first time pre-
sented, there would, as it seems to me, be no difficulty in
giving it a negative answer. The proceeding is instituted
under article 5, title 6, chapter 5 and part 1 of the Revised
Statutes (1st ed., 114 ; 1 R. S. [2d ed.], 114 ; \ R. S. tfth ed.],
376). The chapter is entitled (1st ed., 85) : " Of the public
officers of this state, other than militia and town officers;
their election or appointment; their qualifications and the
tenure of their offices." Title one of that chapter is entitled
(1st ed., 86) : " Of the number, location and classification of
the public officers of the state." That title then proceeds to
classify, name and locate the officers, who in the title of that
chapter are called " the public officers of this state," and in
that title " the public officers of the state," and among them
is no such officer as these parties profess to be. Article 5 of
title 6 (that under which the present proceeding is instituted)
is entitled (1st ed., 114) : " Proceedings to compel the delivery
of books and papers by public officers to their successors."
From this statement it would seem reasonably clear that
the term " public officers," used all through the chapter, and
who are also therein called " the public officers of this state "
and " the public officers of the state," and who are also named,
located and clapsified in the same chapter, cannot possibly
include an officer not named, and who, instead of being one
of " the public officers of this state " or " of the state" is
simply and only an officer of a municipality or city created
by special charter. It would seem to be almost as proper, in
the absence of an express statute, to call an officer of a railroad
VOL. II 23
178 HOWARD'S PRACTICE REPORTS.
Bridgmau agt. Hall.
or other corporation a " public officer of the state " as to call a
public officer of a city, created by special charter, by that name.
The difficulty, however, with this line of thought is that
the practice has been the other way in the state, and courts
and judges have, though without the point being made, acted
upon the assumption that the statute reaches officers of the
character of that which this proceeding involves. Sitting as
a single judge, the officer to whom this application is made
dislikes to disturb a long practice, but certainly the point is
well worthy of the attention of an appellate tribunal. While
refusing, therefore, to dismiss the present application upon
this ground alone, the point nevertheless adds one more dif-
ficulty to several others about to be stated, which compel the
denial of the present application.
Conceding, however, that the statute is applicable to a city
officer not named therein, should the order asked for by Mr.
.Bridgman be granted ?
The current of authority is that only in a clear case, or in
one free from reasonable doubt, should the authority conferred
by the statute be exercised (Matter of North agt. Cary, 4 TV.
T. Sup. Ct. R., 357 ; The People agt, Allen, 42 Barb., 203 ;
People agt. Allen, 51 How, 97, 99, 100). The case should bo
very clear, because the revisers of our statutes, in reporting
the provision, said (3 It. S. [2d ed.~], 444) : " It has occurred
to the revisers, after much reflection, that there can be no
reason why a short, summary and effectual remedy should
not be given when a person willfully withholds public papers.
They have accordingly prepared the subsequent sections,
which provide for final coercive measures, only in case of a
party obstinately refusing to deliver and to swear that he has
delivered all the papers within his knowledge." The aim of
the revisers was to give this remedy " only " when the case
was so clear that the conduct of the party in refusing to
deliver could be called willful or obstinate, terms absolutely
inapplicable to a case in which a person in good faith holds
possession of an office supposing himself to be its lawful
HOWARD'S PRACTICE REPORTS. 179
Bridgman agt. Hall.
incumbent, and, with that possession, the custody of books
and papers essential to the proper discharge of its duties.
In applying these principles to the present case it is proper
to see what this motion involves.
The claim of Mr. Bridgman is that Mr. Hall was only
appointed to act during the absence of Mr. Church ; that if
the office of chamberlain was then vacant by the misconduct
and flight of its incumbent, the appointment of Hall as a
temporary one during such absence was void, or if good as
a temporary appointment it ceased with Church's return and
resignation.
The claim of Mr. Hall, on the other hand, is that, it being
conceded that Church was a defaulter and a fugitive the office
of chamberlain became vacant, and that the mayor's nomina-
tion and selection of Mr. Hall to perform its duties under
such circumstances was in law an appointment to fill the
vacancy ; or if this position be not maintainable, then that
the decision of this court, in the action to recover the posses-
sion of the office, in which the validity of defendant's title
thereto was involved and*which title is the same as now made,
" that the defendant, Benjamin H. Hall, is the chamberlain
of the city of Troy, and has been such chamberlain since the
26th day of January, 1885," is conclusive as to the validity
of the appointment under which he claims and holds.
The determination of these claims between the parties
involves, 1st. A construction of several important parts of
the charter of the city of Troy ; 2d. The settling of the
facts in regard to the alleged defalcation and flight of cham-
berlain Church ; 3d. "Whether or not by those facts the office
became vacant ; 4th. The meaning, intent and legal effect of
the nomination by the mayor of Mr. Hall. Was it intended
to give, or did it in law give to Mr. Hall the title to a vacant
office, or was it void as attempting to do what the mayor
could not do, to wit : temporarily fill a vacant office ; or, if
good as a temporary appointment, what effect did the resigna-
tion by Church and the appointment of Bridgman have ? 5th.
ISO HOWARD'S PRACTICE REPORTS.
Bridgman agt. Hall.
The effect of the judgment of this court in the action to
recover the office; 6th. How far can the legal effect and
operation of the judgment be controlled by the proceedings
of the trial showing the intent and reasons of the judge
rendering the judgment and decision ; or must the party, if
he wishes to control the effect of the broad words used
" Benjamin H. Hall is the chamberlain of the city of Troy ; "
not that he is in the lawful possession of the office under an
appointment by the mayor "to discharge the duties of the
office," as the charter provides, " in the event of the sickness
or absence of the chamberlain * * * during such sick-
ness or absence " apply for a modification or amendment
of the judgment ; and how far is the declaration of the effect
of the judgment contained in the roll restrictive of its
operation ?
It is not my purpose or design to argue or discuss any of
these questions. The attempt so to do would almost involve
a decision. They are difficult questions, so difficult as to pre-
vent me from holding that the title of Mr. Bridgman is so
clear and free from doubt that Mr. Hall's conduct in refusing
to surrender the books and papers of the office is either " will-
ful " or " obstinate."
In Case agt. Campbell, in which the general term of this
department (17 Weekly Dig., 473) held that a county judge
had no power to take evidence as to the vote cast for the
office of supervisor of a town, to determine the right to the
books and papers belonging to the same office, and which
case was before me upon a motion to vacate the stay granted
pending an appeal, the questions of law and fact were less
intricate than those in the present case, and the decision then
made must control. The court, in the case referred to (see
also the opinion of the judge writing this opinion, in same
proceeding and cases therein cited, 2 How. \_N. ], 85), fur-
ther held : " There is a dispute as to the title of the office.
The proceedings taken here are not to be used as a substitute
for an action of quo warranto. The people must sue to oust
HOWARD'S PRACTICE REPORTS. 181
Bridgman agt. Hall.
an intruder, and probably the alleged intruder is entitled to a
jury trial." These remarks are applicable to the present
case. " There is a dispute as to the title of the office." The
individual against whom the proceeding is taken believes in
good faith (see his affidavit) that he is the lawful incumbent
of the office to which the books and papers belong. This
fact not only takes the case out of the intent which its
framers had in view in reporting the statute upon which this
proceeding is predicated, but it also brings us face to face
with another difficulty, which is this : The possession of the
books and papers does not give possession of the office. Mr.
Hall, though the books and papers of the office were taken
from him, would still possess and exercise the functions of
chamberlain of the city of Troy. He would still be the cus-
todian of its funds and possessor of its powers. The removal
from his care of the books and papers would only cripple and
embarrass him in the discharge of the duties, by which the
municipality alone would suffer. Should, under such cir-
cumstances, the order be made ? The answer is clear it
should not. If Mr. Bridgman is right in his views he can
recover in the course of a very few months, at the farthest,
the office and its emoluments during the time Mr. Hall has
withheld its possession from him. The questions involved
are too important, in my judgment, to be disposed of in this
summary manner. If I am wrong in this view, however,
then this speedy determination of the present proceeding, to
which he was clearly entitled, will enable him to review and
correct any error at the coming general term, now only two
months distant.
The application is denied, but without prejudice to an
action to recover the office.
182 HOWARD'S PRACTICE REPORTS.
Davidson agt. The Mayor, &c., of New York.
N. Y. COMMON PLEAS.
ALEXANDER Y. DAVIDSON, sheriff, &c., agt. THE MAYOR, &c.,
OF NEW YORK.
Sheriff Fees of Chapter 279, Laws of 1 884, should be construed to apply to
future appointments and not to persons in office at the time of its passage.
The act (chapter 279 of the Laws of 1884), is not sufficient to authorize
the board of estimate and apportionment to fix the fees, per centages
and allowances of the present sheriff, during his term of office, at the
rates set forth in their resolution of December 29, 1884, for services
thereafter to be rendered.
The act construed as not authorizing any interference with the fees of
the then incumbent of the sheriff's office, but the fixing of compensa-
tion authorized deemed to apply to his successors in office.
General Term, July, 1885.
Before DALY, Ch. J., J. F. DALY and ALLEN, JJ.
W. Bourke Cochran, for plaintiff.
E. Henry Lacombe, for defendant.
Charles P. Miller, of counsel.
J. F. DALY, /. The legislature is prohibited from passing
any private or local bill creating, increasing or decreasing fees,
per centages or allowances of public officers during the term
for which said officers are elected or appointed (Const., art.
8, sec. 18). The act under examination is a local bill, being
" an act to regulate and provide for certain expenses of con-
ducting the office of sheriff of the city and county of New
York." It does not directly fix the fees of the sheriff, but it
takes away from the board of aldermen of said city and gives
to the board of estimate and apportionment of said city the
power to fix the rates of payment to the sheriff for objects of
expenditure which, by law, are made a charge upon said city
and county.
HOWARD'S PRACTICE REPORTS. 183
Davidson agt. The Mayor, &c. , of New York.
The board of aldermen, exercising the powers of supervisors
{chap. 304, Laws of 1874), adopted an ordinance on January
21, 1875, fixing the compensation of the sheriff for such objects
at a specified rate. The plaintiff assumed the office of sheriff
on January 1, 1883, and the act of the legislature under exam-
ination was passed on May 14, 1884. The board of estimate
and apportionment adopted on December 29, 1884, a resolu-
tion by which they allowed a lower rate for such objects than
that fixed by the board of aldermen.
It thus appears that while the legislature did not directly
reduce the fees of the sheriff, it accomplished such reduction
indirectly by transferring from one local authority to another
the power to make the change of compensation. The prohi-
bition against doing an act extends, of course, to all indirect,
roundabout or covert attempts to do the thing forbidden.
In the case of the legislature, the prohibition against pass-
ing a local bill decreasing official fees extends to enactments
which confer upon others the power to do so at their pleasure.
If it did not, the provisions of the constitution might be
easily evaded. It is not to be supposed that the legislature
intended in the act of 1884, under examination, a violation of
the constitutional provisions above cited, and therefore the
act will not be constraed as authorizing any interference with
the fees of the then incumbent of the sheriff's office. The
fixing of compensation authorized will be deemed to apply to
his successors in office.
We held in a similar case that the legislative enactment
should be construed to apply to future appointments, and not
to the persons in office at the time of its passage (Ricketts
agt. The Mayor, 57 flow. Pr. R., 320). The correctness of
the application of the principle in that case may be doubtful
in view of the later decision of the court of appeals in Man-
gam agt. The City of Brooklyn, holding that the constitu-
tional provision in question did not protect salaried officers,
but was to be confined to those whose compensation was by
fees, per centages and allowances. But the principle on which
184 HOWARD'S PRACTICE REPORTS.
Westover agt. The ^Etna Life Insurance Company.
the decision was based is directly applicable to the case before
us, and the opinion therein delivered must control.
I think that judgment should be ordered for plaintiff.
DALY, C. J., and ALLEN, J., concurred.
COURT OF APPEALS.
ROBERT R. WESTOVER, as executor, &c., of HIRAM GOTE,
deceased, agt. THE ^ETNA LIFE INSURANCE Co.
Code of Civil Procedure, section 834 When physician not (Mowed to testify
Personal representatives cannot waive prohibition of statute.
By section 834 of the Code of Civil Procedure, a physician is prohibited
from disclosing any information which he acquired in attending a
patient in a professional capacity, and which was necessary to enable
him to act in that capacity, and the seal of the law placed upon such
disclosures can be removed only by the express waiver of the patient
himself.
Whenever the evidence comes within the purview of the statute it is
absolutely prohibited and may be objected to by any one, unless it be
waived by the person for whose benefit the statute was enacted.
An executor or administrator does not represent a deceased person for
the purpose of making such a waiver. He represents him simply in
reference to right of property and not in reference to those rights which
pertain to the person and character of the testator (Reversing ti. C.,
ante, 163).
Decided April, 1885.
THIS is an appeal from an order of the supreme court, gen-
eral term, fourth department, affirming an order denying a
motion for a new trial upon the minutes of the court, and
denying a motion for a new trial made upon a case and excep-
tions, and from the judgment entered on such order. This
action is brought to recover upon a life insurance policy
issued by the defendant upon the life of Hiram Gove, on the
llth day of July, 1874, upon the application of said Gove,
HOWARD'S PRACTICE REPORTS. 185
"Westover agt. The ./Etna Life Insurance Company.
for the sum of $4,000, payable to himself within ninety days
after due notice and proof of death. Gove, the insured, died
on the 15th day of October, 1881. The plaintiff, Robert R.
Westover, was appointed executor of the estate of said Gove
on the 9th day of November, 1881. On the 12th day of
January, 1882, the plaintiff prepared and furnished proofs of
loss, and at the expiration of ninety days, the policy not
being paid, this action was commenced.
In and by the express provisions of this contract of insur-
ance, it was, among other things, mutually agreed by and
between the assured and the defendant, aad the policy was
issued by the defendant and accepted by the assured, upon
the express condition and agreement that in case the assured
should commit suicide, or die by his own hand, the policy
bhould become and be null and void.
It was also, in and by the express terms and conditions of
said policy of insurance, and in and by the express terms and
conditions of 'the application for said policy, which, by the
express terms and conditions of said policy, and of said applica-
tion, was made a part of the contract of insurance, expressly
agreed and warranted, among other things, by and on the part of
the assured and the defendant, and the policy was issued upon
the express agreement and warranty of the assured, that the
answers, statements, representations and declarations contained
in or indorsed upon the said application, were and each of
them was in all respects true, and that if said policy was
obtained by or through any fraud, misrepresentation or con-
cealment, or by any false statement, the policy should be
absolutely null and void, and all moneys which may have been
paid on account thereof should be forfeited to the defendant.
In and by the application for said policy, the assured, among
other things, stated and declared and warranted that " neither
of the parents, brothers, sisters or other near relatives had
been afflicted with rheumatism, insanity, or with pulmonary,
scrofulous or any other constitutional disease, hereditary in
its character." It appeared that Gove committed suicide, or
VOL. II 24
186 HOWARD'S PRACTICE REPORTS.
Westover agt. The ^Etna Life Insurance Company.
died by his own hand, and that at least a sister of the assured
had been insane. These conditions and facts raised various
questions, which are fully stated in the annexed points, and
submitted for consideration. The cause was tried before Mr.
justice D wight and a jury, on the 9th, 10th and llth days of
January, 1883, resulting in a verdict in favor of plaintiff for
$4,J88, the full amount of the policy. A motion was there-
upon made for a new trial upon the minutes of the court,
which was denied, and from the order denying such motion
an appeal was taken. Upon the rendering of the verdict tho
case was ordered to be heard in the first instance at general
term, upon case and exceptions, and judgment directed to be
entered as security, and all proceedings thereon to be sus-
pended until the hearing and determination at general term
The cause was accordingly heard at general term, resulting in
an order affirming the order appealed from, and denying the
motion for a new trial upon case and exceptions, and direct-
ing judgment upon the verdict and judgment was accordingly
entered. And the case comes here on appeal from that order
and judgment.
Rollin Tracy, for defendant, appellant, made and argued
among others the following point :
I. The evidence of Dr. Briggs as a witness for the plaintifl
should have been excluded as privileged, under section 833
of the Code of Civil Procedure, under the objection of the
defendant. The plaintiff called Dr. Briggs as a witness in his
behalf, and after showing by the witness that he was, and for
upwards of fifty years had been a practicing physician ; that he
knew the insured in his lifetime, attended him professionally,
and visited him first on the 29th day of June, 1881, the witness
was allowed to testify as to how he found the assured, his treat-
ment, &c., under the objection of the defendant. " That the
evidence was incompetent and privileged under section 834 of
the Code of Civil Procedure. The witness being a practicing
physician and the evidence being a disclosure of information
HOWARD'S PRACTICE REPORTS. 187
Westover,agt. The JEtna Life Insurance Company.
acquired by him in attending Gove in a professional capacity,
and necessary to enable him to act in that capacity, the witness
should not be allowed to testify and disclose the information so
acquired." The evidence introduced under this objection was
for the purpose of establishing the insanity of the insured as the
cause of suicide, a fact necessary to be established to enable
the plaintiff to recover, and was the most serious evidence
upon that question in the case. The section of the Code under
which the objection to this testimony was made is as follows :
" SEC. 834. A person duly authorized to practice physic or
surgery shall not be allowed to disclose any information which
he acquired in attending a patient in a professional capacity,
and which was necessary to enable him to act in that capacity."
This statute absolutely prohibits the physician from disclosing
any information which he acquired in attending a patient in
a professional capacity and wiiich was necessary to enable him
to act in that capacity. The evidence of the witness was clearly
" a disclosure of information acquired by him in attending the
insured in a professional capacity, and which was necessary to
enable him to act in that capacity. And unless there is some
statute relieving this section from this absolute prohibition,
this evidence was improperly admitted under this exception.
No such relief is to be found, unless it be under section 836
of the Code, which provides : " Sec. 836. The last three sec-
tions apply to every examination of a person as a witness,
unless the provisions thereof are expressly waived by the per-
son confessing the patient or the client " The three sections
referred to are those relating to confessions made to clergy-
men, the information furnished physicians, and the commu-
nications to an attorney ; and its only materiality here is as to
its bearing upon section 834, referring to information fur-
nished physicians by the patient, &c. This section (836)
seems to be merely for the purpose of enabling the patient
to waive the prohibition of the other section (834) and allow
the evidence of the physician to be introduced when offered
by the party opposed, not for the purpose of enabling the
188 HOWARD'S PRACTICE REPORTS.
Westover agt. The JEtna Life Insurance Company.
patient to introduce the evidence of his own physician, and
the statements of himself to his physician in his own behalf
against his adversary, whether true or false, in defiance of the
prohibition of section 834, and the objection of his adversary,
thereby enabling the patient (or his representative) to pro-
duce evidence for himself which might not otherwise exist,
and which might have been false in fact and an imposition
upon his physician, and manufactured with an intent to per-
petrate a fraud upon his adversary. No case is found where, as
in this case, the insured or his representative seeks to introduce
such testimony in his own behalf. All the cases are where
the insurance company seeks to introduce the testimony of
the physician against the interests of the insured, the patient,
and in such cases the insured may, by express waiver, allow
the evidence. To say that the statute means that only the
patient or his representative shall have the right to object to
such evidence, and while he only can waive the prohibition,
he may waive it in his own behalf, would be opening the gate
for the manufacture of evidence, and for fraud of the most
dangerous character, and a violation of the greatest safeguard
known to the rules of evidence, that no man shall be allowed
to prove his own statement in his own interest. The courts
uniformly say that no definite or final construction can be put
upon this section, but it is a rule of itself, to be construed
and applied with reference to each case (Pierson agt. The
People, 79 N. Y., 424). The right of the defendant to object
in such cases seems to be fully recognized by this court in the
case of Edington agt. The Mutual Life Insurance Company
(67 N. Y.)j the only case where reference to this question
seems to be directly referred to, where the court says (p. 195),
" there is no ground for claiming that the right of objecting
to the disclosure of a privileged communication is strictly
personal to the party making it, or to his personal representa-
tives, and that it cannot be available to a third party." The
general term sustained this ruling upon the theory that the
prohibition of the statute could be removed by the party, or
HOWARD'S PRACTICE REPORTS. 189
Westover agt. The JStna Life Insurance Company.
his legal representative, for the purpose of protecting the
estate of the deceased ; and to uphold a contract made by him
in his lifetime with the defendant. And in support of this
conclusion cited Staunton agt. Parker (19 Hun, 59) ; Eding-
ton agt. Mutual Life Insurance Co. (67 N. Y., 196) ; Parish
Will Ca$e (25 .ZV. J"., 9, <&c.). But these cases fail to sustain
the position. In Staunton agt. Parker, three daughters of
the testator contested the probate of a codicil to the testator's
will, and offered the privileged evidence to overcome that
instrument against the executor, who sought to sustain it, and
who objected to the evidence as privileged, &c. It was held
that the privilege could be waived by the contestants, as heirs,
&c., of the testator. And it was also held that the evidence
was competent because it did not appear that the information
sought was not the disclosure of any confidential information
acquired by the physician in his professional capacity, but
facts which were open to the observation of any person who
had seen and conversed with the testator. An application of
the first reason to the present case clearly sustains the position
of the defendant ; and this court in Grattan agt. Metropolitan
Life Insurance Company (SO N. T"., 297), has disposed of the
second reason adversely. In The Parish Will Case it seems
the evidence was received without objection. And in
Edington agt. Mutual Life Insurance Company it already
appears that this court stated (p. 195), that "there is no
ground for claiming that the right of objecting to the disclosure
of a privileged communication is strictly personal to the
party making it, or to his personal representatives, and that
it cannot be available to a third party." A proposition
emphatically favorable to the position of this defendant.
S. E. Payne, for plaintiff, respondent. The defendant
objects to the evidence of the doctor who attended the
assured, on the ground of privileged communications. The
plaintiff is the personal representative, and, as such, had a
right to waive the privilege of the statute, which he did by
190 HOWARD'S PRACTICE REPORTS.
Westover agt. The ^Etna Life Insurance Company.
calling the witness (Code, sec. 886 ; Stanton agt. Parker, 19
Hun, 55, 59 ; Edington agt. Mutual Life Co., 67 N. Y.,
196 ; GreenUaf, sec. 243).
EARL, J. This action was commenced upon a life insur-
ance policy issued to the plaintiff's testator. It was provided
in the policy that it should be void if the insured should com-
mit suicide or die by his own hand. He hanged himself, and
upon that ground the action was mainly defended. The
plaintiff gave evidence tending to show that the testator
hanged himself while insane, and the question was submitted
to the jury for their determination whether the hanging was
the voluntary, conscious, willing act of the testator, or
whether he was at the time so insane that he was either
unconscious of the act which he performed, or was unable to
understand what the physical consequences of it would be ;
and upon that question the jury found for the plaintiff. In
the course of the trial the plaintiff called a physician who
had known the insured for a long time and who attended
him professionally a short time before his death. He testified
that he visited him first in June, 1881, and he was asked this
question : " State how you found him ? " The counsel for
the defendant objected to the question on the ground that
" the evidence was incompetent and privileged under section
834 of the Code of Civil Procedure, viz. : The witness being
a practicing physician and the evidence being a disclosure of
information acquired by him in attending Gove in a profes-
sional capacity and necessary to enable him to act in that
capacity, and the witness should not be allowed to testify and
disclose the information so acquired." The court overruled
the objection, and tlffe witness answered at length giving import-
ant evidence as to the mental and physical condition at that
time and subsequently of the insured. The claim of the
learned counsel for the respondent on the argument before us
was that the plaintiff, as the personal representative of the
deceased, could waive the seal which the statute puts upon
HOWARD'S PRACTICE REPORTS. 191
Westover agt. The ^Etna Life Insurance Company.
such evidence, and upon that ground the ruling of the trial
judge was sustained by the general term.
Section 833 of the Code provides that " a clergyman or
other minister of any religion shall not be allowed to disclose
a confession made to him, in his professional character, in the
course of discipline enjoined by the rules or practice of the
religions body to which he belongs." Section 834 provides
" that a person duly authorized to practice physic or surgery
shall not be allowed to disclose any information which he
acquired in attending a patient in a professional capacity, and
which was necessary to enable him to act in that capacity."
Section 835 provides that " an attorney or counselor-at-law
shall not be allowed to disclose a communication made by his
client to him or his advice given thereon in the course of his
professional employment," and section 836 provides that " the
last three sections apply to every examination of a person as a
witness, unless the provisions thereof are expressly waived by
the person confessing, the patient or client." It is thus seen
that clergymen, physicians and attorneys are not only abso-
lutely prohibited from making the disclosures mentioned, but
that by an entirely new section it is provided that the seal of
the law placed upon such disclosures can be removed only by
the express waiver of the persons mentioned. Thus there
does not seem to be left any room for construction. The
sections are absolute and unqualified. These provisions of law
are founded upon public policy, and in all cases where they
apply the seal of the law must forever remain until it is
removed by the person confessing, or the patient or the client
(Edington agt. Mutual Life Ins. Co., 67 N. Y., 185 ; Eding-
ton agt. jEtna Life Ins. Co., 77 JV. Y., 564 ; Pierson agt.
The People, 79 N. Y., 424 ; 6f rattan agt. Metropolitan Life
Ins. Co., 80 N. Y., 281).
In Greenleaf on Evidence (sec. 243), speaking of communi-
cations made to an attorney, the learned author says : " The
protection given by the law to such communications does not
cease w r ith the termination of the suit or other litigation or
192 HOWARD'S PRACTICE REPORTS. 9 \
Westover agt. The ^Etna Life Insurance Company.
business in which they were made ; nor is it affected by the
party ceasing to employ the attorney and retaining another ;
nor by any other change of relations between them ; nor by
the death of the client. The seal of the law once fixed upon
them remains forever, unless removed by the party himself
in whose favor it was there placed. It is not removed with-
out the client's consent, even though the interests of criminal
justice may seem to require the production of the evidence."
In Wharton on Evidence (sec. 584), it is said that the privi-
lege of the client may be waived by him, but that " the evi-
dence of the waiver must be distinct and unequivocal." In
Pierson agt. The People, it was said : " The plain purpose of
this statute was to enable a patient to make known his condi-
tion to his physician without the danger of any disclosure by
him which would annoy the feelings, damage the character,
or impair the standing of the patient while living, or disgrace
his memory when dead." In Grattan agt. The Metropolitan
Life Insurance Company, DANFORTH, J., said : " The case
before us is not one where the witness was called in for the
first time after the death of the patient, but one where the
lips of the physician were sealed during the life of the patient,
and where, although by death he loses the patient, his lips
must remain closed. It was held under the old law that the
seal must remain until removed by the patient, and it is now
so provided by statute."
The purpose of the laws would be thwarted, and the policy
intended to be promoted thereby would be defeated if death
removed the seal of secrecy from the communications and
disclosures which a patient should make to his physician, or a
client to his attorney, or a penitent to his priest. "Whenever
the evidence comes within the purview of the statutes it is
absolutely prohibited, and may be objected to by any one
unless it be waived by the person for whose benefit and pro-
tection the statutes were enacted. After one has gone to his
grave the living are not permitted to impair his fame and
disgrace his memory by dragging to the light communications
EHRATU M.
In Westover agt. The JEtna Life Insurance Company (ante, p. 193), in
thirteenth line from bottom of page, after the word " to " insert the words
" an action could make."
HOWARD'S PRACTICE REPORTS. 193
Westover agt. The ^Etna Life Insurance Company.
and disclosures made under the seal of the statutes. An
executor or administrator does not represent the deceased for
the purpose of making such a waiver. He represents him
simply in reference to rights of property and not in reference
to those rights which pertain to the person and character of
the testator. If one representing the property of a patient
can waive the seal of the statute because he represents the
property, then the right to make the waiver would exist as
well before death as after, and a general assignee of a patient,
for the purpose of protecting the assigned estate, could make
the waiver ; and yet it has been held that an assignee in bank-
ruptcy is not empowered to consent that the professional
communication B of his assignor shall be disclosed {Bowman
agt. Norton, 5 C. & P., 177). In Edington agt. The Mutual
Life Insurance Company (67 N. Y., 185), it was not decided
nor stated that a personal representative could waive the pro-
tection of the statutes, but it was held that the personal
representative or assignee of the patient could make the
objection to evidence forbidden by the statutes; and the
opinion might have gone further and held that any party
to the objection, as the evidence in itself is objectionable,
unless the objection be waived by the person for whose pro-
tection the statutes were enacted.
Without further discussion or citation of authorities, we
think the statute admits of no other construction than that
where the evidence comes within the prohibition of the stat-
ute, its reception, if objected to, can be justified only when
the' patient, penitent or client, as the case may be, waives the
protection the statutes give him.
We are, therefore, of opinion that for the error in the
reception of the evidence objected to, the judgment should
be reversed and a new trial granted, costs to abide event.
All concur.
VOL. II 25
194 HO WARD'S PRACTICE REPORTS.
In the Estate of Charles Morgan, deceased.
SUKROGATE'S COURT
In the Estate of CHARLES MORGAN, deceased.
Code of Civil Procedure, section 2643 Who entitled to receive letters of
administration with will annexed under this section Wfien strangers may
be appointed co-administrators.
Where there are two or more persons equally entitled, under section '2643
of the Code, to receive letters of administration with will annexed, the
surrogate will appoint that person who ceteris paribus has the largest
interest under the will.
Section 34, title 2, chapter 6, part 2, Revised Statutes, which declares
that joint "administration" may, with the consent of persons entitled,
be granted to themselves and to other persons not entitled, applies to
cases of administration with the will annexed.
New York county, August, 1885.
ROLLINS, S. Mary J. Morgan, late executrix of this tes-
tator's estate, died on the third of July last, leaving its assets
in part unadministered. Mrs. Frances E. Quintard, decedent's
eldest daughter and a legatee under his will, has applied for
the issuance of joint letters of administration with the will
annexed to herself, her husband George W. Quintard, and
James Rintoul. The right to receive such letters as are here
applied for is granted by section 264 of the Code of Civil
Procedure to persons interested in a testator's estate, accord-
ing to the following order of priority :
" First. To one or more of the residuary legatees who are
qualified to act as administrators.
"Second. If there is no such residuary legatee, or none
who will accept, then to one or more of the principal or
specific legatees so qualified."
The will of this testator contained but one dispositive clause.
That clause gave his entire estate "as provided by the laws of
the state of New York in case of intestacy." The persons
who thus became entitled to share in the testator's bounty,
and the respective interests that they had in the estate upon
HOWARD'S PRACTICE REPORTS. 195
x
In the Estate of Charles Morgan, deceased.
probate of the will, were as follows : Mary J. Morgan, widow,
thirty-ninetieths ; Frances E. Quintard, daughter, twelve-
ninetieths ; Maria L. Whitney, daughter, twelve-ninetieths ;
Richard J. Morgan, grandson, twelve-ninetieths ; Montaigu
Morgan, grandson, four-ninetieths; William H. Morgan,
grandson, four-ninetieths ; Laura L. La Montagne, grand-
daughter, four-ninetieths ; Henry W. Harris, great-grandson,
three-ninetieths ; Henry H. Wilson, great-grandson, six-nine-
tieths ; Maria L. Harris, great-granddaughter, three-ninetieths.
It is evident that the above named persons, though their
interests under the will vary in quantity, are legatees never-
theless of precisely the same grade and character. It cannot
be said that any one of them, as distinguished from any other,
is a " residuary " or a " specific " legatee. Nor is it true that
any one of them, as distinguished from any other, is one of
the " principal legatees." For the word principal, when read
in the light of the context, is evidently not used as a synonym
for chief or most important, but has the force and effect rather
of the word general, and is meant to be descriptive of all lega-
tees who are neither specific nor residuary. I hold, therefore,
that no one among this testator's living beneficiaries has any
absolute legal right, as such, to be chosen in preference to any
other as administrator c. t. a. of this estate, except as herein-
after indicated. Of those beneficiaries Mary J. Morgan,
Richard J. Morgan, Montaigu Morgan and Henry H. Wilson
are dead. Henry W. Harris and Maria L. Harris are
personally incompetent because of their infancy, and any
claim that might be made by their guardian is secondary to
the claim of an adult legatee legally qualified (Sec. 33, tit. 2,
chap. 6, pt. 2 It. S. ; 3 Banks \1th ed.~], 2291 ; Cotile agt. Van-
derheyden, 11 Abb. \_N. /], 17). The selection must therefore
be made from the persons following, unless all of them waive
their claims : Mrs. Quintard, Mrs. Whitney, William H.
Morgan and Laura L. La Montagne.
The petition of Mrs. Quintard is not, I understand, opposed
by Mrs. Whitney. Mrs. Montague is not herself an applicant
196 HOWARD'S PRACTICE REPORTS.
In the Estate of Charles Morgan, deceased.
for letters. Mr. "W. H. Morgan applies for his own appoint-
ment as co-administrator with the petitioner. The practical
questions for decision, are therefore, these : 1. Of the persons
entitled, shall I appoint Mrs. Quintard, or Mr. "W. H. Morgan,
or both ? 2. Whoever may be selected among the persons
entitled, shall any person not entitled be joined in the admin-
istration as prayed for by several of the parties in interest ?
And first, as between Mrs. Quintard and Mr. Morgan, the
claim of the former is supported by this very important con-
sideration, that she has much the larger interest in the estate.
Schouler, in his treatise on Executors and Administrators
(sec. 124), declares that when the selection of an administrator
c. t. a. is uncontrolled by statute the rule is to grant letters
" to the claimant having the greatest interest under the will."
Our own statute is founded on a practice which was established
by the ecclesiastical courts, and which is thus expounded by
Sir John Nichol in Tucker agt. Westgarth (2 Add., 352) :
"Where it is discretionary in the court to grant administra-
tion to either of two claimants it always decrees it, ceteris
paribus, to that claimant who has the greatest interest in the
effects to be administered." (See, aho, to same effect, Elwes
agt. Elwes, 2 Lee's Cos., 573).
Kedfield in his Law of Wills, says (vol. 3, p. 97) : " In the
English courts of probate the general rule seems to have been
to give administration first to the party entitled to the residue
of the goods, and among those of equal degree to the one in
seniority, other things being equal." Tried by this test, it is
manifest that the claim of the petitioner is superior to that of
her rival applicant. Those who have appeared in opposition,
and who are themselves legally competent to receive letters,
have much less interest under the will than those legally com-
petent who support or approve her application. And while
there is on the part of several persons now interested in the
estate, including the representatives of Mrs. Charles Morgan,
some opposition to Mrs. Quintard's appointment, except upon
certain conditions as to co-administration, which she has not
HOWARD'S PRACTICE REPORTS. 197
In the Estate of Charles Morgan, deceased.
indicated her willingness to accept, it is nevertheless true that
her application is favored by a much larger interest than the
interest which has declared itself on the side of Mr. W. H.
Morgan. I should therefore have no hesitation whatever in
granting her petition but for the objection that her relation to
a proceeding now pending in the court of appeals, involving
the construction of this testator's will and the ascertainment
of the amounts to which his several legatees are entitled there-
under, make her an unfit person to be intrusted with the sole
charge of the estate.
As to this objection it may be said in the first place that
the facts on which it is founded do not constitute a disquali-
fication under the statute prescribing the qualifications of
administrators. She could insist, in spite of it, upon her abso-
lute right to letters if she were, for example, sole residuary
legatee, or if the three persons whose statutory status is the
same as her own were all dead or were all unwilling to
administer.
The standard of incompetency fixed by the written law can
alone be applied in passing upon the qualifications of an appli-
cant to whom that law has given priority ; and indebtedness
to the estate or personal interest in its administration are not
of themselves grounds of disqualification (Churchill agt. Pres-
cott, 2 Bradf., 304). I might very likely regard Mrs.
Quintard's relations to the controversy in the court of appeals
as sufficient, other things being equal, to warrant the selec-
tion in preference to herself of some person equally entitled,
against whom that objection could not be urged, if there were
any such person in existence. But there is not ; and as
between Mr. Morgan and herself, if either is to be intrusted
with the administration to the exclusion of the other, I am
disposed to give her the preference.
Now it is not, in my judgment, desirable that letters should
issue to the two in conjunction. There is little reason to
believe that their counsels would be harmonious, or that their
united action would result in measures conducive to the best
198 HOWARD'S PRACTICE REPORTS.
In the Estate of Charles Morgan, deceased.
interests of the state. Besides, if Mrs. Quintard shall become
sole administratrix, I cannot think that the weight of her
official authority will become practicably oppressive to the
other legatees who now object to her appointment. Those
objectors are all parties to the proceeding in the court of
appeals, and are represented by able and zealous counsel.
The issues involved have already been the subject of. contro-
versy before a referee, the surrogate and the supreme court,
and have given rise to searching and elaborate discussion.
Under the circumstances it is extremely unlikely that the
parties litigant would or could be helped by the appointment
of an administrator in sympathy with their own contention,
or would or could be injured by an appointment from the
ranks of the opposition.
There remains to be considered the question whether a
stranger to an estate can be granted letters of administra-
tion c. t. a. jointly with a person entitled to such letters under
section 2643 (supra).
It is an every day practice as regards estates of intestates to
appoint strangers as co-administrators upon the nomination
of the person entitled to letters. This practice is in accord-
ance with the provisions of section 34, title 2, chapter 6,
part 2, Kevised Statutes (3 Banks' *ltJi ed., 2291), which
declares that " administration may be granted to one or more
competent persons, although not entitled to the same, with
the consent of the person entitled to be joined with such
person ; which consent shall be in writing and be filed in the
office of the surrogate." Whether this section applies to cases
of administration with the will annexed does not seem to have
been decided in any reported case, and a doubt is now thrown
upon the matter by the fact that in the main the practice and
procedure in respect to the appointment of the latter class of
officers is now regulated by the Code of Civil Procedure,
while as to the administration of estates of intestates the pro-
visions of the Revised Statutes are still in force. This doubt
will disappear, however, upon close examination. Section 34
HOWARD'S PRACTICE REPORTS. 199
In the Estate of Charles Morgan, deceased.
is one of the original provisions of article 2, which from the
time of its enactment has borne this title : " Of granting
letters of administration with the will annexed, and in cases
of intestacy." I agree with surrogate BRADFORD, Ex parte
Brown (2 Bradf., 22), in holding that the term " administra-
tor," as used throughout the whole of title 2 of the sixth
chapter, was intended to include administrators with the will
annexed, except in cases where the context plainly indicates
the contrary. That strangers could be joined in administra-
tions c. t. a. before the Code came upon the statute book I
have no doubt. Now, there is nothing in the Code incon-
sistent with a continuance of that practice, and section 34 is
still unrepealed and still forms a part of article 2.
It will be observed that the surrogate has no authority
under that section to depart from the rule of selection estab-
lished by section 2643 of the Code, except to the extent that
the person entitled shall consent in writing to the appoint-
ment of co-administrators. I cannot, therefore, of my own
motion, grant letters to the administrator of the late execu-
trix, however strongly I might be inclined to do so. I may
add, that even apart from the restrictions of the statute the
surrogate would not be justified in -forcing upon a person
entitled an association with a stranger not selected by himself
(Peters agt. Pub. Administrator, 1 Bradf., 200-207, and
cases cited").
Letters may issue to Mrs. Quintard, Mr. Quintard and
Mr. Riiitoul. If the petitioner shall file a written consent
for Mr. Moir's inclusion, he also 'may be granted letters.
JOO HOWARD'S PRACTICE REPORTS.
The National Bank of Port Jervis agt. Hansee.
SUPEEME COURT.
THE NATIONAL BANK OF PORT JERVIS agt. JESSE C. HANSEE
and JOHN HANSEE.
Practice Motions and orders When prior motion a bar upon the principle
of res adjudicata Code of Civil Procedure, section 779 When non-
payment of costs stays all proceedings Payment by surety of a judgment
against a principal does not extinguish tlie judgment as to principal.
On February 14, 1884, the National Bank of Port Jervis, as plaintiffs, by
its attorneys recovered a judgment against J. C. H. and J. H.,as defend-
ants. The recovery was upon a promissory note of which J. C. was
maker and J. accommodation indorser. An execution was issued to
the sheriff of Sullivan county, and on April 14, 1874, J. H. paid full
amount to attorneys of plaintiff, who then withdrew the execution.
The payment was not to extinguish the judgment, but it was to be kept
in life and to be assigned to wife of said J. H. On January 24, 1883,
such assignment was made to C. S. H., wife of J. H. The judgment-
roll was filed in clerk's office of Orange county. A transcript was filed
in office of clerk of Ulster county July 11, 1883, and judgment thereon
entered in such county, the residence of J. C. , and on same day execu-
tion issued to sheriff of such county, which was returned unsatisfied to
Orange county clerk's office July 18, 1883. The execution was sub-
scribed "A. N. C., Atty. ,for Pltff.," and stated in body thereof the
assignment to C. 8. H. on January 24, 1883. The direction to sheriff
was to collect execution and judgment out of property of defendant
J. C. H. Such execution did not issue at request of plaintiff in the
judgment, nor was any leave to issue obtained or granted by order of
this court. Several orders for examination of J. C. H. in supplemental
proceedings have been obtained by assignee of judgment and are pend-
ing before county judge of Ulster county. On return day of first order
J. C. H. appeared and claimed that he had paid the judgment in full
to J. H., producing receipt, dated December 11, 1880, purporting to be
signed and executed by said J. H. J. C. moved at special term to
vacate the order for examination, and to set aside the execution and
return upon the ground that the judgment had been paid to J. and was
extinguished by said receipt. Such motion being resisted by J. H. and
wife it was referred to a referee, who found that J. H. did not make
nor execute such receipt, and that no payment had been made to J. H.
or his wife. The report was confirmed by special term and motion to
set aside execution and return with supplemental proceedings based
thereon was denied, and $179.02 costs, &c., upon such motion waa
fiOWARD'S PRACTICE REPORTS. 201
The National Bank of Port Jervis agt. Hansee.
directed to be paid by said J. C. H. to J. H. On appeal to general
term the order of special term was affirmed, with ten dollars costs.
The order of general term was granted upon default of J. C., who by
order of special term was permitted to move at general term to open
such default on payment of ten dollars costs. Of such order J. has not
availed himself. The costs of the previous motions of special and
general term, have not been paid.
On motion by J. C. H. to set aside the execution and return and the vari-
ous orders in supplemental proceedings, upon the grounds that leave of
the court to issue such execution was not obtained, and that the pay-
ment by J. to the attorneys of the plaintiff extinguished the judgment,
and he avers that when he made the previous motion he was not aware
of the existence of the grounds upon which he now moves:
Held, first, that the prior motion is a bar upon the principle of res adju-
dicata. It is a bar not because the points now made were made, but
because they might and should have been made. The moving party,
had he used ordinary diligence, could have ascertained the facts upou
which he now moves, and this want of diligence would defeat a motion
for leave to renew.
Second. The costs imposed upon the first motion made in this matter by
the party now moving remaining unpaid, the court is powerless to
entertain the present motion, as by the non-payment of such costs all
proceedings on the part of the party required to pay them are stayed.
Third. As the orders of the special term and general term adjudging the
judgment unpaid are unreversed the motion has no equity to sustain it.
Fourth. The payment of J. H. to the attorneys of the plaintiff did not
extinguish the judgment. J. H. was the surety and J. C. II. the prin-
cipal debtor. Payment by the former did not extinguish the debt, and
he could have taken an assignment to himself and enforced it for his
own benefit.
Ulster Special Term, May, 1885.
MOTION in behalf of Jesse C. Hansee to set aside an execu-
tion issued on a judgment in the above entitled action, and
the return thereof by the sheriff of Ulster county to the clerk's
office of Orange county ; and also to set aside orders for the
examination of said Hansee by proceedings supplemental to
execution.
A. Schoonmaker, for motion.
W. J. Groo, opposed.
VOL. II 26
202 HOWARD'S PRACTICE REPORTS.
The National Bank of Port Jervis agt. Hansee.
WESTBROOK, J. On the 14th day of February, 1874, the
National Bank of Port Jervis, as plaintiff, by A. C & T. A.
Niven, its attorneys, recovered a judgment against Jesse C.
Hansee snd John Hansee, as defendants. The recovery was
upon a promissory note of which Jesse C. was the maker and
John the accommodation indorser. An execution was issued
upon such judgment by the attorneys of the plaintiff to the
sheriff of Sullivan county, and on or about April 14, 1874,
John Hansee paid the full amount thereof to the attorneys of
the plaintiff, who then withdrew such execution. The pay-
ment, however, was not to extinguish the judgment, but the
same was to be kept in life and to be assigned to the wife of
the said John Hansee. On January 24, 1883, such assign-
ment to Cornelia S. Hansee, the wife of John Hansee, was
executed and delivered. The judgment-roll in the action
was filed in the clerk's office of Orange county, and the
original entry of the judgment was there. A transcript of
such judgment was filed in the office of the clerk of Ulster 1
county on the llth day of July, 1883, and judgment then
entered in such county. That county was the residence of
Jesse C. Hansee, and on the day of its docket and entry
therein an execution issued to the sheriff of such county,
which was returned unsatisfied to the Orange county clerk's
office July 18, 1883. The execution was subscribed " A. N.
Childs, attorney for plaintiff," and stated in the body thereof
the assignment to Cornelia S. Hansee on January 24, 1883.
The direction to the sheriff was to collect the execution and
judgment out of the property of the defendant Jesse C.
Hansee. Such execution did not issue at the request of the
plaintiff in the judgment, nor was any permission or leave to
issue it obtained or granted by any order of this court.
Several orders for the examination of Jesse C. Hansee in
proceedings supplemental to execution have been obtained by
the assignee of the judgment and are now pending before the
county judge of Ulster county. Upon the return day of
the first of said orders Jesse C. Hansee appeared before said
HOWARD'S PRACTICE REPORTS. 208
The National Bank of Port Jervis agt. Hansee.
county judge and claimed that he had paid the judgment in
full to John Hansee, producing as the evidence of such pay-
ment a receipt, dated December 11, 1880, purporting to be
signed and executed by said John Hansee. The proceeding
before the county judge was adjourned, and Jesse C. moved
at special term to vacate the order for examination and to set
aside the execution and its return, upon the ground that the
judgment had been paid to John, and was extinguished by
the receipt of the date of December 11, 1880. Such motion
was resisted by John Hansee and wife, they claiming that the
judgment had never been paid and that the signature to
the pretended receipt was not in John's handwriting, nor
authorized by him. The affidavits upon such motion being
very conflicting by order of the date of August 11, 1883, it
was referred to J. Newton Fiero, counselor-at-law of the
city of Kingston, to take proof, and to report such proof
with his opinion to the court whether or not the said Jesse
C. had paid said judgment to John, and also whether or not
John had executed the pretended release of said judgment
of the date of December 11, 1880. By his report, dated
April 14, 1884, the referee found that John Hansee did not
make nor execute such receipt, and that no payment on
account of such judgment had been made either to John
Hansee or to his wife. By order of the special term of the
date of May 3, 1884, the report was confirmed, the motion to
set aside the execution and return with the supplemental pro-
ceedings based thereon was denied, and $179.02 costs and
disbursements upon such motion were directed to be paid by
the said Jesse C. Hansee to John Hansee. On appeal to
general term by order dated September 9, 1884, the order of
the special term was affirmed, with ten dollars costs. The
order at general term was granted upon the default of Jesse
C., who by order of the special term dated December 13, 1884,
was permitted to move at the general term to open such
default on the payment of ten dollars costs, and in the
meantime if such payment was made the supplemental pro-
204 HOWARD'S PRACTICE REPORTS.
The National Bank of Port Jervis. agt. Hansee.
ceedings were stayed pending such appeal. Of such, order
of the special term Jesse has not availed himself. The
costs of the previous motions imposed both at special and
general term have not been paid either in whole or in part.
Jesse C. Hansee now moves to set aside the execution and return
with the various orders in supplemental proceedings, upon
the grounds that leave of the court to issue such executiou
was not obtained, as the law required it to be when the exe-
cution issues after the lapse of five years from the entry of
the judgment, as it did in this case, without the issue and
return of an execution within five years from the recovery of
such judgment, and that the payment by John to the attor-
neys of the plaintiff extinguished the judgment. He avers
that when the previous motion was made he was not aware
of the existence of the grounds upon which he now moves.
The present one must, however, also be denied for several
reasons (which are given without discussion), to wit :
First. The prior motion is a bar upon the principle of res
adgudicata. It is a bar not because the points now made
were made, but because they might and should have been
made. The moving party, had he used ordinary diligence,
could have ascertained the facts upon which he now moves,
and this want of diligence would defeat a motion for leave to
renew. It is moreover difficult to appreciate the excuse
which Jesse makes for not uniting the present grounds of
motion with those urged on the prior occasion. If he sup-
posed no execution had been issued and returned he would
have moved to quash the supplemental proceeding on that
ground ; and if he knew one had been issued and returned,
he knew its date, and knew that he had had no notice of
motion for leave to issue. Neither had he, as has already
been said, any right to assume without inquiry that an execu-
tion had been issued and returned within five years, and he
cannot be held ignorant of that which he should have known.
He has, however, obtained no leave to renew the motion, and
without such leave the denial of the previous motion is a bar.
HOWARD'S PRACTICE REPORTS. 205
The National Bank of Port J ervis agt. Hansee.
Second. The costs imposed upon the first motion made in
this matter by the party now moving are unpaid, and by the
Code of Civil Procedure (sec. 779) such non-payment stays
u all proceedings on the part of the party required to pay
them, except to review or vacate" the order or orders
imposing them, " without further direction of the court, until
the payment thereof." The court is powerless, without the
payment of costs directed to be paid, to entertain the present
motion.
Third. As the orders of the special term and general term,
adjudging the judgment unpaid are unreversed, the motion
has no equity to sustain it. If granted, it must be upon the
technical ground that the execution issued after five years
without the order of the court. An order allowing such issue
would undoubtedly have been made on application, because
the court now knows, for the fact has ~been so judicially
determined, that no part of the judgment has been paid, and
the same is wholly unsatisfied ; and because the court would,
if a motion so to do was made, allow an execution to issue to
enforce the payment of this unpaid judgment, it will refuse
to vacate and set aside the one already issued (Bank of
Genesee agt. Spencer, 18 N. Y., 150). By section 724 of the
Code of Procedure the court is authorized to "supply an
omission in any proceeding" and in this case, in which ail
the equities have been ascertained and settled by a full and
careful judicial inquiry, it would be manifestly unjust to
refuse to exert the power conferred in behalf of a party who
has acted in perfect good faith, and done only that which the
court would have allowed him to do had he asked it.
Fourth. The payment by John Hansee to the attorneys of
the plaintiff did not extinguish the judgment. John was the
surety and Jesse C. the principal debtor. Payment by the
former did not extinguish the debt and he could have taken
an assignment to himself and enforced it for his own benefit.
( Alden agt. Clark, 11 How., 269 ; Bangs agt. Story, 7 Hill,
250 ; 4 N. Y., 315.)
206 HOWARD'S PRACTICE REPORTS.
Jacquin agt. Jacquin.
In this case the proof is that it was understood that the pay
ment should not extinguish the judgment and that it should
be assigned.
The motion must be denied, with ten dollars casts.
SUPKEME COURT.
SOPHIA JACQUIN, respondent, agt. CHAKLES JACQUIN,
appellant.
Divorce Action for separation WJ&n husband not punished as for con-
tempt for non-payment of costs awarded, in Code of Civil Procedure,
sections 1210, 1241, 1773, 1769, 3343.
The court has no power to punish a husband as for a contempt for non-
payment of costs and counsel fee, which he was directed to pay by the
final judgment in an action for separation. Such costs and counsel fee
should be collected by execution.
First Department, General Term, May, 1885.
Before DAVIS, P. J., BKADY and DANIELS, JJ.
APPEAL from an order adjudging the defendant guilty of
contempt, and directing his commitment until he shall pay
to the plaintiff the sum of $681.81, with interest, and the sum
of ten dollars costs of motion, together with sheriff's fees on
the execution of the warrant of commitment.
The action was brought by the plaintiff, the wife of the
defendant, for a separation, and the costs and counsel fee, for
the non-payment of which the defendant was adjudged guilty
of contempt were awarded the plaintiff by the final judgment
therein.
L. C. Waehner, for appellant.
John M. Bowers, for respondent.
DANIELS, J. The amount directed to be paid by the order
was the costs and counsel fee recovered by the final judgment
HOWARD'S PRACTICE REPORTS. 207
Jacquin agt. Jacquin.
entered in the action. This judgment directed that the defend-
ant should pay the amount to the attorneys for the plaintiff
within five days after service upon him of a certified copy of
the judgment, and the only point required to be examined is
whether the court was authorized to direct his commitment
for the non-payment of this sum of money. The amount
was fixed and definite and capable of being docketed against
the defendant, and collected by means of an execution. And
when judgment has been entered for the recovery of a fixed
sum of money, there it has been provided by section 1240 of
Code of Civil Procedure that it may be enforced by execution.
The action was for a separation, and it resulted in sudh a judg-
ment in favor of the plaintiff. In an action of this description
it has been provided by section 1773 of the Code of Civil Pro-
cedure that the defendant may be punished for his failure to
make payment of any sum of money as that may be required
by the judgment or order referred to in the preceding section.
But that section does not include that part of the judgment
which may be entered for the recovery of costs. It has been
expressly limited to that part of the judgment requiring the
husband to provide for the education and maintenance of any
of the children of the marriage, or for the support of his wife,
and to the non-payment of money directed to be paid by
orders provided for in section 1769. That section has been
limited to orders made during the pendency of the action by
which the husband may be required to pay any sum or sums
of money necessary to enable the wife to carry on or defend
the action, or to provide for the education and maintenance
of the children of the marriage, or for the support of the wife.
Neither this section nor either of the others referred to
include so much of a final judgment as may be entered for
the recovery of the costs and expenses of the action, except
that section 1769 h<*8 permitted the court to order the pay-
ment of final costs to be made out of property sequestered or
otherwise in the power of the court.
It is evident from this construction that the recovery of
208 HOWARD'S PRACTICE REPORTS.
Jacquin agt. Jacquin.
final costs secured the attention of the legislature in the enact-
ment of the section. But while this authority was given to
the court to direct their payment out of property sequestered
or otherwise in its power, no authority to punish the defend-
ant by a proceeding for a contempt for non-payment of final
costs was conferred by this, or either of the other sections,
and if such authority was intended to have been given, it is
reasonable to suppose that it would have been found in one or
more of these sections of the Code, enacted as declaratory of
the rights of the parties, and to prescribe the mode of proceed-
ing in actions of this description. The absence of such a
power from these sections is a very cogent indication that it
was not designed to be possessed by the court ; but that the
power to punish the defendant for contempt was intended to
be limited to his failure to comply with orders made during
the pendency of the action for the payment of money, or
directions contained in the final judgment for the education
and maintenance of his children and the support of his wife.
It seems to have been supposed that the husband was liable
to be punished by way of proceeding for a contempt for the
non-payment of final costs, under the authority of section 1241
of the Code. But by subdivision 2 of that section it has been
provided that, where the judgment is final and part of it can-
not be enforced by execution, as prescribed in the preceding
section, the part or parts which cannot be so enforced may be
enforced by proceedings for contempt. This limitation of the
right to enforce the final judgment plainly excludes that part of
it which may be enforced by execution, as the direction for the
payment of final costs is always capable of being enforced, and
that conforms to the directions contained in subdivision 3 of sec-
tion 14, which permits a party to be punished by way of con-
tempt for the non-payment of a sum of money ordered or
adjudged to be paid only in a case where by law execution cannot
be awarded for the collection of such sum. The direction given
for the payment of costs in the judgment was not a mandate
within the signification of subdivision 3 of section 8, for that
HOWARD'S PRACTICE REPORTS. 209
Jacquin agt. Juecjuiu.
has been so defined by subdivison 2 of section 3343 of the
Code as not to include a fixed sum of money recovered by a
final judgment.
The policy indicated by all these provisions of the Code is
that such a sum is to be recovered by means of an execution
and not to be enforced by proceedings by way of a contempt
because of its non-payment. And these provisions require
that subi vision 4 of section 1241, providing for the enforce-
ment of a judgment for the payment of money into court or
to an officer of the court, should be subordinated to this
construction. For care would not have been taken to restrict
the right of the successful party to an execution if it had been
designed to subject him to proceedings by way of contempt
under the more obscure language of this subdivision. What
was probably designed by this subdivision was to include
such judgments as should be recovered for moneys wrongfully
withheld from the court or one of its officers by the defendant,
which the court itself would be required to hold for or
distribute among parties entitled to receive it. A direction
contained in the judgment, as this was, made to pay the final
costs to the attorneys, could not well be included within the
language of this provision for they are not the officers
intended to be included in the subdivision.
The practical effect of Baker agt. Baker (23 Hun, 356),
and People agt. Reilly (25 Hun, 587), is to sustain this con-
struction of these different provisions of the Code. It is
true that in Lansing agt. Lansing (21 Hun, 248), costs were
included in the order made for the punishment of the husband,
but as the order also included money required to be paid by
him for the benefit of his wife, he could not be relieved from
his imprisonment under the order until that payment had
been made, even though the further direction for the payment
of the costs was unauthorized. (People agt. Jacobs, 5 Hun,
428, 433 ; and affirmed, 66 N. Y., 8).
The case of Park agt. Park, (80 N. Y., 156), in no manner
conflicts with this construction of these provisions of the
VOL. II 27
210 HOWARD'S PRACTICE REPORTS.
Jacquin agt. Jaco'iin.
Code. There the husband was punished for disobeying a
lawful mandate of the court, and the costs required to be paid
by him were not the costs of the action, but the costs of the
proceeding to punish him for his contempt. What was said
in the course of the opinion concerning the right to punish
the husband for the non-payment of costs is to be received
and understood with this qualification, for such costs clearly
appear to have been the costs considered by the general term
when the case was heard and decided there (18 ffun, 466).
The case of Howe agt. Howe (5 Weekly Dig., 4-60), arose
before all the present provisions of the Code went into effect.
The point could not therefore be there considered as it has
now been presented, and that circumstance may have led to
the decision which was then made, and as already suggested,
the subdivision upon which Pritchard agt. Pritchard (4
Abb. N. 6"., 298) was decided cannot be so construed as to
include a judgment for the recovery of final costs in an action
for a separation. The direction, though formally requiring
the costs to be paid to the attorneys, was in substance and
effect no more than a final recovery of the costs by the plain-
tiff in this action against the defendant.
The order from which the appeal has been taken should be
reversed, and an order entered denying the motion, but
without costs.
DAVIS, P. J., and BRADY, J., concurred.
HOWARD'S PRACTICE REPORTS. 211
Iselin et al. agt. Heniein et al.
SUPREME COURT.
WILLIAM E. ISELIN et al. agt. MOSES HENLEINT et al.
Fraudulent assignment Acts of assignors which are fraudulent and render
the assignment void Creditors' action Code of Ciml Procedure, section
1871 Wfi/it is a a sufficient return of execution within this section with
respect to judgment creditors' actions Estoppel What does not amount
to acquiescence in, or adoption of, an assignment so as to preclude a party
from suing to impeach it.
In a judgment creditor's action to set aside as fraudulent a voluntary
assignment made by the judgment debtors, it appeared that the execu-
tion was returned by the deputy sheriff unsatisfied on the day on which
the action was brought, though the process was not filed by the sheriff
until the following day ; that plaintiffs, after having discovered that
shortly before the making of the assignment, and in contemplation
thereof, the assignors, who were copartners in trade, had withdrawn
to their own use a considerable part of the moneys of the firm, signed
with other creditors an agreement of compromise, reserving the right
to withdraw by a certain day ; that two weeks afterwards plaintiffs
obtained an attachment against defendants for fraudulent withdrawal
by the latter of moneys from their assets ; that plaintiffs afterwards
sought to remove the assignee, and then proved their claim and
delivered their proof to the assignee, annexing a statement that they did
not waive their rights under the attachment or recognize the validity
of the assignment, unless it should be held to be binding upon them :
Held, first, that the return of execution was sufficient within the provisions
of the Code and the rule in equity with respect to the bringing of
judgment creditors' actions.
Second. That plaintiffs had not by their acts acquiesced in or adopted the
assignment so as to be precluded from suing to impeach it.
Third. That the assignment was void ; the assignors, while professing to
surrender all their property through it, having intentionally withheld a
considerable part of their estate from its operation.
Special Term, July, 1885.
James Dunne, for plaintiff.
Blumensteil & Hirsch, for defendants.
VAN VORST, J. This is a judgment creditor's action, in
which it is sought to impeach as fraudulent and void, as
212 HOWARD'S PRACTICE REPORTS.
Iselin et cd. agt. Henlein et al.
against creditors, a voluntary assignment made by the judg-
ment debtors, of all their property and effects, and which
assigned property and estate the plaintiffs seek to reach in the
hands of the assignee, and to have the same through a receiver
appointed by the court, applied to the satisfaction of their
judgment.
Upon the trial the defendants moved to dismiss the com-
plaint upon the following grounds :
First. That the execution upon the judgment had not been
returned when this action was brought.
Second. That the plaintiffs had acquiesced in and adopted
the assignment, and were precluded by such conduct from
maintaining an action to impeach it.
The judgment was recovered on the 26th day of November,
1884, for $21,603.95, and on the same day an execution was
issued thereon to the sheriff of the county of New York,
returnable within sixty days. The deputy sheriff, Young,
who had the charge of the execution, held on the same after
the time limited for its return. On the 18th day of Feb-
ruary, 18*5, the deputy sheriff wrote a return on the execu-
tion in these words : " No real or personal property found,"
and signed his name thereto, and delivered the same to the
officer in charge of the main office to be filed. On the next
day, the nineteenth, the sheriff filed the execution in the
county clerk's office with the return thereon indorsed by the
deputy.
This action was commenced on the eighteenth day of Feb-
ruary, the day on which the deputy sheriff indorsed his return.
I think the return was sufficient within the provisions of the
Code (sec. 1871), and the rule in equity with respect to the
bringing of judgment creditor's actions. The provisions of
the Code, like that of the Revised Statutes, required the
return of an execution upon the judgment, wholly or partly
unsatisfied, before the bringing of a creditor's action to reach
equitable assets. But these statutory requirements are only an
expression of the rule in equity that before the creditor could
HOWARD'S PRACTICE REPORTS.
Iselin et al. agt. Henlein et al.
reach, by action, equitable assets, his remedy at law must be
exhausted. The return by the sheriff of an execution unsatis-
fied is official evidence satisfactory to the court that the cred-
itor has proceeded as far as he could in a court of legal cogni-
zance to obtain satisfaction of his judgment. It is the duty
of the sheriff, having made a return of his doings under an
execution, to file the same in the proper office. That is
implied in the command to return the same within sixty days.
The word return in this last sense had more significance, when
an execution proceeded from the court under its seal, for an
officer to whom process is delivered for execution must, when
executed, return or deliver back the same to the court
issuing it, with his return thereon. " A return to process is
the officer's answer touching the service or execution of such
process. It is usually in the form of a certificate, and is
indorsed on the writ, process or paper, and it must be signed
by the officer making it" (Crocker on Sheriff s [2d ed.~\, sec. 39).
It is this return which the sheriff makes that the execution is
unpaid wholly or in part, and not the mere filing of the pro-
cess, with which the court deals in determining whether the
remedy at law has been exhausted. It is such return which
may be amended if erroneous, or upon which, if false, an
aggreived party has a remedy. Thus in Cassidy agt. Meacham
(3 Paige, 312), the chancellor said : " The creditor must set
out in his bill the issuing of the execution, the time at which
it was returnable, and the actual return of the sheriff thereon,
in such a manner that the court can see that the remedy at
law has been legally exhausted."
In Clark agt. Doikin (3 Barb. Ch., 36), when the execution
had been filed by the sheriff in the wrong clerk's office, the
chancellor held in substance that the sheriff's return upon the
writ, and not the filing thereof, was the important thing, and
he said " for the remedy at law is exhausted by the sheriff's
return upon the execution, which is all that is necessary to
give the court jurisdiction."
In the Ocean National Bank agt. Olcott (46 N. Y.,12, 19),
214 HOWARD'S PRACTICE REPORTS.
Iselin el al. agt. Henlein et al.
CHURCH, C. J., says : "Although the indorsement of the execu-
tion ' nulla bona ' was not filed, it was actually made, which,
with the other facts alleged, may be regarded as a substantial
compliance with the equity rule referred to." ( Weinbrenner
agt. Johnson, 7 Abb. l\ R. \_N. ], 202, 207.)
During the life of an execution in the sheriffs hands there
is a possibility that it may be collected or paid. But in the
case under consideration, when the sheriff made his return
thereon, the execution was already spent. The sixty days in
which a levy might have been made, upon property subject
to levy, had already expired. No levy could have been
thereafter made. The judgment debtors had assigned and
had parted with all their property, and were insolvent. Under
such circumstances, the return made by the deputy sheriff,
who was charged with all duty under the process, on the
eighteenth of the month, is sufficient to answer all the
demands of the statute, or the rule in equity, to uphold the
plaintiffs suit commenced on that day. It would be sacrificing
the substance to the form to hold that the failure of the
sheriff to file the execution until the following day should
defeat the plaintiffs action commenced on the eighteenth day
of February.
The other objection raised by the defendants' counsel is
apparently more difficult. But upon examination it turns out
to be a difficulty in appearance only, and not substantial. A
creditor with full knowledge of fraud in fact in the execution
and delivery of a voluntary assignment by a debtor of his
property may elect to waive the fraud, and may acquiesce in
and confirm the dispositions made thereby, and may choose
to take a benefit thereunder. In such case he could not
afterwards, by action in a court of equity, move in hostility
to the assignment, and seek to set it aside as fraudulent against
creditors. An election clearly and unequivocally made by a
creditor of the assignor to sustain the assignment, and to take
benefits thereunder, with knowledge on his part that it is
impeachable in a court of equity for fraud, is final and
HOWARD'S PRACTICE REPORTS 215
Iselin et at. agt. Henlein et al.
conclusive upon the creditor. A creditor, by concurrence
with or acquiescence in a voluntarj^settlcment of real or
personal estate, which was intended to hinder or delay
creditors, may preclude himself from impeaching the deed
(Oliver agt. King, 8 De #., Mac. & G., 110).
In Cavanagh agt. Morrow (67 How. Pr.) I had occasion
recently to apply that rule, and I dismissed the creditor's
action upon the ground that he had acquiesced in and con-
firmed the assignment (See, also, Rapalee agt. Stewart, 27 N.
Y. 313; Pratt agt. Adams, 7 Paige, 639, 641). Shortly
after the execution and delivery of the assignment the books
of the assignors were examined by an expert accountant at the
instance of the creditors, who discovered therefrom that shortly
before making the assignment, and in contemplation thereof,
the assignors, who were copartners in trade, had withdrawn to
their own use a considerable part of the moneys of the firm.
It was not intended by them that these moneys should pass
under the assignment, and they in fact ne^er reached the
hands of the assignee. At a meeting of creditors, at which
the plaintiffs were present, the fact of the withdrawal of such
funds by their debtors to their individual use was reported by
the person who examined the books. Notwithstanding the
knowledge of such facts so reported to them a proposition
for the compromise of the debts of the assignors with their
creditors was discussed. In the end an agreement looking to
such composition was signed by several creditors, including
the plaintiffs' firm. By this agreement the creditors were to
receive forty cents on the dollar of their respective claims and
the assigned estate was to be restored to the assignors, and the
assignee discharged.
This agreement bears date the 28th December, 1883, about
forty days after the assignment was made. The agreement
of compromise was never carried into effect. The subsequent
action of the plaintiff was in itself enough to defeat it. When
they signed the agreement the plaintiffs reserved the right to'
withdraw unless the arrangement was consummated by a
216 HOWARD'S PRACTICE REPORTS.
Iselin et al. agt. Henlein et al.
certain day, and before the day named they in substance
withdrew. Having received nothing in pursuance of the
agreement, they doubtless had the right to recede at any time
before it became perfected. They certainly had such right if
they had become satisfied that the conduct of the assignors
was fraudulent and that the assignment itself was void or
voidable for fraud.
On the 12th day of January, 1884, they clearly made an
election to treat the assignment as fraudulent, for they then,
upon affidavits, caused to be issued out of this court, in an
action against their debtors, an attachment under which the
sheriff levied upon and seized the assigned estate. Among
the grounds alleged in the affidavits for the attachment was
the fraudulent withdrawal of moneys by the debtors from
their firm assets immediately before their assignment and in
contemplation thereof.
The plaintiffs cannot be charged either with acquiescence
or laches in not taking this step in hostility to the assignment
immediately upon being advised at the creditors' meeting of
the withdrawal of these funds by their debtors, under the
circumstances above mentioned, to be used by them in per-
fecting a compromise with their creditors or in supporting
themselves and families in the event that a compromise could
not be effected.
The assignors had been advised by counsel that such with-
drawal of funds was not improper, and the plaintiffs may be
excused from not at once seeing in the discussion for a com-
promise that the withdrawal of these funds was part and
parcel of a scheme on the part of the assignors to delay
and defraud creditors ; and in order to constitute a valid con-
firmation " a person must be aware that the act he is doing
will have the effect of confirming an impeachable transac-
tion " (Leading Cases in Eq. [ White & Tutor, th ed.\ vol. 1,
pi. 1, p. 237), " or, in other words, of the way in which the
facts would be dealt with in a court of equity " (Idem, p. 259).
After the attachment was levied the assignee claimed the
HOWARD'S PRACTICE REPORTS. 217
Iselin et al. agt. Henlein et al.
property, but the plaintiffs gave a bond of indemnity and
the sheriff held on to the property. But the entire conduct
of the plaintiffs in procuring the attachment upon the grounds
alleged, which were submitted to the court, and their subse-
quent steps thereunder, was a pronounced election to regard
the assignment as invalid, and they will be limited to an atti-
tude of hostility hereafter (Rodermund agt. Clark, 46 N~. Y.,
354; Mollen agt. Tusca, 87 N. Y., 166). The plaintiffs'
right to the attachment, upon the grounds alleged by them,
has been sustained by the general term of this court ( Victor
agt. Henlein, 34 Hun, 562, 565).
There are two other grounds upon which reliance is placed
by the defendants' counsel to show an adoption by the plain-
tiffs of the assignment : one is that they moved in the court
of common' pleas to remove the assignee, the other that they
proved their claim and delivered the proof to the assignee,
both of which steps were taken after they had sued out their
attachment. And if I am correct in the conclusion that the
suing out of the attachment and the seizure thereunder of
the assigned estate, upon the grounds alleged, was an election
on the plaintiffs' part to act in hostility to the assignment, any
steps in a contrary direction thereafter must fail of success.
But amongst the grounds set up in the court of common
pleas upon which the removal of the assignee were sought,
were the facts set up in the affidavits upon which the attach-
ment was obtained. And in the court of common pleas the
defendants' counsel distinctly urged, when the removal of
the assignee was asked, that the plaintiffs were attaching
creditors and could not move in that proceeding. The appli-
cation to remove the assignee was not granted. Although in
one aspect this movement on the plaintiffs' part might be con-
sidered as one for the preservation of the assigned estate in
the hands of another assignee, yet as this estate was already
"m custodia legis" under the plaintiffs' attachment, in
hostility to the assignment, that fact of itself would have fur-
nished a sufficient reason for the denial of the application.
VOL. II 28
218 HOWARD'S .PRACTICE REPORTS.
Iselin et al. agt. Henlein et al.
The plaintiffs, in August, 1884, proved their debt and filed
the same with the assignee. But they annexed to their proof
a statement that they did not thereby waive any rights they
may have acquired under their attachment, and they added,
" nor do we recognize in any manner the validity of said
general assignment unless the same is held to be valid and
binding against us."
In Cavanagh agt. Morrow (supra\ there was an unqualified
proof by the creditor of its debt and its submission. That,
with other facts appearing in the case, was considered to be
an act clearly in recognition of the validity of the assignment,
and showing an intention to participate in its proceeds. The
creditor had taken no steps adversely to the instrument.
But in the case under consideration the proof was submitted
with an intentional qualification, and was only to be taken
into consideration by the assignee in the event that the
assignment should in the end be held to be valid. There was
no admission of its validity. The assignee, cognizant of the
proceedings taken by the plaintiffs in hostility to the assign-
ment, could doubtless reject the proof and the claim (Mullen
agt. Tuska, supra).
In Boerum agt. Schenck (41 N. Y., 181, 190, 191), it appeared
that the beneficiaries accepted certain moneys under a sale of
premises, and with full knowledgdge of the facts gave a
receipt therefor " on condition that it should not be deemed
an affirmance of the sale, nor prejudice their right to set it
aside, or their interest in the premises." The act was insisted
upon as an estoppel.
The defendants' counsel makes substantially the same claim
in this case. But in Boerum agt. Schenck, WOODRUFF, J.,
said : " Such a receipt has none of the characteristics of an
estoppel. Such a receipt admits nothing ; it misleads no one.
It can work no fraud upon any person. No one of the
requisites of an enquitable estoppel or estoppel in pais can be
founded on it" (Tlaydock agt. Coope, 53 N. Y., 68).
An equitable estoppel never takes place where one party
HOWARD'S PRACTICE REPORTS. 219
Iselin et al. agt. Henlein et al.
did not intend to mislead and the other was not misled
(Jewett agt. Miller, 10 N. I 7 "., 402). And to create an estop-
pel, the conduct or representation must have been intended to
influence, and must have influenced the other party to his
injury {Payne agt. JBurnham, 62 N~. Y., 69). For while the
plaintiffs, in filing conditionally and qualifiedly proof of their
debt, did not intend to commit themselves to anything incon-
sistent with their election and action, adversely to the
assignment and the assignees right and claim to the assigned
estate, their action in that regard could not and has not affected
the assignee or others interested under the assignment to his
or their injury. For these reasons, therefore, the motion made
by the defendants' counsel at the close of the case, to dismiss
the complaint, must be denied.
Upon the merits the case is completely with the plaintiffs.
The assignors, professing to surrender all their property
through the assignment, intentionally withheld a considerable
part of their estate from its operation. They took it to
themselves, to be appropriated to their own use. This was
part of a plan which culminated in the assignment itself. It
was not intended that these moneys should be inventoried or
that the assignee should get them. That the assignee was
ignorant of the withholding of these moneys by the assignors
does not affect the fraudulent character of the transaction.
The action of the assignors was fraudulent and their conduct
vitiated the deed in equity (Talcott agt. Hess, 31 Hun, 282 ;
Shultz agt. Hoagland, 85 N. Y., 464). The withholding of
these moneys by the assignors has been already adjudged to
have been fraudulent as to creditors ( Victor agt. Henlein,
supra). But this fraud is inseparable from the assignment
itself. The facts do not justify a conclusion that the assignee
took possession of the assigned estate in any true sense.
The assignors and their agents and clerks had the charge
and possession, very milch as before the execution of the
instrument. The assignment was administered largely in the
interest of the assignors, instead of the creditors.
SJ20 HOWARD'S PRACTICE REPORTS.
Payn agt. The Mutual Relief Society of Rochester.
The facts appearing in evidence justify what VAN HOESEN,
J., said in the court of common pleas on the motion to remove
the assignee : " He (the assignee) has disregarded that pro-
vision of the statute that requires that an assignment should
be accompanied and followed by an absolute change of
possession of the property assigned. He not merely employed
the assignors, and put them upon the pay-roll, but he left
them in undisturbed possession of the goods."
There must be judgment in favor of the plaintiffs decreeing
the assignment to be fraudulent and void, as having been
made with intent to hinder, delay and defraud them, and that
the same be set aside.
SUPKEME COURT.
LIZZIE PAYN agt. THE MUTUAL RELIEF SOCIETY OF
ROCHESTER, New York.
Mutual benefit association When member does not forfeit his daim for
benefit by failure to pay assessment or failure to serve proofs of death.
When the by-laws of a mutual benefit association provided that, " If any
member shall neglect to pay his annual dues or assessments to the
general secretary or to the secretary of the local board, within thirty days
from tlie date of a notice to pay the same by the general secretary, he shall
forfeit all claims on the society, until reinstated, as provided in the next
section:"
Held, that the forfeiture is only incurred by the failure for "thirty days"
to pay on a notice given "by the general secretary."
A notice given by the local secretary cannot be deemed one "by the
general secretary; nor are cards issued in the name of the general secre-
tary, to which his signature is appended in print, and which the lortil
secretary has filled up and addressed, in any sense a notice "by the
general secretary."
A notice to do an act, which is required to be given by a particular person
named contemplates the personal action and judgment of the person
authorized to give such notice, and involves the exercise of power and
discretion to be exercised by the individual himself which he cannot
delegate to another.
HOWARD'S PRACTICE REPORTS. 221
Payn agt. The Mutual Relief Society of Rochester.
"Where on the death of a member application was made to the proper
officer for the necessary blanks to furnish proof of death, which were
refused on the ground that such member did not pay a certain assess-
ment and the officer did not consider he was a member :
Held, that this was a waiver of proof and notice of death.
Albany Circuit, January, 1885.
James C. Matthews, for plaintiff.
J. M. Dunning and H. O. Prindle, for defendant.
WESTBKOOK, J. It is conceded that the plaintiff in her
own right as the widow of Benjamin F. Payn, deceased, and
as the guardian ad litem of the infant son of herself and her
deceased husband, is entitled to recover $2,000 from the
defendant on account of her husband's death, unless her action
is barred, first, by the failure of the husband to pay an assess-
ment during his lifetime to the defendant ; or, second, by the
failure to serve proofs of death upon the defendant. The
two points will be briefly considered :
First. Does the action fail by reason of the neglect of the
deceased to pay dues to the defendant ?
The deceased was taken ill on the 3d day of July, 1881,
and died August 22, 1881. The claim of the defense is that
on the 1st day of July, 1881, the deceased had notice of an
assessment which he failed to pay. and in consequence of such
failure to pay he forfeited all claims upon the defendant.
There are two answers to this defense : 1st. The defendant
alleges that there was a local board of the defendant at Albany
where the deceased resided, which had a local secretary as
provided for by article seven of its by-laws. It was this local
secretary who, as the defendant claims, gave to the deceased
the notice of the assessment on July 1, 1881, by depositing
the same in the Albany post-office. It is true that by section 2
of article 7 members of the local board were required to pay all
assessments and annual dues to the local secretary. It is also
true that the section referred to provides that " said secretary
222 HOWARD'S PRACTICE REPORTS.
Payn agt. The Mutual Relief Society of Rocheeter.
shall serve notice of such assessments and dues upon members
of the local board personally or by mail, and collect such
assessments and dues within the time specified in such notices
that they become due ; " but it is nowhere declared in the
by-laws of the defendant that a member forfeits his rights on
a failure to comply with that notice by a local secretary.- It
is simply made the duty of such local secretary to " collect such
assessments and dues within the time specified in such notices
that they become due." Not a word is said about the forfeiture
of rights as a member on the giving of any such notice. On the
contrary, by section 7 of article 4 of such by-laws, it is declared
and specified in what cases a failure to pay dues and assess-
ments makes a forfeiture. The section reads thus : " If any
member shall neglect to pay his annual dues or assessments to
the general secretary or to the secretary of the local board,
within thirty days from the date of a notice to pa/y the same
by the general secretary r , he shall forfeit all claims on the
society until reinstated, as provided in the next section." It
will be observed that the propriety of the payment either *' to
the general secretary or to the secretary of his local board " is
recognized ; but the forfeiture is incurred by the failure for
" thirty days " to pay on a notice given " by the general secre
tary." The definiteness of the language of the section just
quoted, in which the " general secretary " and the " local
secretary " are both mentioned, but the forfeiture made to
depend on a failure for " thirty days " to comply with a notice
to pay given " by the general secretary ; " and also the simple
authority for the " local secretary " to collect an assessment of
which he has given notice within the time he prescribes in
such notice, without the declaration of any forfeiture, forbid
that the language used is to have any other construction than
its plain terms involve. Even though, however, there was an
intent by the defendant, in the preparation of its by-laws to
give to the notice of the local secretary the same effect as that
of the general secretary, it has entirely failed to express such
intent in words. The right to forfeit the membership of the
HOWARD'S PRACTICE REPORTS. 223
Payn agt. The Mutual Relief Society of Rochester.
deceased on account of the non-payment of a small assessment
levied during a severe and fatal illness must be strictly pursued,
and words are not to be enlarged for the purpose of defeating
a claim of a widow and a minor child to a small pittance, which
a deceased husband and father supposed he had made for their
benefit. Neither can such a notice as the defendant claims was
given by the local secretary be deemed one ''by the general
secretary." Cards issued in the name of the general secretary,
to which his signature is appended in print, and which the local
secretary has filled up and addressed, are in no sense a notice
" by the general secretary." A notice to do an act, which is
required to be given by a particular person named, contemplates
the personal action and judgment of the person authorized to
give such notice, and involves the exercise of power and discre-
tion to be exerted by the individual himself which he cannot
delegate to another. 2d. I decline to find as a fact that Dr.
Nellis mailed the assessment notice as testified to by him.
He remembers that he intended so to do, and that he actually
did direct and mail a notice to each of his local members as he
supposes, but he has no recollection of the one to the deceased.
He who knows how mechanically we sometimes do that which
we intend to do, and how often we are mistaken in what we
suppose we have done, will in view of the non-reception of
the notice by the deceased, question the doing of the act by
the witness, which he believes he did, but which he does not
remember to have done. Without giving all the evidence in
full, the great pains which were taken by the deceased and
his friends to pay his dues, in view of the fact that the
dangerous and probably fatal character of his illness was
known, and the non-delivery or reception of the notice induces
me to find as a fact that it was not sent by mail as the local
secretary supposed it was.
Second. As to the alleged failure to give proof of death,
the facts bring this case within the rule established in Grat-
tan agt. The Metropolitan Life Insurance Company (80
#. Y., 281).
224 HOWARD'S PRACTICE REPORTS.
Payn agt. The Mutual Relief Society of Rochester.
Application was made to Dr. Nellis, the local secretary,
for the necessary blanks to furnish proof of death, and the
brother of the deceased who made the application testified,
and he is entirely uncontradicted, as follows : " He said he
couldn't furnish me a proof because he did not pay his July
card, and he considered he was not a member." This,
according to the case referred to, was a waiver of proof and
notice of death ; and in reason and common sense the defend-
ant who refused to furnish a person with the necessary blank
form to make proof of a fact, which it had the right to insist
upon, upon the ground that the dead person was not one of
its members, has no right now to say to the widow and child,
when the membership of the husband and father is established,
" Yes, your husband and father was a member, but you failed
to give us proof of his death." It must in its defense stand
upon the same ground it then took, and which it also took in
a more formal manner by written notice to the plaintiffs
representative, that the deceased had forfeited his membership
in the defendant with its privileges by his failure to pay the
assessment of July, 1881.
The plaintiff is entitled to judgment for the sum of $2,000
with interest from the date which the certificate of member-
ship issued by the defendant to her deceased husband, shall,
according to the legal effect require, with costs of the action.
The findings will be settled on notice.
HOWARD'S PRACTICE REPORTS. 225
Matter of the New York, Lackawanna and Western Railway Co.
SUPREME COURT.
In the Matter of the Petition of the NEW YORK, LACK AW ANNA
AND WESTERN RAILWAY COMPANY for the appointment of
commissioners to appraise certain lands of HARRIET A.
BENNETT et al.
Railroads Commissioners to appraise lands for railroad purposes When
guilty of misconduct Power of court to remove on motion, Proper case
for the exercise of such power.
A railroad company, being desirous of acquiring for railroad purposes
certain land owned by B., entered into a written agreement with B. by
which she agreed, upon the payment of the full purchase-price, to convey
to said company the premises. \Vith a view of ascertaining the value
of said premises and the compensation which should be paid therefor
the railroad company agreed to institute proceedings under the general
railroad laws for the condemnation of lauds for railroad purposes; and
it was further provided in said agreement that in said proceedings H.
D. and O. should be appointed commissioners to ascertain and determine
the compensation to be paid, and the decision of a majority of them should
be binding upon both parties, it being also agreed that said commis-
sioners should be governed in estimating the said valuation by the rules
of law applicable to proceedings under said statute (except as they may
be modified by this agreement), and that all the rights of appeal given
by law shall be reserved to either party, An order was obtained by the
railroad company at special term appointing said persons commis-
sioners. They entered upon their duties, and after viewing the premises
and hearing proofs made a report. The railroad company not being
satisfied with the report and award refused to move for confirmation,
and the owner moved and obtained an order at special term confirming
the report and appraisal. On appeal by the railroad company the
appraisal and report were set aside by the general term on the ground
of the admission by the commissioners of improper evidence. The
hearing again came on before the commissioners, who, notwithstanding
the objection of the railroad company, received the same objectionable
evidence, the receipt of which on the first, hearing was the cause of the
reversal of their report, and two of the commissioners, " D." and " C.,"
publicly stated that they did not consider themselves bound by the
supreme court decision. After the hearing had proceeded so far that
the owner had introduced her evidence, the railroad company not
VOL. II 29
226 HOWARD'S PRACTICE REPORTS.
Matter of the New York, Lackawanna and Western Railway Co.
having introduced its evidence, moved to vacate the order appointing
the commissioners:
Held, first, that commissioners "D." and "C." have been guilty of mis-
conduct, such as is cause for their removal.
Second. That the court on this motion has power to remove them.
Third. That this is a proper case to exercise such power notwithstanding
the contract existing between the parties.
Erie Special Term, July, 1885.
THIS is a motion by the petitioner, the railroad company, for
an order vacating and setting aside an order made by this
court October 25, 1883, appointing commissioners to appraise
lands for railroad purposes on the ground of the misconduct
of two of the commissioners.
Rogers, Locke & Milburn (S. S. Rogers, of counsel), for
motion.
Sprague, Morey & Sprague (George F. Corn-stock, of
counsel), opposed.
LEWIS, J. The petitioner, being desirous of acquiring for
railroad purposes a lot of laud owned by Mrs. Bennett, in the
city of Buffalo, 171^ feet front on Buffalo river and about 120
feet in depth to Joy street, upon which was a7i elevator,
entered into a written agreement with Mrs. Bennett, by the
terms of which she agreed, upon the payment of the full
purchase-price, to convey to petitioner, with covenants of
seizin and quiet enjoyment, a perfect title to said premises,
with exceptions not material to be here mentioned. It also
provided for a conveyance by Mrs. Bennett of other rights
and interests in contiguous property.
With a view of ascertaining the value of said premises and
the compensation which should be paid therefor, the peti-
tioner agreed to institute proceedings under the general
railroad laws for the condemnation of lands for railroad pur-
poses ; and it further provided as follows : " It is agreed that
in said proceedings Kelson K. Hopkins, Robert Dunbar and
HOWARD'S PRACTICE REPORTS. 227
Matter of the New York, Lackawanna and Western Railway Co.
Brigham Clark shall be appointed commissioners to ascertain
and determine the compensation which ought justly to be
made by the company to the party or parties owning or inter-
ested in said property, and the decision of a majority of them
shall be binding upon both parties as the decision of all. It
being understood and agreed, however, by both parties to this
instrument that said commissioners shall be governed in esti-
mating the said valuation and compensation by the rules of law
applicable to proceedings under said statutes (except as they
may be modified by this agreement), and that all the rights of
appeal given by law shall be reserved to either party."
The petitioner agreed to pay to Mrs. Bennett on execution
of the agreement $2,250 ; $20,000 within ten days thereafter
and the balance of the sum awarded within thirty days after
the final determination, and to make some railroad connec-
tions with another elevator belonging to Mrs. Bennett.
The petitioner obtained an order at special term appointing
said persons commissioners. They entered upon the dis-
charge of their duties. After viewing the premises and
hearing the proofs they made a report awarding as compensa-
tion to be paid for the property $469,375. The petitioner
not being satisfied with the amount awarded refused to move
for a confirmation of the report. The owner thereupon
applied to the special term of this court for and obtained an
order confirming the report and appraisal. Petitioner brought
an appeal arid the appraisal and report were set aside by the
general term on the ground of the admission by the commis-
sioners of improper evidence. The hearing again came on
before the commissioners ; claimant offered, and the commis-
sioners, notwithstanding the objection of the petitioner,
received the same objectionable evidence, the receipt of which
upon the first hearing was the cause of the reversal of their
report. Two of the commissioners, Messrs. Dunbar and
Clark, while the commissioners were in session upon the
second hearing, publicly stated that they did not consider
themselves bound by the supreme court decisions, but they
228 HOWARD'S PRACTICE REPORTS.
Matter of the New York, Lackawanna and Western Railway Co.
considered themselves bound and sworn to ascertain and
determine the compensation which ought justly to be made
by the company to the party or parties owning or interested
in the property, and to do justice between the parties, and as
much justice to the railroad company as to Mr. Bennett, as far
as they knew. 1 ' The hearing has proceeded so far that the
owner has introduced her evidence. The petitioner has not
introduced its evidence and now moves to vacate the order
appointing the commissioners. The questions for considera-
tion are :
First. Have Messrs. Dunbar and Clark been guilty of mis-
conduct such as is cause for their removal ?
Second. Has the court on this motion the power to remove
them?
Third. If it has, is this a proper case to exercise such
power, in view of the contract existing between the parties ?
In disposing of theee questions I shall confine myself to the
conduct of the commissioners in receiving the evidence held
by the general term to be illegal and incompetent, and their
avowal that they do not consider themselves bound by the
decision of the general term. Taking this statement in con-
nection with their acts in receiving the evidence, it amounts
to a declaration on their part that they understand the full
import of the decision of the general term, and have made
up their minds not to conform their conduct on the trial to it ;
they have intentionally and deliberately admitted evidence
that the superior tribunal held to be incompetent and illegal.
Is it their duty to follow -the decision of the general term?
It is the universal practice of the judge at special term and
circuit, where the general term has decided the case, to follow
the law as laid down by that court. Should he fail so to do
it would lead to confusion, and the case could not be brought
to a conclusion, as it would continue to vibrate between the
two courts. It is clearly the duty of the justice at special
term or circuit, when the general term has made a decision of
the case, to accept its decision as the true exposition of the
HOWARD'S PRACTICE REPORTS. 229
Matter of the New York, Lackawanna and Western Railway Co.
law of that case, an d follow it, whatever may be his individual
opinion as to its correctness ; and should he persistently refuse
so to do, he would be guilty of misconduct in office. He may
be able to find conflicting decisions upon the question, but it
is sufficient for him that the law has been laid down by
the appellate court (Adams agt. Bush, 2 Abb. \_N. j], 112;
Greenbaum agt. Stein, 2 Daly, 223 ; Rochester and G. V. R.
Co., agt. Clarke Nat. Bank, 60 Barb., 234 ; Jones agt. N. T.
and Erie R. Co., 29 Barb., 633, 636 ; Head agt. Smith, 44
How., 476 ; Cooper agt. Smith, 43 Supr. Ct., 9).
If the law laid down by the general term and followed by
the judge at special term and circuit is not sound, the remedy
of the aggrieved party is either an appeal to the court of
appeals or a motion for reargument.
Does this same rule apply to these commissioners ? While
they are the persons agreed upon as commissioners, by the
parties, they were appointed by the court ; the contract pro-
vides that they shall be governed, in estimating the valuation
and compensation (and that is substantially all the duty they
have to perform) by the rules of law applicable to proceedings
under the statutes, referring to the laws for the condemnation
of lands for railroad purposes, " except as they may be modi-
fied by the agreement." The general term has held that not-
withstanding the clause in the contract last mentioned, the
commissioners erred in admitting evidence.
The agreement provides that " all the rights of appeal given
by law shall be preserved to the parties." One of the rights
of appeal in such proceedings is to seek a reversal of the
report on account of the admission of improper evidence. If
the commissioners can upon a retrial admit the same illegal
evidence, the provision giving the right of an appeal to the
parties, instead of being a right reserved, becomes an injury
to the party aggrieved, for an appeal adds to his expense and
avails him nothing. This right of appeal must have been
inserted in the contract for some effectual purpose, and one
object was that the errors of the commissioners might be cor-
230 HOWARD'S PRACTICE REPORTS.
Matter of the New York, Lackawanna and Western Railway Co.
rected. The court has put its construction upon the contract,
decided that the commissioners had taken an erroneous view
of its meaning, and had erred in the admission of evidence ;
that decision becomes, by virtue of the agreement itself, a
part thereof and is binding upon the parties. When parties
enter into a contract they practically agree that they will, in carry-
ing out its provisions, conform to the decision of the courts.
In case controversies arise, they are at liberty to invoke the
judgment of the highest tribunal the law has provided for the
decision of their disputes ; but when that tribunal has spoken,
they must obey. The highest tribunal the law has provided
to decide questions involved in this preceding, touching the
admission of evidence, has interpeted the contract and decided
upon the course the inferior tribunal shall pursue in the dis-
charge of its duties. Having so spoken, they must observe
the decision as a part of the contract. Had the agreement
provided that no appeal should be taken from the award of
the commissioners, they would not be bound by the strict
rules of evidence, but could decide according to their sense
of equity (62 N. F., 392).
In such a submission the parties submit their controversies,
saying to the arbitrators, "you shall not be amenable to a
higher tribunal ; we submit all our differences to you ; do
what you think is just in the premises ; we will not appeal."
But this agreement provides very differently, it says that each
party may have the advantage of an adjudication of the
appellate court. While this is conceded by claimants' counsel,
they insist that as there is no appeal from the second award,
the commissioners are not now amenable to any appellate
tribunal, and therefore can do as they please as to following
the decision of the general term. I am not satisfied that this
position is correct, and cannot bring my mind to the con-
clusion that such is the import and meaning of the contract.
Is the refusal of the commissioners to follow the general
term, misconduct, or mere error of judgment ? The general
term say in their opinion, referring to the class of evidence
HOWARD'S PRACTICE REPORTS. 231
Matter of the New York, Lackawanna and Western Railway Co.
admitted by the commissioners upon the first hearing, " the
reference made to the earnings of other elevators with a view
of proving the income of the property in question after its
capacity is increased by the expenditure of the necessary
amount for that purpose, is not a reliable or approved basis for
estimate of value, but it becomes a matter of speculation
depending upon too many circumstances to be entitled to
consideration as evidence of value ; and the same may be said
of the contemplated relation to and operation of other property,
and projects in view for connecting facilities for channels of
transportation not in the control of the owner of the property
in question. * * * And when an attempt is made to
found an estimate of value based upon income upon those
conditions, too many contingencies intervene to make such
opinions evidence, or to furnish any legitimate aid to the
tribunal required to determine the value of property. It can-
not be seen that this character of testimony did not have its
influence on the commissioners, if it did not control their action
in reaching a result. * * * In view of all the testimony
it is difficult to escape the conclusion that the commission
reached their result by the application of erroneous principles
to the appraisal of value of the property in question, and that
the amount of compensation awarded by their report was by
that means increased considerably in excess of the fair market
value of the property." The court held, that the admission
of such evidence was error and set aside the award for that
reason ; and yet upon the second hearing the commissioners
ignore this decision, expose their minds to the influence of
this illegal evidence, and avow that it is done intentionally,
and that they are not bound to follow the general term
decisions. If this is simply an error of judgment, it is an
error so palpable and material as to amount in law to miscon-
duct. It is saying, in unmistakable language, " we will not
investigate questions submitted to us in conformity to legal
proceedings. We will not, in administering the law, conform
to the law." If this be simply error of judgment, the
232 HOWARD'S PRACTICE REPORTS.
Matter of the New York, Lackawanna and Western Railway Co.
probable consequences are so serious and disastrous that they
should be averted if possible.
Has the court power on this motion to vacate the order made
appointing these commissioners and thereby in effect remove
them ? While these commissioners are not arbitrators, the
decisions of the courts in matters of arbitration may aid us in
determinining the questions involved in this motion.
Where an arbitrator has proceeded upon a gross and palpa-
ble mistake of law affecting the merits the court will grant
relief (45 How. Pr., 462). "If an arbitrator unreasonably
refuses to hear a competent witness it is gross misconduct, for
such refusal is against natural justice. Ef the whole cause be
referred back to him by the court, his refusal to admit addi-
tional evidence is fatal. If an arbitrator, contrary to express
directions, receives affidavits instead of oral testimony, it is
misconduct which will invalidate his decision" (Morse on
Arbitration and Award, 536, and cases there referred to}.
If arbitrators are gnilty of misconduct in refusing to receive
proper evidence or other misbehavior affecting the rights of
a party, the court may set aside their award upon motion
(Smith agt. Cutler, 10 Wend., 589 ; Walker agt. Frobister, 6
Vesey, 70 ; Matter of Application of Mayor of New York,
49 N. T., 150 ; Matter of Prospect Park and C. 1. R. E.
Co., 85 N~. F., 489). If the court can set aside an award on
motion, why not remove an arbitrator for good cause before
he makes his award ? The opinion of the general term in
this case says : " The court in the first instance might have
refused to appoint these persons as commissioners, and may
yet revoke the order of their appointment." Judge EARL, in
the opinion in the court of appeals in this case, says : It is
undoubtedly true that the court at special term was not bound
to appoint the three commissioners named by the parties. It
could have refused to appoint them and have left the parties
either to abandon their agreement or to carry it out in some
other way." If the court at special terra could refuse to
appoint the persons commissioners named in the contract,
HOWARD'S PRACTICE REPORTS. 283
Matter of the New York, Lackawanna and Western Railway Co.
why, after having so made the order, may it not set it aside ?
If Messrs. Dunbar and Clark had appeared in court when the
motion was made for their appointment and announced that
if appointed they would follow their own notions as to the
admission of evidence and would not be guided by the deci-
sion of the court in the case, I assume the court would have
refused to make the order it did. Having now learned that
the commissioners so appointed do assume that position, is it
not in the power of the court to cancel its order ?
In the Matter of the Application of the Prospect Park and
Coney Island Railroad Company to acquire title to land (85
N. Y., 496) the court says : " If the landowners in such case
claimed that there was any irregularity, fraud or mistake in
the proceedings of the commissioners, or back of such pro-
ceedings, their remedy is by motion to set the award and
proceedings aside, and not by appeal from the award or the
order confirming the same."
Judge FOLGER says, In the Matter of the Application of
The New York Central and Hudson River Railroad Com-
pany for the appointment of commissioners to appraise lands
of Alexander Cunningham and others (64 N. Y., 64) : " The
court had the power to revoke the appointment of the first
commissioners for good cause shown ; and it also had the
power to set aside the confirmation of their report, for good
cause shown, and to reject it."
Does the contract stand in the way of granting this order ?
It is contended by the landowner that changes have occurred
in the property and its surroundings since the making of this
contract, and that losses will follow to her if the order appoint-
ing the commissioners be vacated. It is not claimed that the
possession of the owner in the property has been disturbed.
The contract very carefully provides that no right or interest
of Mrs. Bennett shall in any manner be interfered with or
distributed until the entire purchase-price is paid. The
prosecution of the suits therein mentioned is not interfered
with. The owner is at liberty, so far as the contract provides,
VOL. II 30
234 HOWARD'S PRACTICE REPORTS.
Matter of the New York, Lackawanna and Western Railway Co.
to prosecute her actions with diligence. If she has parted
with anything or been less diligent, it is not because she was
bound so to do by the contract. If the refusal of the com-
missioners to follow a general term decision be misconduct,
and the cause for vacating the order appointing them, and
vacating the order destroys the contract and deprives the
landowner of the benefit of its provisions, she is a party to
the causes producing that result. The admission of the illegal
evidence was deliberately urged by her counsel upon the
commissioners. The same consequences to the contract would
result should one of the commissioners die or in any way
become disabled so as not to be able to proceed in the matter.
It is contended that this motion is premature ; that it is
not yet known that any one is to be injured by the award of
the commissioners. It is, however, now known that two of
the commissioners refuse to conduct the proceeding in a
lawful manner. The petitioner is now aware of this ; can it
wait until the award is made and then complain ? Will it not
then be said : " You are too late with your complaints. You
were informed during the trial upon what rules and principles
a majority of the commissioners were proceeding, and you
were not at liberty to remain silent ; take your chances of
obtaining a favorable award, and then complain. You should
have refused at once any longer to be a party to the pro-
ceedings, knowing that errors fould not be corrected by aii
appeal." If a party is made aware, during the trial, of mis-
conduct of a juror, and fail to complain until after verdict, it
is then too late.
In Faviell agt. Railway Company (2 Exch, J?., 344), baron
ALDERSON, said : " Where the defendant saw the arbitrator
entertaining a question which he ought not to entertain, it
was his duty to interpose and apply to the judge for the
purpose of being allowed to revoke the submission which no
doubt would have been granted had it appeared by affidavit
that the arbitrator intended to exceed his jurisdiction. Instead
of doing that, the defendants, although they find the arbitrator
HOWARD'S PRACTICE REPORTS.
Matter of the New York, Lackawanna and Western Railway Co.
going on, do not interpose but make the question one for his
determination, and he has determined it" (See Morse on
Arbitration and Award, 104, 105 ; Fox agt. Hazeltine, 10
Pick., 275 ; Brown agt. Leamtt, 26 Maine, 251 ; Hiltown
Road, 18 Penn. St., 233 ; Christman agt. Moran, 9 id., 487).
The case of Malmesbury Railroad Company agt. Budd (2
Ch. Div., 113), was a motion in an equity action to have it
declared that an arbitrator had become and was disqualified
from and incapable of being or acting as arbitrator under an
indenture, and for an injunction restraining him from acting.
Sir George Jessel, master of the rolls, in his decision said :
" No doubt there is jurisdiction in the court to set aside an
award on the ground of the corruption of the arbitrator,,
but if the corruption is proved beforehand so that the
arbitrator is unfit to sit, it appears to me that by analogy
to the writ of prohibition which goes to inferior courts to
prevent a judge, who is incompetent, from deciding a case,
there must be a similar jurisdiction to prevent the throwing
away of the expense and trouble, to say nothing of the delay
involved in going on with an arbitration before an arbitrator,
who has no power of deciding the case."
In Beddow agt. Beddow (9 Ch. Div., 89), the same judge
granted an injunction to restrain an arbitrator who had become
unfit by reason of personal misconduct from hearing the case.
These cases are authority ijor the removal of arbitrators
before they make an award. It is true the orders were
granted in equity actions brought for that purpose. While I
have not found a precedent for the granting of just such a
motion as this, there are many precedents, as we have seen, for
setting aside awards on motion. This is a proceeding in this
court. The order sought to be vacated was made by this
court, and, as was stated by justice CLERKE in the case of Low-
ber agt. The Mayor, <&c., of New York (5 Abb. Pr., 487),
" it belongs to the essential inherent powers of this court to
exercise such an efficient control over every proceeding in an
action pending in it as effectually to protect every person
236 HOWARD'S PRACTICE REPORTS.
Matter of the New York, Lackawanna and Western Railway Co.
actually interested in the result from injustice and fraud, and
that it will not allow itself to be made the instrument of
wrong no less on account of its detestation of everything con-
ducing to wrong, than on account of that regard which it is
proper it should entertain for its own character and dignity."
Not finding an exact precedent for this motion, my mind
came to the conclusion that this order should be granted with
reluctance and some misgivings as to its correctness. I am
relieved, however, by the consciousness that if my conclusion
is erroneous, an easy and speedy remedy is provided to cor-
rect my error. I have, in deciding this motion, assumed that
the general term laid down the law correctly in this case, and
believing it to be the duty of the commissioners to conform
their conduct in* the admission of evidence to the principles
therein contained, and they having refused so to do, and this
court having granted the order appointing them to the
responsible position they hold, it is my duty to set aside the
order and leave the parties to agree upon new commissioners
or pursue such other course as they may be advised. I put
this decision solely upon the ground above stated. Charges
are made in the moving papers against one of the commis-
sioners, touching .some business transactions between himself,
as a member of a firm, and Mrs. Bennett. These transactions
all occurred after making of the award and at a time when it
was not known that he would J>e required again to act in the
proceedings, but without regard to the time of their occur-
rence. The affidavits read in opposition to the motion, fully
and satisfactorily explain these transactions and remove any
suspicion of impropriety on the part of the commissioner.
The order granted by this court on the 25th day of October,
1883, appointing N. K. Hopkins, Brigham Clark and Robert
Dunbar commissioners in this proceeding, should be vacated
and set aside, and the commissioners removed.
HOWARD'S PRACTICE REPORTS. 237
Negley agt. The Counting-Room Company.
CITY COUET OF NEW YOKE.
CHARLES NEGLEY agt. THE COUNTING-ROOM COMPANY.
Practice On opening defaults when the judgment is allowed to stand as
security Effect of the lien,
Where a judgment by default is opened on condition that the lien of the
judgment shall stand as security, the plaintiff, if he finally succeeds,
must enter a new judgment by filing a fresh roll containing all the
papers in the case, the same as if no former roll had been filed. The
order opening the default in legal effect modifies the judgment by
depriving it of its ordinary character as a res adjudicata, but leaves it in
full force as a lien or collateral security. If the plaintiff fails in the
action the security is returned by canceling the collateral judgment,
which loses its legal vitality and effect when the action fails. But if
the plaintiff succeeds the security judgment is not impaired, but may
be enforced, if necessary, by the plaintiff in aid of the final judgment.
In case of appeal the trial or final judgment is the one to be appealed
from, and no reference need be made to the security judgment.
Special Term, August, 1885.
, C. J. Judgment was taken against the defend-
ant by default. It was subsequently, upon motion, so far
opened as to permit the defendant to come in and defend
upon the merits, the judgment in the meantime to stand as
security. The action was afterwards tried and a verdict was
rendered in favor of the plaintiff, on which he entered a fresh
judgment for the amount of the recovery, with costs, as taxed.
The defendant insists that this practice is irregular as there
cannot be two judgments for the same debt. But the claim
is without force or merit, as the first judgment is merely col-
lateral to the other and security only for its payment.
In Hall agt. Templeton (4 Weekly Dig., 120) this court held
that where a judgment by default is opened on condition that
the lien of the judgment shall remain as security, the plaintiff,
if he finally succeeds, must enter a new judgment by filing a
fresh roll containing all the papers in the case, the same as if
238 HOWARD'S PRACTICE REPORTS.
Negley agt. The Counting-Room Company.
no former roll had been filed, and that in case of appeal the
trial or final judgment is the one to be appealed from, and
no reference need be made to the security judgment. This
decision accords with the ruling made in Mott agt. The Union
Bank (8 Bosw., 591 ; affirmed, 38 N. T., 18).
The order opening the default in legal effect modifies the
judgment by depriving it of its ordinary character as a res
adjudicata, but leaves it in force as a lien or collateral secu-
rity (38 N. Y.< at p. 20). Until the final determination of
the controversy no execution can be issued on the security
judgment to enforce its payment (Ford agt. Whit/ridge, 9 Abb.
Pr., 416). The right to continue the lien of the judgment
results from the general power which the court has to regu-
late its judgments, and from section 724 of the Code, which
provides that " the court may upon such terms as justice
requires " relieve a party from a judgment taken against him
by default through inadvertence. Under this authority the
lien of the judgment opened may, as one of the conditions
upon which it is opened, be retained by way of security (2
Johns. Cases, 286; 6 Cow., 390; 7 id., 477; 9 How. Pr.,
442 ; 35 Him, 637).
If the plaintiff fails in his action the security is returned by
canceling the collateral judgment, which loses its vitality and
effect when the action fails. But if the plaintiff finally suc-
ceeds in the action the orderly practice is to issue an execution
upon the final judgment, which is the real judgment in the
case, and if that proves unproductive then to pursue whatever
lien the collateral judgment gives ; or if a levy has already
been made on the collateral judgment, or a proceeding has been
founded thereon, and either has been preserved by the order
opening the default, it will not be impaired, but may be
enforced if the plaintiff finally recovers in the action. But
the court, in controlling the execution of its own process, may
no doubt, on application, direct the manner of its enforcement
so that the rights of all parties may be preserved and enforced
without injury or oppression to either. It is clear, therefore,
HOWARD'S PRACTICE REPORTS.
Early agt. Early.
that the security judgment is to remain of record unimpaired
until the judgment entered upon the verdict has been paid,
reversed, or in some legal form removed from the judg-
ment docket.
N. Y. COMMON PLEAS.
JULIA H. EARLY agt. MAURICE E. EARLY.
Referee's fees in divorce suits Who to pay.
In an action for divorce on the ground of alleged cruelty, brought by a
wife against her husband, even where the wife prevails, the defendant,
the husband, will be compelled to take up the report and pay the
referee's fees.
Special Term, August, 1885.
THE plaintiff brought a suit in January last against her
husband for limited divorce on the ground of alleged cruelty.
The parties were married in this city on May 10, 1879. The
case was sent before a referee, whose bill amounts to $150.
This sum the defendant alleges his inability to pay, as well as
denying the charges brought against him.
YAN HOESEN, J. There is but one course to pursue in
this matter, and that is to require the defendant to take up
the referee's report. That report may or may not be con-
firmed. The plaintiff may or may not prevail in the action.
But the court has ordered a reference' for the purpose of
informing its conscience. The conduct of that reference has
involved a bill for referee's fees. "Who is to pay them ? The
referee is the officer of the court and must be paid. The party
prevailing would under ordinary circumstances advance them.
But that party is the wife, who is without means save such as
the husband may provide. Except where it is apparent that
the wife's case is without merit, it is the practice of the court
to compel the husband to furnish to the wife the means of
240 HOWARD'S PRACTICE REPORTS.
Matter of Caamano.
carrying on her suit. It is said that in this action the wife
cannot succeed. As to that I have no opinion to express, but
the orderly course of business is to bring before the court the
testimony that has been taken, together with the report of
the referee. In order to do that the fees of the referee should
be paid. The judge who examines the report and the testi-
mony will determine whether or not alimony should be
allowed. But as a preliminary to obtaining that determina-
tion I must order the defendant to pay the fees of the referee.
Of course only the legal fees need be paid. Let the proper
order be prepared and left with Mr. Jarvis, the clerk, for
transmission to me.
SUPREME COURT.
In the Matter of RAMON CAAMANO, an imprisoned debtor.
Imprisoned debtor Discharge from arrest under the insolvent law When
granted That defendant converted money received in a fiduciary capacity,
does not prevent his discharge.
Where the petitioner was arrested for converting to his own use moneys
and securities belonging to the plaintiff, while acting in a fiduciary
capacity, and was imprisoned in default of bail, and on his application
for a discharge his examination showed that in violation of his trust he
had used the money and property for his own benefit:
Held, that he was entitled to his discharge, because it did not appear that
he had disposed or made over any part of his own property, with a view
to the future benefit of himself or his family, or with intent to injure
or defraud any of his creditors.
Special Term, August, 1885.
ANDREWS, J. After a careful examination of this case I
have reluctantly come to the conclusion that the application
for the discharge of the petitioner must be granted. There
is no dispute about the facts upon which the order of arrest
was obtained. Caamano, having in his possession a large
HOWARD'S PRACTICE REPORTS. 241
sum of money belonging to Mrs. Roderiguez, who resided in
Spain, used the same for his own purposes, and then, under a
power of attorney which he held, raised $40,000 more by
mortgaging Mrs. Roderiguez's real estate, which was situated
in New York, and used this sum in the same manner. The
latter transaction was so deliberately planned, acd so carefully
and coolly carried out, as to leave no possible doubt that he is
a man who hesitates at nothing to accomplish his purposes.
He has no possible claim upon the sympathy or tender con-
sideration of the court, and did the law permit it would be
but justice that he should be imprisoned for a long term of
years. He must, however, be accorded the rights secured to
him by the laws of this state, and I am of the opinion that,
upon complying with the provisions of the Code, he must be
discharged.
In Suydam agt. Belknap (20 Hun, 87), which was an appli-
cation like this, the petitioner was arrested for converting to
his own use moneys and securities belonging to the plaintiff
while acting in a fiduciary capacity and was imprisoned in
default of $35,000 bail. He applied for a discharge, and his
examination showed that in violation of his trust he had used
the money and property for his own benefit. It was, never-
theless, held by Mr. justice WESTBROOK that he was entitled
to his discharge, because it did not appear that he had dis-
posed or made over any part of his own property with a view
to the future benefit of himself or his family, or with intent
to injure or defraud any of his creditors. On appeal the
order for the discharge was affirmed. The court at general
term said : " This case is distinguishable from that In re Brady
(69 N. Y., 215), because the charge is that the defendant
received money in a fiduciary capacity for which he has not
accounted. The defendant Brady was charged with a dispo-
sition of his property with the intention of defrauding his
creditors, and for that reason it was held that his proceedings
were not just and fair. This case does not show any appro-
priation of this kind, and therefore that he has property
VOL. II 31
242 HOWARD'S PRACTICE REPORTS.
Matter of Caamano.
attainable by recourse to his grantee or otherwise. The
money received was disposed of by him, and though improp-
erly used does not subject him to the rule established by the
case referred to. We . cannot sav under the circumstances
that his proceedings have not been just and fair."
It seems to me that this case is decisive of the present
application. With regard to the first money appropriated
by Caamano the cases are identical. With regard to the
$40,000, 'the learned counsel for the plaintiff claims that the
decision iu Suydam agt. Belknap, is not applicable, because
the money was obtained through a mortgage, and when it
came into Caamano's possession was to be regarded as his
money, and that he has therefore disposed of his own money
with intent to defraud his creditors, or for the future benefit
of himself or members of his family.
I am not able to concur in this view. From a moral
standpoint Caamauo's conduct in raising money by mortgag-
ing his principal's property, and then appropriating it to his
own use, was, if possible, more infamous than in so appro-
priating moneys which had lawfully come into his possession,
for in the former case he committed a double crime. This,
however, does not change the legal aspect of the matter. The
$40,000 was not in the eye of the law his money, but that of
Mrs. Roderiguez, and when he appropriated it he was disposing
of her money and not his own. So far as this application is
concerned the $40,000 must be regarded as money which,
though obtained by a previous fraud, was held by Caamano
in a fiduciary character, and upon a trust, which the law
would imply to pay it over to Mrs. Roderiguez, whose
property had been incumbered to raise it. Viewed in this
light, the decision in Suydam agt. Belknap, is jnst as applica-
ble to the $40,000 as to the moneys previously appropriated,
and I am constrained by it to hold that Caamano is entitled
to his discharge.
The distinction between cases like the present one and that
presented In the Matter of Brady (69 N. Y., 216), is pointed
HOWARD'S PRACTICE REPORTS. 248
Matter of Caamano.
out in the opinion of the general term. In the latter case the
petitioner had disposed of his own property with intent to
defraud the creditors who opposed his discharge, and the
affidavit required by the statute that he he had not done so
was therefore untrue, and his proceedings were held not to be
just and fair. It may well be, as was held in In the Matter
of Roberts (59 How., 136), that it is worse for the debtor to
dispose of the creditor's property than for him to dispose of
his own, and that the former act as well as the latter ought to
prevent his discharge. It is not, however, so provided in the
statute, and the views of the learned judge who decided the
Roberts case were expressly disapproved by the general term
of the court of common pleas (In re Fowler, 8 Daly, 85).
Counsel for the plaintiff also calls attention to the fact that
portions of the fund with which the $40,000 was mingled
were given by Caamano to his wife, his brother and brother-
in-law, and claims that his conduct " does not make it a violent
supposition that he purposely turned over a large part of
Mrs. Roderiguez's property for the future benefit of himself
and various members of his family.
Of course, if he had disposed of Mrs. Roderiguez's property
in this manner, he could not be discharged. The burden of
proof, however, to show such disposition of her property is on
the plaintiff (In the Matter of Benson, 10 Daly, 166). Not
only is such disposition not shown by the plaintiff, but the
examination of the debtor, which stands uncontradicted,
establishes the contrary. The testimony is that the real estate
conveyed to his wife was inherited by her from her mother,
and a satisfactory explanation is given why the title was taken
in Caamano's name and of the subsequent conveyance. The
testimony is also to the effect that the payments to his relatives
were for full consideration out of moneys that belonged to
them. There is no evidence that Caamano disposed of his
own property or that of Mrs. Roderiguez for the future benefit
of himself or members of his family, or with intent to defraud
his creditors, and an order must be granted directing him to
2U HOWARD'S PRACTICE REPORTS.
Jenkins agt. City of Hudson.
execute an assignment to a trustee, and that he be discharged
upon complying with the provisions of the Code relating to
the assignment and delivery of his property.
SUPREME COUKT.
MARY C. JENKINS, as administratrix, &c., of DANIEL JENKINS,
deceased, agt. THE CITY OF HUDSON.
Jury Effect upon a verdict when the, entire jury is unsworn and no objection
made Code of Civil Procedure, sections 721, 1016, 1166.
If a trial proceeds, and a verdict be rendered without a jury being sworn,
such a verdict is not irregular and void, when neither party asked that
the oath should be administered.
That which the law requires to be done for the protection of a party, may
be waived, and the failure to object is a waiver. Nor can failure to
object be excused by alleged ignorance.
Ulster Special Term, May, 1885.
MOTION to set aside the verdict of a jury for irregularity.
C, A. Baurkyte and C. P. Collier, for defendant and
motion.
Andrews <& Edwards, for plaintiff and opposed.
WESTBROOK, J. In this case the plaintiff, whose husband
was killed by the upsetting of a load of hay in the city of
Hudson, recovered a verdict for $2,500 against the city in an
action tried at the Columbia circuit, in April, 1885, for negli-
gently causing such death by permitting one of its streets,
upon which the deceased was traveling at the time of the
accident, to be out of repair.
The defendant now moves, at special term, to set aside the
verdict upon the ground that the jurors were not sworn. In
the county of Columbia, as in all the counties of this (the
HOWARD'S PRACTICE REPORTS 246
Jenkins agt. City of Hudson.
third) judicial district, the practice has been to swear the trial
jurors in a body at the commencement of court for the trial
of all the civil causes at that circuit. It seems that the clerk
neglected this duty at the circuit at which this cause was tried
and after the selection of the jury, the trial proceeded with-
out anything being done or said as to the swearing of the jury.
The trial was begun April 13, 1885, the cause submitted to
the jury on the twenty-second, and the verdict rendered on
the twenty-third. The counsel for the defendant did not
learn that the jury was not sworn until the said twenty-third
day of April, about an hour previous to the verdict.
The question which this motion then presents is : If a trial
proceeds, and a verdict be rendered without a jury being
sworn, is such a verdict irregular and void if neither party
asked that the oath should be administered ? In other words,
is the swearing of the jury essential to the validity of the
verdict ? The question, though novel in the form in which
it is presented the omission to swear an entire jury
involves no new principle but one well settled. That which
the law requires to be done for the protection of a party may
be waived, and the failure to object is a waiver. Neither can
the failure to object be excused by alleged ignorance, for a
party is presumed to know what he could easily have ascer-
tained ; and if a party wishes for his protection that to be
done which the law directs, ordinary diligence requires him
to make inquiry whether or not the statute has been complied
with, and not to sit with folded arms and assume that others
will care for his rights, or to watch, with closed lips, to see
if some omission does not occur which will render all that is
done of no effect.
The Code of Civil Procedure (sec. 1166) declares "the first
twelve persons who appear, as their names are drawn and
called, and are approved as indifferent between the parties,
and not discharged or excused, must be sworn, and constitute
the jury to try the issue."
This portion of the section quoted (it was added to by
246 HOWARD'S PRACTICE REPORTS.
Jenkins agt. City of Hudson.
chapter 234 of the Laws of 1883 by disqualifying jurors
related by consanguinity or affinity in the same cases in which
judges are disqualified; but requiring the objection to be
made before opening the case) is almost a literal transcript of
the Revised Statutes (Qd ed., 438, sec. 61), as indeed the most
of the provisions of the Code in regard to jurors are.
The statute and the Code undoubtedly prescribe a rule to
be followed, both as to who the twelve jurors are to be, and
the administration of the oath, but it was never supposed that,
in regard to either, the requirements could not be waived. If
for example the first twelve found indifferent were not sworn,
but some others were without objection taken, would the ver-
dict be set aside as irregular because the statute requirement,
that such first twelve must be the jury, is jurisdictional ?
That portion of the section is as mandatory as the other, and
if the objection fails in the one instance it must in the other.
And what is true of the provisions of this section is equally
true of others in regard to the drawing, summoning, selection
and qualifications of jurors ; and various other provisions
regulating the practice of the courts. They all speak of cer-
tain things to be done, and yet when those have been omitted
in every instance, when such omission has been made the
ground of a motion, it has been held to be waived by want
of the interposition of an objection at the proper time.
In Bennett agt. Matthews (40 How., 428), the alienage of
one of the jurors was made the ground of a motion to set
aside the verdict, and as an excuse for not making the objec-
tion upon the trial, ignorance of the fact was urged. The
statutes of the state declared an alien " incapable * * *
of serving on any jury " (3 R. S. [5th ed.~\, 8, sec. 42), but the
court nevertheless denied the motion, holding that the failure
to make the objection was a waiver, even though the fact of
the alienage of the juror did not " come to their knowledge
until after the trial.
So, too, when motions have been made to set aside verdicts
upon the ground that one or more of the jurors was related
HOWARDS PRACTICE RETORTS. 24?
Jenkins agt. City of Hudson.
to one of the parties within the degree which rendered jurors
incompetent, though the fact was unknown at the time of the
trial, it has been held that the failure to object waived the
objection (Schuyler agt. Thompson, 15 Abb. [N. ], 220 ;
Salisbury agt. McClaskey, 26 Hun, 262).
So, too, it has been held that express statutes as to the mode
of selecting a referee and as to his being sworn, can be waived
by not making the objection ( Whalen agt. Supervisors, 6 How.,
278 ; Keator agt. The Ulster and Delaware Plank Road
7 How., 41 ; Nason agt. Luddington, 56 How., 172).
In Howard agt. Setxon (1 Den., 440) it was decided that
though a statute of the state required arbitrators to be sworn,
yet a procedure with the trial without demanding it to be done
was a waiver. The opinion of the court, per BRONSON, 'J.,
bears directly upon the present motion because he likens the
provisions of the statute requiring arbitrators to be sworn to
those requiring judges and jurors also to be sworn, and argues
that because the necessity of an oath can be waived in regard
to the latter (judges and jurors), it can be in the case of
arbitrators.
The exact question involved in this matter was, however,
presented in Hardenburgh agt. Cra/rey (15 How., 307).
One of the jurors in that case had not been sworn and
that fact was unknown to the parties. A motion was made
to set aside the verdict on that ground, and the court (HARRIS,
/.) held, writing an opinion to sustain it, that the failure to
object was a waiver, and that ignorance did not excuse the
want of an objection. The fact is, and so judge HARRIS held,
that the language of the statute then in force, which is identi-
cal with that of our present Code, required a juror to be
sworn in each case ; and the practice of swearing jurors in a
body for all the issues of a circuit can only be upheld by the
absence of an objection to the non-swearing in the case which
is tried. When, therefore, the counsel for the defendants
undertake to excuse the want of an objection by the plea cf
ignorance, in addition to the answer hereinbefore given, that
248 HOWARD'S PRACTICE REPORTS.
Jenkins agt. City of Hudson.
what a party can readily know, he is presumed to know, it
can also be said that they knew when they commenced the
trial of the action that the oath required by the Code well
and truly to try that issue had not been administered, and.
therefore, when they proceeded with the trial without demand-
ing its administration, they deliberately and with knowledge
waived ihe doing of the very thing, on account of not doing
which they now move.
The principle is fundamental that when a court has juris-
diction of the subject-matter and the parties, statute and con-
stitutional rights may be waived, and the failure to object is a
waiver {People agt. Globe Mutual Life Insurance Company,
82 ; seepage 91 and authorities there cited' see, also, pages 95,
96, 97). There is no reason why that principle is not decisive
of this case. It has been applied again and again, as has been
shown, in instances very similar to the present, and it would
be a grievous wrong, when no injury has been done, to
nullify the long and expensive trial which has been had.
If then there was no curative statute this motion should
be denied. The Code, however, declares (sec. 721): "In a
court of record, when a verdict, report or decision has been
rendered, the judgment shall not be stayed, nor shall any
judgment of a court of record be impaired or affected, by
reason of either of the following imperfections, omissions,
defects, matters or things, in the proofs, pleadings or other
proceedings. * * * 1*2. For an omission on the part of
a referee to be sworn, or for any other default or negligence
of the clerk, or any other officer of the court, or of a party,
his attorney or counsel, by which the adverse party has not
been prejudiced."
It will be observed that the omission to swear a referee is
expressly declared not to be fatal to the report. This pro-
vision was inserted in 1879 for the purpose, as is declared in
the codifier's notes, of quieting " doubts in cases where the
direction of section 1016 (post), had not been followed."
Section 1016 is the one which requires the referee to be sworn,
HOWARD'S PRACTICE REPORTS. 240
Jenkins agt. City of Hudson.
and which provides that the waiver of the oath " may be
made by written stipulation or orally. If it is oral, it must
be entered in the referee's minutes." Its insertion in that
section, and in the subdivision which has been quoted, shows
the intent of the section. The neglect to swear the jury was
the "default or negligence of the clerk," and as that was
inapplicable to the case of a referee the addition referred to
was made. As then the neglect to swear a referee does not
o
per se vitiate a report or judgment ; and as the necessity of an
oath to a referee is as great as that to a jury ; and as the
omission to swear was the " default or negligence of the clerk,"
it must be held that the want of the oath to the jury in this
case does not, unless the party swearing has been prejudiced,
vitiate the verdict.
The oath of a juror cannot be received to impeach a verdict,
nor are the declarations of a juror after it has been rendered
any evidence. The affidavit of the juror; and those stating
conversations with another juror are not received as evidence
upon this motion. Excluding these to which reference has
been made, as the law clearly requires they should be, there
is an entire abs ence of proof to show that the defendant has
been injured. The affidavits on the other hand submitted
by the plaintiff as well as the proceedings of the trial, of which
the judge writing this opinion has personal knowledge, satisfy
him that the defendant has received no injury by the omission
to swear the jury, and that therefore section 721 of the Code,
as well as well-established practice, requires the denial of
this motion.
VOL. II 32
250 HOWARD'S PRACTICE REPORTS.
Matter of Henry.
SURROGATE'S COURT.
In the Matter of a Motion to Remove a Special Guardian in
the Estate of JAMES GRIFFITHS HENRY, deceased.
Special guardian Who should not be appointed Rule 10 of the
surrogate's court.
In a controversy over probate a special guardian of an infant interested in
the estate should not be appointed upon the nomination of the pro-
ponent; nor should any person be appointed such guardian who is
associated in business with the proponent's attorney or counsel.
Rule 10 of the surrogate's court must be strictly enforced, unless perhaps
when it is clearly apparent that the interests of the infant will be best
subserved by the establishment of the disputed paper as a will. In case
a special guardian has been inadvertently appointed in disregard of
Rule 10 he should be superseded.
New York county, July, 1885.
ROLLINS, 8. The paper purporting to be the last will and
testament of James Griffiths Henry was admitted to probate
as such on October 25, 1883, having been theretofore pro-
pounded by Sarah M. Henry, whom it named as its executrix.
On October 17, 1884, Evan J. Henry filed in this court a peti-
tion for revocation of such probate, declaring himself therein
to be the father of decedent and his only next of kin, and pro-
testing that the proponent, who claims to be decedent's widow,
had never been his lawful wife.
On the 24th of April, 1885, the proponent filed a petition
alleging that her husband left him surviving an infant son,
whereof she was the mother, and that by the will here in
dispute such son was named as a beneficiary. The petition
concluded with a prayer for the appointment of Charles G.
Cronin, esq., as special guardian to protect the rights of such
infant in the proceeding for revocation. An order appoint-
ing Mr. Cronin such special guardian was thereupon entered.
It was entered improvidently, involving, as it did, a violation
of Rule 10 of the surrogate's court, by which rule it is, among
HOWARD'S PRACTICE REPORTS. 25l
Matter of Henry.
other things, provided that in a proceeding for probate a
special guardian will not be appointed on the nomination of
a proponent to represent the interests of an infant.
The order is also obnoxious to Rule 10 in another particular.
In an affidavit filed by Mr. Cronin in opposition to this motion
he admits the truth of the statement in the moving papers that
he is connected in business with Mr. Woodbury, " who may,"
he says, "and probably will, act as counsel for the propo-
nent" in the proceeding for revocation. Mr. Cronin insists,
however, that in that proceeding the interests of the child and
those of the mother are identical. If this were the case,
and if no contingency could arise in which their respective
interests would clash, I might decline to vacate this appoint-
ment in spite of its irregularity. But, in case the validity of
proponent's marriage and the legitimacy of her child shall
be established upon the trial of the preliminary issue involv-
ing those questions, I am convinced that the infant should be
represented, not by a guardian selected by the proponent
employed in the office of her counsel and in natural sympathy,
therefore, with her wishes, but by one who can determine
without prejudice what attitude the best interests of the infant
will require him then to take in the proceeding for revocation
(See Matter of Tunis Cooper's Estate, N. T. Daily Regis-
ter, April 24, 1885 ; 4 Surr. Deo., ). The order of April
twenty-fourth must, therefore, be vacated. I think it proper
to add that this decision involves no reflection upon the
personal character or attainments of the present guardian,
to whom the surrogate of his own motion has repeatedly
intrusted the protection of the interests of infant parties to
proceedings in this court.
252 HOWARD'S P*RACtlCE REPORTS.
Wells agt. Lachenmeyer.
SUPREME COURT.
CHARLOTTE F. WELLS agt. AUGUST LACHENMEYER.
Husband and wife Liability of husband for tfie wife's debts Question
for jury.
In a suit to recover for moneys advanced to the wife of defendant, where
evidence was given tending to show that some portion of such advances
was made for the purpose of procuring necessaries of food and clothing,
it was a question of fact for the jury to determine whether or not such
advances were made because of the wife's necessities, and under such
circumstances that the same should be chargeable to the husband.
First Department, General Term, August, 1885.
Before DAVIS, P. J., DANIELS and BRADY, JJ.
APPEAL from judgment on dismissal of complaint.
Albert -Day, for appellant.
J. C. J. Langbein, for respondent.
PER CURIAM. There was sufficient evidence tending to
establish the alleged marriage to require that question to be
sent to the jury. In respect to the advances made by the
plaintiff to the wife of the defendant, assuming her to have
been his wife, there was evidence tending to show that some
portion of such advances was made for the purpose of procur-
ing necessaries of food and clothing.
It is a question of fact for the jury to determine whether
or not such advances were made because of the wife's neces-
sities, and under such circumstances that the same should be
chargeable to the husband. It was not necessary to show
that the plaintiff herself made the purchases. If she handed
money to the wife for that purpose, that fact is equivalent,
we think, to the act of furnishing the necessaries. The jury
might well have found on the evidence that some portion at
least of the money so advanced was directly applied to the
HOWARD'S PRACTICE REPORTS. 253
United States Ice and Refrigerating Company agt. Resd el al.
specific object, to wit, the purchase of clothing and of neces-
saries by the wife.
It was error to take the case from the jury on all the ques-
tions involved, and therefore we think a new trial should be
ordered.
Judgment reversed, new trial ordered, costs to abide event.
SUTKEME COURT.
THE UNITED STATES ICE AND REFRIGERATING COMPANY agt.
SAMUEL C. REED et al.
Corporation When deemed to have acquiesced in illegal acts of their trustees.
A. trustee of a corporation, whose attendance is necessary to make a
quorum, cannot act upon a claim in his own favor to bind the corpora-
tion, and by his presence he thus acts.
Such a transaction could be at once assailed in a court of equity, and
would be set aside in a suit brought by the corporation, or in the event
of its unwillingness to proceed at the instance of the stockholders
interested at the time.
But such conduct and action on the part of the trustees of a corporation
may, with knowledge thereof, be acquiesced in and accepted by the
corporation and the stockholders, in which event they could not after-
wards assail it, especially when such acquiescence has continued for
several years, and the stock donated has been actually received by the
donee, and has formed the subject of new engagements and liability on
his part with others.
When stockholders neglect to promptly and actively condemn the unau-
thorized act of the trustees, and to seek judicial relief, they will he
deemed to have acquiesced in it, and an unconscionable agreement will
not be disturbed when there has been a ratification of it after time has
been had for consideration.
Special Term, August, 1885.
Silas M. Stilwell and William Fullerton, for plaintiff.
E. L. Fancker, for defendants.
254 HOWARD'S PRACTICE REPORTS.
United States Ice and Refrigerating Company agt. Reed et al.
VAN VORST, J. The learned counsel for the plaintiff, in
his brief and argument submitted, subjects the action of the
trustees of the plaintiff corporation, in donating to the defend-
ant Reed all the shares of stock owned by the corporation, to
severe criticism. The trustees occupied a fiduciary position,
and as far as the defendant Reed was concerned, being him-
self a trustee, he was prohibited from acting in his own favor
upon a resolution donating to himself the property of the cor-
poration, although he had rendered services to the corporation
as president, for which he had received no salary, and had
paid out moneys in its behalf. No salary had been thereto-
fore affixed to the office, and the amount of his disbursements
for the corporation was not stated in the resolution and do not
appear to have been adjusted in an orderly way. A trustee,
whose attendance is necessary to make a quorum, cannot act
upon a claim in his own favor to bind the corporation, and by
his presence he thus acted. And such a transaction could be
at once assailed in a court of equity, and would be set aside
in a suit brought by the corporation, or in the event of its
unwillingness to proceed, at the instance of the stockholders
interested at the time. These conclusions are amply sustained
by authority in this state (Dunscorribe agt. N. Y. H. and N~.
R. R. Co., 84 N. F., 190; Butts agt. Wood, 37 N. Y., 317;
Coleman agt. Second Ave. R. R. Co., 38 N. Y., 201). But
such conduct and action on the part of the trustees of a cor-
poration may, with knowledge thereof, be acquiesced in and
accepted by the corporation and the stockholders, in which
event they could not afterwards assail it, especially when such
acquiescence has continued for several years, and the stock
donated has been actually received by the donee, and has
formed the subject of new engagements and liability on his
part with others.
The resolution donating this stock was passed on the 16th
day of September, 1879, as the minutes of the trustees shows,
and the stock immediately passed to Reed. Neither the cor-
poration itself nor any stockholder made any objection at the
HOWARD'S PRACTICE REPORTS. 255
United States Ice and Refrigerating Company agt. Reed et cd.
time, and failed altogether to take anj action adversely to it
until this suit was brought, in November, 1884, more than
five years after Heed received the stock in pursuance of the
resolution. Randall, who was a stockholder and also a trustee,
was not present at the meeting when the stock was donated
to Reed. He has testified that he received no notice of this
meeting. A notice was, however, prepared by Reed to be
mailed to him, and was given to a messenger for that pur-
pose. Whether actually mailed does not appear. Under the
evidence he received no notice. Bradley was a trustee,
although Reed believed he was not. Whether or not he was
notified of this meeting does not appear. He did not attend.
Randall was, however, afterwards informed of the resolution
and he approved of it.
On the 16th day of August, 1880, an agreement in writing
was entered into between the defendant Reed, as a party of
the first part, the plaintiff corporation of the second part and
Ezra A. Hoyt of the third part. By this agreement Reed,
amongst other things, sold to Hoyt 4,500 shares of the stock
of the plaintiff corporation, which amounts included the shares
donated to Reed by the resolution above mentioned. It was
a part of this agreement that the resignation of the three
trustees should be obtained, and that the control of the cor-
poration should substantially fall into the hands of Hoyt and
such trustees as he should designate. Hoyt became president
of the corporation in 1880, and a majority of the trustees was
of his selection, and he and they assumed the management of
the corporation. How soon he became actually acquainted
with the. fact of the passage of the resolution in 1879 does
not distinctly appear. The book containing the minutes of
the trustees was under his control. He had, however, applied
to Reed, and had obtained from him extensions of time in
which to pay installments upon the purchase of Reed's stock.
Early in January, 1881, he first called Reed's attention to the
resolution of the trustees in question, and said in substance
that it was not right, and he added, " I can bring that up if I
256 HOWARD'S PRACTICE REPORTS.
United States Ice and Refrigerating Company agt. Reed et al.
want to," to which Reed replied " that he might bring it up."
Hoyt then said, " I want you to put off the payment of this,
and I will not bring it up." Hoyt, however, did not bring
up the subject. After this he attempted to sell the shares he
had purchased from Reed to others. Randall also co-operated
with Hoyt in endeavoring to sell the stock purchased from Reed.
These acts amount to an acquiescence in the lawfulness of
the title of Reed to this stock on the part of those engaged
therein. The corporation itself was a party to the agreement
by which Reed sold the stock to Hoyt. That is an acquiescence
on its part as to his right to sell these shares standing in his
name on the books of the corporation. Hoyt and his man-
agement acquiesced for years, until, for reasons personal to
himself, this action was directed to be brought in 1884. Hoyt
has been prosecuted by Reed for the balance remaining due
on his agreement for the purchase of these shares. The com-
pany itself has become bankrupt and has passed into the hands
of a receiver. It is too late after such long acquiescence for
the corporation to recede. The stockholders at the time have
not objected. At least they have remained silent. That
amounts to acquiescence, after such lapse of time.
As to stockholders buying into the corporation afterwards,
they certainly cannot impeach a transaction consummated and
ratified by the corporation be fore they acquired title to their
stock. Acts which are not "per se " illegal or " malum pro-
hibitum,"" but which are ultra vires, affecting, however, the
interests of stockholders only, may be made good by the
assent of stockholders (Kent agt. Quicksilver Mining Co., 78
N. Y,, 159 ; Sheldon E. B. Co. agt. Eickmyer H. B. Co., 90
N. Y., 607 ; Hoyt agt. Thompson, Exrs., 19 N. Y., 208).
And when stockholders neglect to promptly and actively con-
demn the unauthorized act of the trustees, and to seek judicial
relief, they will be deemed to have acquiesced in it, and an
unconscionable agreement will not be disturbed when there
has been a ratification of it after time has been had for con-
sideration (Kent agt. Quicksilver Mining Co., supra).
HOWARD'S PRACTICE REPORTS. 257
Overheiser agt. Morehouse.
After considering the questions raised, and upon all the
facts appearing in evidence, there must be judgment for the
defendants dismissing the plaintiffs' complaint, with costs.
SUPREME COURT.
AMBROSE L. OVERHEISER agt. PHEBE O. MOREHOUSE, execu-
trix of, &c., of ALANSON MOREHOUSE, deceased.
Costs, uvon the reference of a claim against a decedent "When recoverable
Disbursements recoverable.
When upon a reference of a claim under the Revised Statutes against a
deceased per-son's estate a report has been made in favor of the claim,
costs are not recoverable, unless the payment of such claim has been
unreasonably neglected or resisted.
A large reduction of the balance claimed by the bill as presented justifies
the resistance.
Neither is it unreasonable for the executrix, who is a sister of the claimant
when such claim is for board furnished to the decedent and his wife,
the defendant, during a period of several years, and the value thereof
is one of the questions in dispute, to insist that the amount to be paid
shall be established by a reference.
Nor is it unreasonable for the residuary legatee under the will of the
decedent, who is a stranger to the whole transaction, to inquire by
means of a reference into the justice and legality of the claim.
Upon such a reference, however, " the prevailing party shall be entitled
to recover the fees of referees and witnesses and other necessary dis-
bursements to be taxed according to law."
The clause in section 317 of "The Code of Procedure," which gave them,
was not repealed by the adoption of part 2 of " The Code of Civil Pro-
cedure;" nor by chapter 245 of the Laws of 1880, which professed to
repeal 'The Code of Procedure " left unrepealed by chapter 318 of the
Laws 1877, with the exceptions therein stated. The repealing act of
1880, retained and preserved "the right of a prevailing party to recover "
such disbursements, using the exact language of said section 317.
Upon a full consideration of the question, the decisions in Sutton agt.
Newton (2 How. [N. 8.], 56) and in Hall agt. Edmunds (67 How., 202)
adhered to; and Miller agt. Miller (32 Hun, 481) held untenable.
When the question to be determined relates to the status of a statute
which is involved in a maze of legislation, the same weight cannot be
VOL. II 33
258 HOWARD'S PRACTICE REPORTS.
Overheiser agt. Morehouse.
given to a decision of the general term as there would be to one involv-
ing a pure legal principle. In such a case, it is the duty of the special
term when it sees plainly that statutory provisions have been overlooked
to follow its own clear convictions, stating its reasons therefor respect-
fully, thus leaving to the general term a review of the subject.
Ulster Special Term, August, 1885.
MOTION for costs upon a reference of a claim against the
estate of a deceased person under the Revised Statutes.
A. F. B. Chace, for plaintiff and motion.
R. E. Andrews, for defendant and opposed.
WESTBROOK, J. The plaintiff, who has obtained the report
of a referee in his favor for the sum of $4,468.62, moves for
the confirmation of the report and for costs. To the former,
as there has been no case with exceptions presented, nor any
cause shown why the plaintiff should not have a confirmation
of the report, he is entitled, but to the latter there are serious
objections to be considered.
It was a reference under part 2, chapter 6, title 3, article 2
and section 36 of the Revised Statutes (2 Edm. ed., 91). The
claim as presented was for $9,013.08, upon which there was a
credit given for $1,800, making the balance claimed by the
bill as originally presented $7,213.08. Subsequently, how-
ever, an amended bill was presented by which the balance
claimed was $9,462.68.
The report of the referee found the indebtedness of the
deceased to the plaintiff to be $7,829.99, and that of the plain-
tiff to the deceased $4,072.73, leaving due from the latter, at
the time of death, to the former, $3,757.26. The referee
allowed interest on the balance found due to the plaintiff
from the day of the commencement of this proceeding (May
3, 1882), which was $711.36, making the total sum found due
at the date of the report (June 26, 1885) $4,468.62.
It was conceded upon the argument, and so the law is, that
HOWARD'S PRACTICE REPORTS. 269
Overheiser agt. Morehouse.
to justify the recovery of costs as in an action in which costs
are given, the claim of the plaintiff must have been unreason-
ably resisted. Whether or not the plaintiff is entitled to
referee's fees and disbursements will be hereinafter considered,
but the question first to be discussed is, was the payment of
the claim of the plaintiff unreasonably resisted or neglected.
The reduction of such claim from $7,213.08, as originally
presented, to $4,468.62, and the establishment of a set-off of
$4,072.73 instead of $1,800, as allowed upon the bill as
presented, are facts which conclusively demonstrate that the
resistance to the demand of the plaintiff was not only not
unreasonable, but, on the contrary, reasonable and necessary.
It was strenuously, however, urged by the counsel of the
plaintiff that as he had proved his claim by the defendant, she
had full knowledge of its justice, and therefore it should have
been paid without a reference. To this argument there are
two answers : 1st. The justice of the cause of action of the
plaintiff alone, unless the bill as presented gave a proper credit,
would not make resistance to the payment of the balance
demanded unreasonable. The defendant may have proven the
integrity and propriety of the plaintiff's charges, but either
her evidence or some other testimony submitted to the referee
satisfied him that the credits or set-off upon or to the bill as
presented were over $2,000 greater than the plaintiff's affidavit
attached thereto admitted. The resistance was to the pay-
ment of the balance demanded, and its large reduction is the
justification of the defense made. 2d. The defendant (the
executrix) is the sister of the plaintiff. The claim of the
plaintiff was for board of the deceased and his wife (the
defendant), and horse keeping during a period of six years
(from February 2, 1875, to February 2, 1881) ; and as the
payment and allowance of such an account, involving among
other things questions of value, by a sister in favor of a brother
out of the residuary of an estate devised to strangers, was sure
to be contested upon an accounting, it was not unreasonable
that the defendant should for her own protection insist that
260 HOWARD'S PRACTICE REPORTS.
Overheiser agt. Morehouse.
the amount to be allowed and paid should be fixed and estab-
lished by a legal proceeding. Neither was it unreasonable
for the residuary legatee under the will of the deceased,
" The Children's Aid Society of the city of New York,'' to
inquire strictly and sternly into the validity of a claim of the
character of that presented by the plaintiff, concerning which
it had no knowledge. It was hardly reasonable to suppose
that board, lodging, and horse keeping would be furnished by
a needy brother-in-law to a relative abundantly able to pay (the
circumstances of the parties were conceded upon the motion)
for a period of six years, and an indebtedness allowed
to accumulate of several thousand dollars. This was scarcely
to be expected, and the residuary legatee, itself a trustee
charged with a sacred trust in behalf of helpless ones, only
did its duty reasonably, in making the defense.
For the reasons which have just been given, the motion, so
far as it asks for costs generally and for an allowance, must be
denied, and with the enunciation of this conclusion we are
brought to the second question : Is the plaintiff entitled to
referee's fees, witnesses fees and disbursements ?
It will be conceded that by section 317 of " The Code of
Procedure" such fees and disbursements were given. That
section provided that when a claim against a deceased per-
son's estate was referred under the provisions of the Revised
Statutes, as this one was, that " the prevailing party shall be
entitled to recover the fees of referees and witnesses and other
necessary disbursements to be taxed according to law." It
will be further conceded that if this provision is unrepealed,
or if it has since been re-enacted, that the plaintiff is by this
motion entitled to their allowance. In Sutton agt. Newton
(2 How. \N. /6'.j, 56) the judge writing this opinion, after a
careful examination of the question, came to the conclusion
that the provision quoted was still in force. That conclusion,
in the light of Miller agt. Miller (32 Hun, 481) and of an
unreported case (Dodd agt. Dodd\ to which allusion will be
presently made, he is asked to reconsider. The request will
HOWARD'S PRACTICE REPORTS. 261
Overheiser agt. Morehouse.
be cheerfully complied with, and sach reconsideration will not
be conducted with a view to sustain a previous conclusion, but
to reach the exact right of the proposition to be considered.
Section 317 of the old Code, "The Code of Procedure,"
regulated the recovery of costs in an action by or against an
executor or administrator, trustee of an express trust, or a
person expressly authorized by statute to sue. The same sec-
tion further declared (a quotation already in part given is
repeated to show its connection) : " But this section shall not
be construed to allow costs against executors or administra-
tors, where they are now exempted therefrom, by section
forty-one of title three, chapter six, of the second part of the
Revised Statutes ; and whenever any claim against a deceased
person shall be referred, pursuant to the provisions of the
Revised Statutes, the prevailing party shall be entitled to
recover the fees of referees and witnesses and other necessary
disbursements to be taxed according to law."
The first thirteen chapters of our present code, " The Code
of Civil Procedure," took effect (chap. 318, Laws of 1877)
September 1, 1877. That act (chap. 318, Laws of 1877) was
passed May 22, 1877, and it suspended the operation of the
present Code, known when first enacted as " The Code of
Remedial Justice," from May 1, 1877, the date when it orig-
inally took effect, to September 1, 1877, as just stated. The
general repealing act of " The Code of Procedure " was passed
June 5, 1877, and it declared among other things : " Section 1.
The following acts and parts of acts heretofore passed by the
legislature of the state are hereby repealed, to wit : * * *
4. All of the Code of Procedure, except the following sec-
tions and parts of sections thereof, to wit : * * * Sections
three hundred and eleven to three hundred and twenty-two,
both inclusive."
As then, section 317 of the old Code was expressly retained
by the repealing act of 1877, it is clear that, after the first
thirteen chapters of our present Code took effect, and until
at least the subsequent nine chapters of the present Code,
262 HOWARD'S PRACTICE REPORTS .
Overheiser agt. Morehouse.
known as " Part II of the Code of Civil Procedure," took
effect (September 1, 1880), "the prevailing party" in a
reference of the.character of the present, recovered " the fees
of referees and witnesses and other necessary disbursements
to be taxed according to law." In an action, however, against
executors or administrators, even though a recovery was had,
110 costs were taxable unless the court so ordered, upon the
ground either that the defendant had refused to refer the
claim or that he had unreasonably neglected or resisted pay-
ment (2 Edm. ed. -of R. S., 92, sec. 41). By sections 1835,
1836 and 3246 of such " Part II of the Code of Civil Pro-
cedure," the rule for the recovery of costs " in an action,"
prescribed by section 317 of the old Code, was preserved.
The present Code, however, neither in the section referred to
nor in any other part, expressly states whether or not the
remaining provision of section 317 of the old Code, which
provided that in references of the character of the present,
the prevailing party should " recover the fees of referees and
witnesses and other necessary disbursements to be taxed accord-
ing to law," is still in force. It is true that section 3246 of
the present Code is a substantial re-enactment of section 317
of its predecessor, with the clause of that section providing
for disbursements in references of the character of this omitted,
but as such omission merely, without a declaration that the
new section is a substitute for or a repeal of the old, does not
make any inconsistency between the two, it follows that the
new section is no repeal by implication of any part of the old.
The present section (3246), and those to which it refers (1835,
1836), only give the rule in regard to costs " in an action" and
as the proceeding had in this case is not " an action," but is
one upon a (to use the exact language of section 317 aforesaid)
" claim against a deceased person * * * referred pur-
suant to the provisions of the Revised Statutes," the two are
not in the least inconsistent. The correct view, therefore, is
that the adoption of part two of the present Code did not
repeal the provision referred to in section 317 of the old
HOWARD'S PRACTICE REPORTS. 263
Overheiser agt. Morehouse.
(Potter's Dwarris on Statutes, 156, 157 ; Wallace agt. Bennett^
41 J3arb., 92, 95, 96, and cases there cited ; Matter of Curser,
89 N. Y., 401).
Part two of the present Code passed the legislature May 6,
1880. Four days afterwards (May 10, 1880) chapter 245 of
the Laws of 1880 was passed. By its first] section (subd. 4,
page 369), the old Code was repealed. If that act had
contained nothing more, very clearly the whole of the old
section 317 would have been swept away. It did not, how-
ever, stop with a simple repeal, but it further provided (pages
374, 375) : " Sec. 3. The repeal effected by the first section of
this act is subject to the following qualifications : * * *
8. It does not affect the right of a prevailing party to recover
the fees of referees and witnesses and his other necessary dis-
bursement* upon the reference of a claim against a decedent,
as provided in those portions of the Revised Statutes left
unrepealed after this act takes effect."
The point now distinctly presented is, do the words, " as
provided in those portions of the Revised Statutes left unre-
pealed after this act takes effect," refer to " the fees of referees
and witnesses and his other necessary disbursements," or do
they refer to " the reference," of which the reservation also
speaks ? In other words, was it the intention of the clause
to retain the provision in old section 317, giving referees' fees
and other disbursements in a reference, which had taken place
according to and under the provisions of the Revised Statutes ;
or did it intend to give or retain referees' fees only in those
cases in which the Revised Statutes gave them ? Miller agt.
Miller (32 Him, 481) and Daggett agt. Mead (11 Abb. N. <?.,
116) hold to the latter view. Sutton agt. Newton (2 How.
[N. ], 56) and flail agt. Edmunds (67 How., 202) to the
former. Which of these two views is correct ?
Certainly, as Miller agt. Miller is a decision of the general
term of this department, it should be followed unless it is
clearly erroneous. The Code, however, has been so often
changed, and those changes are so often hidden in the maze
264 HOWARD'S PRACTICE REPORTS.
Overheiser agt. Morehouse.
of conflicting statutes, that hardly the same force can be
attached to a decision as to its precise condition upon a
single point, as there must be to one enunciating a legal
principle. Where the special term differs in the former
case, and such difference amounts to a conviction, it cannot be
disrespectful to submit to the appellate tribunal the reasons
of a dissent, to the end that the questions in dispute may be
thoroughly discussed and more deliberately considered. When
the case of Sutton agt. Newton was decided, the attention of
the judge writing this opinion was directed by eminent coun-
sel, not interested in that case and occupying a judicial posi-
tion, to Hall agt. Edmunds and the various statutes therein
referred to, as being a better exposition of those statutes than
Miller agt. Miller. A. careful examination of the question
then made induced the decision in Sutton agt. Newton, with
the conviction that the view expressed in the opinion was so
clear that the question should be again presented to the appel-
late tribunal. The disbursements, which that opinion holds
the prevailing party in that case was entitled to as mat-
ter of right, were also properly allowable with die costs
generally, upon the ground that the claim had been
unreasonably resisted, and therefore no possible injustice
could be done by giving the writer's views upon the
question now under consideration. The point now,
however, is presented somewhat differently. The conclu-
sion has been reached in this case that the claim of the plain-
tiff was not unreasonably resisted, and therefore the propriety
of following Miller agt. Miller is more forcibly presented
than it was in Sutton agt. Neioton. A careful study, however,
has so thoroughly convinced the judge, to whom the present
case has been submitted, that the decision referred to cannot
be upheld, that he has been constrained to follow his own
convictions, giving his reasons therefor, thus submitting the
problem to the appellate tribunal, whether or not Miller agt.
Miller shall be adhered to. The question is certainly
approached with feelings of the highest respect for the mem-
HOWARD'S PRACTICE REPORTS. 265
Overheiser agt. Morehouse.
bers of the general term, and with the conviction that they,
in common with the writer, have no other desire than the
attainment of right.
Prior to an analysis of the saving clause in the repealing act
of 1880, which will be presently attempted, it is well to bear
in mind what has been established in the preceding part of
this opinion, to wit : 1st. By the old Code ( 317), in refer-
ences of the character of the present, " the prevailing party "
was " entitled to recover the fees of referees and witnesses
and other necessary disbursements to be taxed according to
law." 2d. When the first thirteen chapters of our present
Code took effect, by the repealing act of 1877 (chap. 417,
Laws 1877), section 317 was continued in force. 3d. When
the law was passed (May 6, 1880) adopting the remaining nine
chapters of the present Code, said section 317 was still in
force. It also remained in force after their adoption, because
the readoption and the re-enactment of old statutes do not, in
the absence of a clause repealing the old, or of an express
declaration that the new is a substitute for the old, abrogate
them, for there is no inconsistency ; and the omission to re-en-
act a part has only the effect to allow such omitted part to
stand upon its original enactment. This consequence, and
this only, followed from the adoption of part two of the pre-
sent Code. Sections 1835, 1836 and 3246, were simply
redeclarations that all the provisions of said section 317, except
the clause providing for the recovery of the disbursements
aforesaid, should be in force, but the silence of our law-makers
in the chapters referred to did not repeal a clear and positive
provision in the old statute upon a subject which the new
legislation did not profess to touch. In other words, part
two of the Code provided for the recovery of costs " in an
action" against an administrator or executor, but it said
nothing about the old section 317, nor about "the fees of
referees and witnesses and other necessary disbursements"
which such section gave as matter of " right " to " the prevail-
ing party," when " any claim against a deceased person " had
VOL. II 34
266 HOWARD'S PRACTICE REPORTS.
Overheiser agt. Morehouse.
been " referred pursuant to the provisions of the Revised
Statutes." Unless there was an intention to repeal, there was
no occasion to speak silence was the continuation of the
old law {Potter's Dwarris on Statutes, 156, 157; Wallace
agt. Bennett, 41 Barb., 92, 95, 96, and cases there cited ;
Matter of Curser, 89 N. Y. 401).
We now understand the situation of the question under
discussion, when four days after the adoption by the legislature
of part two of the present Code, that body passed the repealing
act of 1 880. The effect produced by the adoption of the nine
concluding chapters of the present Code was the preservation
of the old rule in regard to costs " in an action " against an
administrator or executor. For the purpose of maintaining
such old rule the existence of the old section 317 was no
longer necessary sections 1835, 1836 and 3246 were full and
ample to effect that object. The old section was therefore
repealed, but when that was done it became necessary, unless
its total repeal was intended, to declare the fate of the
remaining portion of such section, in regard to which absolute
silence had up to that time been maintained. It was therefore
expressly further said that such repeal did " not affect the
right of a prevailing party to recover the fees of referees and
witnesses and his other necessary disbursements upon the
reference of a claim against a decedent, as provided in those
portions of the Revised Statutes left unrepealed after this act
takes effect." Can anything be plainer? It was not the
power to award "costs" in certain cases upon the establishment
of sundry other facts, which was to remain unaffected, but the
" right " (i. ., the award thereof as a consequence of the
recovery), to " the fees of referees and witnesses and his other
necessary disbursements" by the prevailing party. The exact
similiarity of the language of the saving clause of the repealing
act just quoted with that of section 317 aforesaid proves that
the framer of such saving clause penned it with his eye upon
the provision of the section we are discussing. The identity
of the language used by both can be accounted for upon no
HOWARD'S PRACTICE REPORTS. 267
Overheiser agt. Morehouse.
other hypothesis. When, therefore, in order to specify in
what eases the " right " to such disbursements was given, there
were added to those giving them, these further and additional
words, to wit, " upon the reference of a claim against a
decedent, as provided in those parts of the Revised Statutes
left unrepealed after this act takes effect," the meaning was
unmistakable. It was not the right to sundry disbursements,
given by the Revised Statutes, which was preserved, but
the " right of a prevailin g party * * * upon the
reference of a claim against a decedent, as provided in
those portions of the Revised Statutes left unrepealed," to
the particular disbursements specified in the repealing act,
was retained. If there was nothing to guide us but the words
and structure of the sentence the meaning would be unmis-
takable. When, however, we add to the language used the
further arguments that the Revised Statutes never, on such a
reference, gave either costs or disbursements to the prevailing
party as a " right" but only empowered the court in its dis-
cretion, upon certain facts being proved, to give " costs "
generally, and that the section of the Revised Statutes (2
Edm. ed., 91, sec. 37) which gave to courts in references of
this character the " power to adjudge costs, as in actions
against executors" was, with the entire section which con-
tained it, expressly retained and preserved by the same
repealing act (chap. 245, Laws of 1880, sub. 3 of sec. 1,
p. 368), the meaning becomes too clear for discussion. Under
such circumstances to say, as was hastily said in Miller agt.
Miller (32 Hun, 481), that the sentence in the repealing act
" has reference simply to provisions of the Revised Statutes,"
is to declare that such sentence has no meaning whatever.
An exception is only necessary when without it the thing
excepted would be affected. If any part of the Revised
Statutes, left unrepealed by the repealing act, gave the dis-
bursements saved by such act, it was unnecessary to declare
that such part of the Revised Statutes was unaffected by
the repeal. To make that declaration is equivalent to an
268 HOWARD'S PRACTICE REPORTS.
Overheiser agt. Morehouse.
announcement that what is in fact unrepealed is unre pealed.
Neither could the clause have been intended to preserve the
"right" to disbursements given by the Revised Statutes,
because such statutes, neither then or at any time, gave them ;
nor could its intent have been to preserve the power in the
court to award such disbursements as a part of the costs in
those cases in which, if it had been an action, they could have
awarded them, because the power " to adjudge costs, as in
actions against executors," was expressly retained by the same
act ; and as the right to the disbursements specified in the
saving clause of the repealing act, together with others, fol-
lowed the right to costs in an action of which they form a
part (Code, sec. 3256), it was unnecessary to say a word
further upon that subject. Unless, therefore, the court is
prepared to say that the clause is wholly useless, it must be
held, as its plain language clearly requires, that the referee's
fees, the witnesses fees and disbursements, are still recoverable
by the prevailing party in a reference of this character as they
have been for many years. The equity of protecting a suc-
cessful party against his necessary disbursements in the
establishment of his claim, which are often greater than the
recovery, was as great when the act of 1880 was passed as it
had ever been. No complaint had been made against its
wisdom ; and when the right to recover sundry disbursements
is plainly and unmistakably retained or given, it is not a wise
exercise of judicial power to render inoperative clear words,
even though in the attempted preservation or gift a reference
was made to a wrong statute, as the one previously conferring
the same right (The People agt. Lucas, 25 Hun, 610, see 611).
No one can doubt that the intention was to preserve " the
right of a prevailing party to recover the fees of referees and
witnesses and his other necessary disbursements upon the
reference of a claim against a decedent," for the act so declares
and the exact words have just been quoted. If the grammat-
ical construction of the sentence giving them is, as the general
term assumed in Miller agt. Miller, that the framer of the
HOWARD'S PRACTICE REPORTS. 269
Overheiser agt. Morehouse
plause supposed they were given by the Revised Statutes, and
therefore made the section to read as if the Revised Statutes
gave them, that mistake could, not nullify their effect. The
" right " to such disbursements, as one flowing from the
recovery, as distinguished from the power to award them, is
preserved, and courts should so hold without attempting to
nullify them by a strained construction which makes the sen-
tence meaningless. But there was no such mistake. The
Revised Statutes, it is true, gave the court power to award
" costs" and that was preserved, as is elsewhere shown, in the
same act, but they never gave " the right " to such " costs "
upon a recovery, and there never was any pretense of the
power to award any disbursements without awarding costs
generally in a proceeding of this character until section 317
of the old Code gave such disbursements as a " rig /it " to
"the prevailing party. In construing a statute it is to be
assumed that the legislature knew the exact status of the
statutes, and therefore, when they gave or retained the "right "
of " the prevailing party " to them, and used the exact words
of the statute which originally gave them, they meant to pre-
serve them as there given ; and the reference to the Revised
Statutes is to them as giving the mode of procedure the
reference and not the disbursements, which are retained.
The excepting and saving clause of the repealing act is too
clear for doubt. Its author evidently wrote it, as before stated,
with an open eye resting upon section 317 of the old Code.
This the identity of the language proves, and that both give
the same disbursements is, as it seems to me, too clear for
discussion and debate.
The opinion would close at this point if the counsel of the
defendant had not, as he properly did, called the attention of
the court to the opinion of judge BOCKES in the unreported
case of Dodd agt. Dodd (decided by the general term of this
department), in which the writer of this opinion as a member
of such court concurred. The fact, however, that the judge
to whom this case lias been submitted has once given an
270 HOWARD'S PRACTICE REPORTS.
Overheiser agt. Morehouse.
opinion to the contrary of that herein expressed, is no answer
to the arguments now presented, 2^ay, duty requires him to
correct and point out his own error with the same freedom
and candor that he would exercise were he dealing with the
supposed error of another.
The explanation is simple. Dodd agt. Dodd was not a case
argued orally. It was submitted to the court upon the printed
case and points. Mr. D. S. Potter was counsel for the plain-
tiff, and Mr. P. C. Ford for the defendant. The special term
(judge J. POTTER presiding) had allowed the plaintiff full costs
upon the ground that the claim had been unreasonably
resisted. In his points (and they are now before the writer)
the counsel for the plaintiff nowhere discusses the question of
his right to disbursements under section 317 of the old Code,
nor is any reference made to the repealing act of 1877 nor to
that of 1880. The aim of the points is to show that "costs
are in the discretion of the court," and that they were in
the discretion of the court because the Revised Statutes gave
the court the power to " adjudge costs as in actions against
executors," an$ also because the reference was a "special pro-
ceeding," and not " an action." He further claimed that
" section 3240 of the Code provides expressly that costs in a
special proceeding, not specially regulated by the Code itself,
may be awarded to any party in the discretion of the court.
Costs being in the discretion of the court to give or withhold,
the appellate court will not reconsider the question." The
points then proceed to argue that the discretion of the special
term was wisely exercised.
The counsel for the defendant argues in his points (they
are also before the writer) that costs should not have been
allowed because, among other reasons stated, the claim was
not unreasonably resisted. There is no allusion to the right
to disbursements except this : " Under the old Code, the pre-
vailing party in such proceedings was entitled to recover his
disbursements, even though he might not be entitled to costs ;
HOWARD'S PRACTICE REPORTS. 271
Overheiser agt. Morehouse.
but this provision has been omitted in the new Code, so that
disbursements must now follow costs."
The case was assigned to brother BOCKES to examine. The
plaintiff, as has been said, did not claim disbursements apart
from costs, and made no allusion to the condition of the law
upon the subject. The defendant, also, did not refer to the
statutes at all, and only insisted that no disbursements sepa-
rate from costs could be recovered because the provision in
the old Code giving them had " been omitted in the new Code."
The learned and careful judge, to whom the case was com-
mitted for examination, was thus easily led into error.
Through several pages in an exhaustive opinion he demon-
strates that the plaintiff should not recover costs. When he
reaches the question of disbursements, having been thrown off
his guard by the want of presentation of that question by the
plaintiff's counsel, he simply adopts the erroneous view of
defendant's counsel, saying : '' Under the former Code (sec.
31 7) the plaintiff would have been entitled to recover ' the
fees of the referee and witnesses and other necessary disburse-
ments to be taxed according to law,' although not entitled to
full costs, as in an action (Penkernelli agt. Bischoff, 2 Abb.
N. C., 107 ; Powell agt. Fry, 19 Hun, 600). Such allowance
would seem unjust in a case like the present, when the entire
contest was over an item found to be fictitious. But the
clause of section 317 of the former Code above cited is omitted
from section 1836 of the Code of Civil Procedure, which
latter section supersedes the former and controls the case now
before us (See, also, sec. 3246)." This is all the opinion says
upon the question.
The conclusion stated by the judge, that the omission from
the new Code was a repeal of the clause giving disbursements
in a reference of this character as a matter of " right," was
erroneous, as has been shown. It looked plausible, and it was
in the points submitted an uncontroverted proposition. Errors
in judges, into which they are sometimes led by the oversight
of counsel, are pardonable. A judge is a man, liable to err,
272 HOWARD'S PRACTICE REPORTS.
Nelson agt. Tenney.
and when so learned and acute a jurist as judge BOCKES fell
into this error, it was but reasonable to suppose that another
judge, who had the same reasons to err, and to those in addi-
tion the opinion of a learned judicial brother sustaining the
same error, would concur.
Under the circumstances narrated the concurrence of the
writer in Dodd agt. Dodd was given. None of the questions
which have been considered were discussed. Nay, the counsel
for the plaintiff by his silence, and by his line of argument,
conceded that the disbursements apart from the costs were
not recoverable ; and a brother judge, who had examined the
question fell into an error. The opinion of judge BOCKES
was carefully read upon the main question discussed, but that
in regard to disbursements, substantially conceded in the
points, was not considered as it should have been. The case
had been entirely forgotten when the opinion in Sutton agt.
Newton was written. Had it been remembered, it would not
have changed the result, but would only have induced the
fuller, and it is hoped more satisfactory, discussion of the
question, which has now been attempted.
The motion for costs generally and for an extra allowance
must be denied, but the order should provide that the plain-
tiff shall recover the fees of the referee and witnesses and his
other necessary disbursements, to be taxed according to law.
SUPREME COURT.
ALFRED NELSON, as executor, &c., of FRANZ O. ERICSON,
deceased, respondent, agt. SUTHERLAND TENNEY, as assignee
of ALEXANDER H. FINDLAY, appellant.
Assignment Surviving partner No power without consent and concurrence
of the representative of deceased partner to make assignment for benefit of
creditor* of the firm with preferences When court of equity will take posses-
sion of estate and appoint receiver.
A surviving partner has no power without the consent and concurrence of
the representatives of the deceased partners to make an assignment to a
HOWARD'S PRACTICE REPORTS. 273
Nelson agt. Tenney.
trustee for the benefit of creditors of the firm, and to create preferences
among the creditors by such an assignment ; and the attempt to do
that is such an abuse of the surviving partner's powers as justifies the
representatives of the deceased partner in applying to a court of equity
to take possession of the estate by a receiver.
Fvrst Department, General Term, July, 1885.
Before DAVIS, P. J., BRADY and DANIELS, JJ.
APPEAL from order of the special term appointing a receiver.
John Lindley, for appellant.
Francis Forbes, for respondent.
DAVIS, P. J. This action is brought by Alfred Nelson,
as executor of the last will and testament of Franz Oscar Eric-
son, to set aside an assignment with preferences made by
Alexander D. Findlay to the appellant Tenney. Findlay and
Ericson were copartners, carrying on the business of tailors in
the city of New York, under certain articles of partnership, a
copy of which is annexed to the complaint. On the 22d of
June, 1884, Ericson died, leaving Findlay him surviving, and
leaving a last will and testament which nominated the plain-
tiff, Alfred Nelson, as executor, and which was subsequently
probated, and letters testamentary thereon were duly issued to
the plaintiff. Findlay, as surviving partner, continued in
possession of the store and the stock in trade, and managed
and carried on the business for the purpose of disposing of the
stock and collecting the debts owing to the firm until the 20tb
day of August, 1884, at which time he made an assignment
to the appellant Tenney without consultation with the execu-
tor and without his consent. The assignment prefers two
creditors of the firm in the sum of $4,500, and directs that
after their payment the surplus in hand be applied to the
payment of the other debts of the firm ratably to their several
amounts. The appellant accepted tho trusts of the assign-
ment and took possession of the property. The appellant
demurred to the complaint, and the order appealed from
was made upon the pleadings and upon affidavits.
VOL. II 35
274 HOWARD'S PRACTICE REPORTS.
Nelson agt. Tenney.
Two questions have been argued on this appeal, first,
whether the surviving partner of a firm has power to make
an assignment of the firm's assets to a trustee creating prefer-
ences among the creditors, and, secondly, whether the executor
or administrator of a deceased partner can maintain an action
to set aside such an assignment.
As to the first of these questions, we are of opinion upon
a careful examination of the authorities that a surviving
partner has no power, without the consent and concurrence
of the representatives of the deceased partner, to make an
assignment to a trustee for the benefit of the creditors of the
firm, and to create preferences among the creditors by such
an assignment. Whether it can be done with such assent is a
question not now before us. It is undoubtedly true that a
surviving partner takes by virtue of his title as partner the
assets of the firm with authority, for the purpose of closing
up the affairs of the partnership, to sell and dispose of or col-
lect the same and convert them into money and apply the
same in payment of the partnership debts (Colly er on Part.,
sees. 123-129 ; 3 Kept, 37; 1 Parsons on Cont., 183; Story
on Part., sec. 346) ; and in doing this he has the right, in the
exercise of his discretion, to pay the debts of the firm in full
or in part in such order as he shall deem just and equitable,
although his doing so may operate to give preference to the
creditors whom he thus pays. Jphat this is the law must be
regarded as settled in this state by Loeschiyk agt. Hadjield
(51 N. Y., 660, reported below, 5 RoU., 26; 19 Abb. TV.,
169), and Cushman agt. Addison (52 N. Y., 628).
In doing this he is acting in pursuance of the authority
existing in him as surviving partner. He is liable, both as
surviving partner and individually, for all the partnership
debts, and his right to the possession and control of the
property for the purpose of paying and extinguishing the
copartnership debts entitles him to the exercise of his own
discretion in the application of the assets or other proceeds
for that purpose (Egbert agt. Wood, 3 Paige, 517). He is no
HOWARD'S PRACTICE REPORTS. 275
Nelson agt. Tenney.
more a trustee in any strict sense of that term for the credit-
ors of the firm than is any other debtor for his creditors,
and their remedies against him in the collection of the debts
of the firm are precisely the same as those which existed
against the firm prior to its dissolution by the death of one
of its members. But as between him and the representative
of the deceased partner, a clear and well defined trust exists
which devolves upon him duties arid obligations in respect
of the disposition and application of the assets of the firm
and their proceeds which equity recognizes, and when abused
or evaded will interpose to enforce. The duties of that
trust are not such that they cannot be performed by agents,
servants or attorneys acting under his control or direction.
He may, therefore, employ clerks and attorneys and authorize
them to act for him and on his behalf in performing those
duties, precisely as the firm might have done for the pur-
pose of closing its affairs. But it is a very different question
whether he can by an assignment of the property of the
firm transfer the trust to another trustee in the manner
attempted to be done in this case, imposing upon that
trustee duties which operate as preferences among the
creditors of the firm and over which the surviving partner
has no control. Such an act is an entire abnegation of the
duties of the trust existing between himself and the repre-
sentatives of the deceased partner, and if it be attempted to
be done without the consent of such representatives equity
will, we think, step in to prevent the consummation of the
attempt, and take possession of the property through its
receiver, for the purpose of distribution among the creditors
in such manner as shall be just and equitable.
The plaintiff in this case is the sole representative of the
deceased partner, as executor of his last will and testament.
He shows that the assignment by the surviving partner was
made without consultation with him, and without his knowl-
edge or assent ; and that he has transferred the entire remain-
ing assets of the firm to the appellant, and thereby sought to
276 HOWARD'S PRACTICE REPORTS.
Nelson agt. Tenney.
transfer to him the duties of the trust existing between the
surviving partner and the executor. In such a case we think
a court of equity has a clear right to intervene and, by the
appointment of a receiver, proceed to close up the business
of the copartnership, and discharge its duties in such manner
as will protect the rights of the legal representatives of the
deceased partner. This must be the result, we think, spring-
ing out of the general rule as laid down by Mr. justice STORY,
in Story on Partnership (sec. 344), where he says, after speak-
ing of the general powers of receivers : " However, if there
be any danger of abuse or positive misapplication of funds
by the surviving partner, a court of equity will interpose and
restrain it by injunction, and even appoint a receiver upon
the application of the representatives of the deceased."
The surviving partner, being a trustee for the settlement of
the estate as between himself and the personal representatives
of the deceased partner, cannot pass his whole duty over to
another trustee without the consent of such representatives,
and the attempt to do that is, in our judgment, such an abuse
of his powers and duties as justifies the representatives of the
deceased partner in applying to a court of equity to take pos-
session of the estate by a receiver. It is an attempt to escape
from his obligations as a trustee for such personal representa-
tive. In disposing of this appeal we are not called upon,
and therefore do not pass upon the question whether such
an assignment is valid as between the surviving partner and
the creditors of the firm. That question depends upon other
principles, and, besides, no such creditor is a party to this
action, and the plaintiff does not represent such creditors.
We think, however, enough was shown in this case to justify
the court below in making the order appealed from, appoint-
ing a receiver, and therefore the order should be affirmed,
with the usual costs, to abide the event of the suit.
DANIELS. J., concurs.
HOWARD'S PRACTICE REPORTS. 277
Pakus agt. Racy.
K Y. COMMON PLEAS.
SOLOMON L. PAKAS, respondent, agt. MARY RACY, an infant,
&c., appellant.
Replevin When it cannot be maintained Erroneous verdict not cured by
judgment An infant's contract voidable.
To entitle a party to maintain a replevin he must have had title to the
property or the possession of it, or at least the right of possession.
Where the plaintiff's claim to the right of possession is founded upon
an agreement alleged to have been made with the defendant, who is an
infant, such alleged agreement being that if the horse, &c., was awarded
to her she would give it to the plaintiff :
Held, that such agreement, if it had been made, was voidable, and the
horse having been awarded to be delivered to her, the plaintiff, under
such an agreement, had no right to the possession of it.
In a replevin suit the verdict of the jury should fix the value of the
property at the time of the trial, as required by the statute. This
omission cannot be supplied by the court by inserting in the judgment
a sum of money as the value of the property.
General Term, June, 1885.
Before DALY, C. /., and ALLEN, </.
William A. Keeler and Jacob Gross for appellant.
Simon Greenbaum, for respondent.
ALLEN, J. This is an appeal from a judgment rendered
on the verdict of the jury in the district court of the city of
New York for the seventh judicial district. This action,
which is an action of replevin, was brought to recover posses-
sion of one black horse, saddle and bridle, to which the
plaintiff claims title. The jury, under the direction of the
court, returned a general verdict for the plaintiff, but did not
assess the value of the property claimed nor award damages
for its detention. On' this verdict the court rendered judg-
278 HOWARD'S PRACTICE REPORTS.
Pakas agt. Racy.
ment for the return of the property, and assessed its value at
the sura of $150.
The defendant received the property in question from the
Olympian Club. It appears that the Olympian Club awarded
it to her as a prize for the representation of the statue of the
" Goddess of liberty enlightening the world," in which
representation Miss Racy, the defendant, represented the
goddess of liberty. The award by the committee of the
Olympian Club, as appears from the testimony, was in this
form : " Horse, saddle and bridle awarded to the Bartholdi
statue, Miss Racy."
The plaintiff claims title to the property under an agree-
ment alleged to have been made by him with the defendant
that in the event of her winning the prize she would give the
property to him. We think the plaintiff has no cause of
action. The Olympian Club delivered the property to the
defendant, and parted with its title to her for the purpose of
conveying that title. The plaintiff never had title to the
property, nor the possession of it, nor the right of possession.
One of these conditions at least was indispensable to authorize
the plaintiff to maintain a replevin.
The plaintiff's claim to the right of possession is founded
upon an agreement alleged to have been made with the
defendant, who is an infant, which agreement, therefore, is
voidable at her election, and she did so elect, by pleading her
infancy as a defense to the action (Tyler on Infancy and
Coverture, p. 76).
The alleged agreement was that if the horse was awarded
to her, she would give it to the plaintiff. She denied any
such agreement, but if it had been made, it was voidable ;
and the horse having been awarded to be delivered to her,
the plaintiff, under such an agreement, had no right to the
possession of it.
Apart from the question of the right of the plaintiff to
recover in this action, it is clear that the judgment is irregular.
The verdict of the jury should have fixed the value of the
HOWARD'S PRACTICE REPORTS. 279
Van Wyck agt. Horowitz.
property, at the time of the trial, as required by the statute.
The court cannot supply the omission by inserting in the
judgment a sum of money as the value of the property.
The judgment should be reversed, with costs.
DALY, C. J . , concurred.
SUPREME COURT.
JAMES P. VAN WYCK agt. ADOLPK HOROWITZ.
Injunction Trade-mark The right of a party to use another's name upon
his cards, &c., by saying " late with," &c.
A person who has been a hired workman of another, a mere employe for
a time, afterwards engaging in the same business of his former
employer and occupying a store in the same city, has no right to use
the name of such former employer upon his cards, signs, &c., by saying
"late with," &c., and such use will be restrained by injunction.
Ulster Special Term, June, 1885.
MOTION to continue injunction.
F. J. Collier, for plaintiff.
J. Rider Cady, for defendant.
WESTBROOK, J. The plaintiff James P. Van Wyck, who
is the owner of a watch and jewelry store and business in the
city of Hudson, asks for the continuation of an injunction
restraining the defendant Adolph Horowitz, who is the pro-
prietor of a similar and rival establishment in the same city
and in the same street, from using the plaintiff's name in and
upon his advertisements and signs so as to draw to his own
store customers and business from that of the plaintiff.
As to the substantial facts there is no dispute. The defend-
ant in his answer admits and alleges " that the plaintiff above
named occupies as a jewelry store in said city of Hudson the
280 HOWARD'S PRACTICE REPORTS
Van Wyck agt. Horowitz.
ground floor of a building upon Warren street in said city,
which has been for many years last past used as a jewelry
store and has a distinctive and well known repute as such.
That said building is next to a large and prominent structure
known and used as a Presbyterian church, which stands to the
east of plaintiff's said store facing a public square in said city,
known as Central square. That plaintiff had displayed at and
for a longtime prior to the commencement of this action upon
the front of his said store a large wooden sign upon which
are plainly painted tlie words James P. Van Wyck."
The defendant then proceeds to say that he never resided
in Hudson prior to November 1, 1883, and that from that
date to May 1, 1885, he was employed by the plaintiff as a
workman up*on jewelry and in the repair of watches. That
he thus became acquainted with plaintiff's customers, many
of whom do not know his name, and that to inform such cus-
tomers and the public generally who it was that had opened
a new store of a character similar to that kept by the plaintiff,
he had in his cards and advertisements declaring his business,
and upon a sign in his store placed the words " late with
Jaines P. Van Wyck" It is this use of his name by the
defendant which the plaintiff seeks to restrain.
It will be observed that the answer of the defendant makes
no secret of his intent, which evidently is to connect himself
with the reputation of the plaintiff and his business, and thus
divert to himself a part of the patronage which the reputation
of the plaintiff's establishment attracts to it. The statement
of the case evokes instant condemnation from the hearer, and
an analysis of the thoughts which produce such instantaneous
conclusions will show that it rests upon sound legal principles
as well as upon the conscience of the hearer.
The defendant concedes that the plaintiff's name is of value
to the business of a jeweler and watchmaker in the city of
Hudson. It is, and has been for many years displayed as a
conspicuous sign, upon a conspicuous building, located in a
central spot in the city, and made still more conspicuous by
HOWARD'S PRACTICE REPORTS, 281
Van Wyck agt. Horowitz.
a large church facing a public square, in which the plaintiff
carries on such a business. Conceding the value of that name,
that of the plaintiff, to the business in which both of these
parties are engaged, is its owner, who has given it such pub-
licity by years of attention to his calling and pursuit, and by
the expenditure of large sums of money in maintaining so
expensive and conspicuous an establishment, in so prominent
a point in the city of Hudson, entitled to its full benefit and
value, or can the defendant turn a part of its benefit and
value to himself by coupling it with that of his own ?
The question is not difficult. That which belongs to a
person is his own, and nothing is more completely the prop-
erty of a man than his name. No person can use it without
its owner's consent, and the use of that of the plaintiff's to
make conspicuous the rival business and name of the defend-
ant is as clear a violation of the property rights of the plain-
tiff as it would be for the defendant to take some article of
personal property belonging to the plaintiff, a tall pole, for
example, which will illustrate the act of the defendant, who
uses the plaintiff's name to elevate and call attention to his
own, and display upon it the name and business of the
defendant.
The view thus expressed may at first be deemed radical,
but it seems to me to be a clear deduction from fundamental
principles. Of what avail is character or long continued
business, large expenditure to make it known, and a name
more strictly and properly property than a trade-mark if all
can be turned, or partially turned, to another's benefit by
tacking that name to or combining it with that of another
individual so as to conspicuously advertise that to or with
which it is so tacked or combined ?
If the defendant, in his business cards, advertisements and
signs, had used a trade-mark belonging to the plaintiff to adver-
tise himself and a business of his own, which was a rival to
that owned by the plaintiff which the trade-mark represented,
the violation of the rights of the owner of the trade-mark
VOL. II 36
282 HOWARD'S PRACTICE REPORTS.
Van Wyck agt. Horowitz.
would be conceded. The present case is stronger. The name
of the plaintiff represents himself and his business only, and
is even more fully and completely his than a trade- in ark, and
its use, therefore, by the defendant to give character to his
own cannot be sustained. It is, unless its owner's consent has
been obtained, just as unlawful as the wrongful using, as has
been before stated, of another's personal property. The dis-
tinction between the two cases the use is actual in both
is physical only. The one takes a physical object or thing,
the other takes and uses not a physical object or thing, it is
true, but a something which, though not tangible, is as really
and completely property as the other. In short, the so-called
radical thought is simply the enunciation and application of
the. fundamental principle that one man cannot lawfully take
and use the property of another without and against the con-
sent of its owner.
There is another thought in this connection which, though
perhaps covered by the line of argument just presented, is
still of sufficient importance to warrant a separate statement.
The defendant in his answer also expressly concedes that
"the jewelry store" owned by the plaintiff "has a distinctive
and well known repute as such." This repute of his business
is also clearly the property of the plaintiff, with which the
defendant should not intermeddle. It has not a distinct physi-
cal form, it is true, as an article of personal property has, but
its existence and power, nevertheless, are exhibited in results
to be seen, and which are of great value to its owner. If the
defendant helped by his service to build up the reputation of
that store, the reputation thus acquired belonged to the plain-
tiff, who paid the defendant for the work and thus purchased
all the reputation flowing therefrom. When the defendant,
therefore, tells us that he wishes to appropriate a part of the
reputation to himself by telling the public I was " with James
P. Van Wyck," and therefore a part of the reputation is mine,
he attempts to appropriate to himself something which does
not belong to him, but which absolutely and completely is the
HOWARD'S PRACTICE REPORTS. 283
Van Wyck agt. Horowitz.
property of the plaintiff, as much his as any article bought
with his money or manufactured by his hands ; and because
it is the plaintiff's exclusively, and not his, the defendant can-
not be permitted to appropriate it to himself at the expense
of the plaintiff by the mode of advertising he has adopted.
The defendant's counsel, upon the argument of this motion,
contended that the mode of advertising in use by the defend-
ant cannot be restrained, because it only states a historical
fact. The difficulty with the position is that it is untrue.
The defendant in his advertisements does not tell the truth,
as his counsel argued ; and this fact makes another and further
objection to the use of the plaintiff's name by the defendant.
The advertisement is false and calculated to deceive, because
it does not disclose the entire truth. The reader of the
defendant's sign, card or advertisement, as he looks at the
words, "late with James P. Van Wyck" will interpret them
according to the notion which strikes his mind. He is not
told that the defendant was the hired workman, the mere
employe of the plaintiff, but that he was lately " with him,"
and is thus left to guess what the "with" means. The
expression is, therefore, just as liable to carry the thought to
the individual reading it that the defendant was " with James
P. Van Wyck " as a partner as an employe and, because it is
as liable and likely to deceive as to tell the truth, and must,
in fact, as often deceive as it makes a true narration, its use
cannot be justified.
The case is not at all like that of Morgan agt. Schuyler
(79 JV. I 7 "., 490), in which the parties had been partners under
the firm name of " Morgan & Schuyler," and in which, speak-
ing of the defendant, judge DANFORTH (page 495), said : " He
may lawfully describe the rooms as ' formerly occupied by
Morgan & Schuyler,' and himself as ' formerly ' a ' late ' of
that firm." The difference between the two cases is that the
defendant in the reported case had a property interest in the
name and business reputation of the former firm, of which
he was one, and the mode of advertisement suggested would
284 HOWARD'S PRACTICE REPORTS.
Van Wyck agt. Horowitz.
have told the whole and exact truth ; while in this the defend-
ant has no right of property in the name nor in the reputation
of that business which he seeks to use with his own name
and business, so as to give his own prominence at the expense
of the other ; and in its use he so tells what his counsel calls
the history of his life as to carry an untruth and to deceive as
often as it tells the truth and narrates actual history. If the
defendant had been a stove blackener, or hostler, or an errand
boy in the employ of the plaintiff, or a clerk discharged for
want of fidelity or competency, he could with just as much
truth advertise himself as "late with James P. Van Wyck."
The extreme supposed cases are put to illustrate the danger of
the counsel's position. It cannot be that a man who has sus-
tained any position towards, or had any employment from a
well-known individual, that thereby he obtains the right to
use that name in connection with his own so as to advertise
himself and his business at the expense of his former patron
and employer, and to do it in a manner which is likely to,
and often must, deceive as to the nature of the relations to
Mm. The motion to continue the injunction must be granted,
because :
First. The defendant is without authority using the plain-
tiff's name, which is the use of another's property for his own
benefit and to the injury of its owner.
Second. He is attempting to transfer to himself a part of
the reputation of the store and business of the plaintiff, which
also belong to the plaintiff as really and as truly as his name,
or the personal property of which he is the actual owner.
Third. The mode and manner of the use by the defendant
of the name of the plaintiff are such as oftentimes to deceive,
and because liable to deceive, and thus benefit the defend-
ant at the expense of the plaintiff, such use must be held
to be unlawful.
HOWARD'S PRACTICE REPORTS. 286
Matter of Lowell.
N. Y. COMMON PLEAS.
In the Matter of SAMUEL J. LOWELL, an imprisoned debtor.
Judgment debtor Discharge from imprisonment Meaning of "just and
fair " as used in statute When discharge will be denied.
A judgment debtor is not entitled to a discharge from imprisonment
under execution, where he has knowingly and intentionally expended
upon himself and family for the necessaries and luxuries of life the
money which he obtained by fraud from his creditors.
Held, also, that an investment by the debtor in real property in his wife's
name, of other moneys subsequently acquired, is in fraud of the creditor,
and will defeat a discharge on the ground that the proceedings are not
just and fair.
A pretended indebtedness to the wife for borrowed money, where no
account thereof has been kept, is no consideration for such investment
as against creditors.
Special Term, August, 1885.
APPLICATION by Samuel J. Lowell for discharge from
imprisonment under execution against his person, at the
instance of Jason S. Hoffman.
Jacob Fromme, for petitioner.
Edward P. Wilder, opposed.
YAN HOESEN, J. In the Matter of Fink (59 How. Pr.,
145), judge YAN YORST decided that the proceedings of the
imprisoned debtor had not been just and fair, because he had
spent upon his family the proceeds of property that had, to
his knowledge, been obtained by theft from the judgment
creditor. The debtor himself had not committed the theft,
but he had been informed of it before he used the avails of
the property for the support of his family. The learned
judge was of opinion that an imprisoned debtor who know-
ingly appropriates to his own use the property of which his
286 HOWARD'S PRACTICE REPORTS.
Matter of Lowell.
judgment creditor has been deprived by embezzlement, should
be deemed guilty of disposing of that property with intent
to injure and defraud the creditor, though the use that he
makes of it would be perfectly innocent if the property were
honestly his own. Judge VAN VORST in giving his opinion,
referred with approval to the decision of judge J. F. DALY
in the Roberts case (59 How. Pr., 136), in which judge DALY
had given with great clearness and force his construction of
the meaning of the words " if the proceedings of the debtor
are just and fair."
In the Matter of Fowler (8 Daly), I followed the decision
in the Roberts case, though I said that I thought judge
DALY in the Roberta case had, in some obiter observations,
misconceived the meaning of the statute.
In my opinion, an imprisoned debtor, who had never
received any part of the property that the judgment creditor
had lost through larceny and fraud, could not be said to have
disposed of that property with intent to defraud the creditor.
The rule with respect to debtors who had actually received
the property of the judgment creditor or its avails was, in my
opinion, different; for a disposition of such property with
intent to defraud the creditor might fairly be inferred when
the debtor used it for his own purposes, and in such a way as
to place it beyond the reach of the creditor. The fraudulent
disposition of the property which the law was intended to
punish must take place after the property has passed under
the control of the fraudulent debtor. Though the demand
upon which judgment was recovered were a debt fraudulently
contracted or a claim for damages for deceit, the discharge of
the debtor from imprisonment under an execution could not
be denied, unless it were shown that he had at some time made
away with his property with intent to benefit himself or his
family in the future, or with intent to injure and defraud the
creditor. The property may be disposed of before the judg-
ment creditor knows that he has been defrauded, and before
he contemplates bringing an action, but in order to bar a dis-
HOWARD'S PRACTICE REPORTS. 287
Matter of Lowell.
charge property must be disposed of by the debtor, and that
property must be his own.
In the curious case of Suydam agt. Belknap (20 Hun, 87),
the general terra of the supreme court held that if a trustee
embezzled the trust estate, he acquired no title to it, and
consequently it was not his own property that he dis-
posed of when he appropriated the trust fund to his own
use ; and for this reason they held that a discharge could not
be denied to a trustee who had converted the trust estate to
his own purposes. It may be a question whether a thief should
be permitted to escape punishment by alleging that he did
not acquire a valid legal title to the goods he stole. And it
may also be a question as to whether the trustee Belknap did
not have a legal title to the estate he held in trust. But,
waving those matters, it seems to follow from the reasoning
of the supreme court in Suydam agt. Belknap, that if Belknap
had acquired the title to the property he would not have
been discharged, though he had lost the property or spent it
before he was arrested, so that it was no longer in his power
to surrender it to the judgment creditor.
The difficulty in these cases is to discover the intent with
which the debtor has disposed of his property. There is not
in my opinion a conclusive presumption in all cases that the
debtor who obtains property fraudulently has fraudulently
disposed of it because he is not able at the time he applies for
his discharge to surrender it to his creditor. If by inevitable-
accident, or without fault on his part, he has been deprived
of the property, it cannot be said that he has disposed of it.
But if it appears that he has disposed of the property, the
question arises, with what intent ? In answering that we
apply the rule that a man intends the obvious consequences
of his own acts ; and the court must draw its conclusions as
to the intent from the facts that are in evidence. If a debtor
uses the money that he obtains by fraud in maintaining
himself and his family, knowing that the creditor must be
the loser, may not the courts infer that he disposed of that
HOWARD'S PRACTICE REPORTS.
Matter of Lowell.
property with intent to injure and defraud that creditor ? Of
course there may be circumstances that may show that the
debtor's intentions in disposing of the property were not dis-
honest, and that he had no good reason to believe that the
creditor would suffer, though the property were disposed of.
Such cases may perhaps occur, and when they do the court
will deal with them. But the statute ought not to be so con-
strued as to permit the thief and the swindler, after spending
fourteen days or ninety days on the jail limits, to snap his
fingers at the victim, and say : " It is true that I spent the
money of which 1 defrauded you in getting the luxuries and
the necessaries of life, but I have not kept any of it, nor have
I made any of it for my family or for myself. The use of
your money for rny gratification does not prove that I disposed
of it with fraudulent intent, and you cannot, if you would,
prevent my discharge."
Applying to this case the rule that I think controlling, the
discharge must be refused. Lowell obtained Hoffman's money
by false pretenses, and spent it, intending that Hoffman should
lose it and be injured by the loss. Again, he received other
moneys which he used in buying property in the name of his
wife. He and his wife are residents of New Jersey. They
were formerly residents of Massachusetts. Lowell says that
in Massachusetts he reduced to possession certain moneys that
belonged to his wife. Those moneys he used as his own.
Years afterwards he moved to New Jersey, but conducted
business in New York. Subsequent to the incurring of his
liability to Hoffman he obtained a considerable sum of money.
This money he invested in New Jersey, in the name of liis
wife. He says he did so because he wished to repay to her
the money that he had received on her account in Massachu-
setts. I see nothing to warrant the belief that he considered
himself his wife's debtor before ho determined to invest his
suddenly acquired money in her name. He says that his wife
sometimes did not know at what times he received the moneys
that belonged to her. He took them without objection on
HOWARD'S PRACTICE REPORTS. 289
Douglass agt. Macdurmid.
her part, and used them as his own. When he invested these
moneys in her name he left himself without the means of
paying his debts. Such a provision for the wife, under such
circumstances, even though the purpose of the husband was
to reimburse his wife for money of hers that he had used in
supporting her and himself, seems to me to be making over
property " for the future benefit of himself and his family."
The discharge should be denied.
CITY COURT OF NEW YORK.
DOUGLASS agt. MACDUKMID, as receiver.
Costs What to be allowed on offer of judgment for a specific sum, wit?i interest
and costs Code of Cwil Procedure, sections 3251, 420, 788.
In an action upon contract, where the amount due is capable of compu-
tation, and may be easily ascertained in that way, and the defendant
serves an offer of judgment for a specific sum, with interest and costs;
and after the offer is made botli parties serve- notice of trial, after which
time the plaintiff accepts the offer, he is only entitled to costs before notice
of trial fifteen dollars. No application to the court was necessary,
and but fifteen dollars are recoverable.
Where the action is against a receiver, and the plaintiff has to obtain
.eave to sue the receiver, he is not entitled to costs as upon application
to the court.
Special Term, July, 1885.
Me ADAM, C. J. Section 3251 of the Code provides that
costs awarded to a party to an action must be. * * * To
the plaintiff : For all proceedings before notice of trial, in an
action specified in section 420 of the Code, fifteen dollars.
Section 420 provides that " judgment may be taken without
application to the court where the complaint sets forth one or
more causes of action, each consisting of the breach of an
o.vn-'Hss contract to pay, absolutely or upon a contingency, a
n -r ums of money fixed by the terms of the contract, or
VOL. II 37
290 HOWARD'S PRACTICE REPORTS.
Douglass agt. iMacdurmid.
capable of being ascertained therefrom by computation only."
The present action is on contract, and the amount due is
capable of computation and may be easily ascertained in that
way. The defendant has served an offer to allow judgment
for a specific sum, with interest and costs. Upon filing the
summons, complaint and offer, " the clerk must enter judg-
ment accordingly" (Code, sec. 738). So that under these
various provisions no application to the court for judgment
was necessary, and but fifteen dollars costs are recoverable.
True, the plaintiff had to obtain leave to sue the receiver, but
this was a preliminary step to bring the action, and while
leave was necessary to enable the plaintiff to sue, it in itself
furnished no cause of action, if none existed without it, and
it did not change the character of the action nor the rules of
practice which regulated it when once properly commenced.
I was inclined to think that the plaintiff ought to have the
costs as upon application to the court, because he had to
obtain leave to sue, but the language of the Code above cited
will riot bear that construction. After the offer was made,
both parties served notice of trial, and the plaintiff who has
since accepted the offer, charges fifteen dollars for this service.
But it seems to me that he is not entitled to it. If the offer
is accepted, it is with costs to the time of the service thereof,
excepting those disbursements which necessarily follow the
acceptance of the offer (Ilenderson agt. Bannister, 1 City
Ct. Y? , 125). In other words, the plaintiff was bound either
to accept the offer as of the day when it was made. Accept-
ance by him is inconsistent with the idea of a trial which
could be had only on the theory that the offer was rejected,
and that the plaintiff had elected to take the chances of a
more favorable recovery.
The notice of trial served by the defendant does not aid
the plaintiff, because the offer prevented the defendant from
moving the case for ten days after it was served ( Walker agt.
Johnson, 8 How. Pr., 2-iO), and the notice served by the
defendant became nugatory on the acceptance of the offer.
HOWARD'S PRACTICE REPORTS. 291
Matter of Goodrich.
True, the offer did not stay the plaintiff, for it does not pre-
vent a plaintiff from taking an inquest if the cause is reached
within ten days after the offer is served (Hawley agt. Davis,
5 Hun, 642). But the taking of the inquest would be tanta-
mount to a rejection of the offer, which is not to prejudice
the defendant if not accepted (Sec. 738) The fifteen dollars
costs allowed for " all proceedings after notice and before
trial" is to compensate the attorney for the incidental labor
preliminary to a trial, such as filing the note of issue, search-
ing and watching the calendar, and to compensate for the
drawing and service of the notice of trial when one is neces
sary, but not otherwise. The acceptance of the offer is
conclusive proof that no notice of trial was nece'ssary in
this case.
Upon the entire facts, therefore, I have concluded that the
taxation by the clerk, in so far as it allows fifteen dollars as
costs before notice of trial, must be affirmed, but in so far as
it allows fifteen dollars for proceedings after notice of trial it
must be reversed.
SUPKEME COUKT.
In the Matter of the Judicial Settlement of the Account of
.ELLA D. GOODRICH, as sole acting executrix and trustee
of JOHN W. SMITH, deceased.
JSxecutors, administrators and trustees Their commissions.
Full commissions should be allowed executors or trustees on receiving
and paying out the income, notwithstanding the trustee has received
full commissions on a former accounting for receiving and investing
the principal.
first Department, General Term, July, 1885.
Before DAVIS, P. J., BRADY and DANIP:LS, JJ.
292 HOWARD'S PRACTICE REPORTS.
Matter of Goodrich.
APPEAL by the executrix and trustee from portions of the
decree of the surrogate entered upon her annual accounting.
Crane & Lockwood, for appellant.
E. T. Barilett) for respondent.
DAVIS, P. J. Two questions are presented on this appeal :
First. Whether the appellant is entitled to full commissions
as trustee on the income for the period covered bj the
accounting at the rate of five per cent on the first thousand
and two and a half per cent on the remainder. The surrogate
allowed her but one per cent on the whole. Second. "Whether
she is entitled to commissions as executrix on the amount
of proceeds of sales of certain real estate in Charleston, S. C.
The surrogate allowed her half commissions as trustee on
receipt of such proceeds. On the second of these questions
we are of opinion that the decision of the surrogate is right.
As to the first of these questions, the surrogate declined to
follow the decision of the court of appeals in the case of
Ilancox agt. Meeker (95 ^V. I 7 "., 528), claimed by the appellant
to be controlling, on the ground that that case is so far distin-
guishable from the present as not to be .controlling. In this
we think the learned surrogate was in error. As we under-
stand the decision of the court of appeals in Ilancox agt.
Meeker, it determines that where an annual income is required
to be paid periodically to a cestui que trust, the trustee has a
clear right to retain commissions from the annual income ;
and that where an account is rendered yearly in compliance
with any statute, rule or order of the court, or where annual
rests are necessary to charge the party accounting, with
interest, on the balance remaining in his hands, such account-
ing party is entitled to full commissions on each year's receipts
and disbursements. The court in that case distinctly declared
that "no sound reason exists why a trustee should not be
entitled to receive commissions on the income of an estate
which he annually pays over and accounts for."
HOWARD'S PRACTICE REPORTS. 293
Bannerman agt. Quackenbush et al.
If this be so, we see no sound reason why the rule should
not apply so as to allow full commissions on receiving and
paying out the income, notwithstanding the trustee has
received full commissions on a former accounting for receiv-
ing and investing the principal. It is not necessary to express
any opinion as to which is the better law the decision of the
court of appeals or the rule laid down by the surrogate in his
opinion because the former is necessarily controlling of our
action.
The decree of the learned surrogate must, therefore, be so
far modified as to allow full commissions upon the income
received and paid out, and with such modification affirmed,
without costs to either party.
DANIELS, J., concurred.
N. Y. COMMON FLEAS.
WILLIAM J. BANNERMAN, plaintiff and respondent, agt. JOHN
E. QUACKENBUSH et al., defendants and appellants.
Amendment of pleadings When and to what extent allowed Code of Civil
Procedure, sections 451, 1932, 1934, 1935 Factors Who are Distinc-
tion between brokers and factors and their rights and liabilities Offset.
The court may on the trial allow the pleadings to be amended by striking
out the words "and son" in the title of the action and inserting in
place thereof the name of the son.
Where a broker has possession of goods to be sold, and sells them in his
own name, he is a factor, and any offset existing against the latter may
be set up to a claim made by the true owner of the property to recover
the contract-price, provided the vendee purchased in good faith and
without notice of the true facts.
The distinction between brokers and factors and their rights and liabili-
ties, considered.
Perhaps, in the case put, the true owner might reclaim his goods from
the vendee, if the right to do so is exercised within a reasonable time.
But the right may be lost by delay or by bringing an action to recover
the price.
294 HOWARD'S PRACTICE REPORTS.
Bannerman agt. Quackenbush et al.
General Term, June, 1885.
Before DALY, C. J., LARREMORE and VAN HOESEN, JJ.
M. L. Hollister, for appellants.
A. T. Johnston and E. J. Phillips, for respondent.
DALY, C. J. The court had jurisdiction to allow the words
"and son" to be stricken from the title and to direct that the
name of Abraham Quackenbush be inserted. The action was
brought against the defendants as copartners ; and where that
is the case the Code provides (sec. 1932) that if the summons
is served upon one or more, but not on all the defendants, the
plaintiff may proceed against the defendant or defendants
served, unless the court shall otherwise direct, and if he
recovers make the final judgment against all the defendants
jointly indebted, upon which judgment the execution issues
in form against all the defendants (sees. 1934-, 1935), but is
not enforced against a defendant who has not been served
with the summons, except that it can be collected out of the
property jointly owned by him with a defendant who has
been served. The answer in this action is by J. E. Qnacken-
bush, one of the partners, from which it may be assumed that
he was the ouly one served in the action ; and the amendment
appears to have been made for the purpose of having the
name of both parties inserted in the summons and complaint
instead of J. E. Quackenbush and son, as it was in the sum-
mons and complaint, which amendment may be made under
section 451, and which in fact the court under the Code,
when the true name becomes known, orders to be made upon
such notice and such terms as it may prescribe. The cases to
which the counsel for the appellant refers are cases where a
new defendant is sought to be brought in merely by an
amendment, which can be done only by service upon him of
a supplemental summons, or, in other words, -where defend-
ants are attempted to be added without the service of process
HOWARD'S PBACTLCE REPORTS. 295
Bannerman agt. Quackenbush el al.
by simply amending the pleadings, which cannot be done.
Sucb was not the nature of the amendment here. It did not,
and could not, authorize an individual judgment against
Abraham Quackenbush, the judgment in the action being
one that could be collected only out of the property jointly
owned by him and the partner who had been served.
Before passing upon the exception taken to the judge's
charges, it will be necessary to consider the case presented by
the evidence. It appears that the firm of J. E. Quackenbush
& Son, who are hardware merchants, had an order from Italy
for thirty shears, an article manufactured by the Renz Hard-
ware Company, a manufacturing company at Bridgeport,
Connecticut, having an office for the transaction of business
in this city. The defendants sent a letter to the company's
office, asking at what price they would supply the quantity of
shears wanted, payment to be made in ten days. This was
followed by further correspondence, until finally J. E. Quack-
enbush & Son sent a letter stating that the company might
furnish the shears required at the company's price ; and the
company on January 26, 1883, delivered the shears at the
store of J. E. Quackenbush & Son, with a bill made out in
the name of the Renz Hardware Company, in which it is
stated that the articles which are enumerated in the bill were
sold to J. E. Quackenbush & Son, " terms cash within ten
days from date." This is the transaction as it appears by the
documentary evidence that is, the letters between vendor
and vendee and the bill delivered with the goods and it
agrees with the other evidence given by the defendant ; but
the account of the transaction given by the plaintiff's witness
Schram conflicts with this documentary evidence. He testi-
fies that on January 25, 1883, the day before the goods were
delivered, he went to the defendants' store, where he saw
Abraham Quackenbush, the son, and told him that the com-
pany could not give ten days' time ; that the defendants could
have the shears, but not without cash upon delivery ; that
Abraham Quackenbush said that they could not do that ; that
296 HOWARD'S PRACTICE REPORTS.
Bannennan agt. Quackenbush et al.
the shears were for export ; that he did not want to pay the
money before he got it from his customer, and to send the
goods to them on Thursday ; that they would then send the
bill to the office of the company and have it signed, and on
Saturday following they would go to their bank and get the
money, and that the company might send up about noon on
that day and get a check for the amount of the bill. The bill
delivered on the following day with the goods, however,
states the terms to be cash " within ten days from date," and
whether the terms of the sale were cash on delivery, modified
by an understanding that payment might be made the day
after the delivery, or the terms were cash within ten days, as
stated in the bill of parcels, was a question for the jury.
Whatever may have been the fact in this respect, it appears
that before making the purchase Abraham Quackenbush
bought for $100 of one W. F. Swords, of Connecticut, a
promissory note of the company for $467.51, given by the
company to Swords for goods received, and which note, when
purchased by Quackenbush, was past due, and had been pro-
tested for non-payment.
Quackenbush testified that he bought the note for $100,
intending to use it in payment of the bill for the shears,
thinking, as he said, that " if he could make any money by it,
well and good." That his object in buying the shears was
that " he had a place to put them," and that if he had " no
where to place them" he would have bought neither them
nor the note. On the morning after the delivery of the goods
the attorney of the defendants went to the office of the com-
pany, and, seeing the treasurer, told him that he came to pay
the defendants' bill and offered in payment of it the $467.51
note and the residue of the amount in cash. The treasurer
refused to take the note, said that the goods did not belong
to him and that he wanted the cash as had been agreed upon.
The treasurer, as the attorney testified, was very angry,
declared that it was substantially a fraud, and spoke of an
arrest, and about an hour after, he sent Schram, the clerk, to
HOWARD'S PRACTICE REPORTS 297
Bannerman agt. Quackenbush et al.
the defendants with a bill for the shears, made out in the name
of the Renz Hardware Company, but having at the end of it
a direction to the defendants to pay the amount to the plain-
tiff. Sehram saw the elder member of the firm, J. E. Quack-
enbush, and presented the bill to him, who said " we have
made payment in another way before this." Schram said that
they knew that, but that they did not want to receive the note
in payment of the goods ; that they wanted cash, stating that
the goods belonged to the plaintiff. Schram said something
further about an arrest to which Quackenbush replied : " Well,
go ahead ; we are prepared." These 300 shears formed part
of a 1,000 shears which the plaintiff about ten months before
had bought of the Renz Hardware Company, who were the
manufacturers of them ; there was no question in the case as
to the integrity of this purchase. The 1,000 shears were
delivered to the plaintiff at his place of business in Brooklyn ;
he gave his checks for them, which checks it was shown had
been paid. When the Renz Hardware Company received the
order for the goods, they inquired of the plaintiff if he had
them on hand, advising him of the order they had received,
and he replied that he would fill the order and pay the com-
pany a commission upon the sale, but that he did not want to
give any time, and it further appeared that the goods were
taken from the Renz Hardware Company's office in this city
when they were delivered to the defendant. Upon this state
of facts, the judge charged the jury that if they found that
the plaintiff owned the property, but that the defendants had
no notice whatever of the fact, but acted in good faith with-
out knowledge, notice of the plaintiff's title or of any circum-
stance calculated to put them upon inquiry, the jury should
allow as an offset to the plaintiff's claim the note for $467.51
with interest, and render a verdict for the plaintiff for the
balance then remaining, and in concluding his charge finally
instructed the jury as follows : " If the defendant J. E.
Quackenbush had knowledge on the day he received the goods,
or the day following, that the goods belonged to the plaintiff
VOL. II 38
298 HOWARD'S PRACTICE REPORTS.
Bannerman agt. Quackenbusb et al.
and not to the Renz Manufacturing Company, he might have
said, if that be so the plaintiff may come and take his goods
away, I don't want them, I bought them, supposing they
belonged to the Renz Manufacturing Company, against whom
I have an offset. If, however, the defendant did not see fit
to exercise his legal right, and with knowledge and notice that
the property was the plaintiff's, and the defendant had it in
his power at the time to return the property, he is liable for
the contract-price," to which part of the charge the defendant
excepted. It is a well settled rule that where a factor sells
goods as his own, and the buyer having no knowledge that he
is acting as a factor, has a right to assume that he is the
owner, that such a buyer in an action brought by the principal
for the price, may set off any demand which he has against
the factor. In the earliest reported cases in which this rule
is found (Rabone agt. Williams, 7 T. R., 360, note a), it is
thus broadly stated by lord MANSFIELD : " Where a factor
acting for a principal delivers goods in his own name, the
person contracting with him has a right to consider him to all
intents and purposes as a principal, and though the real prin-
cipal may appear and bring an action upon that contract
against the purchaser of the goods, yet the purchaser may
offset any claim he may have against the factor in answer to
the demand of the principal." Baily says that this rule " is
built upon the principle that where the buyer has been led
to contract under the impression that his contract is with one
person he cannot afterwards be defrauded of the rights which
he had against that person by the introduction of a third to
whom he was a stranger " (Baily on Principal and Agent, by
Loyd, p. 327).
Story declares that the ground of this doctrine " undoubtedly
is that where any person holds himself out as a principal with
the consent of the owner, third persons who deal with him
lona fide are entitled to all the rights which they would
have if he were the real principal " (Story on Agency [2 Am.
ed.~\, 390). And justice CHAMBERS, in Houghton agt. Mathews
HOWARD'S PRACTICE REPORTS. 29
Bannerman agt. Quackenbush el al.
(3 -Bos. (& P., 490), and chief justice NELSON, in Mitchell agt.
Butel (10 Ward, 495), approve of the reason which is given
for the rule in Culler's Bankrupt Laws, that the parties by
their conduct having enabled their agent to gain credit as the
sole owner, and the buyer having contracted with him bona
fide in that character, they cannot recover against the buyer
without allowing him the same advantages and equities in his
defense that he would have had against their agent.
As indicated in the statement of the rule, it does not apply
where the buyer knows that the seller is not the owner, or
where the circumstances are such as should put him upon
inquiry especially when the facts might easily have been
ascertained, and he must be regarded as negligent in not
making the inquiry (Baring agt. Corry, 2 B. & Aid., 137 ;
Young agt. White, 7 Beav., 506 ; Meel agt. Brothers, 10^
Wend., 495, 496; Ilogan agt. Stroub, 24 id., 458; Bliss agt.
Bliss, 7 Bosw., 3&9 ; Judson agt. Stillwell, 24 How., 553).
And in applying the rule a distinction is recognized between
a factor and a broker, because factors have the possession of
goods upon which they usually make advances, and having a
special property in them, have authority to sell them in their
own name ; whereas the broker has not possession of the
goods, the purchaser is not deceived by that circumstance,
and as the employment of a broker gives him no authority to
sell the goods as his own, he cannot bind his principal if he
does so (Baring agt. Corry, 2 B. cfc Aid., 144).
The first question which this case presents is, what was the
effect of the delivery of the goods upon the representations
made to the broker on the delivery of them, assuming it to
have been made as stated by the plaintiff's witness. This
question arises in Chapman, agt. Lathrop (6 Cow. R., 110),
a case in many of its features resembling the present one.
In that case the defendant went to the plaintiff's store and
inquired for certain articles, and, being informed that the
plaintiff had them, the defendant requested that they might
be put as low as possible, as they would pay for them in
300 HOWARD'S PRACTICE REPOUT3.
Bannerman agt. Quackenbush et al.
cash, upon which the plaintiff said that if they were to be paid
for in cash he would sell them as low as he could, and upon
the same day they were delivered to the defendant, who took
them to his store upon carts, and upon, the next day the
defendant's clerk called on the plaintiff and tendered a pro-
tested note indorsed by the plaintiff, and offered to pay the
balance in cash. The plaintiff refused to receive the note,
and about a fortnight after demanded the property, which
the defendants refused to deliver. The plaintiff brought
trover, and it was decided that the action could not be
maintained. The court held that if there was a fair contract
for the goods and they were delivered to the purchaser without
any fraudulent contrivance on his part to obtain possession,
the property passed, and that the plaintiffs' remedy was an
action for the price. Where the agreement, said chief justice
SAVAGE, is to pay down for goods and the vendor delivers
them without actual payment, the vendee may avail himself
of any legal set-off, notwithsanding that the agreement was to
pay ready money, and that there was no fraud under
the circumstances above stated in paying the plaintiffs
with their own paper. In Ilogan agt Short (24 Wend.,
458), the action was brought to recover for goods sold. It
appeared in this case that one Morris, who was the agent of
the plaintiff, sold the goods to the defendant without disclos-
ing the name of the principal. The sale was for cash or for
payment in from two to six days, which was deemed a cash
sale. Morris, the agent, had stopped paying twenty days
before the sale, a fact that was notorious, and when the sale
was made the defendants held Morris' note for a larger amount
than the price of the goods; but which note had not yet
matured. Morris called twice upon the defendants for the
cash, but was told by them that they were short of funds.
About twenty days after the sale he called again, when they
told him that they thought he ought to let the claim go
against his note which was then coming due. He replied that
lie had no right to do so, that the goods were not his, that the
HOWARD'S PRACTICE REPORTS. 301
Bannerman agt. Quackenbush et al.
owners lived in Baltimore, and that he must get the money.
He testified further that he was a commission merchant,
which was upon his sign ; that if the defendants did not know
it, every one else did, and that he had no doubt that they
knew that he had stopped payment before the sale ; and evi-
dence was given tending to show that the defendants made
the purchase with the intent to set off the note instead of pay-
ing cash, according to the contract. The court, after a very full
review of the decisions under the rule before stated, from the
earliest report of it in Baylone agt. Williams (supra*), held
that under the circumstances stated the set-off must be allowed,
and the judgment in favor of the plaintiff was reversed.
BRONSON, J., who delivered the opinion of the court, said
that it might be an open question whether the vendor,
immediately after the delivery and when he first discovered
that the vendee does not intend to pay cash, may not disaffirm
the sale and bring trover for the goods if they still remain
in the hands of the vendee ; but that, whatever may be the fraud,
if the goods are actually delivered in pursuance of a contract
of sale, the vendor may elect to affirm it ; and that he does
affirm it if there be any considerable delay in requiring a
return of the goods after the discovery of the fraud, or where,
as was done in that case, he brings an action for the price.
The judge held, further, that the fact that Morris was a com-
mission merchant had little or no tendency to prove notice,
because he was also a trader on his own account ; that the fact
that he had stopped payment proved nothing, because after
the happening of that event he would be as likely to sell his
own goods as he would goods which a third person had pre-
viously intrusted to him ; that the fact that the defendants
intended to set off the note which they held against him
tended to show that they believed that Morris was the principal,
for otherwise they could hardly hope to accomplish their
object ; that it made no difference that the defendants bought"
the goods from Morris for the very purpose of obtaining pay-
ment of their debt against him, and that upon the facts stated
302 HOWARD'S PRACTICE REPORTS.
Bannerman agt. Quackenbush et al.
defendants were entitled to a verdict. He said it would not
do in such a case to guess that the vendee had notice, but that
it must appear from the nature of the transaction, or by some-
thing that transpired before the contract or sale was completed,
that the vendee had good reason to believe that he was deal-
ing with an agent, and that in a commercial community no
rule short of this would afford sufficient protection. It
appears to me that these questions arise upon the facts in this
case. The transaction upon the part of the defendants is not,
it is true, one that commends itself to the favorable considera-
tion of the court. The offset was not one arising out of any
transaction between the defendant and the Ilenz Hardware
Company, but the defendants, after they had obtained an
order for a certain quantity of an article which that company
manufactured, and from whom they meant to purchase it,
went and bought a depreciated paper of the company at the
enormous discount of seventy-nine per cent, that they might
make $367 out of an order for goods for which they were to
pay but $522, and when ascertaining, according to the plain-
tiff's witness, that the company would not, at the price agreed
upon, give any time, but wanted, as the witness expressed it,
" spot cash payment upon delivery," the defendants, to secure
a delivery, practiced the artifice of representing that they did
not want to pay cash until their customer had paid them, coupled
with the promise that when the bill of lading, as I understand
the testimony, was signed, they would give the company their
check for the amount of the bill. But notwithstanding
these circumstances I think, upon the authorities, that
if the defendants had the right to assume when they
made the contract for the purchase of the goods that the
company were the owners of them, they had the right in this
action to set off the note as a valid demand which they had
against the company. It was notwithstanding held, as has
been stated in Hoqan agt. Shroub (supra), that although the
buyer when he agreed to pay cash intended to pay for the
goods with the note that he held of the factor, that that would
HOWARD'S PRACTICE REPORTS. 303
Banner-man agt. Quackenbush et al.
not affect his right to set it off in the action brought by the
principal for the price of the goods, the note being then due ;
and that this is the law appears also by the cases of Eland agt.
Karr (1 East, 375), Comfort agt. Rivett (2 M. & SeL, 510),
Sehmer agt. Hawkins (2 Esp. N. P., 626), Downer agt.
Eggleston (15 Wend., 51). For the set-off is a legal right,
and may be insisted upon even where an express promise has
been made to relinquish it (Downe agt. Eggleston, supra ;
Taylor agt. Okey, 13 ^ es -> l ^-
One of the early cases in which a set-off of the vendor's
paper in an action brought for the goods was not allowed
{fair agt. Mclver, 16 East, 130) resembled the present case
in the feature that the paper of the vendor was obtained for
the purpose of using it in payment for the goods bought ; but
the case is distinguished from the present in the circumstance
that the purchaser there was not the bona fide owner of the
bill of exchange which was offered to the acceptor in payment
for the goods bought, but was acting for the benefit of the
real owners, one of whom, knowing that the vendor had not
been regular in his payment, informed defendant, who made
the purchase, that he was in doubt as to the acceptor's affairs,
and upon his solicitation and suggestion, defendants under-
took to secure the payment of the bill by purchasing goods
of the acceptor ; after the delivery of them offering the bill
in payment, which he refused to take. The acceptor shortly
afterwards failed, and in an action brought by his assignee against
the defendants to recover for the price of the goods, it was
held that the defendants could not set off the bill against the
o
acceptor's assignees, as they were not the holders of it in their
own right, but merely held it as trustee of the real owners.
" As such trustees," says BAGLEY, J., " they could not set it
off against a demand upon them in their own right." Lord
ELLENBOROUGH went beyond this, declaring that he was not
satisfied with the previous decisions of lord KEN YON in Eland
agt. Cor (1 East, 375), that upon the sale of goods for ready
money the condition is performed by offering in payment the
804 HOWARD'S PRACTICE REPORTS.
Bannerman agt. Quackenbush et a*.
vendor's own paper, but in subsequent cases his view was not
concurred in, but that of lord KENYON was held to be the law
(See the cases in Hillard on Sales [8e? ed.~\, 239).
Where the agreement is to pay cash, there is no reason
why the vendor should refuse to receive his own paper, if it
is due, as equivalent to cash, and it has been so held (Mayer
agt. Mias, 8 Moore, 275; 1 Ring., 311). There is not in
such a case that fraud which exists where a contract is made
for the purchase of goods for cash and possession of them
obtained with a preconceived intention not to pay for them.
What appears in the present case is, that upon a sale of
goods a delivery of them was obtained with a preconceived
intention to pay for them in the depreciated paper of the
vendor, which had been bought for that purpose, and does
not amount to a connivance (Mayer agt. Mias, 8 Moore, 275 ;
Id., 1 Bing. Kennet agt. Robinson, 2 Id. Marsh. [Reg.~], S-i ;
Hillard on Sales [3d 2nd. edJ\, 309-405 ; Wells on Replevin,
pp. 399-551). For the goods being delivered upon the
promise to pay cash upon the Saturday following, the posses-
sion in the first instance was lawful, and the plaintiff being
the owner of the goods, as he had authorized the sale of them
only for cash, was entitled to a restoration of them on the
breach of that condition, then a demand of them of the
defendant and a refusal on their part to give them up was
necessary before an action could be maintained for a conver-
sion, or, more properly, for the wrongful detention then ot
the goods (Hall agt. Robinson, 2 N. Y., 295 ; Addison on
Torts [Zded.], 312).
But there has been no demand for the restoration of the
goods, but a demand only, as in Chapman agt. Lathrop (supra),
for the purchase-money. At least there is nothing in the
evidence to show how any demand has ever been made for
the restoration of the property by the plaintiff, or by any one
in his behalf. The complaint appears to have been framed
with a view of recovering as in an action for tort. It first
avers a sale and delivery of the goods for cash, payable the
HOWARD'S PRACTICE REPORTS. 305
Bannerman agt. Quackenbush et al.
day after the delivery, a demand of payment and a refusal.
It then avers that the plaintiff was induced to deliver the
goods by deceit, trick and device, practiced upon him by the
defendant. It sets forth the representations of the defend-
ants, upon which he was induced to deliver the property,
which it avers were false and made with the fraudulent intent
to obtain the goods without paying for them, and demands
judgment for $535.38, which is the price of the goods, with
interest.
The evidence could not sustain this complaint, for it was
not shown that the representations were made with a fraudu-
lent intent to obtain the goods without paying for them, but
with an intent to pay for them chiefly in the protested paper
of the vendor and supposed owner, which, as I have said, is
not a conversion. The complaint shows that the possession
which the defendants obtained was lawful, as it avers a delivery
under an agreement to pay the cash for them upon the fol-
lowing day. It avers a breach of that payment by a refusal
to pay cash and the setting up of a pretended claim as an
offset against the plaintiff's bill, but there is no averment that
the plaintiff had rescinded the contract or demanded a return
of the property, and that the defendant had refused to restore
it, which was essential to sustain an action for a wrongful
detention, the taking having been lawful.
The only action that was maintainable, therefore, under the
complaint, was an action for the sale and delivery of the
goods, and as that affirms the contract of sale, the right of
set-off exists unless the defendants knew when they made the
contract that the Renz Hardware Company were the owners,
but were acting as factors, or the circumstances were such as
should have put them upon inquiry, and there was nothing
in the evidence to warrant such a finding. The shears had
been manufactured by the company, and the defendants,
therefore, having ordered a certain quantity of an article of
the company's manufacture, and the company having in the
correspondence that ensued, and in a bill delivered with the
VOL. II 39
306 HOWARD'S PRACTICE REPORTS.
Bannerman agt. Quackenbush et al.
goods, acted as principal, the defendants had a right to assume
that the company were selling an article of which they were
the manufacturers and owners.
The plaintiff having, when advised of the order, eent the
shears to the company's place of business in the city, made
them his factors in the sale by delivering the goods into their
possession, thereby enabling them to sell and deliver them in
their own name. By this he brought himself within the
operation of the rule referred to, for under these circumstances
the company cannot be regarded as brokers employed to sell
the property, and exceeded their authority by selling it in
their own name.
There is nothing in the case to show that the defendants
had any intimation that the shears belonged to the plaintiff,
or that there was nothing that should have put them upon
inquiry, and as they had in their possession at the time of the
sale and delivery an indorsed note of the company's which
was past due, they had the right, regarding the company as
principals in the transaction, to tender it in part payment or
to set it off in an action brought for the price. There would be
no doubt of this if the Renz Hardware Company were the
owners of the goods, and it is the same where the company
acted as owners and the buyer knew them only as such up to
the time when their note was offered to them in part payment
for the goods.
It may be that the plaintiff had the right to rescind the sale
under the circumstance? a point upon which I express no
opinion and bring an action for a conversion or wrongful
detention on the defendants refusing to give up the property
upon demand when they were advised of the plaintiff's owner-
ship, but he made no such demand and can maintain no such
action. The action which he has brought is maintainable
only as an action for the recovery of the contract-price which
necessarily affirms the sale and entitles the buyers to their set-
off. A demand is not required where it is apparent from the
conduct of the person who has the goods that it would be use-
HOWARD'S PRACTICE REPORTS. 807
Matter of King.
less ; but that does not appear here. All that appears is when
the company's clerk said to one of the defendants something
about an arrest, lie replied " well, go ahead ; we are prepared,"
which must be understood as applying to the threatened arrest
and cannot, as matter of law, be declared sufficient to hold
that a demand was necessary.
Upon the review of the facts and the law, it appears that
the charge of the judge was erroneous in instructing the jury
that if the defendants had knowledge or notice on the day
they received the goods, or on the day following, that the
property was the plaintiff's, and that they then had it in their
power to return it, that they were liable for the contract
price ; or, in other words, that they could not set oft the note
in the action for the price of the goods.
There must, therefore, be a new trial.
Judgment reversed, new trial ordered, costs to abide the event.
LARKEMORE and VAN HOESEN, J J., concur.
SURROGATE'S COURT.
In the Matter of KING, minors.
Guardian Limitation of the surrogate's authority to remove testamentary
guardian Code of Civil Procedure, sections 247-2, 2817, 2832, 2858.
One who is a lawful incumbent of the office of guardian, either by
appointment of the surrogate or by virtue of a testamentary provision,
can successfully resist in this court an application for his removal until
such facts and circumstances have been established as furnish statutory
warrant for his suppression.
If, within the meaning of subdivision 2 of section 2817 of the Code of
Civil Procedure, a guardian has been guilty of "misconduct in the
execution of her trust," and has thereby become " unfit " to be con-
tinued in her office, she must be removed; otherwise the surrogate is
powerless to displace her.
New York county r , July, 1885.
308 HOWARD'S PRACTICE REPORTS.
Matter of King.
ROLLINS, *S. This proceeding is brought by Donald
Mackay, as one of the executors of Elizabeth R. B. King,
deceased, for the removal of Pliebe Fullerton, the testament-
ary guardian of Mrs. King's children.
It is provided by the seventh subdivision of section 2472
of the Code of Civil Procedure that the surrogate's authority
to supersede the guardian of an infant " must be exercised in
the cases and in the manner prescribed by statute."
In view of these restrictive provisions it is manifest that
one who is a lawful incumbent of the office of guardian,
either by appointment of the surrogate or by virtue of a tes-
tamentary provision, can successfully resist in this court an
application for his removal, until such facts and circumstances
have been established as furnish statutory warrant for his
suppression (Matter of Kerrigan, 2 Civil Pro., 334 ; Led-
with agt. Union Trust Co., 2 Dem., 439).
The various causes which will justify the surrogate in
removing a guardian appointed under title seven of the eigh-
teenth chapter of the Code are fully set forth in the six sub-
divisions of section 2832. It is declared in the last of these
subdivisions that a guardian of the person may be deprived of
his office whenever " the infant's welfare will be promoted by
the appointment of another guardian."
The legislature lias seen fit to restrain the surrogate's
authority as regards testamentary guardians within somewhat
narrower limitations. He can only direct the removal of such
a guardian upon the grounds assigned in section 2858 ; that
is, " in cases where a testamentary trustee may be removed as
prescribed in title 6 of this chapter." This is a reference to
section 2817, whose second subdivision alone has any possible
application to the case at bar. If, within the meaning of that
subdivision, this respondent has been guilty of " misconduct
in the execution of her trust," and has thereby become " unfit "
to be continued in her office, she must be removed ; otherwise
the surrogate is powerless to displace her.
Now, there are no allegations in this petition that seem to
HOWARD'S PRACTICE REPORTS. 309
Matter of King.
me to require comment, except such as are in some way asso-
ciated with the shameless behavior of the respondent's son,
Richard Butler, towards the children, whom their mother had,
by testamentary direction, intrusted to the respondent's care.
I am so profoundly impressed with the truth of these revela-
tions and with the desirability of placing these infants under
new conditions, not only for preventing future mischiefs, but
for effacing from their minds, if possible, the memory of
indignities which they have already suffered, that if I
had power under the circumstances here existing, to substitute
another guardian in place of this respondent, I should not
hesitate to exercise it.
But have I such power ?
It is not suggested that the respondent connived at her
son's disgraceful practices, and it is not claimed that she ever
heard of them until about the time when they came to the
knowledge of the petitioner. Nor does it appear that she
knew or had reason to believe that evil consequences were
likely to flow from the intimate relations that were allowed to
exist between these children of a common household.
Her treatment of her son since the discoveries which gave
rise to the present proceeding has furnished no just cause for
criticism.
She is taken to task by petitioner's counsel for protesting
her belief in the boy's innocence. But her credulity is per-
haps not unnatural in a mother, and it does not seem to have
betrayed her into any act or omission that can fairly be inter-
preted as " misconduct in the execution of her trust."
This petition must, therefore, be denied.
810 HOWARD'S PRACTICE REPORTS.
Crane agt. Evans.
SUPREME COURT.
LEWIS B. CRANE agt. THOMAS EVANS and another.
Attorney and client Bond and mortgage Authority of attorney to receive
interest, or part of principal sum on bond and mortgage of client.
B. being the attorney and agent of the mortgagee, as such, so long as
he had the bond and mortgage in his possession is authorized to receive
the interest accruing thereon, and the mortgagor is safe in paying the
same to him. But the possession of these papers alone gives him no
authority to receive a part of the principal sum secured by the mortgage
before it was due.
A mortgagor who pays interest or principal upon a mortgage to any one
other than the mortgagee himself, when the person receiving the moneys
has not in his possession the obligation, does so at his peril. In order
to hold the principal to such payment he must be prepared to prove
express authority.
Special Term, July, 1885.
THE above action was brought to foreclose a mortgage made
by David W. Evans in 18T9, to the plaintiff to secure the sum
of $5,000 payable January, 1884. The defense was payment.
On the trial plaintiff produced the bond and mortgage men-
tioned in the complaint upon which he claimed interest from
January, 1884. The defendants produced on the trial a
satisfaction-piece of the mortgage, purporting to have been
signed by the plaintiff in July, 1883, at which time the
mortgage was marked " satisfied " in the register's office,
but plaintiff had no knowledge of this " satisfaction " until
July, 1884. Defendant also produced a paper purporting to
be the bond of David W. Evans, bearing the same date and
notarial certificate as appeared on the bond produced by the
plaintiff, and in addition thereto, indorsements of payments of
principal and interest, and receipt in full of the principal July,
1883. The acknowledgment in the bond produced by plaintiff
contained the words " to me known and known to me" in
written characters, while the same words in the acknowledg-
HOWARD'S PRACTICE REPORTS. 311
Crane agt. Evans.
ment of the bond produced by defendant were in printed
characters. The bond produced by plaintiff had no indorse-
ments of any payments. The trial lasted two days. Messrs.
David N. Carvalloand Daniel T. Ames, experts in handwriting,
were called by the plaintiff and testified that the bond
produced by defendants was a forgery. The defendants
called Dr. Charles M. Cresson, of Philadelphia, an expert in
handwriting.
Further facts appear in the opinion.
Charles W. Dayton, for plaintiff.
Burrill, Zabriskie & Burrill, for defendants.
VAN VOKST, J. Baker was the attorney and agent of the
plaintiff, the mortgagee, and as such, as long as he had the
bond and mortgage in his possession, was authorized to receive
the interest accruing thereon. Possessed of these instruments,
under the facts of this case, the mortgagor was safe in paying
the interest to him. But the possession of these papers alone
gave him no authority to receive a part of the principal sum
secured by this mortgage before it was due. To be so
authorized he should have been specially and pointedly
directed by the mortgagee to collect or receive it. The time
fixed by the bond for the payment of the principal sum was
the mortgagee's highest exprassion of his intentions as to the
time for the payment of the principal. Of such limitations
upon the power of the attorney to receive money upon the
mortgage the mortgagor was bound to take notice. The
receipt therefore by Baker from the mortgagee of the sum of
$1,000, in the month of February, 1882, towards the principal
sum, not then due, was wholly unauthorized. This payment
was concealed from the plaintiff, and he is not bound by it
(Smith agt. Kidd, 68 N. Z.,'130; Williams agt. Walker, 2
Sandf. Ch., 325.)
In October, 1882, the plaintiff withdrew from Baker the
land and mortgage. That ended all semblance of power or
812 HOWARD'S PRACTICE REPORTS.
Crane agt. Evans.
authority on the part of Baker to receive anything on the
mortgage. A mortgagor who pays interest or principal upon
a mortgage to any one other than the mortgagee himself, when
the person receiving the moneys has not in his possession the
obligation, does so at his peril. In order to hold the principal
to such payment he must be prepared to prove express
authority. Baker, according to the evidence, retained in his
own hands, after the delivery to the plaintiff of the original
documents, a cop} 7 of the bond purporting to be executed by
the mortgagor. Plaintiff was wholly ignorant of the existence
of another bond in the hands of Baker. It is quite likely
that, with a fraudulent purpose, Baker, shortly after the execu-
tion of the bond and mortgage in suit, caused to be prepared
a duplicate bond, and it is upon this duplicate that all pay-
ments of interest as well as of principal are indorsed. His
purpose undoubtedly was that, in the event that the bond and
mortgage should be taken from him by the plaintiff, he might
have in his hands the appearance of an instrument which
should enable him to receive money from the mortgagor. In
that he seems to have succeeded, for at different times after-
wards he applied to the mortgagor for payment of parts of
the principal sum, although not due, and he received the same,
and in the end a forged satisfaction-piece of the mortgage was
delivered to the mortgagor with the duplicate bond.
The evidence justifies the conclusion which I have reached
that the so-called duplicate bond is also a forgery. Although
purporting to bear date with the genuine bond it was not
written on a similar blank. The printed form of the
acknowledgment differs in material points from that found
upon the genuine bond. The seals also differ. Crime is often
detected by circumstances which the foresight of the perpe-
trator can neither discern nor guard against. The signature
of the obligor is so well simulated that he might himself be
deceived. The ink spots even on the real bond are imitated
on the false instrument. But an inspection of the signature,
and by a comparison of it with genuine signatures of the
HOWARD'S PRACTICE REPORTS. 313
Durant agt. O'Brien.
obligor, satisfies me that it is a forgery. This conclusion is
supported by the testimony of experts. But the care and
diligence of the attorney for the plaintiff has been rewarded
by a discovery of evidence which puts the matter at rest.
The acknowledgment upon this blank was not in the form
printed for the stationers who sold it, until the year 1880, and
after the time the bond and mortgage bear date. This is
shown by the testimony of employes of the stationer and
printer. The guilty party thus furnished the means of
detecting his crime. The mortgagor is dead, and no light
upon this subject can be had from him. But even were the
bond in question a genuine instrument, then there were two
bonds, for some unaccountable reason, executed and outstand-
ing, when he paid the mortgage. And yet, when he received
the satisfaction-piece, it was accompanied only by this instru-
ment, the bond and mortgage remaining in the hands of the
mortgagee.
From all the evidence, I am justified in deciding that the
whole amount of principal is due and unpaid upon the bond
and mortgage, and there must be judgment of foreclosure and
sale.
SUPREME COURT.
EDWARD A. Don ANT agt. JOHN O'BRIEN.
Referee When report will not be set aside on the ground that referee was
biased Relations from which bias will not be inferred.
While courts should be careful to see that no improper relations exist
between a referee and one of the parties to an action, and that nothing
occurs during the progress of the trial which shall in anywise tend to
produce a favorable impression in behalf of one of the parties to the
reference, yet such scrutiny should not be carried to the extreme length
of holding that because a referee sustains friendly relations to the kin of
one of the parties, relations so close as to lead to his employment as his
legal adviser, and the legal adviser of his estate, that such relations
VOL. II 40
314 HOWARD'S PRACTICE REPORTS.
Durant agt. O'Brien.
would bias his judgment in the action in which he had been appointed
referee.
When the referee had heard the proofs, and made his report finding in
favor of the plaintiff, and from the judgment perfected upon such
report defendant had appealed to the general term, which general term
had affirmed the judgment, and the defendant had appealed to the court
of appeals, and while such appeal was still pending defendant made a
motion to set aside the report of the referee upon the ground that such
referee was biased in favor of the plaintiff:
Held, that the motion resting solely and only upon the ground that the
referee was the friend and legal adviser of the nephew of the plaintiff,
such fact of itself would not warrant the inference of bias and partiality,
and especially when it appeared that this was known to the counsel of
the party moving before the trial of the action was commenced.
Special Term, May, 1885.
MOTION by defendant to set aside the referee's report.
A. Lee Wager and Hamilton Harris, for defendant and
motion.
Thompson & Andrews, for plaintiff and opposed.
WESTBROOK, J. ' The plaintiff, Edward A. Durant, as the
assignee of A. J. Williams & Co., brought this action against
the defendant John O'Brien, to recover for an alleged balance
due to them, as sub-contractors under the defendant, for work
done and materials furnished upon the Clinton state prison
and warden's house, at Dannernora, in this state. By order
of this court the action was referred, on the 18th day of
January, 1882, to Abraham V. De Witt, counselor-at-law,
at Albany, N. Y. The referee was suggested by the counsel
of the defendant, and consented to by the counsel for the
plaintiff. After a number of hearings before the referee, the
cause was finally submitted to him for a decision on the 1st
day of July, 1882. The report of the referee was made on
the 1 7th day of August, 1882, and was in favor of the plain-
tiff for the sum of $5,251.97. From the judgment perfected
upon such report, the defendant appealed to the general term
HOWARD'S PRACTICE REPORTS.
Durant agt. O'Brien.
of this court, and tlie appeal was argued in that court on the
5th day of December, 1882, and by its decision, rendered on
the 3d day of February, 1883, the judgment entered upon the
referee's report was affirmed, with costs. Within a few days
thereafter an appeal was taken by the defendant to the court
of appeals, which is still pending, unargued and undecided.
The defendant now moves to set aside the report of the
referee upon the ground that such referee was biased in favor
of the plaintiff, and such bias is sought to be inferred from
the relations which the referee sustained to one Allen B.
Durant, a nephew of the plaintiff, as his attorney and counsel
and friend.
There is no proof presented upon this motion tending to
show that Mr. De Witt was in any way connected either as a
friend or legal adviser with the plaintiff in the action ; but
it is insisted that because he was the friend and the legal
adviser of the nephew of the plaintiff Allen B. Durant, and
because he was employed in behalf of the estate of Allen B.
Durant to conduct certain proceedings before the surrogate
of the county of Albany, and because the plaintiff and Allen
B. Durant were on friendly terms, that therefore the referee
must have been biased in favor of the plaintiff. This infer-
ence, it seems to me, is most illogical and unjust. If adopted
as sound it would prevent a judge from sitting in a cause in
which any of the parties thereto were of kin to a friend and
companion of such judge, and towards whom the judge had
occupied the relation of legal adviser.
Prior to the appointment of Mr. De Witt as referee in this
action, he had acted as the legal adviser of Allen B. Durant^
the nephew, and when the parties and counsel in this action
met before him for the first time for the hearing of this
cause, the referee explained fully to the counsel his intimacy
with Durant, and the relation which he bore to him, saying
to them that he did so to enable the defendant's counsel, if
they so desired, to have another referee appointed in his place.
The counsel for the defendant refused to change the referee
316 HOWARD'S PRACTICE REPORTS.
Durant agt. O'Brien.
and insisted upon proceeding with the trial of the action
before him. After this occurrence, and during the trial of
the action before the referee, Allen B. Durant was taken ill,
from which illness he never recovered. Daring such illness,
and on the 20th of June, 1882, Mr. De Witt drew the last
will and testament of Mr. Durant, and on the fifth of July
following drew the codicil thereto. In November following
A. B. Durant died, and in a contest in regard to such will
before the surrogate, which was long after Mr. De Witt's
connection with this cause as referee had ceased, Mr. De Witt
acted as the counsel for the estate. There is, however, no
evidence tending to show that Mr. De Witt ever consulted or
advised with the plaintiff in regard to the nephew, his family
or estate ; on the contrary, the affidavit of Mr. De Witt and
of the plaintiff both show that there was no intimacy what-
ever between them, and that they were merely passing
acquaintances, and the only social intercourse between them
consisted of formal calls by Mr. De Witt on new-years' days
at the house of the plaintiff. While courts should be careful
to see that no improper relations exist between a referee and
one of the parties to an action, and that nothing occurs during
the progress of the trial which shall in anywise tend to pro-
duce a favorable impression in behalf of one of the parties
to the reference, yet such scrutiny should not be carried to
the extreme length of holding that because a referee sustains
friendly relations to the kin of one of the parties, relations so
close as to lead to his employment as his legal adviser, and
the legal adviser of his estate, that such relations would bias
his judgment in the action in which he had been appointed
referee. In the present case, as has already been said, the
defendant and his counsel were fully informed, before the trial
of the reference was commenced, tliat such relations existed
between the referee and the nephew of the plaintiff. What-
ever inference could justly and properly be drawn from such
relation, could have been drawn as well when the trial of this
cause commenced as it can be now. The defendant and his
HOWARD'S PRACTICE REPORTS. 317
Durant agt. O'Brien.
counsel then knew that Allen B. Durant, the nephew of the
plaintiff was the friend and client of the referee. If that
fact would of itself bias and disqualify the referee, it was then
known and they had no reason to believe that because of the
reference the relation which Mr. De Witt then sustained to
Allen B. Durant would be broken ofJ and his friendship sus-
pended. All that has transpired since simply evidences the
continuance of friendship and relations which existed when
the trial of this action was begun, and from which no more
unfavorable conclution can now be drawn than could have
been drawn at the commencement of the trial. The referee
was well known to the counsel of the defendant, at least, if
not to the defendant himself, when the relationship between
the referee and the nephew were disclosed, and if such counsel,
with minds keenly awake to the rights of their client, could
see nothing in the relationship which Mr. De "Witt sustained to
Allen B. Durant to disqualify him from acting as such referee,
it cannot be surprising if the judge to whom this motion is now
submitted should be equally unable to see the disqualification
which such relationship imposed. Many of the statements
made by the widow of Allen B. Durant, as to the closeness of the
friendship whrch existed between her deceased husband and the
referee, are denied by the latter, and especially and flatly does
he deny her general statement that he would uphold the
Durants in all their difficulties with her. It is proper also to
state that all the trusts and duties confided by the will of
Allen B. Durant to the referee, have been renounced, and not
accepted by him, and that therefore so much of the motion
papers as allege the creation of such fci lists by the will, can
have no weight in the determination of this motion.
A careful reading of all the papers upon this motion has
failed to present to my mind any 'fact which would justify an
order setting aside the report and judgment in this action.
There are loose assertions in the affidavits presented by the
plaintiff to the effect that there was an intimacy between the
plaintiff and the referee. Such allegations, however, are by
318 HOWARD'S PRACTICE REPORTS.
Durant agt. O'Brien.
persons who could not, and did not know the truth of the
facts charged. If such intimacy was known to them, then
such knowledge should have been used to vacate the order of
reference before the report was made, or rather, it should
have prevented the naming of the referee by the defendant,
and the conclusion to proceed with the trial before him when
his relation with Allen B. Durant was fully explained. It
is evident, however, from all the allegations of the moving
papers, that such general charges were founded upon subse-
quent inquiries and not upon actual knowledge. The positive
and distinct denials of such intimacy by both the plaintiff and
Mr. De Witt, and sustained by others who had the opportunity
and means of knowing the truth of what they have affirmed,
must be accepted as true, and therefore, all suspicions of bias
founded upon such alleged intimacies must vanish, because
deduced from supposed facts which have no existence in truth.
The motion must, therefore, rest solely and only upon the
ground that the referee was the friend and legal adviser of
the nephew of the plaintiff. Such fact of itself would not
warrant the inference of bias and partiality, and when it
further appears that all this was known to the counsel of the
party moving before the trial of this action commenced, it can-
not be seen upon what possible ground this motion can be
granted. If injustice was done by the report, the general
term of this court did not discover it ; but if it was in fact
committed, the court of last resort in which this action is now
pending, will do the defendant justice. It will be unjust to
the plaintiff, upon the grounds presented, to subject him to
the. costs of another trial, and it would be a very grave reflec-
tion upon the character and standing of the referee for this
court to assume that he was biased and prejudiced, simply and
only because he had been the friend and legal adviser of a
relative of the plaintiff.
The motion, therefore, to set aside the report must be
denied.
HOWARD'S PRACTICE REPORTS. 819
Campbell Printing Press Company agt. Oltrogge.
K Y. COMMON PLEAS.
CAMPBELL PRINTING PRESS COMPANY agt. JOHN F. OLTROGGE.
Conditional sales Contract of, must be filed Laws of 1884, chapter 315
Effect of not -filing.
Every contract in the nature of a conditional sale agreement must be filed
according to the laws of 1884, chapter 315, or it is void as to subsequent
purchasers and mortgagees in good faith.
The object of the statute is to render secret liens upon personal property
ineffectual as to innocent purchasers, and the courts will not permit the
statute to be evaded.,
In determining whether the contract comes within the statute, the whole
instrument is to be taken together and the ruling intention of the parties,
to be gathered from the whole of it, is what is to be regarded.
General Term, June, 1885.
Livingston & Olcott, for appellant.
C. De Hart Brower, for respondent.
DALY, G. J. I think we should hold that the agreement
in this case is a mere device to evade what is required by the
statute in the case of conditional sales (Laws of N. Y., 18S4,
chap. 315). This is a remedial statute, the object of which
is to give some protection against loss or injury to persons
buying personal property from those who have all the out-
ward indicia of ownership by the possession and use of it, the
sale of which may be defeated after the article has been paid
for by a private agreement, by the terms of which the title to
the property was to remain in the person originally contract-
ing to sell it until the whole of the purchase-money was paid,
which, in such conditional sales, is usually payable in install-
ments at periods agreed upon.
The statute above referred to provides that unless such an
agreement, or a copy of it, is filed in the manner provided for
by the act, it shall be void as against subsequent purchasers
or mortgagees in good faith, and the act further declares that
320 HOWARD'S PRACTICE REPORTS.
Campbell Printing Press Company agt. Oltrogge.
such conditional sales shall become absolute, unless within
thirty days of the expiration of each and every year thereafter
a statement exhibiting the vendor's interest in the property
is also filed. This is substantially requiring to be done in the
case of conditional sales what has for a long time been required
to be done in the case of mortgages of personal property, and
in all such remedial statutes the rule is to consider what the
mischief was that the Jaw did not previously provide for
what remedy the statute meant to give to cure that mis
chief and the act is to be so construed as to suppress the
mischief and advance the remedy (Co. Litt^ 11, 42 ; Potter's
Dwarris, 58).
The agreement under consideration declares that the plain-
tiffs, the Campbell Printing Press, &c., Co., let, and H. A.
Landman hired for use, a printing press, which is particularly
described by its name and numbers, for the term of ten months,
at the rate of ten dollars a month, payable on the fifteenth
of each and every month, beginning November 15, 1884 ; the
lessee Landman to furnish suitable and proper foundations
for the press at his place of business in Brooklyn ; that he was
to keep it insured during the said term in the sum of $800,
depositing the policy with the plaintiffs ; that he w*as not,
without the plaintiff's consent, to assign the lease, nor sublet
the property, nor remove it during the term ; that at the expira-
tion of the term he was to deliver up the possession of it to
the plaintiff ; and that if default was made in the payment
of any of the installments that the plaintiffs were to repossess
themselves of the property and enjoy it thereafter as though
this agreement had never been made.
The agreement further declares that the plaintiffs agreed
to sell to Landman a printing press of the same number and
description, warranted to do the same and equally good work,
for the sum of $700, to be paid in monthly installments of
sixty dollars each, payable on the fifteenth day of each month
thereafter for the term of ten months, being the same days
that the ten payments of ten dollars each was to be paid. The
HOWARD'S PRACTICE REPORTS. 321
Campbell Printing Press Company agt Oltrogge.
agreement tlien declares that when the whole amount provided
for, or the $700 is paid, that the plaintiffs were to deliver to
Landman the last named press, boxed on cars at their factory,
for which, the agreement says, Landman is to pay the sum of
$100, and for the balance ($700) he is to give his notes, pay-
able, with legal interest, on the fifteenth of each month as
before stated, and that upon the payment of all these notes
the plaintiffs are to credit all rents paid for the press, and
there is a final provision that this written contract contains
the whole agreement ; that the plaintiffs are to be governed
solely by it, and not by any verbal agreement.
The whole amounts substantially to this : That contempo-
raneous with each monthly payment of ten dollars for what
is declared to be a lease for ten months of the press delivered
to and used by Landman, there is to be a payment by him of
sixty dollars on each of the said days during the ten months
towards the purchase-money of another press of exactly the
same kind, which is to be delivered to Landman at the plain-
tiff's factory when the entire $800 is paid by him.
It is very plain to my mind that the whole design of this
agreement is to evade the law requiring agreements for con-
ditional sales to be filed, and the result in the case of this
particular agreement has the very mischief which the statute
was designed in some degree to guard against, for it is set up
in the answer and admitted by the demurrer that the defend-
ant, who was ignorant of the agreement between the plaintiffs
and Landman, bought the printing press of Landman, paying
him therefor the sum of $700, the press being then in Land-
man's office and the defendant believing him to be the owner
of it.
The statute applies to every contract for the conditional
sale of chattels which shall be followed by an actual and con-
tinued change of possession of the thing contracted for, and
the distinction resorted to in this agreement and relied upon
to avoid the requirements of the statute was to provide that
the press delivered should be held, under what is denominated
VOL. II 41
322 HOWARD'S PRACTICE REPORTS.
Campbell Printing Press Company agt. Oltrogge.
a lease, whilst the payments are being made for the purchase
of exactly the same kind of press, and which, when the' pur-
chase-money ($800) was all paid, was to be delivered at the
plaintiff's factory.
But it is obvious that the practical result of this kind of
agreement would be in each instance that the press which is
declared only to be leased is the one that in reality upon the
payment of $800 would be sold, for being then set up upon
its foundations in the purchaser's place of business, it would
be no object to him to have exactly the same kind of press
delivered at the plaintiff's factory, as it would involve the
removal of the one already set up and in use and the expense
of transporting the other one from the factory of the plaintiff
and setting it up on a " proper and suitable foundation," to
use the language of the agreement.
The calling of what was provided for in that part of the
agreement a lease does not necessarily make it so, especially
in view of a statute, the object of which is to render secret
liens upon personal property ineffectual as against innocent
purchasers, unless the agreement creating the lien is filed in
the manner provided for in the statute so that notice of it can
be obtained upon inquiry, for the whole instrument is to be
taken together, and the ruling intention of the parties, as
gathered from the whole of it, is what is to be regarded
(Hereford agt. Davis, 102 U. S. R., 235; Dibble agt. Ilath-
away, 11 Hun, 574, 575.)
The agreement was one, in my opinion, that should have
been filed under the statute, and I am therefore in favor of
reversing the judgment.
HOWARD'S PRACTICE REPORTS. 328
In the Estate of John Baier, deceased.
SURROGATE'S COURT.
In the Estate of JOHN BAIER, deceased.
Code of Civil Procedure, sections 2690. 2814 Wlien surrogate will not per-
mit an executor or trustee to resign 1m trust.
The surrogate cannot justly permit an executor or trustee to resign his
trust against the wishes of the legatees or cestuis que trustent, unless suf-
ficient reasons are shown to exist for allowing such resignation.
New York county, August, 1885.
ROLLINS, S. The petitioner's application to be relieved
from continuing to act as executrix and trustee cannot, within
the restrictions of sections 2690 and 2814 of the Code of
Civil jfrocedure, be lawfully granted, unless the surrogate, in
his discretion, shall find that " sufficient reasons " exist there-
for. The only reason assigned in this petition is embodied
in the general allegation that the petitioner is " too busy with
her own private matters, and no longer desires to be busied"
with her trust.
Her counsel supplements this claim for relief by pleading
her limited knowledge of the English language and a lack of
business capacity which amounts to an inability fitly to dis-
charge her duties. He insists that by her retention in office
the estate will be incumbered with a " needless appendage."
I find that she had sufficient knowledge of English and of
business to claim and receive, under the decrees of October
13, 1881, and May 10, 1883, commissions amounting in all to
$1,491.76. Her petition expressly asserts that the duties that
remain to be fulfilled are of a much simpler character than
those which have been performed already; and, as her dis-
charge is opposed by the cestui que trust, she must continue
to play the modest role of needless appendage until she shows
better cause than has yet appeared for being allowed to aban-
don it.
324 HOWARD'S PRACTICE REPORTS.
The People ex rel. Wright agt. Genung.
SUPREME COURT.
THE PEOPLE ex rel. MAEY E. WRIGHT agt. AMASA G. GENUNG
and SOLOMON L. HOWE, as school commissioners of the
county of Tompkins.
Cornell University Who entitled to free scholarship under Laws of 1872,
chapter 654.
The person to be selected for a free scholarship in the Cornell University
must be a student from one of the academies or public schools of the
county from which he or she is to be selected.
The State Normal School, located at Cortland, is not one of the public
schools of Tompkins county within the intent and meaning of the
statute, and an attendance at such school does not entitle a person to
such scholarship.
The candidates for such free scholarship should, each year, be selected
from scholars in the academies and public schools during that year, and
not from the best scholars who have at any time attended the public
schools and academies of the county.
The position that a person is not a scholar of a high school because she
was graduated at the close of its last term, and hence ineligible as a
candidate, cannot be sustained. For the purposes of the act she must
be regarded as a scholar of that school, at least until the end of the
school year, and until that school shall again commence its sessions.
The intention of the statute is that she may have all the advantages
of that school so long as she is a member of it, and upon her final
examination and graduation may then become a candidate for such
scholarship.
Tompkins Special Term, August, 1885.
William Of. Noble, for relator.
IF. Ilazlitt Smith, for Amasa G-. Genung and Arthur
Curtis.
James McLachlin, for Solomon L. Howe and Frank
Knapp.
MARTIN, -/. This is an application by the relator for a
mandamus to compel the respondents to issue to her the certi-
HOWARD'S PRACTICE REPORTS. 325
The People ex rel. Wright agt. Genung.
ficate required by chapter 654: of the Laws of 1872, to entitle
her to a free scholarship in Cornell University.
The statute creating such free scholarships and providing to
whom they shall be awarded, so far as the same is applicable to
the question involved on this application, is as follows : " The
several departments of study in the said (Cornell) university
shall be open to applicants for admission thereto at the lowest
rates of expense consistent with its welfare and efficiency, and
without distinction as to rank, class, previous occupation or
locality. But, with a view to equalize its advantages to all
parts of the state, the institution shall annually receive stu-
dents, one from each assembly district in the state, to be
selected as hereinafter provided, and shall give them instruc-
tion in any or in all the prescribed branches of study in any
department of said institution free of any tuition fee or of
any incidental charges to be paid to said university, unless
such incidental charges shall have been made to compensate
for damages needlessly or purposely done by the students to
the property of the university. The said free instruction
shall, moreover, be accorded to said students in consideration
of their superior ability and as a reward for superior scholar-
ship in the academies and public schools of this state. Said
students shall be selected as the legislature may from time to
time direct, and until otherwise ordered, as follows : The
school commissioner or commissioners of each county, and
the board of education of each city, or those performing the
duties of such a board, shall selec 1 : annually the best scholar
from each academy and each public school of their respective
o unities or cities as candidates for the university scholarship.
But in no case shall any person having already entered the
said university be admitted as one of such candidates. The
candidates thus selected in each county or city shall moet at
such place and time in the year as the school commissioner or
commissioners in the county, and the said boards of education
of the cities in those counties which contain cities shall
appoint, and the school commissioner or commissioners and
326 HOWARD'S PRACTICE REPORTS.
The People ex rel. Wright agt. Genung.
the said board of education, or such of them as shall attend
and act, shall proceed to examine said candidates, and determine
which of them are the best scholars, and they shall then select
therefrom to the number of one for each assembly district in
said county or city, and furnish the candidates thus selected
with a certificate of such selection, which certificate shall
entitle said student to admission to said university, subject to
the examination and approval of the faculty of said university
(Chap. 654, Laws 1872).
The respondents did not at any time during the past year
select any candidate or candidates for such free scholarship
from the academies and public schools of Tompkins county
as required by this statute. They, however, gave notice that
at a time and place designated by them they would examine
such persons as should attend for that purpose, and thereby
determine to whom the scholarship for the year 1885 should
be awarded. In pursuance of that notice, and on the thirteenth
and fourteenth of the present month, the respondents held
such examination. Upon that examination four persons
appeared as candidates and were examined. The persons thus
examined were Frank Knapp, Arthur Curtis, the relator Mary
E. Wright, and Mary Lawrence. Upon the completion of
the examination the respondents determined that Frank Knapp
was the best scholar, Arthur Curtis the second, the relator
third, and Mary Lawrence fourth. Mr. Knapp is, and has
always been, a resident of Tompkins county. He attended
the public schools of that county until 1882, when he entered
the State Normal School at Cortland, N. Y. He continued a
scholar in that school until he was graduated in 1884, since
which time he has been engaged in teaching. Mr. Curtis is also
a resident of Tom pkins county. He was graduated from one of
the public schools of that county in the year 18S3, and has not
since been a scholar in any of the academies or public schools
of the county or state. Both the relator and Miss Lawrence
were residents of Tompkins county, and both attended the
Ithaca High School, which is one of the public schools of that
HOWARD'S PRACTICE REPORTS. 32V
The People ex rel. Wright agt. Genung.
county, during the school year which commenced in the fall
of 1884 and ended in the summer or fall of 1885. At .the
end of the last term of such school year they were graduated
from that school. Since their graduation neither has been a
scholar in any other school.
Subsequent to such examination and determination by the
respondents, the relator duly demanded of the respondents that
they should award her the Cornell scholarship for 1885, and
issue to her a certificate of her selection, which they refused
to do. That the candidates for this scholarship were not
selected as required by law is conceded by all parties. Upon
the argument, however, it was stipulated by the parties in
interest that the application should be determined upon the
sole ground of the eligibility as candidates of the persons
examined. It is contended by the relator that neither Mr.
Knapp nor Mr. Curtis was eligible as a candidate, and there-
fore although they were examined and passed a better
examination than she, yet neither of them was entitled to such
free scholarship. This contention is denied by the respondents
and by Knapp and Curtis ; and thus is presented the only
question which it is necessary to determine upon this applica-
tion. Was either Knapp or Curtis entitled to such free
scholarship, although a better scholar than the relator ? The
determination of this question depends wholly upon the statute
above quoted. It will be seen by an examination of that
statute that one student from each assembly district in the
county is to be selected each year by the commissioners for
free instruction. The candidates for such free scholarship
are to be selected from the scholars of the academies and
public schools of the county. From these candidates only is
the person to receive free instruction to be selected. From
the reading of this statute it is quite apparent, I think, that
the person selected for a free scholarship must be a student
from one of the academies or public schools of the county to
entitle him to the free instruction therein provided for.
It is unnecessary to determine whether such applicant must
328 HOWARD'S PRACTICE REPORTS.
The People ex rel. Wright agt. Genung.
also be a resident of the county or assembly district, as that
question does not arise in this case. But that each of the
candidates must be a student from one of the academies or
public schools of the county to be eligible as an applicant is,
I think, quite clear. The claim that the State Normal School,
located at Cortland. is one of the public schools of Tompkins
county, within the intent and meaning of this statute, can-
not, I think, be maintained. Hence, I am of the opinion
that Knapp's attendance at the normal school at Cortland
does not entitle him to this scholarship.
But Knapp and Curtis each contends that he had in former
years been a student in the public schools of Tompkins county,
and is therefore entitled to become a candidate for this
scholarship. The relator, however, while she admits that
they were in former years such students, insists that they were
not at the time of such examination scholars from the academies
and public schools of the county, and hence were ineligible.
Thus the question is presented whether the person to receive
such scholarship may be selected from the best scholars who
have at any time attended the public schools and academies
of the county, or whether he must be selected from those
who are the best student* in those schools during the school
year including or immediately preceding the time of the
examination and selection. The statute in effect provides
that free instruction is to be accorded to said students in con-
sideration of their superior ability and as a reward for superior
scholarship in the academies and public schools of the state.
One of the purposes of this provision, -then, was to provide
such free instruction as a reward for superior acquirements
and as an incentive to the students in each of these schools
to attain superior scholarship. The statute also provides that
the commissioners shall select annually the best scholar from
each academy and each public school as candidates for this
scholarship.
These provisions indicate quite clearly, I think, that the
intent of the statute is that the candidates for such scholar-
HOWARD'S PRACTICE REPORTS. 329
The People ex rel. Wright agt. Genung.
ship sliall be selected from those who are or have been
scholars in these schools during the year in which the exam-
ination is had, or during the school year immediately preceding
the time of the examination, when the examination is in
vacation. The commissioners are each year required to select
the best scholar from each school as such candidates. This
must, I think, be held to intend that the selection shall be
made from the scholars in attendance at such school during
that year. *
If the intent had been to include scholars who had attended
these schools years before, some provision would have been
made for notice to them so that all might have an opportu-
nity to be examined as to their scholarship and to compete
for such candidacy. No provision of that kind was made.
Moreover it can hardly be said that a person who has been
an attendant at a school, but whose relations with that school
have been completely terminated years before, is a scholar of
or from such school. He may have been educated at that
school, but is not, I think, a scholar from it within the intent
and meaning of this statute.
If the claim of the respondents were to be sustained it
would follow not only that the scholars attending each of
these schools would be brought into competition with all the
scholars who had ever attended them, but it would also enable
those who had once been applicants for such candidacy and
failed to apply each succeeding year, and perhaps in the end
succeed, to the exclusion of the best scholar attending that year.
If the construction contended for were to obtain it would
practically subvert the purposes of the statute so far as this
scholarship is intended as a reward to the scholars in these
schools for superior scholarship, as under such a construction
it might be indefinitely suspended, if not overthrown, and its
purpose as an incentive to superior scholarship be easily
defeated. I cannot think it will bear such a construction or
that such was its intent.
Upon a careful reading of the statute I am of the opinion
VOT,. II 42
330 HOWARD'S PRACTICE REPORTS.
The People ex rel. Wright agt. Genung.
that the intent of this statute was that the candidates for such
free scholarship should each year be selected from scholars in
the academies and public schools during that year. If correct
in this conclusion it follows that neither Knapp nor Curtis
was eligible as such candidate and cannot, therefore, be prop-
erly selected. .
The position that the relator is not a scholar of the Ithaca
High School because she was graduated at the close of its last
term, and hence is eligible as a candidate, cannot, I think, be
sustained. For the purposes of this act she must, I think,
be regarded as a scholar of that school, at least until the end
of the second year, and until that school shall again commence
its sessions. The intention of the statute was that she might
have all the advantages of that school so long as she was a
member of it, and upon her final examination and graduation
might then become a candidate for such scholarship.
For the reasons before stated I conclude that neither Knapp
nor Curtis was eligible as a candidate for this scholarship, but
that both the relator and Miss Lawrence were, and as the
relator passed the better examination, and was the best scholar
of the two last named, she is entitled to be selected for the
scholarship from that county for the year 1885, and to a cer-
tificate of such selection. It follows, therefore, that the
relator's application should be granted and that of Curtis
denied. But as no bad faith upon the part of the respondents"
is shown, without costs to either party.
HOWARD'S PRACTICE REPORTS. 331
Stoughton agt. Lewis.
COURT OF APPEALS.
MAKY E. STOUGHTON, plaintiff and respondent, agt. SAMUEL
A. LEWIS, impleaded, &c , defendant and appellant.
Pi'actice Appeal When motion to dismiss appeal to court of appeals may
be made wliere case is on the calendar.
The court of appeals will entertain a motion to dismiss an appeal for
which there is no foundation, without waiting until the case is reached
in its regular order on the calendar.
A plaintiff is not precluded from making a motion to dismiss an appeal
taken by a defendant, because he (the plaintiff) has noticed the case for
argument and placed it upon the calendar. He waives nothing by so
doing. It is still optional with him to wait until the case is reached on
the calendar, or to make his motion to dismiss on the ground that the
'appeal is unauthorized.
Where, in an action to foreclose a mortgage, a complaint containing all
the requisite allegations has been served upon defendant, who afterwards
obtained a stipulation from plaintiff's attorney for further time to
answer, agreeing not to put in any answer and not to ask any further
extension of time. Oil the last day defendant served a demurrer which
was/ on motion, overruled and stricken out, and plaintiff proceeded as
if no demurrer or answer had been interposed and obtained bis judg-
ment by default. The defendant appealed to the general term, where it
was affirmed, and from the affirmance defendant appeals to this court :
Held, that, the demurrer having been overruled, the judgment went by
default in the same manner as if no demurrer had been served, and no
appeal is allowed from a judgment entered by default. The order
overruling the demurrer not having been appealed from cannot be
assailed on an appeal merely from the judgment.
Decided February, 1885.
MOTION to dismiss an appeal.
The facts are sufficiently stated in the opinion.
Augustus ffaviland, for plaintiff and respondent. 1. The
service of the demurrer was a clear violation of the stipula-
tion and, therefore, properly stricken out (People agt. Stephens,
52 N. Y., 306; Townsend agt. The Masterson, <c., Co,,
15 N. Y., 588 ; Cox agt. N. Y. Cent., &G., R. R. Co., 6S
332 HOWARD'S PRACTICE REPORTS.
Stoughton agt. Lewis.
2f. Y., 4:14:}. 2. The demurrer was clearly frivolous and inter-
posed in bad faith to delay the prosecution of this action, and
judgment was properly granted thereon (Code of Civil Pro.,
sec. 537 ; Kay agt. WhittaJcer, 44 N. Y., 565 ; Osgood agt.
Whittlesey, 10 Abb. 134). 3. Xo appeal is allowed from a
judgment entered by default. The demurrer having been
overruled, the judgment went by default against the defend-
ant in the same manner as if no demurrer had been served
(Innis agt. Purcell, 58 N. Y., 388 ; JBriggs agt. Bergen, 23
N. Y., 162). 4. The appeal should be dismissed, with costs,
and as the defense and appeals were entirely without merit
and interposed for delay, to the great damage of the respond-
ent, she should be allowed extra damages in this court under
Code of Civil Procedure (sec. 3251, sub 5).
Franklin Bein, for plaintiff, appellant.
EARL, J. This was an action to foreclose a mortgage and
a complaint containing all the requisite allegations, for such an
action was served upon the defendant Lewis. Thereafter he
obtained a stipulation from plaintiff's attorney for further
time to answer, agreeing at the same time that he would not
put in any answer and would not ask or apply to the court for
any further extension of time. On the last day given by the
stipulation the attorney for Lewis served a demurrer to the
complaint, alleging as the ground of demurrer that the com-
plaint did not state facts sufficient to constitute a cause of
action, and thereafter the attorney for the plaintiff made a
motion at special term to overrule and strike out the demurrer
on the ground that it was frivolous and served in violation of
the stipulation, and an order was made by the court overrul-
ing it and setting it aside, on the ground that the defendant
Lewis was precluded by the stipulation from demurring or
answering. After that the plaintiff proceeded as if no
demurrer or answer had been interposed and obtained his
judgment of foreclosure by default. The defendant Lewis
then appealed from that judgment to the general term, where
HOWARD'S PRACTICE REPORTS. 833
Wyckoff agt. Devlin.
it was affirmed, and from the affirmance there he has appealed
to this court. He did not appeal from the order striking out
and setting aside the demurrer. That order, therefore, remains
in force and cannot be assailed on an appeal merely from the
judgment. The appeal from the judgment, therefore, brings
nothing for review to this court. It was a judgment by
default. There was no trial and no exceptions. The plaintiff
is not precluded from making this motion, because he noticed
the case for argument and placed it upon the calendar. He
waived nothing by so doing. It was still optional with him
to wait until the case was reached on the calendar, or to make
this motion on the ground that an appeal from such a judg-
ment to this court was not authorized.
The motion should, therefore, be granted, with costs.
All concur.
CITY COURT OF NEW YORK.
JACOB F. WYCKOFF agt. JOHN B. DEVLIN.
Security for costs Non-resident having place of business in city not required
to give Code of Civil Procedure, sections 32G8, 8160.
In an action in the city court of New York, a plaintiff residing without
the state, but having an office in the city of New York, where he
regularly transacts business in person, cannot be required to give
security for costs.
Sections 3268 and 3160 Code of Civil Procedure construed.
Special Term, September, 1885.
MOTION to set aside order requiring plaintiff to file security
for costs as a non-resident.
I' 7 . J. McOready, for motion.
J. M. Fiske^ opposed.
HALL, J. It is conceded for the purposes of this motion
that the plaintiff does not reside in the state of New York,
334 HOWARD'S PRACTICE REPORTS.
Wyckoff agt. Devlin.
but has an office or place in the city of New York where he
regularly transacts business in person, and plaintiff claims that
tinder the provisions of section 3268, Code of Civil Proced-
ure, as modified and limited by section 3160, he cannot be
required to give security for costs in an action in this court.
Section 3268 provides that the defendant in an action brought
in a court of record may require security for costs to be given
* * * where the plaintiff was, when the action was com-
menced, either : " 1. A person residing without the state, or
if the action is brought in the marine (now city) court of
New York * * * residing without the city or county
* * * wherein the court is located."
The clear meaning of this provision would seem to be that
in actions in courts of record not specially designated, security
can be required only when the plaintiff is a non-resident of
the stare, but in the courts designated by name (including this
court), security may be required where the plaintiff is a non-
resident of the city or county over which such courts have
jurisdiction, without regard to non-residence in the state, and
except for the limitation contained in section 3160, no ques-
tion could arise as to defendant's right in this action to require
plaintiff to give security.
Section 3160 provides, among other things, that "a plain-
tiff, who has an office for the regular transaction of business
in person within the city of New York is deemed a resident
of that city within the meaning of section 3268 of this act."
The language of this section is peculiar; the words "a
plaintiff " mean any plaintiff, without regard to his place of
residence. There is no restriction in this regard, and the
intention of the legislature seems to have been to treat per-
sons carrying on business in New York city, without regard
to their place of residence, precisely the same as residents, so
far as allowing them to commence and prosecute actions in
this court. And such a construction is no innovation upon
the practice in this court as it existed for several years before
the Code of Civil Procedure.
HOWARD'S PRACTICE REPORTS. 335
Wyckoff agt. Devlin.
Prior to 1876 the practice was entirely regulated by the
Revised Statutes (tit. 2, part 3, chap. 10), which, in general
terras, required security to be filed, upon demand, by any
plaintiff residing outside of the jurisdiction of the court in
which the action was commenced.
But chapter 136 of the Laws of 1876 (specially applicable
to this court), section 51, provides " where a suit shall be com-
menced in the court 1, for a plaintiff not residing within
the city and county of New York * * * the defendant
may require the plaintiff to file security for the payment of
the costs," &c. But subdivision 13 of that section provides :
" The provisions of this section shall not apply to plaintiffs
who have a place of business or of stated employment within
the city of New York, who, for the purposes of this section,
shall be deemed residents." And this exemption was with-
out regard to whether or not the plaintiff was a resident of
the state ; that is provided for by subdivision 14 of the same
section.
It will thus be seen beyond a doubt that at least from 1876
down to the time the Code took effect a plaintiff having a
regular place of business in New York, who sued in this
court, was not obliged to give security, although a non-resi-
dent plaintiff suing in any other court of record was obliged
to give such security. This act of 1876 and also the provi-
sions of the Kevised Statutes were repealed by the general .
repealing act (Bliss* Code [vol. 2], 1058 and 1059), but it
seems to me a perfectly reasonable conclusion that the legisla-
tive intention was substantially to re-enact the provisions of
the act of 1876 in regard to actions in this court, and to
extend and continue the immunity of that act to all persons
doing business regularly in this city.
If, as contended by defendant's counsel, the exemption pro-
vided by section 3160 was intended to apply only to residents
of this state, they have been singularly unfortunate in the use
of language ; but I do not think that such was the intention,
as a reference to section 3169 applicable to attachments in
336 HOWARD'S PRACTICE REPORTS.
McCredie agt. The City of Buffalo.
this court (sub. 3) will show there was no difficulty in finding
language to express the idea contended for by defendant.
That subdivision provides " that the defendant, being a resi-
dent of the state, is not a resident of the city of New York,
and has not an office within that city where he regularly trans-
acts business in per.-on," but no such restriction as to resi-
dence in the state is found in section 3160. The case of
Stephenson agt. Hanson (-t Civil Pro. Rep., 104) has no appli-
cation ; in that case plaintiff was a resident of Brooklyn.
I am therefore clearly of opinion that a non-resident of the
state of New York, who has an office in .the city of New Yorl:
where he regularly transacts business in person, cannot be
required to give security for costs in an action in this court.
The motion to set aside the order requiring plaintiff to file
security must be granted, with ten dollars costs to plaintiff to
abide the event.
SUPREME COURT.
JAMES HcOREDiE, agt. THE CITY OF BUFFALO, JONATHAN
SCOVILLE, mayor of the city of Buffalo, WILLIAM P. BURNS,
clerk of the city of Buffalo, JOSEPH G. BARNARD, comp-
troller of the city of Buffalo, and JAMES H. CARMICHAL,
treasurer of said city of Buffalo.
Municipal corporations Municipal duties Power to indemnify officers.
A municipal corporation, in addition to the powers specifically granted
by its charter, has full power to act in reference to all matters in which
it has an interest, except so far as restrained by constitutional limitations.
Accordingly, where an action quo warranto is brought by the people to
test the title of a municipal officer, and the complaint is dismissed on
the merits:
Held, that the expenses necessarily incurred by defendant in establishing
his right to the office, are expenses necessarily incurred in the discharge
of his duty, and that the city has full right and power to pay the
same.
HOWARD'S PRACTICE REPORTS. 337
McCredie agt. The City of Buffalo.
Also, held, that it is entirely immaterial "what attorneys performed the
services, assuming they were proper and necessary.
Special Term, August, 1885.
ACTION to enjoin the defend ante from issuing a warrant to
collect $500 for the benefit ol Day & Homer.
Leroy Andrus, for plaintiff.
Day & Romer, for defendants.
CORLETT, J. On the 7th day of May, 1883, the mayor
appointed Michael Newell a police commissioner of the city
of Buffalo for the term of six years, he at once qualified and
entered upon the discharge of the duties of his office.
In July, 1884, the people, through the attorney general,
brought an action in the supreme court for the purpose of
ousting him from office upon the sole ground that he was an
alien not a citizen of the United States, and therefore disquali-
fied from holding the position or discharging the duties of
police commissioner, the complaint was framed upon that
theory and assumption.
IS ewell, the defendant, throughDay & Homer, his attorneys,
defended the action and in his answer controverted the charge
of his alienage. It also alleged that he was a citizen qualified
to hold the office, discharge its duties, and that he was law-
fully so engaged. The action was tried at the Erie circuit
and resulted in a dismissal of the complaint on the merits,
\\dth costs against the plaintiff. The trial court decided that
Newell was a citizen eligible to hold the office ; that he was
properly engaged in the discharge of its duties, nnd that he
was entitled to its emoluments. Judgment was entered
accordingly, after which the plaintiff appealed to the general
term, which appeal is still pending. After judgment and the
appeal the common council of the city employed Day &
Homer to defend the appeal. A bill was also presented in
their behalf for legal services performed by them in defend-
VOL. II 43
338 HO WARD'S PRACTICE REPORTS.
McCredie agt. The City of Buffalo.
ing the action against Newell, the amount being $500 above
the taxable cost. This bill was allowed by the common
council and a warrant directed to be issued for its payment
out of the police funds. It would have been approved by
the mayor and all the city officials, eicepl for the bringing of
this action and enjoining the defendants.
The contention on the part of the plaintiff is to the effect
that the city of Buffalo has no power under its charter or as
a municipal corporation to pay for those legal services ; also,
that if Newell was entitled to aid from the city it could only
be granted for services rendered by the city attorney, and that
lie was not employed by Newell or rendered any legal service
in defending the action.
The defendants' -position is that Newell was an officer and
agent of the city of Buffalo ; that it was his duty to act in the
capacity and discharge the duties of police commissioner in
behalf of the city ; that if he had failed to defend the action
brought to oust him he would have been removed although
entitled to hold the office; that a neglect to defend \vould
have been a breach of duty to the city and a violation of the
obligations he had assumed when he accepted the office ; that
having good title to the office he would violate his trust in
neglecting to defend it, and that upon his title being judi-
cially established it was not only within the power of the city,
but its duty, to fully indemnify him for the expenses neces-
sarily incurred in protecting the rights of the city to his
services as police commissioner ; that it was entirely immate-
rial what attorneys performed the services assuming they
were proper and necessary. It is agreed that the sum of $500
was a proper and reasonable charge. The city appears by its
attorney in this action, and in its answer alleges, in substance,
that Day & Homer's bill should be paid. It appears by the
pleadings and evidence that the common council and all
the officials representing the city favor its payment, which
vould have been made except for this action.
It is a general rule that municipal corporations have full
HOWARD'S PRACTICE REPORTS. 339
McCredie agt. The City of Buffalo.
power to act in reference to all matters in which they have an
interest except so far as restrained by constitutional limitations
(Le Couteulx agt. City of Buffalo, 33 N. Y., 333 ; City oj
Buffalo agt. Bettinger, 76 N. Y., 393 ; Albany City National
Bank agt. City of Albany, 92 N. Y., 363 ; The Board of
Supervisors Orleans Co. agt. Jfowen, 4 Lans., 24 ; Meech
agt. City of Buffalo, 39 N. Y., 198 ; Dames, Mayor, &c.,
agt. City of New York, 83 N. Y., 297.) Newell was an
officer and agent of the city of Buffalo (The People agt. Vilas,
36 N. Y , 459). Important duties were imposed upon him
by the office he had accepted, which it was his duty to dis-
charge. So far as appears, he was entirely competent and
willing to perform them ; that he desired to do so. A failure to
defend the quo warranto action would have resulted in his
removal. The people in this case challenged his title ; the
duty therefore devolved upon him to prove affirmatively his
right to hold and discharge the duties of the office. The rule
would be otherwise if the action had been brought in behalf
of another claimant (People ex rel. Judson agt. Thacher, 55
N. Y., 525).
Section 37 of the charter provides for raising money for the
expense of the police board, also for necessary legal expenses
" and all expenses which may necessarily be incurred by reason
of any civil or criminal action or proceeding against the police
commissioners or either of them, or against anv member of the
tj V
police force for acts done in the discharge of his or their duty."
It was the duty of Newell to act as police commissioner. It was
because he so acted that the action was brought. If upon the
trial of the action against Newell it had appeared that his acts
as police commissioner were unauthorized because he was not
a citizen, then it is very clear that he would not be discharging
his duty in assuming to exercise the functions of the offioe.
Section 37 prescribes the duties of the city attorney with
reference to actions brought against the police commissioners.
There are no negative words in the charter limiting the power
of the city to the expenses affirmatively provided for; nor
340 HOWARD'S PRACTICE REPORTS.
McCredie agt. The City of Buffalo.
does the charter prevent the city from employing any lawyers
it chooses in litigations affecting it or its rights.
It is a general rule that in the absence of words of limitation
or restriction, rights or remedies which existed before the
passage of a statute are not taken away (Truman agt.
Richardson, 68 N. Y., 617 ; People agt. Ball, SO N. Y., 117 ;
Candee agt. Hayward, 37 N. Y., 653.)
It is an established rule that a municipal corporation may
indemnify its officers and agents for expenses necessarily
incurred in the bonafide discharge of their duties (Roper agt.
Town of Launburg, 90 N. C., 427 ; 30 Abb. L. C., 303 ;
1 Dill. Mun. Carp., sec. 98 ; Iladdsell agt Inhabitants of
Hancock, 3 Gray, 527 ; -Babbitt et al. agt. Selectmen of Savoy,
3 Gush., 530 ; Bancroft agt. The Inhabitants of Lynfield,
18 Pick., 566; Coolers Const. Limitation [oth ed.~\, 258).
The expenses incurred by Newell in preventing his unlaw-
ful removal from the city office which he held were necessary ;
they were also incurred in the discharge of his duty. Section
5, chapter 359 of the Session Laws of 1883, provide for the
filling of vacancies in the board of police, and also provides
that they may be removed from the office by the superior
court of Buffalo for neglect of duty, malfeasance in office,,
bribery or corruption ; but no removal shall be made unless
upon charges, or unless the party shall have been served with
a copy of the charges and have an opportunity to be heard
and present evidence in his own behalf. The statute carefully
protects the rights of the city to his services, also his own
rights by providing he shall not be removed except for cause.
The legislature proceeds upon the assumption that the person
sought to be removed is an officer ; the action against Newell
to remove him on the other hand was brought and carried on,
on the assumption that he was not an officer and never had
been.
"While it is true the action was not brought against him for
any particular official act, it is equally true that its scope was
much more comprehensive and sweeping. The essence of the
HOWARD'S PRACTICE REPORTS. 341
McCredie agt. The City of Buffalo.
complaint was that he had no right to perform any official act ;
that he had intruded himself upon the people and was assum-
ing to act as an official when in fact he was not an officer and
had no right to act in that capacity. In short, every act was
charged to be illegal and in violation of the rights of the
people. The issue joined presented the single question as to
Newell's right to act in an official capacity. His defense rested
exclusively upon his title to the office which, of course, included
his right to act in the performance of his duties. It is per-
fectly clear, therefore, that the reasons for indemnifying him
in case he had title were quite as cogent as though he was sued
for some official act, and no reason is perceived why the cor-
poration has not full power to indemnify in such a case.
It may well be, when the people challenged his title to the
office, the city might say : " This challenge assumes that you
are not an officer, therefore the city is not bound to defend
your right to hold it against the people's contention ; it
devolves upon you to prove affirmatively your title. If you
succeed the city can then act as the occasion requires."
Newell, therefore, employed his own lawyers and estab-
lished his title. The city, through its officers then said, in
substance : The attack upon your title was without founda-
tion and you shall be fully indemnified for the expenses
necessarily incurred in establishing your right to the office.
It was, undoubtedly, the intention of the legislature to
indemnify the officers and agents of the city for expenses
incurred in the discharge of their duties. It is a familiar
rule that statutes will be so construed as to attain the ends of
justice (Engel agt. Fisher, 15 Abb. N. C., 72 ; People ex reL
Steiner agt. Morrison, 78 N. 71, 84).
But if the language of the charter is not sufficiently broad
to include this case, still the authorities above cited clearly
show that the city has power to pay this bill. Its right to
indemnify its agents and officers in the discharge of their
duties includes this case. When the judgment established his
title the city ratified his acts in the employment of counsel
342 HOWARD'S PRACTICE REPORTS.
McCredie agt. The City of Buffalo.
and assumed the expense. A subsequent ratification is equiva-
lent to an original authority. Heerman agt. Clarkson (64 N f
Y., 171) ; Hodges agt. Buffalo (2 Denio, 110) ; Gamble agt.
Village of Watkins (7 Hun, 448), have no application.
The first case is where an appropriation was made to an hotel
keeper to pay the expenses of entertaining certain citizens;
the other was where an appropriation was made to entertain
a company of editors. The plaintiff's argument in the last
case was to the effect, that by liberal supply of provisions and
incidents the editors would be induced to indulge in editorial
puffs in favor of the village, which would amply repay it
for its expenditures. The justices and county court took that
view, but the su preme court took the liberty of saying " that
is not a duty for which the municipality was created." It is
obvious that if the supreme court could have been made to
see that the village of Watkins was created for the purpose
of feasting editors, it would have reached the same conclusion
as the courts below. The question of double costs throws no-
light upon this case.
In The People on the Relation of Morris agt. Adams (9
Wend., 464) the court held that a defendant in an action in
the nature of a quo warranto is not entitled to double costs,
for the reason that it was ' : in the nature of a writ of right for
the people against him who claims or usurps an office, fran-
chise or liberty, to inquire by what authority he supports his
claim in order to determine the right," and was not, there-
fore, within the statute allowing double costs. The character
of an action is determined by the complaint ( Walsh agt. Dar-
ragh, 52 N. Y., 590). The action against JS r ewall was not
brought "for or concerning any act done by him by virtue
of his office, or for or concerning the omission of any act
which it was his official duty to perform" On the other
hand the action was brought to restrain and prevent him from
doing any official act. The statute awarding double costs,
therefore, has no application.
The conclusion reached is that the city had authority to pay
HOWARD'S PRACTICE REPORTS. 348
Moore agt. Taylor and another.
the bill ; that if the power was not expressly conferred by the
charter it was inherent in the city as a municipal corporation
within the limits and scope of its corporate powers.
The complaint must be dismissed on the merits, with costs.
SUPKEME COURT.
THOMAS MOORE agt. HENRY A. TAYLOR and another.
SAME agt. SAME.
Supplementary proceedings When orders for, will be vacated Code of
Civil Procedure, section 66 Attorney's lien Mode of enforcing it.
Where orders were granted for the examination of a judgment debtor on
proceedings supplementary to execution, upon affidavits in the usual
form made by one of the attorneys who recovered the judgments for
the plaintiff! On motion by the judgment debtor to vacate such orders
upon the ground that prior to the granting of the orders the title to the
judgments had passed to a receiver :
Held, that the judgment debtor had the right to make such motion.
Held, further, that an attorney must obtain leave of the court before he
can institute supplementary proceedings upon a judgment in favor of
his own client after the title to that judgment has passed from the client
to the receiver, and especially where the proceedings are instituted by
an affidavit that says nothing about the lien of the attorney.
Monroe Special Term, August, 1885.
MOTIONS to vacate orders for the examination of Henry A.
Taylor on proceedings supplementary to execution.
W. II. Olmsted and T. Bacon, for Taylor.
J. Van Voorhis, for plaintiff.
ANGLE, J. These orders were granted upon affidavits in
the usual form made by one of the attorneys who recovered
the judgments for the plaintiff, and the motion is made upon
the ground that prior to the granting of the orders the title
344 HOWARD'S PRACTICE REPORTS.
Moore agt. Laylor and another.
to the judgments had passed to a duly appointed receiver of
the plaintiff.
The point is made in opposition to the motion, that Taylor
has no right to make it ; but I think he has such right and
must be heard. If he should pay plaintiff these judgments
such payments would not be good as against the receiver, and
it follows that he has a right to question all attempts to collect
the judgment from him by the plaintiff
It is also claimed in opposition to the motions, that the
plaintiffs attorneys who recovered the judgments have a right
to go on with these proceedings in their own interests as lienors
upon the judgments against Taylor, under section 66 of the
Code, and Pickard agt. Taneer (21 Hun, 403); Wilbur a^t.
Baker (24 Hun, 24) ; Frostman agt. Schantting (2 1 Weekly
Dig., 358) ; and Merchant agt. Sessions (5 Civ. Pro. R., 24),
are cited.
The last above case is in the New York city court at special
term, and the court held that the lien of the attorney may be
enforced by supplementary proceedings, and is not affected by
the fact that the client had made a general assignment. But
in that case the affidavit on which the order was obtained stated
(what is not contained in the affidavits in the present cases)
that the attorney who recovered the judgment, and who made
the affidavits upon which the ordor was obtained, had " a lien
thereon for his costs and fees, of which lien he had given the
defendant notice." Other cases on the attorney's lien and
rights are collected in Turns} agt. Parks (2 How. [N. S.~\, 35).
The case of Stoddard agt. Trenbath (24 /fun, 182), is to some
extent inconsistent with the foregoing cases.
O O
Dimmick agt. Cooley (gen. term, 4th dept. ; 4 Civ. Pro. /.,
141), holds, that before an attorney can proceed with an action
after settlement and discontinuance by his client, he must
obtain leave of the court. The court say ( p. 149) : " It would
be an unwise and dangerous practice, extremely hazardous to
the rights of both parties to allow an attorney to continue the
action for the purpose of collecting his costs, without first
HOWARD'S PRACTICE REPORTS.
Ward agt. Ward and others.
obtaining consent of the court that he may proceed for that
purpose. When, such permission is given, it is the duty of
the court to direct as to the time ana manner, and watch the
proceedings so as to fully protect the rights of both parties,
and not unnecessarily annoy and gmbarrass either."
. A fortiori, it seems to me, he must obtain leave of the
court before he can institute supplementary proceedings upon
a judgment in favor of his own client after the title to
that judgment has passed from the client to a receiver, and
where the proceedings are instituted by an affidavit that says
nothing about the lien of the attorney.
I do not deem it requisite here to discuss other suggestions
made by the counsel for the plaintiff. I have considered them
all, and my conclusion is, that the motions must be granted,
with ten dollars costs as of one motion.
SUPREME COURT.
MARY JANE WARD, as executrix, &c., agt. DE WITT CLINTON
WARD, as executor, &c., and others.
Will Construction of Trust What necessary to vest in executors a trust
estate When trust will be implied When no illegal suspension of tli power
of alienation Gift of income Effect of.
No express gift to executors is necessary in order to vest them with a trust
estate. A trust will be implied when, upon a consideration of the whole
will, that clearly appears to have been testator's intention, or when
the duties imposed are active and render the legal title in the executors
convenient and reasonably necessary, although not essential to accom-
plish the purposes of the will, and when such implication would not
defeat, but would sustain, the dispositions of the will.
Testator gave the use and income of all his estate to his widow, and
after her death to his two sons, share and share alike, remainder to
their heirs, and clothed his executors with such powers and duties
as clearly showed that he contemplated their retaining possession of the
estate, and the beneficiaries receiving the income from them :
Held, the estate vested in the executors in trust for the life of the widow,
and after her death for the lives of the two sons respectively.
VOL. II 44
346 HOWARD'S PRACTICE REPORTS.
Ward agt. Ward and others.
Also, held, there is no illegal suspension of the power of alienation.
A gift of income "subject to the necessary expenses" of living and the
education of two sons:
Held, to create a charge upon the income in the recipient's hands which
she was bound to satisfy.
A desire that "such sums from time to time as may be necessary and
deemed advisable to be paid to " persons named " that they * * *
may not want for the necessaries of life : "
Held, to create charges upon the income of the estate which the widow is
bound to satisfy, and which the court will enforce in the event of her
failure to do so in good faith.
Further, field, the court will not pronounce in advance the legal conse-
quences of an event which has not happened and may never occur.
Special Term, October, 1885.
TESTATOR gives to his wife for life and widowhood " the
use and income " of all his estate, " subject to the necessary
expenses of living, * * * for my two sons, * * *
until they arrive at the age of twenty-one years, if it should
be necessary, and the necessary expenses of good schooling
and a collegiate education, if either or both should desire it,"
giving them each on reaching thirty years $10,000, to pay
which the executors are authorized to dispose of any part of
the estate.
The will further provides: " And. further, I desire that
such sums from time to time as may be necessary and deemed
advisable, be paid to " three persons named, " that they, or
either of them, may not want for the necessaries of life; and
upon my wife's decease the use and income of all my estate,
subject to the above provisions, to my two sons, share and
and share alike," remainder to their " heirs." In the event
of his wife's remarriage* he gives her, "in lieu of all dower,"
$10,000. to be paid to her by the executors, who for this pur-
pose, and also for purposes of reinvestment, are authorized to
dispose of all or any part of his property.
He appoints his wife, the plaintiff, and the defendant
De Witt Clinton Ward, his executors, and by a codicil to the
will appoints them his "trustees" for the purpose of carrying
out any of its provisions.
HOWARD'S PRACTICE REPORTS. 343
Ward agt. Ward and others.
B. 8. Clark, for plaintiff.
De Witt, Lockman & De Witt, for defendant De Witt 0.
Ward, executor, &c.
Thomas Allison, for defendant Brindley.
Percy D. Adams, fur defendants A. P. Ward et al.
James M. Hunt, for defendant D. W. C. Ward (2d).
Harris & Corwin, for defendant W. E. Ward.
VAN YORST, J. This is an action for the construction of
the will of Mortimer Ward, deceased. The testator died leav-
ing a large estate ; it was, however, principally personal.
The question which has been chiefly litigated is whether
the will creates a trust in the executor and executrix over the
residuary estate, and if so the extent of the trust. There is
no express gift in words of the estate to the executors in trust j
nor is it necessary for the creation of a trust in them that there
should have been. It would be enough to work such result
if, upon a consideration of the whole will, in the light of the
duties to be performed by the executors, it should clearly
appear that it was the intention of the testator to vest the title
to the property in them, or that it was necessary for the proper-
discharge of those duties.
Where, a trustee is necessary to effectuate the valid pur-
poses of a will, and there is language in the instrument
sufficient to justify it, a trust will be implied and the court
will enforce it. Doni'iion over an estate, acts to be done and
duties to be performed, created and imposed by a testator,
may be of such a nature as by a necessary implication to create
a trust in the executors for the purposes of the will, to con-
tinue until the acts are done and the duties are performed.
The testator, by the first clause of his will, gave to his wife
" the use and income of all his real and personal estate during
her natural life, should she not marry again, subject to " cer-
tain charges. From this it is urged by her learned counsel
348 HOWARD'S PRACTICE REPORTS.
Ward agt. Ward and others.
that the widow takes a legal estate in the realty, and is enti-
tled to the actual possession and control of the personal prop-
erty for life.
This would be so undoubtedly, unless a consideration of the
whole will showed a contrary intention in the testator. An
absolute, unqualified devise of the rents and profits of land for
life is but a devise of the lands for the same period.
In Craig v. Craig (3 Barl). 6%., 76, 9) the testator gave
to his daughter Mrs. Hudson for life the income and assets of
a fixed part of his estate. It was held that she did not suc-
ceed to the legal title, but that the same was in the executors
in trust. In that case, however, the will directed that the
" income and assets " were to be paid to her by the executors.
In the case under consideration there is no such express
direction, and the question arises, what was the testator's
intention and does the will by implication show that the widow
was to receive the income from the executors ?
"Would the legal title in the widow to the real and personal
estate for life conflict with other parts of the will, or present
an obstacle to the proper performance of duties in respect to
the property with which the executors are expressly charged,
such duties involving the control, management and disposition
of the estate ?
The testator afterwards in his will declares : "And if my
wife should marry again, I give and bequeath to her, in lieu
of all dower, ten thousand dollars in money, to be paid to her
by my executors hereinafter named, and they are authorized
to dispose of any of my property to pay the amount." This
plainly enough indicates that the executors were themselves
to hold the property with a right to dispose of it, or sufficient
thereof to meet a contingency which might happen in the
future, the remarriage of his wife.
Again, the testator directs that upon his two sons arriving
at the age of twenty-five years, each should receive, in real or
personal estate, equal to 10,000, or, instead, an equivalent in
money of $10,000, and his executors were authorized to dis-
HOWARD'S PRACTICE REPORTS. Bi9
Ward agt. Ward and others.
pose of any of his property to pay such legacies ; and, further,
that if his executors should deem it necessary and advisable,
for the better security and interest of his estate, to change the
investment of his property, they were authorized to dispose of
all or any part of it and invest the proceeds in United States
government, New York state, or New York city bonds regis-
tered, or on good bond and mortgage on New York city or
Brooklyn city improved property, in sums of not more than
$10,000 each, upon property at a moderate value worth at
least double the amount. The power here conferred is large,
and the discretion as to the conversion of the estate is coex-
tensive with the estate itself and is to be exercised by the
executors for its better investment and security. It is true
that the realty might be sold by the executors for the pur-
poses of distribution under a mere power unaccompanied by
the legal title. But the real estate is inconsiderable in com-
parison with the personal. But what the executors are called
upon to do is more than the exercise of a simple power. The
proceeds are to be invested by the executors in registered
bonds and in bonds and mortgages. These securities, for con-
venience and for convertibility, should be taken in their names.
Investments once made, if the security should require it or
bonds be paid off, would require further reinvestment. It is
quite clear from the whole will that the duty in this regard
would devolve upon the executors, and that they are to hold
the estate for the remaindermen.
The testator's intention is made sufficiently clear by the
codicil to his will, m which he expressly declares that the
executors named thei3in are his "trustees for the purpose of
carrying out any of its provisions." Being therefore entitled
to the possession of the personal estate, upon the duties and
trusts above mentioned, and to hold it for the purposes of the
will, and having the power to sell and convert the realty into
personal property for investment, the executors, holding the
property, must necessarily collect the income, and from them
the beneficiaries mast receive it.
350 HOWARD'S PRACTICE REPORTS.
Ward agt. Ward and others.
The relation and duties of executors under a will are
regulated bj statute and well settled rules of law. Such duties
<?an be discharged, the affairs of the estate can be settled, dis-
tribution of the assets made, and the executors discharged,
within a reasonable short space of time. But under this will
duties are enjoined and responsibilities are created involving
the exercise of discretion, care and judgment with regard to
investment of the whole estate, and the holding of the same
for indefinite periods of time, out of which spring liabilities
to which executors, as such, are not exposed. These 'are
incidents of estates held in trust, and are duties and liabilities
which trustees assume. The testator was a business man, and
he deemed it proper that these responsibilities should not fall
upon his wife alone, and hence he joined his brother with her
as executor and trustee that the management of the estate
might have the benefit of his experience and services.
There are manj cases in the books which discuss the sub-
ject of the creation of trusts under wills. Trusts will not be
declared by the courts unless the language of the will
determines such to be the testator's intention. But the result
above reached upon the facts of this case, and each litigation
of this nature rests upon its own peculiar facts I believe to be
in harmony with the current of authority and with the general
rules running through the cases (Savage agt. Burnham* 17
N. Y., 561; Tobias agt. Ketchum, 32 N. Y., 319; Law
agt. Harmony, 72 N. Y., 408 ; Vernon agt. Vernon, 53 N.
r, 35i).
Iii Robert agt. Corning (89 N. Y., 225) a rule is deduced
and formulated in these words in the opinion of ANDREWS,
C. J. : "A trust will be implied in executors when the duties
imposed are active and render the possession of the legal estate
in the executors convenient and reasonably necessary, although
it may not be essential to accomplish the purposes of the will,
and when such implication would not defeat, but would
sustain the dispositions of the will."
This rule covers the case under consideration. It is evident
HOWARD'S PRACTICE REPORTS. 351
Ward agt. Ward and others.
that the trust in the executors continues during the lifetime
of the widow, in the event that she should not remarry. Her
remarriage even would not defeat the trust. It is needless,
however, to discuss the effect of the remarriage of the widow
upon her own interests under the will. It would be gratuit-
ous to pronounce in advance the legal consequences of an
event which has not happened and may never occur. But the
trust does not end with the life of the widow, but will continue
during the lives of the testator's two sous, and the remainder
will be held and preserved by the trustees, and the survivor
of them, for those to whom it is in the end and after her death
given. The trust works no illegal suspension for a period
beyond two lives. As to the income, it is in substance, after
the death of the widow, to be separated into two shares, each
son taking a half part thereof (Monarque agt. Monarque, 80
N. Y., 320 ; Wells et al. agt. Wells et al, 88 N. Pi, 323).
By the terms of the will the widow takes the household
furniture absolutely, and all the income of the estate for life
should she not marry again. This income, collected by the
trustees, must be paid over to her, but she takes this income sub-
ject to the charges which have been by the testator impressed
upon it in her hands, and these charges should be paid and
satisfied by her thereout.
The provisions for the support and education of the testa-
tor's two sons, during the time and under the conditions and
limitations imposed by him, must be met by the widow out of
the income of the estate received by her.
The provisions made in favor of the testator's aged mother,
sister and aunt, in themselves considerate, are also charges
upon this income in her hands, and the duty and obligation is
cast upon the widow to make such necessary provisions for
these persons as the testator clearly intended. In this she will
doubtless be aided by her cotrustee.
It is not for the court at this time to assume that this will
not in good faith be done, nor to indicate the sums, as is now
asked, to be paid to the beneficiaries. The amount rests much
35* HOWARD'S PRACTICE REPORTS.
Carter agt. Tallcott.
in the discretion and judgment of the widow in the light of
their needs.
These provisions are not simply recommendations. They
embody thn testator's kind intentions and will towards those
who had a natural claim upon his bounty. To such claims he
yielded in making these provisions, and in the event of any
failure to carry them out in good faith they may be enforced
by the judgments of this court (Johnson agt. Cornwall, 26
Hun, 4-99 ; Tolley agt. Greene, 2 Sandf. Ch., 9 ; Lawrence
agt. Cooke, 32 How., 126).
The above covers the substance of the various questions
raised upon the trial.
SUPREME COURT.
ALFRED 0. W. CARTER, respondent, agt. GEORGE
TALLCOTT, appellant.
Attorney and client Responsibility of attorney Tlie degree of skill and
diligence required to be observed by an attorney and counselor to entitle him
to enforce payment for Jt,is services.
Persons employed as attorneys and counselors to perform services for
others must be reasonably well informed of the legal principles applica-
ble to and governing the disposition of the business committed to their
charge ; and when they fail to inform themselves of statutory provisions
or well settled principles of law readily accessible by means of ordinary
care and attention, and in consequence thereof the business committed
to them is mismanaged, and the persons employing them are deprived
of their legal rights, they will not only forfeit all legal claim for
compensation, but in addition be justly held responsible for any loss or
in jury sustained by means of such misconduct by the person or persons
for whom they may be employed.
An attorney who is employed to defend two actions arising out of the
same contract, and sets up the same counter-claim, consisting of an
indivisible demand as a defense in both actions, and upon the trial of
the first action withdraws the counter-claim, except so much thereof
as is necessary to extinguish plaintiff's demand, and thereby deprives
defendant of the benefits of the remainder of the counter-claim upon
HOWARD'S PRACTICE REPORTS. 353
Carter agt. Tallcott.
the trial of the second action, is not entitled to conlpensation for the
services so rendered.
An attorney who appeals from an order referring an action involving a
long account with a view of taking the appeal to the supreme court of
the United States, on the ground that the order violated the provisions
of the Constitution of the United States requiring jury trials, is not
entitled to compensation for the services rendered on such appeal and
is liable to indemnify his client against the expenses to which he was
subjected in prosecuting it.
First Department, General Term, May, 1885.
Before DAVIS, P. J., and DANIELS, J.
THE facts are sufficiently set forth in the opinion.
R. H. Under/till, for appellant.
William R. Garrard, for respondent.
DANIELS, J. The judgment was recovered for the amount
found to be due to the plaintiff and Nelson Cross, who was
his partner, and had assigned his interests in this demand to
the plaintiff, for services performed by them as attorneys and
counselors in the courts of this state for the defendant. The
defense relied upon was that the services had been unskillfully
performed by the plaintiff and his assignor, and that they
were accordingly of no value to him, but involved him in loss
which he would not otherwise have sustained. The services
principally drawn in question were performed in two suits
brought by Charles E. Moore against the defendant, upon a
contract upon which he had employed Moore to act as his
agent in securing the sale of a medical compound made by
him. In the first suit Moore claimed to recover for commis-
sions earned by him under the contract during the month of
September, 1874, and in the second suit the claim was for
damages for breach of contract arising out of his discharge by
the defendant before the expiration of the period mentioned
in the agreement. The defendant by way of defense alleged
the non-performance of the contract by Moore through which
VOL. II 45
354: HOWARD'S PRACTICE REPORTS.
Carter agt. Tallcott.
he had sustained damages in his business to a large amount,
which he presented as a counter-claim against the causes of
action alleged by Moore against him. The answers were
substantially the same in each case, and the action for the
commissions, which was by far the least important of the two,
was first brought to trial, and this counter-claim was presented
as an answer to that action, but before it was submitted to the
referee the defendant's counsel withdrew from his considera-
tion all that part of the counter-claim which should exceed
the demand of the plaintiff in the action. The referee in that
action afterwards found and reported in favor of Moore, the
plaintiff, and judgment was entered upon his report.
The second action afterwards came on for trial at the circuit,
but before its trial leave was obtained to set forth by way of
reply the judgment entered in the first action on the referee's
report as a bar to the residue of the counter-claim relied upon
in the answer in the second suit. And under that reply it
was held by the court that the defendant's counter-claim was
barred by what had taken place upon the trial of the first
action, and that this portion of his defense was accordingly
out of the case. It appears by the evidence, and the fact was
also found by the referee that the defendant and his counsel
regarded the counter-claim as a meritorious demand which
might be sustained by evidence within the defendant's control
on the trial of the action. And upon these facts the question
accordingly arises whether their conduct was that of competent
and skillful counsel in following the course they adopted con-
cerning the counter-claim on the trial before the referee.
This counter-claim was considered and regarded by them as a
proper subject for trial before a jury, and they were apparently
under the impression that they could make use of so much of
it as would answer the claim made by Moore in his first action,
and afterwards rely upon the residue not only as a defense to
the second action, but as the basis of a recovery for the balance
against Moore, the plaintiff. This was manifestly and clearly
an erroneous view to be taken of the rights of the defendant
HOWARD'S PRACTICE REPORTS. 355
Carter agt. Tallcott.
in the enforcement of the counter-claim, and which according
to the evidence of the assignor Cross was not anticipated.
The law at that time, as well as at the present time, would
not permit an entire demand to be divided in this manner.
The defendant and his counsel had their election whether
they would make use of the counter-claim in the first or second
action, but they could not use it in both. This counter-claim
arose out of the contract upon which Moore based his right
to recover in each of these actions, and by section 150 of the
Code of Procedure which was at that time in force, it formed
a legal answer to either of the actions brought by Moore the
plaintiff. And in either, under the authority of section 274 of
the Code of Procedure, the defendant, upon supporting the
counter-claim by proof, was entitled to relief by way of judg-
ment in his favor after extinguishing by means of it the demand
presented as the basis of the plaintiff's right of action. And
that was the regular as well as the legal course to be followed,
if the counter-claim was used at all upon the trial of the first
action before the referee. Neither the Code nor the settled
principles of law not dependent upon it permitted the course
to be taken, which was adopted at the close of the evidence on
the trial before the referee (2 Pars, on Cont. [6th ed.~], 619,
and cases in note; (? Dougherty v. Remington Paper Co.,
81 N. r., 496, 499, 500). The law upon this subject was
clear and unmistakable, and the facts subjecting this contro-
versy to its application have not only been proved by the evi-
dence, but they have been specifically found by the referee
himself. And yet it was determined by him that the defend-
ant's counsel in thus withdrawing from the consideration of
the referee a part of the counter-claim, exhibited such skill
and exercised such diligence as is usual with lawyers of aver-
age learning and ability at the New York bar.
The evidence of the legal gentlemen who were examined
upon the trial of the action, so far as it was permitted to be
given, did not support this view of the conduct of the counsel.
With certain qualifications, those who were e'xamined on
HOWARD'S PRACTICE REPORTS.
Carter agt. Tallcott.
behalf of the plaintiff did not disapprove of their conduct,
but upon the facts themselves as they were sustained and
found ; that the counter-claim was deemed to be a meritorious
one ; that the proper forum for its trial was that of a court
and jury, and that the right so to try it was lost by what took
place concerning it before the referee, they did not approve
of the practice followed by defendant's counsel. Neither can
that be approved of by the well settled principles of the law
which require that professional gentlemen engaging as attor-
neys and counselors in the service of others shall be reasonably
well informed of the legal principles applicable to and
governing the disposition of the business committed to their
charge. They are not to be held responsible for errors of
judgment which may arise after that degree of care and atten-
tion has been devoted to their professional employment, as ia
ordinarily devoted by persons reasonably competent, expe-
rienced and well qualified for the discharge of professional
duties of this description. But if they fail to inform them-
selves of statutory provisions or well settled principles of law,
readily accessible by means of ordinary care, attention and
investigation, and in consequence of that failure the business
committed to them is mismanaged, and the person or persons
employing them are in that manner deprived of their legal
rights, there they will not only forfeit all legal claim for
compensation, but in addition to that be justly held responsi-
ble for any loss or injury sustained by means of such mis-
conduct by the person or persons for whom they may be
employed. This subject was considered in Von Wallhoffen,
agt. Newcortibe (10 llun, 23(5), and in the course of the opinion
of presiding justice DAVIS it was held that, " the law requires
that every attorney and counselor shall possess and use adequate
skill and learning, and that he shall employ them in every way
according to the importance and intricacy of the case. And
if a cause miscarries in consequence of culpable neglect or
gross ignorance of an attorney he can recover no compensation
for any services which he has rendered but which were useless
HOWARD'S PRACTICE REPORTS. 357
Carter agt. Tallcott.
to his client by reason of his neglect or ignorance " (Id., 240),
and the authorities referred to fully maintain this just and
sensible legal principle.
Under the law, as it has been settled and the facts found by
the referee himself as they were established by the evidence
in the case, the plaintiff was not entitled to recover for so
much of the services of himself and his associate as had been
performed in this manner, and by which the defendant was
deprived of the right to try this counter-claim before a jury
and secure to himself the probable advantages of such a trial.
The course which they elected to follow resulted in an
adjudication against the defendant upon the counter-claim,
which was a conclusive bar to the residue of it when it was
brought up for consideration upon the second trial. And
that could have been ascertained by them to be the law of the
case by any reasonable or well directed effort that might have
been made to discover it. They failed to acquire that
knowledge, and accordingly failed to discharge the duties
which the law imposed upon them under their employment
to the defendant. And so far as they have been allowed to
recover compensation in this action for such services, the
judgment is erroneous and cannot be sustained.
A reference of the first action was resisted by the defend-
ant's counsel, and they appear to have entertained the
conviction that the order referring the case was made in
violation of the Constitution of this State and of the Constitu-
tion of the United States. Upon both these subjects they
were under a palpable misapprehension of the law. For the
Constitution of this State, as it was adopted in 184:6, main-
tained the right to a trial by jury in that class of cases only in
which it had been previously used. But previous to its adop-
tion it was the common and well established practice of the
courts to refer trial of actions which should involve the
examination of long accounts, although either of the parties
might oppose the order directing the reference. And the
present Constitution of the State was adopted with that under-
358 HOWARD'S PRACTICE REPORTS.
Carter agt. Tallcott.
standing of the law and designed to perpetuate it by restrict-
ing the right to trial by jury to cases in which it had pre-
viously been used. The Constitution of the United States,
so far as it related to the right of trial by jury, was restricted
to proceedings in the courts of the United States, and had no
reference to actions arising under and prosecuted in the
courts of a State. These were quite familiar principles, and
yet the counsel for the defendant when the order of reference
was made, advised an appeal from it with a view of finally
taking it to the supreme court of the United States, on the
ground that it violated the clause of the Constitution of the
United States providing for jury trials. And under that
advice an appeal from the order was taken to the general
term, where this, as well as other views were impressed upoi
the consideration of the court. That appeal was determined
adversely to the defendant, and no further proceeding was
tuken upon it. The legal views under which the appeal was
taken in this manner were not sanctioned by the witnesses
who were sworn and examined before the referee, so far a
their evidence was taken. But the referee, in his conclusions,
considered that the defendant's counsel pxercised such skill
and diligence as is usual with lawyers of average learning and
ability at the New York Bar in advising and prosecuting the
appeal on this ground. But this was altogether too indulgent
a view to be adopted of the skill and diligence required to bo
observed by a professional legal gentlemen engaged in manag-
ing and caring for the legal interests of other parties. There
was no plausible authority justifying or supporting the course
that was taken upon this subject, and for the services of the
counsel in that appeal they had no legal claim against the
defendant, but should have been held liable to indemnify him
against the expenses to which he was subjected in prosecuting
that appeal.
Upon both these subjects professional evidence proposed to
be given by the defendant was excluded upon the trial. The
questions which were asked were not objected to as being in
HOWARD'S PRACTICE REPORTS. 359
Carter agt. Tallcott.
any respect improperly framed or propounded to the several
witnesses, but they were objected to in the most general terms,
and on such objections the answers were excluded. These
questions were designed to elicit, in a more particular manner
than had otherwise been shown, what the views of the wit-
nesses to which they were put were concerning the conduct
of the defendant's counsel. And they should have been per-
mitted to be answered, for counsel in framing hypothetical
questions have been held to be "not confined to facts admitted
or absolutely proved, but facts may be assumed which there
is any evidence on either side tending to establish, and which
are pertinent to the theories which they are attempting to
uphold" (Dilleber v. Home Ins. Co., 87 N. Y., 79, 83).
Arid within that rule these questions should have been per-
mitted to be answered.
In another action which had been prosecuted by the defend-
ant as plaintiff, an injunction had been set aside and proceed-
ings were taken to ascertain the damages caused by the injunc-
tion to the defendant. And upon the reference ordered for
that purpose several days were consumed by the defendant's
counsel in endeavoring to make proof of the fact that the
defendant in that action had been guilty of a contempt by the
violation of the injunction while it remained in force. In
this manner expense had been incurred by the defendant, and
he was also charged by the plaintiff for the value of the serv-
ices performed by his counsel.
A series of questions were propounded in different forms to
the witness Freling II. Smith, designed to elicit testimony
indicating this conduct to exhibit the absence of ordinary pro-
fessional skill and acquirements. The questions were put in
proper form, under the authority just referred to, for the pro-
duction of that character of evidence, but they were all upon
the most general objections overruled, nnd the answers were
excluded. If some of these questions might be criticised as
to their form, but which were not objected to on that ground,
others were clearly free from objection, and the answers
b60 HOWARD'S PRACTICE REPORTS.
Stark agt. Stark and another.
proposed to be taken from the witness should have been
received.
To the rulings made by the referee, excluding the evidence
offered, exceptions were taken on behalf of the defendant.
So they were as to his conclusions concerning the professional
conduct of the defendant's counsel in the management of the
counter-claim, and in the appeal from the order of reference,
and these exceptions seem to be very well founded. In the
disposition of the objections as well as in the views adopted
concerning the effect of the evidence, the learned referee wa8
involved in error, and as those errors were substantially
injurious to the defendant, the judgment in the case should
be reversed and a new trial ordered, with costs to the defend-
ant to abide the event.
DAVIS, P. J., concurred.
SUPREME COURT.
WILLIAM STARK agt. CLARK A. STARK and another.
Code of Oiml Procedure, section 740 Acceptance of offer of judgment May
be amended by supplying affidavit of attorney that he was authorized to make it.
Upon a motion by an attaching creditor to set aside a judgment and exe-
cution, which judgment had been entered upon plaintiff's acceptance
of an offer made by defendants, because the acceptance did not have
annexed thereto any affidavit to the effect that the plaintiff's attorneys
were duly authorized to accept said offer, as required by section 740 of
the Code of Civil Procedure:
Held, that the court has power to allow an amendment nunc pro tune,
annexing the proper affidavit; and where it appears that the omissions
to annex the proper affidavit to the acceptance was an inadvertence of
the attorney, and that the authority to accept actually existed, the
amendment .should be granted.
Monroe Special Term, July, 1885.
MOTION by George N. Grouse and another, as attaching
creditors of defendants, to set aside the judgment and execu-
HOWARD'S PRACTICE REPORTS. 801
Stark agt. Stark and another.
tion herein, because the acceptance of defendants' offer of
judgment had not annexed thereto the affidavit of plaintiff's
attorney, that he was duly authorized to make it on behalf of
the plaintiffs. Also motion by plaintiff for leave to amend
nunc pro tune by now annexing such affidavit.
Judgment was entered in this action July 15, 1885, for
$542.16, upon plaintiff's acceptance of an offer of judgment
made by defendants. Execution has been issued thereon and
a levy made thereunder by the sheriff of Wayne county.
The offer of acceptance did not have annexed thereto any
affidavit to the effect that the plaintiff's attorneys were duly
authorized to accept said offer, as required by section 740 of
the Code of Civil Procedure.
The moving creditors have since commenced an action in
this court, in which a warrant of attachment has been issued
to the same sheriff against defendants' property.
T. Hogan, for creditors.
J. W. Dunwell, for plaintiff.
ANGLE, J. An objection is made to the motion of the
creditors, that they are strangers to the judgment and cannot be
heard to question it for want of an affidavit showing authority
to accept the offer of judgment. Their counsel claims such
right under Bates agt. Plonsky (28 Hun, 112). in which it
was held that where personal property has been levied on
under an attachment, the attaching creditor may maintain an
action to have a prior assignment executed by the debtor, and
an execution issued upon a judgment confessed by him,
declared fraudulent and void, and to have the priority of the
lien acquired by him under the attachment established. There
are at least two features that distinguish the matter under
consideration from that case : 1st. In that case the attach-
ment had been levied ; in the present case the papers show
only that the attachment had been issued to the sheriff who
VOL. II 46
362 HOWARD'S PRACTICE REPORTS.
Stark agt. Stark and another.
had already a levy on the property under plaintiff's execution,
[f a sheriff makes a levy upon goods on one execution and
afterwards a second execution comes to his hands the levy is
sufficient for both (Ryder agt. Gilbert, 16 Hun, 165), and
cases cited. But I am not aware that it has ever been held
that a levy on goods on an execution is sufficient levy under
an attachment which afterwards comes to the hands of the
same sheriff. The Code (sec. 649), prescribes how a levy
under a warrant of attachment must be made. It does not
appear to have been complied with here. It seems quite clear
to me that the creditors cannot, without a levy under their
attachment, maintain their motion. 2d. There is an obvious
distinction between an action by an attaching creditor to set aside
a prior confessed judgment because intended to hinder, delay or
defraud creditors, and a motion by such creditors, to set aside
the judgment for want of conformity in the practice to a pro-
vision of the Code. The consideration of this distinction
involves the plaintiff's motion to amend. " Defects and irregu-
larities not affecting the jurisdiction of the court and where no
fraud or collusion is imputed to the parties, the remedy for
such defects is given to the party alone (Gere agt. Gundlach,
57 Barb., 15 ; Rmiftgt. Meyer, 2 How. [N. &], 20), and thus
we come to the question whether this defect is jurisdictional.
In McFarren agt. St. John (14: Hun, 387), where defendant
moved to set aside an adjustment of plaintiff's costs, and that
defendant be allowed costs, the defendant had made an
offer of judgment, but had not annexed to it the affidavit
required by section 740. The plaintiff's attorney paid no
attention to the offer, and the court sustained him, saying, in
substance, that the offer was a nullity, because not verified ;
that retaining the offer did not waive the defect ; that plaintiff
could not enter judgment upon the offer ; and the concluding
part of the opinion is : " The provision of section 740 of the
Code of Civil Procedure, requiring that when an offer or
acceptance is subscribed by an attorney he shall annex to it
his affidavit, to the effect that he is authorized to make it on
HOWARD'S PRACTICE REPORTS. 36$
Stark agt. Stark and another.
behalf of the party, is new, and was obviously regarded by
the legislature as material to the rights of both parties. So-
far as the party in whose behilf it is made is concerned, the
opposite party can waive nothing for him. In short, unless
the offer when subscribed by the attorney is verified accord-
ing to the statute, it cannot have the effect to set the party in
motion on whom it is served. He is not required to notice it
in any manner. He need not return it, and he waived noth-
ing by retaining it. The defect is not a mere irregularity,
but is a matter of substance." I have made these quotations
to show that the court was only considering a question
as between the parties to the judgment, which was all
that was before them. The case of Itiggs agt. Weydell
(17 Hun, 515), differed from McFarren agt. St. Jolin y
in the fact that the plaintiff declined to accept the offer but
gave no reason therefor. Upon the trial the plaintiff recovered
less than the offer and then defendant moved to be allowed
to amend the offer by annexing an affidavit. In denying the
motion at special term the court said : " If the defendant
desired the benefit of the statute they were bound to do just
what the statute pointed out. To talk of amending is to mis-
conceive the office of amendment ; besides, that would be to make
now for the first time a good offe'r," and this opinion was
approved at general term. This case was affirmed (78 N. J"".,
586), the court saying : " We concur with the special and
general term, that the offer to allow judgment to be taken
was imperfect because not in conformity with the Code, and
that there was no waiver of the defect by the notice served
by the plaintiff's attorney upon the defendant's attorney, or in
any other manner. We are also of the opinion that if the case
was one in which courts were authorized to allow the defendant
to serve the affidavit nunc pro tune, it was matter of discretion
with the special term and having been once refused there, as
well as by the general term, no appeal lies to this court." It
will be observed that the court of appeals are more guarded
than the general terms in 14 II an and IT II un (supra), that
864 HOWARD'S PRACTICE REPORTS.
Stark agt. Stark and another.
court characterizing the offer as " imperfect." The next case
cited for the creditors is Werbolowsky agt. Greenwich Insur-
ance Company ( 5 Civ. Pro. R. 303), where the city court of
New York deny the power of the court to allow an amend-
ment by supplying an affidavit to an offer, and the above
cases in 14 Hun and 17 Hun, are cited as denying the
power. I do not read those cases as denying the power. In
Eagan agt. Moore (2 Civ. Pro. R., 300), the New York
common pleas held at special term that the court had such
power. In all these eases the question arose between the
parties to the judgment, and they are all the cases arising
Tinder section 74-0 that have come within my examination.
The provision of the Code with regard to offers and their
acceptance are no more statutory or matters of substance than
the verification of the complaint for certain purposes, and yet
after judgment a plaintiff was allowed to amend nune
pro tune by filing an affidavit of verification (Jones agt.
U. S. Slate Co., 16 How., 129) ; nor than an affidavit of
default, and yet, an irregularity in assessing damages without
such affidavit is a question of practice and not reviewable
in the court of appeals (Catlin agt. Billings, 16 N. Y.,
22) ; nor than the provisions relating to the confession
of judgments. Indeed the court in McFarren agt. St.
John, say : " In short, the same reasons exist in respect to
an offer as in case of a confession of judgment, for holding
that all the substantial requirements of the statute have been
complied with." The case of Mitchel agt. Van Buren (27 N.
Y., 300), is then in point and should receive more than a pass-
ing notice. It was a motion by a subsequent judgment
creditor to set aside a prior confession of judgment, and on
that motion the court permitted an amendment to support the
judgment by signing and verifying a new statement stating
the facts more specifically. The reasoning of DENIO, 0. J.,
after showing that the court had the same power of amend-
ment over confessed judgments as over any of their records,
proceeds to state the provisions of section 173 of the Code of
HOWARD'S PRACTICE REPORTS. 865
Stark agt. Stark and another.
Procedure (Code of Civ. Pro., sec. 723) and says : " This is very
broad language, and plainly embraces a case like the present
wliere.it was shown that the proceeding was in good faith and
the intention of the parties was to create valid judgments for
debts actually due to the amount stated in the judgment."
" It is a jurisdiction of the same kind with that which it (the
supreme court) exercises in relieving against defaults and slips
in practice." This case was followed in Cook agt. Whipple
(55 N. Y., 166).
In Fawcett agt. Vary (59 JV. Y., 597), where the affidavit
that no answer or demurrer had been served and which had
been filed with the clerk for the purpose of perfecting judg-
ment by default, had been properly sworn to before the proper
officer who had neglected to sign the jurat, and the omission
had not been discovered until after the judgment, the court
held it had power and it was within its discretion to permit
the officer to sign nunc pro tune.
In Lawton agt. Kiel (51 Barb., 30), a warrant of attach-
ment had been issued upon an affidavit sworn to before a
commissioner in another state, but no certificate of the secre-
tray of state had been obtained as required by the statute, and
the court at general term held that an objection for that cause
was not fatal that the omission might be amended and
supplied. The special term in Williamson agt. Williamson
(64 flow., 450) held that such an omission of the certificate of
the secretary of state to an affidavit verifying a complaint
upon which an order for the publication of summons was
.granted, the court never acquired any jurisdiction, but it does
not appear in that case that there was any application to
supply the defect (See, also, to same effect, Plielps agt.
P helps, 6 Civ. Pro. R., 117, at special term).
Without further examination, I conclude by holding that
Mitchel agt.Van Buren is sufficient authority for the power
of amendment invoked by the plaintiff, and that, as it appears
that the omission to annex the proper affidavit to the accept-
ance was an inadvertence of the attorney, and that the
366 HOWARD'S PRACTICE REPORTS.
Johnson and another agt. Duncan.
authority to accept actually existed, therefore the amendment
asked by the plaintiff should be granted.
Motion of creditors denied and motion of plaintiff granted,
without costs to either party.
K Y. SUPERIOR COURT.
WILLIAM "W. JOHNSON and another, executors, &c., agt.
JOHN P. DUNCAN.
Title to real estate Specific performance when performance may or may
not be resisted Laches.
A purchaser cannot justify his refusal to perform his contract by a mere
factious objection to the title tendered him, nor is it sufficient for him
when the jurisdiction of an equity court is invoked to compel him to
perform his contract merely to raise a doubt as to the vendor's title.
Before he can successfully resist performance of his contract on the ground
of defect of title, there must be at least a reasonable doubt as to the
vendor's title, such as affects its value, and would interfere with its sale
to a reasonable purchaser, and thus render the land unmarketable.
Inexcusable laches and delays will debar a party from the relief which
they being absent, he might have by the judgment for specific
performance.
Time, though not ordinarily of the essence of the contract may become so,
if by its effluxion a change .of value or other material change of circum-
stances has been produced, but if the delay of the defendants is unrea-
sonable and inexcusable., it is enough to relieve the unwilling party
from the contract.
ft seems, that a party to a contract for the purchase of land has no equit-
able lien for the amount paid on the execution of the contract where he
has lost the right to enforce such contract by his own laches.
Special Term, October, 1885.
ACTION for specific performance.
Carlisle Norwood, Jr., for plaintiffs.
John E. Parsons, for defendant.
HOWARD'S PRACTICE REPORTS. 367
Johnson and another agt. Duncan.
INGRAHAM, J. The rule as settled in this state is : " The
purchaser cannot justify his refusal to perform his contract
by a mere captious objection to the title tendered him, nor is
it sufficient for him when the jurisdiction of an equity court
is invoked to compel him to perform his contract merely to
raise a doubt as to the vendor's title. Before he can success-
fully resist performance of his contract on the ground of
defect of title there must at least be a reasonable doubt as to
the vendor's title, such as affects its value and would interfere
with its sale to a reasonable purchaser and thus render the
land unmarketable " (Ilellnigel agt. Manning, 97 N. Y., 60 ;
Schriver agt. Schriver, 86 N. Y., 575). And after a careful
examination of this case I cannot see that the existence of the
contract made by the plaintiffs' testator to Mr. Grant raises a
reasonable doubt as to the title. The laches of Mr. Grant or
his assignor, Mr. Chaffee, would debar them from enforcing
the specific performance of their contract.
In the Merchants' Bank agt. Thompson (55 N. Y., 12), it
is said : " That inexcusable laches and delays will debar a party
from the relief which they being absent he might have by
the judgment for specific performance. Time, though not
ordinarily of the essence of the contract, may become so, if by
its effluxion a change of value or other material change of cir-
cumstances has been produced. * * * The other rule
must be, that if the delay of defendants is unreasonable and
inexcusable, it is enough to relieve the unwilling party from
the contract."
It is claimed, however, by the defendant that as against a
subsequent purchaser with notice a vendee under a prior con-
tract who has paid part of the purchase-money has a lien on
the land, and a second purchaser holds the property subject
to such equitable rights, and to support that claim Chase agt.
Peck (21 N. Y., 581), and Clark agt. Jacobs (56 Howard's
Practice, 519), are cited. In Chase agt. Peck the court held
that a grantor of land had an equitable lien upon the land for
the consideration of the grant, and such a lien becomes in
868 HOWARD'S PRACTICE REPORTS .
Johnson and another agt. Duncan.
effect an equitable mortgage upon the land. I can find no
authority in that case for the proposition that a party to a
contract for the purchase of land would have an equitable lien
for the amount paid on the execution of the contract where
he had lost the right to enforce such contract by his own
laches.
In Clark agt. Jacobs (supra), judge YAN YORST says " that
sufficient has been decided to recognize and declare that a
lien exists in favor of the vendee when the purchase money
or a part of it has been prematurely paid before the convey-
ance," but an examination of the cases cited by him to sustain
that proposition shows that such a lien has only been sustained
where the failure to comply with the contract was the fault
of the vendor and not of the purchaser, or where the contract
was tainted with fraud on tire part of the vendor, and no case
has been cited where it was held that where the purchaser
had an opportunity to comply with the contract, and had
refused, that a lien existed in his favor for the amount paid.
In this case it is not disputed that at the time of the tender
of the deed to Mr. Grant plaintiffs had no knowledge of the
assignment of the contract to Mr. Chaffee. The record of
the assignment was not constructive notice to them ( Wash-
burn agt. Burnham, 63 N. Y., 135).
Under all the circumstances of this case I am of the opinion
that if any lien existed in favor of Mr. Grant against the
property for the $10,000 paid by him on account of the pur-
chase-money it was destroyed by his laches and by the tender
to him of the deed for the conveyance of the property. I
think, therefore, that plaintiff's title to the property is good,
and that plaintiff is entitled to judgment for a specific per-
formance of the contract. Under the circumstances, however,
I am of the opinion that there should be no costs awarded the
plaintiffs.
Judgment is ordered accordingly
Findings and judgment to be settled on notice.
HOWARD'S PRACTICE REPORTS. 369
Matter of the Thirty-fourth Street Railroad Company.
SUPKEME COUKT.
In the Matter of the Application of the THIRTY-FOURTH
STREET RAILROAD COMPANY, for the appointment of three
commissioners to determine whether its railroad ought to
be constructed, &c.
Street railroads Commissioners When application for appointment of,
should be denied.
Where, upon an application to the general term for the appointment of
commissioners to determine whether a proposed railroad should be con-
structed through certain streets in New York city, it appears that such
railroad cannot legally be buill by reason of the refusal of other railroad
companies already lawfully occupying the streets with their tracks to
consent to its construction, such application should be denied (DAVIS,
P. J., dissenting).
First Department, General Term, May, 1885.
Before DAVIS, P. J., BRADY and DANIELS, JJ.
Grosvenor P. Lowery vccd. Abram Wakeman, for applicant.
Horace Russel, C. A. Hand and Austin G. Fox, opposed.
MOTION on behalf of the railroad company for the appoint-
ment of commissioners, &c.
DANIELS, J. The petitioner is a railroad corporation created
and organized under the authority of chapter 252 of the Laws
of 1884 to construct and operate a street surface railroad in
Thirty-fourth street, in the city of New York. Its road is
designed to be a double track surface railroad, extending over
routes as they have been described in the application. From
connections with the Hudson river, at the foot of West Thirty-
fourth street, through, along and upon West Thirty -fourth
street and East Thirty-fourth street, to connections with the
ferry at the foot of East Thirty-fourth street, East river ; from
connections with this company's route in West Thirty-fourth
VOL. II 47
370 HOWARD'S PRACTICE REPORTS.
Matter of the Thirty-fourth Street Railroad Company.
street, at Tenth avenue, through, along and upon Tenth avenue,
to West Forty-second street ; thence through, along and upon
West Forty-second street, to connections with the ferries at
the foot of that street at the Hudson or North river; together
with all switches, sidings, turnouts and turn-tables and suitable
stands as may be necessary for the convenient working of such
road.
Notice of the application has been given, as it was provided
it should be, by section 5 of this act. This notice has been
required to be given to each abutting property owner who may
be found not giving his consent to the construction and opera-
tion of the railroad, and the only object to be promoted by
giving such notice was to secure these owners an opportunity
to appear and oppose the application made for the appoint-
ment and selection of commissioners. The act has not in
terms declared that object, bat it results from the fact that
notice of the application has been directed to be given to the
persons withholding their consent, and that could have been
designed for no other purpose than to permit them to contest
the application for the appointment and selection of commis-
sioners. On behalf of the owners of abutting property on that
part of Thirty-fourth street extending from Sixth, easterly
to Lexington avenue, the right of the company to the appoint-
ment of commissioners has been contested and denied. This
portion of Thirty-fourth street, with the exception of church
edifices fronting upon parts of it, has been devoted to the erec
tion and maintenance of private residences, many of them of
a very costly character, and their owners to a great extent
very decidedly object to the construction and operation of the
railroad over this portion of the street. In support of their
opposition various facts have been relied upon to render it
effectual, which may be more appropriately considered
hereafter.
The extreme length of the petitioner's proposed railroad is
12.357 feet, over the much greater part of which other surface
railroads have already been built and are now maintained and
HOWARD'S PRACTICE REPORTS.
Matter of the Thirty-fourth Street Railroad Company.
operated. One of these railroads is that of the Forty-second
Street, Manhattan ville and St. Nicholas Avenue Railway
Company. That includes the space between the Hudson river
and Tenth avenue for a distance of 1,800 feet. The Forty-
second Street and Grand Street Ferry Railroad Company also
lias its two tracks upon this portion of Forty-second street,
and then proceeds by the way of Tenth avenue to Thirty-
fourth street, a distance of 2, 100 feet, and thence upon Thirty-
fourth street to Sixth avenue for a further distance of 3,600
feet. And the New York and Harlem Railroad Company
owns, maintains and operates a double track surface railroad
in Thirty-fourth street, extending easterly from Lexington
avenue to the East river, a distance of 2,304 feet. These
several railroad companies have refused their consent to the
construction of the petitioner's railroad, and upon that fact
the resistance has been mainly placed to the success of the
petitioner's application.
By section 14 of chapter 252 of the Laws of 1884, under
which the petitioner has been incorporated, it has been pro-
vided and declared that, "except for necessary crossings no
street surface railroad company shall construct, extend or
operate its road or tracks in that portion of any street, avenue,
road or highway in which a street surface railroad is, or shall be,
lawfully constructed, except with the consent of the company
owning and maintaining the same, provided, however, that
any two or more railroad companies now existing, or hereafter
formed under the provisions of this act, may join and unite
and use each others' tracks for a distance not exceeding one
thousand feet, whenever the court upon an application for the
appointment of commissioners, next hereinafter provided,
shall be satisfied that such use is actually necessary to connect
main portions of a line to be constructed as an independent
railroad, ani that the public convenience requires the same,
in which event the right of such use shall be given only for
a compensation, to an extent and in a manner to be ascer-
tained and determined by commissioners to be appointed by
872 HOWARD'S PRACTICE REPORTS.
Matter of the Thirty-fourth Street Railroad Company.
the courts, as provided in respect to acquiring title to real
estate under chapter 140 of the Laws of 1850, entitled ' An
act to authorize the formation of railroad corporations, and to
regulate the same,' and the several acts amendatory thereof ;
or by the board of railroad commissioners in cases where the
companies interested shall unite in a request for such board
to act. Such commissioners, in determining the compensation
to be paid for the use by one company of the tracks of
another, shall consider and allow for the use of tracks and for
all injury and damage to the company whose tracks may be
so used." And by its very plain language it has been made
impracticable, as the facts have been made to appear, for the
petitioner to construct or maintain a surface railroad over se
much of these streets as have been already devoted to the
construction and operation of the other street surface railroads.
To that extent the act is very plain, and was designed to pre-
vent the construction and operation of competing surface
railroad lines against the consent of the companies whose
railroads have been previously constructed and are still in
operation. The intention and object of the section through-
out have not been declared in such language as to be entirely
free from ambiguity, but upon this particular subject no
ground has been left for misapprehending the intention of the
legislature. It has, however, been suggested that the legisla-
ture did not possess the authority under the constitution to
provide or impose this restriction or disability, but the con-
stitution has nowhere, either in express words or by reasonable
implication, deprived the legislature of this power. It has,
on the contrary, by section 18 of article 3, invested the legis-
lature with plenary authority to pass general laws, providing
for all the cases enumerated in this section, and one of those
cases which cannot be provided for by a special law is that of
granting to any corporation, association or individual, the
right to lay down railroad tracks. But it was made the
imperative duty of the legislature to pass general laws pro-
viding for that object, and chapter 252 of the Laws of 1884
HOWARD'S PRACTICE REPORTS 373
Matter of the Thirty-fourth Street Railroad Company.
is one of the acts which has been passed by the legislature to
provide for the construction and operation of railroads.
Neither this portion of the constitution, nor any other, has
further abridged the power of the legislature than to declare
that " no law shall authorize the construction or operation of
a street railroad except upon the condition that the consent of
the owners of one-half in value (of) the property bounded on,
and the consent also of the local authorities having the con-
trol of that portion of a street or highway upon which it is
proposed to construct or operate such railroad be first obtained,
or in case the consent of such property owners cannot be
obtained, the general term of the supreme court in the district
in which it is proposed to be constructed may, upon applica-
tion, appoint three commissioners who shall determine, after
a hearing of all parties interested, whether such railroad
ought to be constructed or operated, and their determination
confirmed by the court may be taken in lieu of the consent
of the property owners." With these specified restrictions
as to the laws which should be passed the constitution has not
undertaken to declare or define what the act may contain or
be included in it. It cannot permit a street railroad to be
constructed or operated except upon a compliance with these
requirements. So far a disability has been imposed upon the
legislature and its legislative authority has been limited, but
beyond that no restriction over this subject has been placed upon
its legislative power. How the end intended to be accomplished
ehould be secured after the observance of these restraints, was
necessarily left to the judgment and discretion of the legislature.
For so far as the act may be made to include subjects not within
these specified restraints, it would clearly be within the broad
grant of legislative authority made by the constitution to the
legislature. And that includes all legislative authority of
every description not restricted or abridged by some express
or implied prohibition of the constitution.
This subject was considered in People agt. Flagg (46 N. Y.,
401). where it was said, in the opinion of the chief judge, with
374 HOWARD'S PRACTICE REPORTS.
Matter of the Thirty -fourth Street Railroad Company.
the concurrence of all his associates, that " all legislative
power is conferred npon the senate and assembly ; and if an
act is within the legitimate exercise of that power, it is valid,
unless some restriction or limitation can be found in the con-
stitution itself. The distinction between the United States-
constitution and our state constitution is that the former con-
fers upon congress certain specified powers only, while the
latter confers upon the legislature all legislative powers. In
the one case the power specifically granted can only be exer-
cised. In the other all legislative powers not prohibited may
be exercised " (Id., 404). And Bank of Chenango agt. Brown
(26 N. Y., 467) is to the same effect.
So much of the enactment as is contained in section 14 of
chapter 252 of the Laws of 1884 is clearly an appropriate exer-
cise of legislative power. It was entirely judicious for the
legislature to prohibit the construction of another railroad in
the public streets of a city, so far as they might previously
have been occupied for that object by other companies acting-
under the sanction and authority of the law. And no refined
or purely artificial distinctions can be permitted to stand in
the way of the exercise of this legislative authority.
This subject was also considered by the same chief judge in
People agt. Comstock (78 N. Y., 356), where it was held that
"it must be borne in mind that the senate and assembly
possess all legislative power, except when forbidden or
restricted by other provisions of the same instrument, and
hence it is necessary in order to successfully challenge the
constitutionality of an act of the legislature within the pur-
view of legislative power, to find some provision which either
restricts or prohibits the power which it has exercised. Every
presumption is in favor of its validity" (Jd., 361).
Between this section and the constitution there is neither a
direct or manifest conflict, for it in no manner restricts, limits.
or enlarges what the constitution in any form has declared
shall or shall not be done. There is no provision either in
this portion or any other part of the constitution which ha
HOWARD'S PRACTICE REPORTS. 376
Matter of the Thirty-fourth Street Railroad Company.
declared expressly, or by implication, that a railroad company
shall be entitled to construct and operate its railroad over that
portion of a public street in a city which has already been
devoted to or appropriated by another railroad. These pro-
visions of the constitution have wholly been directed to other
subjects. Their object has been to prevent the construction
of railroad tracks under the authority of a special law, and to
require it to be done through the instrumentality of a general
law. And even when a general law may be enacted, before a
railroad can be constructed under its authority, it has been
made requisite that the consent of the owners of one-half in
value of the property bounded on that portion of the street or
highway upon which it is proposed to construct or operate the
railroad, as well as the consent of the local authorities having
control of that portion of the street, shall be first obtained
And if the consent of such owners cannot be obtained, then
the general term of the supreme court may appoint three com-
missioners, whose determination, confirmed by the court, shall
stand in the place of the consent of the property owners. So
much has been required for the observance of these provisions
of the constitution, but no more than that has in any form
been declared. And consequently the entire range of legisla-
tion beyond that was within the authority, judgment and dis-
cretion of the legislature itself. And the prohibition which is
now under consideration was plainly within that extent of
legislative power, for it has not been declared that the legisla-
ture could make no further requirements than those declared
by these provisions of the constitution. All that has been
declared is, that these restraints shall be observed, and beyond
them what further may be required for the protection of
either public or private interests, has necessarily been confided
to the good sense of the legislature. Over these streets it has
control, and could determine and declare, as it has by
this enactment, what farther restraints should be imposed
upon a street railroad company before it should have the
right or privilege of using the streets for the construction
376 HOWARD'S PRACTICE REPORTS.
Matter of the Thirty-fourth Street Railroad Company
and operation of its railroad tracks. This part of the act,
therefore, cannot be disregarded as a violation of any of the
provisions or restraints of the constitution, but it should be
considered a proper and judicious exercise of legislative power,
and as such required to be observed by the court in the dis-
position of this application. And as it has been made entirely
evident from the fact that the consent of these other
railroad companies has been withheld from the construction
of the applicant's proposed road, that the appointment of the
commissioners to hear and determine the parties interested
and report whether the railroad ought to be constructed would
be entirely futile, the application should not be allowed to
prove successful.
It has been suggested that the court has no discretion which
it is at liberty to exercise upon this subject. For by section
5 of chapter 252 of the Laws of ISSi it has been provided
that upon due proof of the service of the notice required to
be given, the general term " shall appoint three disinterested
persons who shall act as commissioners." But that this was
not intended to be mandatory is quite clear from the preceding
portions of the act. For if upon mere proof of service of the
notice it should become the unqualified duty of the court to
appoint the commissioners there could be no useful object
whatever in requiring it to be served. It would be no less
than absurd to require a notice to be given to the parties
opposed to the construction and operation of the railroad, and
upon their appearance before the court to deny them the right
to object, as that would be denied if the commissioners must
be appointed upon mere proof of service of the notice. That
could not have been the design of the legislature. But what
was intended, as has already been observed, was that the prop-
erty owners opposing the construction of the railroad should
be afforded an opportunity of resisting the application for the
appointment of the commissioners, and to extend this oppor-
tunity to them this notice was required to be served. The
act, therefore, although in form mandatory, is required to be
HOWARD'S PRACTICE REPORTS. 377
Matter of the Thirty-fourth Street Railroad Company.
construed as merely authorizing the court to appoint the
commissioners if the exercise of that authority shall appear
discreet and just after hearing the parties opposed to the con-
struction of the railroad. And that this was the design of
this portion of the law is made further evident from the pro-
visions contained in the constitution itself, for by those
provisions it has been declared that the general term " may "
upon application appoint the three commissioners. And it
is not to be supposed as long as a different construction is
well warranted by this portion of the act that the legislature
designed to render the duty of the court any more imperative
than that had been prescribed by the constitution itself. The
rule of construction, on the contrary, would require the act
as that may be done, in view of its other provisions, to be
harmonized with the constitution, and to leave the power to
be exercised by the general term discretionary in its nature.
-Instances do undoubtedly arise where the word " may,"
which has been employed as descriptive of the powers of the
general term over this subject, has been construed to be
mandatory and of the same effect as the word "shall.'' But
that construction has not been given to the word "may"
when it has been employed as it is in this part of the
constitution of the state. For by no part of that which pre-
cedes or follows this delegation of authority has the constitu-
tion employed language indicating it to be the duty of the
court to appoint the commissioners as a matter of course where
the consent of a majority of the property owners cannot be
obtained. And it is a remarkable fact that under the consti-
tution, with very slight exceptions this word " may " has
only been employed when it was intended that the power
to which it referred should be of a discretionary character.
Section 8 of article 1 and 7 of article 5 seem to be exceptions
to this rule, but in other cases, where the intention has been
manifested that the directions of the constitution shall be
imperatively carried into effect, the word ' shall " has with
great uniformity been emploved. More care in this respect
VOL. II 48
378 HOWARD'S PRACTICE REPORTS.
Matter of the Thirty-fourth Street Railroad Company
has been observed than is usually applied to the enactment
of statutes. And as the word " may " has been so under-
standingly employed in the constitution, it must be allowed
to have its ordinary force and effect in its provisions where,,
from the subject-matter to which it relates, or from thecontext y
no different intention has been manifested. In this part of the
constitution the word seems to have been used in the ordinary
understanding of its signification, and it stands immediately
in contrast wirh the declared duty of the commissioners after
they shall have been appointed, concerning whom it has been
said that they "shall determine " after a hearing, etc., whether
the railroad ought to be constructed. Even if this language
had been included in the enactment of a statute, it would
require the same construction to be given to it. For it is a
rule of construction which has been applied to this particular
word that " the ordinary meaning of the language must be
presumed to be intended, unless it would manifestly defeat
the object of the provisions" (Miner agt. Mechanics' Bank,
etc. (I Peters, 46, 64).
No antecedent duty has been required to be carried into
effect by this provision of the constitution, and no existing
public or private interest has been designed to be specially
protected by it. And for that reason also this construction of
the word " may " is clearly warranted. In the cases where it
has Deen differently construed that construction has been
given to it to carry into effect what under the circumstances
was justly considered to have been the intention of the legis-
lature, where the power conferred has been provided for
rendering a duty effectual or for promoting; the ends of justice,
or securing public or individual interests, there the term has
been construed to be mandatory. But where it is merely
indifferent whether a thing shall be done or not, then the
word " may " in an act is usually construed to confer a per-
missive authority. But where the public interest or private
right requires that the thing should be done, then the word
" may " is generally construed to mean the same as " shall "
HOWARD'S PRACTICE REPORTS.
Matter of the Thirty-fourth Street Railroad Company.
(People agt. Supervisors^ 68 N. Y., 115, 119; Hag adorn
agt. Roux, 72 N. Y., 583, 586; People agt. Supermors, 51
N. Y., 401).
From the manner in which this word " may " has been used
in this part of the constitution, and its relation to the subject.
provided for, it can therefore only be construed as designed
to have been permissive and to empower the court, upon
the application for the appointment of commissioners, to
determine whether the appointment should be made or not.
And where, as in the present case, it has been made entirely
evident that the proposed railroad cannot be lawfully con-
structed by reason of the refusal of other railroad companies-
already lawfully occupying the streets with their tracks to con-
sent to its construction, the appointment of commissioner*
should not be made ; for the hearing and report, if it should
be favorable to the applicant, would, under this prohibition
of the statute, be entirely without effect ; and it could not
have been intented by the constitution that an appointment
necessarily resulting in that manner should be made at all.
It has also been shown by the affidavits produced on behalf
of the contestants that the amount of travel upon the portion
of Thirty-fourth street bounded on the east by Lexington
avenue and on the west by Sixth avenue is so slight as not ta
require for the convenience of the public the construction of
this railroad. It has been further shown that the street is not
at this time adapted to any prospective purposes of business,.
but so far must continue to be used for private residences ;.
that the value of the private property within these boundaries
is the sum of about ten millions of dollars, which, in the judg-
ment of persons familiar with it, would be depreciated to the
extent of three millions by the construction and operation of
a railroad between these points. These facts have not been
denied, and must for that reason be regarded as having been estab-
lished by the affidavits. And they supply a further as well
as a very urgent reason for rejecting the application now made
to the court. Under all the facts as they have been presented
380 HOWARD'S PRACTICE REPORTS.
Matter of the Thirty-fourth Street Railroad Company.
that seems to be the plain course of duty. And as this court
is required to exercise its judgment upon the propriety of the
application, and the commissioners cannot, as the law has been
enacted, be appointed with benefit to the applicant or advart-
age to the public, and the property of the abutting owners on
this portion of the street would be seriously depreciated by its
success, the application which has been made should be denied.
BRADT, J., concurs.
DAVIS, P. J. (dissenting). It is due to the elaborate and
able opinion of my brother DANIELS that I should state the
reasons that prevent my concurrence in his views and con-
clusions. This I shall do briefly and so far as practicable
without elaboration. I agree that the statute is to be so con-
strued as to harmonize with the provision of the constitution,
arid that the use of the words " shall appoint," as they appear
in the statute, does not present a case of excess of authority
by the legislature, because the constitution uses the words
" may appoint " On the contrary, it is the duty of the courts
to regard these several phrases as expressing the same idea, to
wit, the duty of the general term of the supreme court to
carry out the plan of the provision of the constitution when-
ever an appropriate case for its execution is presented to the
court. Neither phrase was used for the purpose of conferring
on the court any power beyond that essential to set in motion
the machinery contemplated and authorized by the constitu-
tion. The provision of the constitution was intended to inter-
dict absolutely all special laws for the creation of such railroad
corporations as are within its description and within the mis-
chiefs aimed to be prevented, and at the same time to provide
by general laws for an effective mode of securing the con-
struction of railroads by corporations created thereunder
whenever the public exigencies or necessities demand. For
the construction of street railroads two things were made
primarily essential ; first, the consent of the public authori-
ties having jurisdiction of the streets to be occupied ; second,
HOWARD S PRACTICE REPORTS. 381
Matter of the Thirty-fourth Street Railroad Company.
the consent of the owners of the real property abutting on
the several streets to be affected. But as it was manifest that
it might occur that the abutting owners might refuse assent
owing to real or supposed local injuries in cases in which the
greater public interest would require the construction of the
road, notwithstanding such refusal, the constitution provided
for such cases by creating a special forum in which the ques-
tion whether the railroad ought to be built notwithstanding
the refusal could be fully and fairly tried, and in which forum
such owners and all parties interested in the general question
should be entitled to be heard, in and by all the familiar
modes of trials of questions of fact, before such a body, and
whose report and determination, if favorable to the construc-
tion, when confirmed by the general term, should stand in
place of the consent of such owners. Power was therefore
conferred by the constitution upon the general term of the
supreme court, in a case where the consent of a majority of
the owners along a street in the line of the proposed railroad
could not be obtained, upon proper presentation of that fact,
to appoint three suitable commissioners to hear, try and
determine the question whether the road ought to be con-
structed notwithstanding the inability to procure such con-
sent. The scheme is a very simple one. It confers upon the
court primarily a naked power of appointment of commis-
sioners for a clearly specific purpose. It gives no power to
the court to hear, try or determine in the first instance the
question that is to be sent to commissioners. That power is
given to the commissioners alone; and it is only when their
report, with the evidence laid before them and the reasons
assigned by them for their conclusion, are brought before the
court for confirmation that the plan of the constitution per-
mits the court to exercise jurisdiction or discretion over the
question submitted to the commissioners, whether the road
ought to be constructed notwithstanding the antagonism of
abutting owners.
It is thought and argued that because notice is required to
382 HOWARD'S PRACTICE REPORTS.
Matter of the Thirty-fourth Street Railroad Company.
be given to the non-consenting owners of the application for
commissioners, therefore such owners may be heard by the
general term,. not only on the question whether a case is shown
by the petitioners in which the constitution authorizes and
directs the appointment of commissioners, and upon the
question who are suitable persons to be appointed, but also on
the very question which the constitution directs to be sub-
mitted to the commissioners. In other words, it is claimed
that the constitution is to be read as though it provided that
the question whether the road ought to be constructed with-
out the consent of the abutting owners shall be sent to com-
missioners, if the court shall first decide on a hearing of the
parties interested that it ought to be so built. That this is
not the meaning of the constitution is manifest to my mind,
because no adequate means are provided for such a hearing by
the general term in the first instance. Nothing is provided
for but the presentation by proper proofs of -the fact that a
'majority of abutting owners have refused to consent, or rather
that their consent cannot be obtained, and that they have been
duly notified of the application for the appointment of com-
missioners. These two facts being satisfactorily established
clothe the general term with jurisdiction to do only what the
constitution enjoins, to wit, to appoint commissioners. The
owners and other parties notified, or being in interest, may
come in and be heard on the questions thus presented. They
may show that consents have been given, and therefore no
commissioners are necessary, or that consents have not been
properly applied for or have not been refused ; or any mate-
rial facts bearing upon those questions ; or any fact touching
the suitability .of persons named or to be named as commis-
sioners. In other words, they may contest the questions pre-
sented by the application and material to the right claimed by
the petitioners to have commissioners appointed, on the
ground of inability to get consent of a majority of owners
along the street ; but they are not at liberty to try before the
court on their ex parte affidavits, or otherwise, the question to
HOWARD'S PRACTICE REPORTS. 383
Matter of the Thirty-fourth Street Railroad Company.
be tried under the constitution by the commissioners alone.
The court are not commissioners, and are not recognized as
such bj the constitution or the law. They are at this stage
of the proceeding a mere part of the scheme of the consti-
tution through which commissioners are to be called into
existence and set in motion to hear and determine the grave
question which the constitution commits primarily to them
alone. The general term, % in doing thib, act ad ministerially
rather than judicially. For the court to undertake to try and
decide the question whether or not the railroad ought to be
constructed notwithstanding the refusal of owners as one that
shall control the appointment of commissioners, as it 'may
hold upon it favorably or adversely to the construction of the
road, is, in my opinion, mere usurpation. I am not consid-
ering whether or not my brother DANIELS' has reached a cor-
rect conclusion, upon the ex parte affidavits before us, that the
railroad of petitioners ought not to be constructed, because,
Irstly, I think the court has no power, at this stage of the pro-
ceedings, to pass upon that question ; secondly, if it had power
it ought not to be exercised upon ex parte affidavits, and with-
out the trial contemplated by the constitution, at which wit-
ness can be orally heard and examined, and the opportunity
given to both or all sides to present proofs, reasons and argu-
ments, as they shall be advised. The trial of the general term
on the papers now before it, resulting in a refusal to appoint
commissioners, seems to me a mere travesty of the scheme of
the constitution, which we are bound to respect and protect.
The reasons urged for our denial of the appointment by my
learned brother may with great propriety be urged before the
commissioners, and be held, if they think them well founded,
sufficient to warrant an adverse report ; but we have nothing
to do with them in the form of triers till they come before us
as the report of the commissioners, with the proofs duly taken
first passed upon by them. This was the course taken by the
general term in the Broadway railroad case, and after the
commissioners had made their report the general term pro-
384 HOWARD'S PRACTICE REPORTS.
Matter of the Thirty-fourth Street Railroad Company.
ceeded to consider its propriety upon the evidence and facts
reported, and to affirm the same against my dissent. The
same course as to the form of procedure should be taken
here, for this court will ultimately, on the coming in
of the report, &c., have jurisdiction to confirm or reject
the conclusions of the commissioners as shall seem equitable
and just to its constitutional discretion. But it is urged, and
elaborately argued, that the general term should deny the
appointment of commissioners, because it appears that other
street railroads are constructed and in operation upon some
other portions of the projected route of the petitioners, and
it is not shown that they have consented to the construction
of the petitioners' road along the portions of the route so
occupied by such other street railroads. It is first to be
observed that the existence of such roads is in itself no objec-
tion to the construction of other roads. The sting of death
is supposed to be in the want of the consent to construct
another road in the same street. Affidavits are produced to
show that such consent has not been obtained, and as the affi-
ants believe will not be given. There is nothing in the law
to make it essential to obtain such consent before it shall be
tried, determined by commissioners whether the railroad ought
to be constructed, notwithstanding the refusal of consent by
abutting owners of some street or streets on its route ; nor is
that fact any valid reason for refusing to appoint, because, non
constat, that after it is found (if it shall be) that the road ought
to be built, the other railroads will persist jn refusing consent.
The presumption ought to be that when it is shown that the
public interest requires that another railroad should be con-
structed to accommodate another route, the mere fact that in
doing so it must pass along some portion of a street already
occupied by an existing railroad will not be seized upon by
the latter company to defeat a public demand. But the argu-
ment stands upon the popular faith that a corporation of this
character is a concentration of human selfishness freed by law
from all moral responsibilities, and therefore the present occu-
HOWARD'S PRACTICE REPORTS. 385
Matter of the Thirty-fourth Street Railroad Company.
pying railroads will withhold consent forever. This assump-
tion is easily overthrown when the fact is recalled to mind
that no such corporation was ever known to stand out long
against its own interests ; and whenever it is made to appear
that it is for the interests of the occupying railroads to consent,
those companies will speedily show that "one refusal's no
rebuff."
It is the right, therefore, of the petitioners, if they can do
so, to put themselves in the position to apply for the consent
of the other railroads in an effectual way, and test the ques-
tion whether it can be rightfully refused or cannot be obtained
by suitable arguments or arrangements. To treat the asser-
tion made on ex parte affidavits that such consent cannot be
obtained as conclusive of all right of a newly projected rail-
road to construct a public improvement is, in my judgment,
against public policy, and eminently injurious to all improve-
ments. It is to establish by a judicial act a most dangerous
and fatal monopoly, which may be wise in this case, but in
some cases would result in vesting an inefficient and con-
temptible railroad, which has lawful possession of a few rods
of a street through which a most important public improve-
ment must pass, with power to defeat and forever prevent its
construction, and also from trying the question whether or
not it ought to be constructed in the mode provided by the
constitution. The petty horse railroads of this city ought to
have no such absolutely controlling power. Their modes of
locomotion are destined ere long to give way . to more rapid,
cleanly and healthy kinds of travel, to the relief both of man
and beast on the cars, and to the great advantage of the
traffic and commerce of the city and the well being of its
citizens. I am not content to hold that a constitutional pro-
ceeding by a newly projected railroad corporation to try a
question affecting one street, however important it may be,
can be defeated altogether by the present refusal of a railroad
now in possession of a portion of some street on its general
route. The rule sought to be applied to this case will neces-
VOL. II 49
3S6 HOWARD'S PRACTICE REPORTS.
Matter of the Thirty-fourth Street Railroad Company.
sarily have that effect in all cases ; and ought not, therefore,
to be applied. For nothing is more injurious to public inter-
ests than to clothe our present street railroads with an abso-
lute veto of all the probable or possible advances of science
and invention in the modes of using public streets.
I do not doubt that this objection, with all others suggested,
may be presented to the commissioners, who will have full
opportunity to examine into all the force and effect that should
be allowed to it ; and that it may, if the facts of the case seem
suitable, be deemed by them a sufficient reason for an adverse
report (in which case this court can review their conclusion) ;
but it ought not to be established as a fatal bar to a motion
for an opportunity to be heard before a commission on that
and the other questions involved in the application.
If we hold in accordance with the views expressed and
urged by my brother DANIELS, it will be of no consequence
that every person owning lands abutting the street or part of
a street occupied by the non-consenting railroad has consented
and is anxious to have the projected road constructed, or that
the street is so wide that both can be amply accommodated
without injury to either, or that the new road will accommodate
vast numbers of people, while the old one is a mere nuisance
to the general public. For the decision will clothe it under
the law with a monopoly gross and odious a chartered coun-
terpart of the fabled " dog in the manger."
I do not now discuss what I consider to be a very grave
question, whether the legislature has power under the consti-
tutional provision to turn over to any existing corporation the
absolute and final right to say whether or not a like corpora-
tion may be created and exist for the public benefit. "What
is done by the act under consideration is to empower one cor-
poration organized for a public use and authorized to occupy
a public street in the exercise of its functions to declare that
under no circumstances of public necessity, though all the
public authorities having jurisdiction of the street consent,
and all the people interested in the subject-matter agree to its
HOWARD'S PRACTICE REPORTS. 887
Matter of the Thirty-fourth Street Railroad Company.
benefit and necessity, shall any other railroad occupy any por-
tion of the same street. It is true the legislature is omnipotent
in legislation where not expressly or by necessary inference
restrained by the constitution. But legislating by itself is
one thing and making over its power of legislation to another
body or corporation is another and different thing. And
especially is this so where the power conferred upon a corpo-
ration is to declare and make itself an absolute monopoly to
take and hold against all comers the right to use a public
etreet when the interests of the public require its use to be
extended to another similar corporation. The legislature may
undoubtedly enact by law that but one railroad shall exist in
any one street ; but it may well be doubted if it can enact
that an existing corporation shall have the power of absolute
control of that same question. The point would be sharply
presented if in enacting the general railroad law the legisla-
ture had enacted that no railroad parallel to that of the Hud-
son River and New York Central Railroad Company should
ever be constructed from New York to Buffalo without the
consent of that corporation. Such an abdication of legisla-
tive functions would be handing over to a railroad corporation
a most important legislative power, which the constitution
requires to be exercised by the legislature only, and would in
spirit be strictly hostile to that provision of the constitution
which forbids railroads to be constructed by special law, but
allows their construction under the general law, and prescribes
the mode of obtaining consent of owners and the process to
be substituted for such consent for determining whether they
ought to be built. To subordinate the constitutional provision
for meeting the demands of public interest and necessities by
the construction of street or other railroads to the will of
existing corporations with which they may come into compe-
tition is a mockery of its plain intention ; for under the gen-
eral laws authorized by the constitution the question must
always be what do the public interest require, and not what
does some existing corporate monopoly consent to. The con-
388 HOWARD'S PRACTICE REPORTS.
Matter of the Thirty-fourth Street Railroad Company.
stitution intended to open such questions by general laws to-
all the people, and not to shut them forever for the benefit of
existing corporations, and legislation to accomplish that defeats
the intent and object of the constitution. I ain not able,
therefore, to concur with my brethren. On the contrary, I
I think the only subject for the general term to pass upon
now is whether the petitioner has shown that a majority of
owners along that part of the route under consideration have
refused to consent to the construction of the petitioner's rail-
road.
The commissioners must, in the first instance, take care of
all these questions, subject, of course, to the power of the
general term, which is most ample to review their report
whenever it comes in as shall then appear to be just and equit-
able. It is, I think, well settled law that where a duty to
appoint commissioners to hear and determine a specified ques-
tion is conferred by statute upon a court or any other body,
upon the presentation of certain facts, the duty is so far admin-
istrative in its nature that the obligation becomes imperative,
even though the language used by the statute might, under
other circumstances, be regarded as conferring a mere discre-
tion (People agt. Supervisors, 68 N. Y., 115 ; Haggadom
agt. Runx, 77 N. Y., 583; People agt. Supervisors, 51 N.
r., 401).
Such action does not, in any sense, permit the appointing
body (where authority to review the action of the commission-
ers is conferred), upon any question whatever beyond that of
the sufficiency of the proofs showing that the fact exists, which
authorizes the court or body to appoint commissioners. I
think the affidavits presented in this case do show that the con-
sent of a majority of the property owners of that part of the
route of the petitioners' proposed road affected by this pro-
ceeding cannot be obtained, and the petitioners are entitled to
have commissioners appointed. For these reasons I dissent
from the denial of the motion.
HOWARD'S PRACTICE REPORTS. 389
Coon agt. Diefendorf.
SUPREME COURT.
WILLIAM S. COON agt. HIKAM DIEFENDORF.
Ejectment Costs Code of Civil Procedure, section 3234.
Under section 3234 of the Code of Civil Procedure the same rule prevails
in ejectment as in replevin.
Where in an action of ejectment the complaint contained but one count to
recover two separate parcels of land, separately described in the count,
and as to both parcels the plaintiff's right to recover was put in issue by
the answer, the verdict of the jury being in favor of the plaintiff as to
one parcel, and in favor of the defendant as to the other, the defendant
is entitled to costs as well as the plaintiff.
Monroe Special Term, July, 1885.
MOTION by defendant for an order directing the clerk to tax
the defendant's costs, and that the amount thereof be set off
against the same amount of plaintiffs costs.
C. M. Allen, for motion.
Geo. D. Forsythe, opposed.
ANGLE, J. The complaint contains but one count, and is
in ejectment to recover two separate parcels of land, separately
described in the count, and as to both parcels the plaintiff's
right to recover was put in issue by the answer. The verdict
of the jury was in favor of the plaintiff as to one parcel, and
in favor of the defendant as to the other parcel. The plaintiff
has perfected judgment in his favor for the recovery of the
parcel found for him and for his costs against defendant, and
the clerk has refused to tax defendant's costs against plaintiff.
The question is as to the construction of section 3234 of the
Code of Civil Procedure, which provides that when the com-
plaint sets forth separately two causes of action upon which
issues of fact are joined, if the plaintiff recover upon one or
more of the issues, and the defendant recover upon the other
or others, eacn party is entitled to costs against the adverse
390 HOWARD'S PRACTICE REPORTS.
Coon agt. Dicfendorf.
party, unless it is certified that the substantial cause of action
was the same upon each issue, in which case the plaintiff only
is entitled to costs. This provision, as far as the present
question is concerned, is substantially the same as the provisions
of the Revised Statutes (Ackerman agt. De Lude, 20 Weekly
Dig., 544), and the provisions of the Revised Statutes ,vere
construed in Seymour agt. Sittings (12 Wend., 285), in which
it was held that, as the law stood before the Revised Statutes,
where the declaration in replevin contained only one count
for a variety of articles, and a plea of property was interposed
by the defendant, and the jury found the property of a portion
of the articles to be in the plaintiff, and that the value thereof
exceeded fifty dollars, and the property of the residue of the
articles in the defendant, and that the value thereof was ninety
dollars, each party was entitled to costs against the other. On
page 287 the court say : " The jury under the form of
pleading having found the titl^ of a part of the property
replevied by the plaintiff -to .have been in the defendant, and
the title of the residue in the plaintiff, effect must be given
to the verdict in the same manner as though the declaration
had contained two distinct counts for the respective parcels,
or the defendant had averred for each respectively. Each
party then, in this case, has a substantial issue found in his
favor, and the general rule in the action of replevin seems to
be that each party shall have costs of the issues on which he
succeeds. Both are considered as plaintiff's or actors ( Wright
agt. Williams, 2 Wend., 642). But under the Revised Statutes
this is made the general rule applicable to all actions " (2 R~
S.. 617, sec. 26).
In Martin agt. Martin (3 How., 203), the special term
declined to consider Seymour agt. Billings as authority beyond
the action of replevin, and held it inapplicable to ejectment.
In Stoddard agt. Clarke (9 Abb. [N. S.~], 314), the court of
appeals say that the court held in Seymour agt. Billings that,
" the declaration although it contained only one count for a
variety of articles being regarded, for the purposes of costs as
HOWARD'S PRACTICE REPORTS. 391
Flanagan agt. Hollingsworth.
containing two distinct counts for the respective parcels of
property."
In Ackerman agt. De Lude (supra\ the general term in this
department in construing section 3224 followed Seymour agt.
Hillings, and went upon a principle of construction applicable
with stronger reason to such a count in ejectment as in the
case before me, than to a count in replevin for different
articles of personal property. The above quotation from
Seymour agt. Billings shows that the court was of opinion
that the Revised Statutes had made the rule theretofore prevail-
ing in replevin applicable in all actions. True, this part of
the opinion is obiter, for the court had already decided in that
case that the defendant was entitled to costs as the law stood
before the Revised Statutes, and it was immaterial whether
the statute had extended the same rule to other cases.
My conclusion is, that under section 3234 of the Code the
same rule prevails in ejectment as in replevin, and I am
therefore constrained not to follow Martin agt. Martin.
The motion is granted without costs.
CITY COURT OF BROOKLYN.
WILLIAM FLANAGAN, respondent, agt. BENJAMIN C. HOLLINGS-
WORTH and MATHEW RYAN, appellant.
Deed Covenant against nuisances Construction of.
A livery stable would not be offensive to a neighborhood within the
meaning of a covenant not to erect any building for or to carry on upon
certain premises certain enumerated trades, cow stables or hog pens, " or
any olher dangerous, noxious, unwholesome or offensive establishment,
trade or calling, or business whatsoever.'' The word "cow" before
"stables" limited the establishments prohibited of the same class, and
tne words " other," &c., do not include stables where domestic animals
we to be kept.
General Term, October, 1885
.Before CLEMENT and VAN WYCK, JJ.
892 HOWARD'S PRACTICE REPORTS.
Flanagan agt Hollingsworth.
Erastus New and N. C. Moak, for plaintiff.
J. T. Moreau and Morris & Pearsall, for defendants.
CLEMENT, J. The plaintiff and the defendant Hollings-
worth each own real property in the same vicinity in Brooklyn,
and derive their several titles from a common source, and
both parcels are subject to covenants against nuisances which
were made in the deeds given by the parties who owned the
common title. The covenant reads as follows :
" I, the party of the second part, in the within indenture
named, in consideration thereof and of the sum of one dollar
to me in hand paid by the said party of the first part in said
indenture named, do for myself, my heirs and assigns, hereby
covenant to and with the aforesaid party of the first part, her
heirs, executors and administrators, that neither I nor my heirs
or assigns shall or will at any time hereafter erect, permit or
allow to be erected or carried on upon the premises described
and granted in said indenture, or any part thereof, any brewery,
distillery, slaughter-house, smith shop, furnace, steam engine,
brass foundry, nail or other iron factory, sugar, bakery, cow
stable, hog pens, or any soap, candle, oil, starch, varnish, vitriol,
glue, ink, turpentine or lamp-black factory, or any factory or
establishment for the tanning, dressing or preparing of skins,
hides, or leather of any other dangerous, noxious, unwhole-
some or offensive establishment, trade or calling or business
whatsoever."
The defendants were about to erect on the lots owned
by Hollingsworth a livery stable, and thereupon plaintiff
brought this action to restrain its construction. The court at
special term held that a livery stable would be offensive to
the neighborhood within the meaning of the mutual covenants,
and granted a perpetual injunction restraining the defendants
from the erection of the stable or from using any building
hereafter erected on said premises for such a purpose.
Assuming that the plaintiff can take the benefit of the
covenant and enforce its provisions, and also assuming as
HOWARD'S PRACTICE REPORTS. 393
Flanagan agt. Ilollingsworth.
matter of fact that a livery stable is offensive, we are then
called upon to decide whether such a business, is prohibited
by the covenant under the last clause " or any other * * *
offensive establishment, trade, calling or business." It was
found as a fact in the case that in the year 1866, when the
covenant was made, a livery stable was a familiar and common
object in the city of Brooklyn, and the parties when they
made their contract had that fact in view, and after deliberation
determined that cow stables should be prohibited in so many
words. They named certain trades which should not be
permitted and added the last general clause in order to prevent
any other which would be in the same degree as those already
mentioned, dangerous, noxious, unwholesome or offensive.
The learned counsel for the plaintiff contends that public
horse stables were forbidden by the covenant. He concedes
that private horse stables were permitted. Stables, whether
used for the keep of horses or cows, are all of one class or
kind, and a private horse stable is equally offensive as a livery
stable, provided the same number of horses are kept in each.
A private stable where the owner kept ten horses would be
more disagreeable to the neighborhood than a public one
containing five.
It is proper on this point to refer to the testimony of the
leading expert witness called by the plaintiff. He testified
" any stable where a large number of horses are kept, even
though kept well as it can be, depreciates the value of sur-
rounding property." The witness describes the objections to
a stable where " a large number of horses are kept " and the
evils complained of are odors, noise, rats and flies. A stable
is more or less offensive according to its size and the number
of horses kept. While it is true a public stable usually con-
tains more horses than a private one, yet it is offensive, not
because the horses are let for hire or stabled for outside
owners, but because it contains a large number of horses.
The word "offensive" in the covenant included all establish-
ments, trades, callings or business of a different class than
VOL. U 50
394: HOWARD'S PRACTICE REPORTS.
Flanagan agt, Hollingsworth.
those already recited which are disagreeable to the senses in
the same degree (noscitur a sociis), but it does not include
trades of the same class which has been already named.
If stables had been prohibited in so many words, then the
general words would not refer to them, and we think that
the use of the word " stables " has the same effect though it
is preceded by the word " cow." That word limited the
establishments prohibited of the same class, and the words
*' other, &c.," do not include stables where domestic animals
are to be kept.
The parties could have prohibited all stables by omitting a
single word. Effect should be given to all the words of a
contract if possible, and if the parties prohibited one of
a class they considered all of that class, and intended to pro-
hibit those mentioned and not others of the same class.
Those who made the covenants agreed that livery stables were
not offensive, and the conclusion arrived at by them is bind-
ing upon their grantees. The authorities on this question
seem clear and to the point.
In Baker agt. Ludlow (2 Johns. Cos., 289) the words
used in a policy of marine insurance were as follows : " It is
agreed that salt, grain of all kinds, Indian meal, fruits, cheese,
dried fish,- vegetables, and roots and all other articles perish-
able in their own nature, are warranted by the assured free
from average unless general." A question arose as to pickled
fish which formed part of the cargo.
The court say : " By the terms of the memorandum fish in
general were not intended to be included, and the expression
dried fish implies that other fish were not intended." It was
also held that the subsequent words " all other articles per-
ishable in their own nature " were not; applicable to the articles
previously enumerated nor could they repel the implication
arising from the enumeration of them.
In the case of Hare agt. Ilorton (5 Barn. & Adol., 715),
A. granted by mortgage to B. an iron foundry and two
dwelling houses and the appurtenances, " together with all
HOWARD'S PRACTICE REPORTS. 395-
Flanagan agt. Hollingsworth.
grates, boilers, bells and other fixtures in and about the said
two dwelling houses." The court decided that the convey-
ance of the foundry, if nothing else had been expressed,
would have passed ,the title to the fixtures, but the mention of
the articles in the two dwelling houses showed that it was the
intention of the parties that the fixtures in the foundry were
not conveyed.
Lord MANSFIELD, in construing the act of 43 Elizabeth
(chap. 3, sect. 1), which required the overseers of the poor
to tax every occupier of lands, coal mines and salable under-
woods, in a case where it was sought to tax the occupier of
lead mines, observed (The Smelting Company agt. Richardr
son, 3 Burr., 134) that the words of the act "are coal
mines, not mentioning any other kind of mines, and that is
equal to an express exception or exclusion of all other mines "
(See, also, The King agt. The Inhabitants of Sedgley, 2 JSarn.
& Adol. 65).
In Parsons on Contracts (vol. 2, 516) the rule as to con-
struction of contracts is stated as follows : " If, however,,
there be many things of the same class or kind, the expression
of one or more of them implies exclusion of all not expressed^ .
and this even if the law would have implied all if none had
been enumerated."
For the reasons above given the judgment appealed from
must be reversed and a new trial granted, costs to abide the
event.
VAN WYCK, J., concurred.
396 HOWARD'S PRACTICE REPORTS.
Farnarn agt. Barnum.
SUPKEME COURT.
AMELIA. L. FARNAM, plaintiff, agt. WILLIAM M. BARNUM and
CHARLES N. FARNAM, as administrators with the will
annexed of HENRY PARSONS FARNAM et aL, defendants.
Action Parties When one or more parties may sue or defend for (he
whole Code of Civil Procedure, section 448 Complaint Demurrer.
An action may be brought by one of the next of kin of a deceased person
' ' on behalf of herself, and also for the benefit of all the heirs-at-law and
next of kin of the said deceased, who will come in and contribute to the
expenses," against the personal representatives of the testator, to pro-
cure an adjudication upon the validity of his will, and to have a trust
declared and established in favor of said heirs-at-law and next of kin,
as against the administrators with the will annexed and for equitable
relief.
One next of kin may maintain an action of this character for the benefit
of all.
Where the question is one of a common or general interest of many
persons, or where the persons who may be made parties are very numer-
ous, it being impracticable to bring them all before the court, then one
may sue for the benefit of all. The word " many " is not used in section
448 of the Code of Civil Procedure to express the idea of very numerous
persons. There are two classes named, where one may sue for all. One
is, where many persons have a common interest and another where the
parties are so numerous that it is impracticable to bring them all before
the court. While the word "many" as here used, contemplates more
than one, it does not necessarily very numerout persons, while the word
"many" as ordinarily used is synonymous in meaning with" numerous."
As used in this section, in connection with the words "common or
general interest of the persons," it means a limited number. It is the
character of the interest which controls rather than the number of
persons. The third class mentioned " very numerous," one is allowed
to sue for all, as a matter of convenience in the administration of justice
by the court.
Actions against administrators, as well as actions against assignees for the
benefit ot creditors, brought to set aside an assignment, are exceptions
to the rule that ah 1 parties having an equitable interest named by the
decree, are necessary parties thereto.
On a demurrer to a complaint the test of the unity of interest intended by
HOWARD'S PRACTICE REPORTS. 897
Farnam agt. Barnnm.
the 448th section, is that the joint connection with or relation to the sub"
ject-matter, which by the established practice of the common law,
courts will preclude a separate action.
New York County, Special Term, May, 1885.
Tms action is brought by the plaintiff on behalf of herself,
and also for the benefit of all the heirs-at-law and next of kin
of Henry Parsons Farnam, deceased, who will come in and
contribute to the expenses of the action.
The defendants' administrators demur to the complaint
upon the ground that it appears upon the face of the com-
plaint that there is a defect of parties plaintiff or defendants,
in that Charles N. Farnam, individually, and Sarah N". Burr
and Mary N. Farnam, who in the complaint are alleged to be
with Amelia L. Farnam, the only heirs-at-law and next of kin
of the said deceased, are not made parties to the action.
Louis A. Chandler (Dill & Chandler), for plaintiffs, made
and argued the following points :
I. The right of the next of kin to maintain this action is
established by authority ( Wager agt. Wager, 89 N. Y., 161).
No objection is made on this ground. The sole question here
is whether one can sue for the benefit of all.
II. One next of kin may maintain an action of this char-
acter for the benefit of all (Code, sec. 448). Section 448. Of
the parties to the action those who are united in interest must
be joined as plaintiffs or defendants, except as otherwise
expressly prescribed in this act. But if the consent of any
one who ought to be joined as a plaintiff cannot be obtained,
he may be made a defendant, the reason therefor being stated
in the complaint. And where the question is one of a com-
mon or general interest of many persons, or where the per-
sons who might be made parties are very numerous, and it
may be impracticable to bring them all before the court, one
or more may sue or defend for the benefit of all. This sec-
tion is substantially a transcript of section 119 of the Code
898 HOWARD'S PRACTICE REPORTS.
Farnam agt. Barnum.
of Procedure, as it was enacted in the year 1849. The last
clause of section 119: "And where the question is one of
common or general interest of many persons * * * one
or more may sue for the benefit of the whole," is almost
identical, word for word, with the section above cited (Laws
of 1849, p. 639, sec. 119). The same question here presented
arose in 1851 under a demurrer for defect of parties. Mary
McKay left a will giving legacies to four persons named, and
devising her estate, real and personal, to three other persons,
charged as it was claimed with the payment of said legacies.
One of the four legatees brought one action in equity for the
benefit of all, against the administrators, with the will
annexed, and the residuary devisees, alleging that the per-
sonal estate was insufficient to pay the debts and demand-
ing judgment that the will be established and an account
be taken; that the real estate be sold and the proceeds,
together with the personal estate, might be applied in due
course of administration in payment of the debts and legacies.
To this complaint the residuary devisees demurred, on the
ground that the other three legatees should have been made
parties, plaintiff or defendant. The special term sustained
the demurrer, but the general term reversed that judgment
and overruled the demurrer holding that the intention of the
legislature was to retain the former practice of the court of
chancery, and that, when the question was one of common or
general interest to several persons, the action might be
brought by one or more for the benefit of all who have such
common or general interest, without showing that the parties
are very numerous, or that it would be impracticable to bring
them all before the court (McKenzie agt. L'Amoreaiix, 11
Barb., 516). This decision has been repeatedly approved, and
has stood for upwards of thirty years as a correct exposition
of the practice under this section of the Code (Kerr agt.
Blodgett, 48 N. Y., 66 ; Prouty agt. Railroad Co., I Hun,
667 ; Towner agt. Tooley, 38 Barb., 598). In such a suit the
interlocutory judgment acts as a decree in favor of each person
HOWARD'S PRACTICE REPORTS.
Farnam agt. Barnum.
entitled to come in, whether lie actually comes in or not, as
effectually as if he had been named and appeared as a party
(Kerr agt. Blodgett, 48 N. Y., 62-69). Re is quasi a party ;
his cause is in the course of decision and he may at any time
take an active part (Calvert on Parties, 58; Ilubbard agt.
Eames, 22 Barb., 601, 602). The Code contains express pro-
visions for giving notice to these quasi parties to come in,
which notice is to be in the form of a direction of the court
contained in an order or judgment, and is to be published as
the Code prescribes (Code, sec. 786). If, after due service of
.such notice they do not come in and contribute to the expenses
of the action and take its benefits, they are barred of all further
claim upon the fund in controversy and the administrators are
effectually protected by the judgment (Kerr agt. Blodgett, 48
N. T., 62; Hallett agt. Ilallett, 2 Paige, 15, 19-21 ; Sohuele
agt. Reiman, 86 N. Y., 270, 273). The union of interest
contemplated by section 448 of the Code is that of joint
tenants, cotrustees, partners, joint owners or joint contractors
simply (Jones agt. Fetch, 3 Bosw., 63, 66). ^ The next of kin"
of a deceased person or the distributees of a trust fund are not
united in interest. They simply have a common interest in
the fund, but each owns his undivided share separately. In
.such a case one may sue for the benefit of all, under section
448 of the Code, without regard to the question of number or
inconvenience (McKenzie agt. UAmoreaux, 11 JBarb., 516 ;
Ilallett agt. Ilallett, 2 Paige, 15; Towner agt. Tooley, 38
Barb., 598; Robins agt. McClure, 33 Hun, 368, 370; West
agt. JRandall, 2 Mason, 180). In /tobins agt. McClure (33
Hun, 368) one next of kin sues for himself and all the others
to determine the ownership of a lapsed legacy. The court
entertained the action and the case is now in the court of
appeals on the merits. The English courts always entertained
actions by one next of kin for the benefit of all where it was
inconvenient or .impracticable to bring them all before the
court, but the rule has not been so rigorous in this country
{Story's Eq. Plead,, sees. 89 to 91 and 105). In Oaldecott
400 HOWARD'S PRACTICE REPORTS.
Farnam agt. Barnum.
agt. Caldecott{\ Craig & Phillips, 183), Lord CoiTENHAMheld
that " in order to enable the court to adjudicate upon the right
to a residue of personal estate as between the next of kin as a
class and a party claiming under a will, it is not necessary that
all the next of kin should be present, provided the court be
satisfied that some of them are parties to the record." In
West agt. Randall (2 Mason, 181), judge STORY, says : " It
seems the better opinion, that one heir-at-law or next of kin,
suing for a distributive share of an estate cannot maintain his
bill in equity, without making the other heirs or next of kin
parties or showing them to be without the jurisdiction or
within some other exception. But the rule on this subject
does not seem to be inflexible." Unless the persons are
within the jurisdiction it is not necessary to make them parties
(Angell agt. Lawton, 14 Hun, 70 ; affirmed, 76 N. Y., 540).
Here, as matter of fact, the next of kin are out of the juris-
diction. Mrs. Burr lives in Boston and the two Farnams in
Connecticut. But it is not necessary to show that fact, unless
the plaintiff sues for his share alone. Here he properly sues
for the benefit of all. Under the Code of Civil Procedure
the English rule is not the rule of decision. A more liberal
practice prevails. "Where the plaintiff is one of a class however
small, who have a common interest, and institutes his suit for
the benefit of all who will come in and share its burden and
benefits, the action is properly brought and will be entertained.
It would be very unjust to compel the plaintiff to make these
other next of kin parties defendant. They could then have
the benefit of the action, without sharing its expense or burden.
That is no doubt the object sought by this demurrer, for one
of the admininistrators is himself one of the next of kin.
There is no defect of parties in this action. All of the next
of kin are represented in the action commenced in the name
of one for all. They are quasi parties, and can make them-
selves actual parties at any time by coming in and joining
with the plaintiff. In due course of procedure the court will
make the order or judgment provided for in section 786 of
HOWAED'S PRACTICE REPORTS.
Farnam agt. Barnum.
the Code, requiring them to come in and directing its proper
service. If, after that, they elect to hold aloof, instead of
coming in and sharing the burdens and taking the benefits of
the action the judgment herein will be conclusive upon them
and a complete protection to the administrators. The
demurrer should be overruled with costs to be paid from the
estate.
Simpson, Thacher c& Barnum, attorneys for defendants.
William M. Barnum and Charles N~. Farnam, as admin-
istrators.
LEWIS, J. It is alleged in the complaint that Henry Par-
sons Farnam, late of the city of New York, deceased, made
his last will and testament in 1873, and died December 3,
1884 ; that the defendants Barnum and Farnam were duly
appointed administrators with the will annexed. That the
testator was never married and left no descendant or ancestor
surviving him, and that his only heirs-at-law and next of kin
surviving him are Sarah N. Burr, his sister, and Amelia L.
Farnam and Mary Farnam and Charles N. Farnam, the chil-
dren of his brother Charles N. Farnam, who died in April,
1873, and that the deceased was at the time of his death the
owner and in possession of a considerable personal estate, and
of certain real estate in the city of New York and elsewhere.
That in and. by the will of the testator devisees were made in
trust. That the trusts attempted to be created thereby are
void, and that the whole estate of the testator, subject only
to the payment of his debts in due administration, belongs to
the heirs-at-law and next of kin and is their sole and absolute
property, and the plaintiff claims that the administrators hold
the same in trust for the next of kin and heirs-at-law of the
deceased.
It further alleges that the question involved in the case is
one of a common or general interest of many persons, and
that the plaintiff brings the action not only on her own behalf,
VOL. II 61
402 HOWARD'S PRACTICE REPORTS
Farnam apct. Barnura.
but for the benefit of all heirs-at-law and next of kin who will
come in and contribute to the expenses thereof, and judg-
ment is demanded declaring the said legacies to .have lapsed
in favor of the next of kin, and that the trusts attempted to
be created are void and adjudging that the administrators hold
all said personal estate subject to the payment of debts in
due administration, and in trust for the said next of kin to be
distributed according to the statute of distribution. And
adjudging that the said heirs-at-law are owners iu fee simple
absolute of the real estate. The determination of the ques-
tion raised by this demurrer depends upon the construction to
be given to section 448 of the Code of Procedure, which
provides that " of the parties to the action, those who are
united in interest must be joined as plaintiffs or defendants.
* * * And where the question is one of a common or
general interest of many persons, or where the persons who
might have been made parties are very numerous and it may
be impracticable to bring them all before the court, one may
sue or defend for the benefit of all."
If iSarah N. Burr, Amelia L. Farnam, Mary E. Farnam
and Charles Newell Farnam are united in interest in the
questions involved in this controversy within the meaning of
said section, then they all must be made parties to the action
and the demurrer must be sustained. If the question is one
simply of a common or general interest to them, then the
plaintiff may bring this action for the benefit of herself and
others interested, and the demurrer should be overruled.
This was the rule before the Code (See Barbour on Parties,
page 331 ; Brown agt. Rickerts, 3 Johns. Ch,., 553 ; Thomp-
son agt. Brown, 4 id., 619 ; Ross agt. Crary, 1 Paige,
416; flallett agt. Ilallett, 2 id., 15).
The plaintiff and the persons whom defendants insist should
be made parties, being the heirs-at-law and next of kin of the
deceased testator, if a decree be made pursuant to the prayer
of the complaint, these defendants, instead of holding the
personal estate for the purposes named in the will, will hold
HOWARD'S PRACTICE REPORTS. 403
Farnam agt. Barnum.
the same after payment of the debts of the deceased for the
benefit of the next of kin, as their interests may appear. The
real estate would descend to them according to the law of
descent. No part thereof could be adjudged in this action to
belong to any one of the persons named. If the object of the
action were to obtain an adjudication that the whole or part
of the estate belonged to the plaintiff or to the plaintiff and one
or more, less than all of the other heirs-at-law or next of kiu
of the deceased, then it could be successfully maintained that
all are necessary parties to the action, for they would have a
joint interest in the question involved, but in this case they
have only a common interest to have the bequests declared
void, and such adjudication would inure to their common
benefit. They have a like interest in the question as the
judgment creditors of an insolvent debtor who had made a
fraudulent assignment, would have in an action to set it aside
and have it declared void. Such creditors would have a com-
mon or general interest to have the assignment void, but their
interest would not be united within the meaning of section
448 of the Code. One creditor may sue for herself and others
similarly situated, to set aside the assignment without joining
them as parties to the action {Hammond agt. Hudson River
I. and M. Co., 20 Barb.) 378 ; Petrie agt. Lansing,
66 Barb., 557).
When the question is one of a common or general interest
of many persons, or when the persons who may be made
parties are very numerous, it being impracticable to bring
them all before the court, then one may sue for the benefit of
all. The word " many " is not used in this section to express
the idea of very numerous persons. There are two classes
named where one may sue for all. One is where many
persons have a common interest, and another where the
parties are so numerous that it is impracticable to bring them
all before the court. While the word " many" as here used
contemplates more than one, it does not necessarily very
numerous persons while the word " many" as ordinarily used
404: HOWARD'S PRACTICE REPORTS.
Farnam agt. Barnum.
is synonymous in meaning with " numerous " As used in
this section in connection with the words " common or general
interest of the persons " it means a limited number. It is the
character of the interest which controls, rather than the
number of persons. The third class mentioned " very numer-
ous" one is allowed to sue for all, as a matter of convenience
in the administration of justice by the court. This construction
was given to this section in McKenzie agt. DAmoreaux (11
Barb., 516). This case has been referred to with approval
and has not been disturbed by any case to which my attention
has been called. Under the practice that existed at the time
of the adoption of the Code, this action could be maintained
by the plaintiff in its present form (Brown agt. Rickets, 2
Johns. Ch., 553). Actions against administrators, as well as
actions against assignees for the benefit of creditors brought
to set aside an assignment, are exceptions to the rule that all
parties having an equitable interest named by the decree are
necessary parties thereto (Moore agt. Hageman, 6 Hun, 290).
In Jones agt. Fetch (3 BOKW., 66) the court says : " On a
demurrer to a complaint we apprehend that the test of the
unity of interest intended by the one hundred and nineteenth
(448) section, is that the joint connection with or relation to
the subject matter, which by the established practice of the
common-law courts will preclude a separate action."
The demurrer should be overruled with costs, with leave,
to defendants to answer in twenty days from the service of a
copy of this order, upon the payment of the costs.
HOWARD'S PRACTICE REPORTS. 405
Matter of Karr.
SURROGATE'S COURT.
In the Matter of the Judicial Settlement of the Accounts of
JOEL KAER, as Executor of the "Will of AMI WHITNEY,
deceased.
Witt Rules as to construction of Who entitled to distributive sJiares of
the estate.
Where a will provided as follows: "First. After all my lawful debts are
paid and discharged, I give and bequeath to C. M., who is now living
with me, his heirs and assigns, all that house, lot, tract and parcel of
land where I now reside in the town of Almont, Alleghany county, N.
Y., containing about forty acres of land." Immediately following this
there are sixteen " items " by which the testator bequeaths to twenty- two
persons specific sums of money; each clause of the bequest commences:
" I give and devise." The eighteenth clause reads: " I give and devise all
the rest, residue and remainder of my real estate and of my personal
estate, goods and chattels of every kind whatsoever, if any there shall
be after paying my debts and the legacies hereinafter named to the
several legatees hereinbefore named, to be divided between them share
and share alike." In a codicil to the will the testator slightly changed
some of the bequests and at the end of which was this clause: " I have
by my last will referred to above, willed that any remainder or residue of
my estate real or personal which may remain after paying debts and
legacies, be distributed among the several legatees share and share alike.
Now, therefore, I do by this my writing, which I hereby declare to be a
codicil to my said will and to be taken as a part thereof, order and declare
that my will is, that such distribution be made, not share and share alike,
to the legatees, but pro rata or in proportion to the several legacies except-
ing E. L. and H. B. F. who are not to share in such distribution." C.
M. is the only devisee, and the real property above mentioned is the only
real property devised. The testator died leaving a small parcel of land
undisposed of in any way other than by such residuary clause in the
will and codicil.
Held, that the devisee C. M. is not entitled to any portion of the residu-
ary estate, and it should be distributed to the legatees named in the
will, in the proportion therein named.
Strictly speaking, real estate given by will is devised, and personal estate
is bequeathed. The one receiving real estate is termed a devisee, and
the one taking personal property a legatee. One act of giving is a
devise, the other a bequest. The person receiving a devise or a bequest
is a beneficiary.
406 HOWARD'S PRACTICE REPORTS.
Matter of Karr.
A testator is always presumed to use the words in which he expresses
himself according to their strict and primary acceptation, unless from
the context of the will it appears that he has used them in a different
sense, in which case the sense in which he appears to have used them
will be the sense in which they are to be construed.
The ordinary as well as technical meaning of the word "legacy" is a
gift of property by will other than real estate ; this is its strict and pri-
mary sense and the one generally accepted. This is the meaning that
will be attached to the word by the court, unless it clearly appear from
the will itself that the testator has used the word in a different sense.
AlUgany county, August, 1885.
Wesley Brown, for legatees.
C. W. Stevens, for devisees.
FARNUM, S. Is Clinton Moss, a devisee under the will of
the testator, entitled to a distributive share of this estate?
The first clause of the will is as follows : " First. After all
my lawful debts are paid and discharged, 1 give and bequeath
to Clinton Moss, who is now living with me, his heirs and
assigns, all that house, lot, tract and parcel of land where I
now reside in the town of Almond, Allegany county, N. Y.,
containing about forty acres of land."
Immediately following this there are sixteen "items" in
his will by which he bequeaths to twenty-two persons specific
sums of money ; each clause of the bequest commences : " I
give and devise"
The eighteenth clause reads : " I give and devise all the
rest, residue and remainder of my real estate and of my per-
sonal estate, goods and chattels of every kind whatsoever, if
any there shall be after paying my debts and the legacies
hereinafter named to the several legatees hereinbefore named,
to be divided between them share and share alike."
Nine years thereafter the testator made a codicil to said will
which was duly admitted to probate with the will, wherein he
slightly changed some of the bequests, and which at the end
had this clause : " I have by my last will and testament,
HOWARD'S PRACTICE REPORTS. 407
Matter of Karr.
referred to above, willed that any remainder or residue of ray
estate real or personal which may remain after paying debts
and legacies, be distributed among the several legatees share
and share alike. Now, therefore, I do by this my writing,
which I hereby declare to be a codicil to my said will and
testament and to be taken as a part thereof, order and declare
that my will is, that such distribution be made, not share and
share alike, to the legatees, but pro rota or in proportion to
the several legacies, excepting Elizabeth Leonard and Ilattie
Belle Ferry who are not to share in such distribution."
Clinton Moss is the only devisee, and the real property
above mentioned is the only real property devised. The tes-
tator died leaving a small parcel of land of little value
undisposed of in any other way than by such residuary
clauses in the will and codicil.
All the beneficiaries under the will other than said Moss
claim that they should take the residuum of the estate and
that he should be debarred from any portion of it.
The devisee contends that the testator has not used the
words " legatees " and " legacies " in the sense in which they
are generally understood, and points to the places in the will
where he used the word " devise " to give personal estate and
" bequeath " to pass real estate, and from that urges that he
did not use such words in 'their technical sense. This argu-
ment assumes that because the testator made a misuse of
two words he did not understand the meaning of a third.
This is not a legitimate inference, and the devisee's conten-
tion cannot be upheld on this ground.
Strictly speaking, real estate given by will is devised and
personal estate is bequeathed. The one receiving real estate
is termed a devisee and the one taking personal property a
legatee. One act of giving is a devise, the other a bequest.
The person receiving a devise or a bequest is a beneficiary.
These distinctions are rarely recognized in wills drawn by
those not familiar with legal matters or those careless in the
use of words and legal terms. This will presents a familiar
408 HOWARD'S PRACTICE REPORTS.
Matter of Karr.
illustration of it. Evidently the scrivener had in mind that
there was a distinction between a bequest and a devise, but
unfortunately had the true meaning of the words reversed.
However, there is no difficulty or chance to misconstrue the
testator's meaning in any instance until we reach the residuary
clause of the will.
Whenever it becomes necessary to construe or interpret a
will the fundamental principle to be kept in view is that the
intention of the testator must govern, where it is not incon-
sistent with the rules of law. Where there is an uncertainty
apparent upon the face of the will, as to the application of any
of its provisions, the court is bound to discover the intention
of the testator, and in so doing it must proceed upon known
principles and established rules, not on loose conjectural
interpretations, or by considering what a man may be
imagined to do in the testator's circumstances. In other
words, the question in expounding a will is not what the
testator meant, as distinguished from what his words express,
but simply what is the meaning of the words used by him.
But the rule is inflexible, that guesses at the testator's intention
will not be indulged in (Redf. Surr. Pr., 243). " A testator
is always presumed to use the words in which he expresses
himself, according to their strict and primary acceptation,
unless from the context of the will it appears that he has
used them in a different sense, in which case the sense in
which he thus appears to have used them, will be die sense in
which they are to be construed " ( Wigram on Wills, Proposi-
tion I [2 Am. ed., 1872], 58). " Where there is nothing in the
context of a will from which it is apparent that a testator has
used the words in which he has expressed himself in any other
than their strict and primary sense, and where his words so
interpreted are sensible with reference to extrinsic circum-
stances, it is an inflexible rule of construction that the words
of the will shall be interpeted in their strict and primary sense
and in no other, although they may be capable of some
popular or secondary interpretation, and although the most
HOWARD'S PRACTICE REPORTS. 409
Matter of Karr.
conclusive evidence of intention to use them in such popular
or secondary sense be tendered " (Proposition 11, id., 66).
There is nothing in the context of this will making it apparent
that the testator used the words " legacies " and " legatees "
otherwise than according to their strict and primary accepta-
tion or sense. What is the primary meaning of the words
legacy and legatee ? Webster defines legacy to be " a gift by
will of personal property, a bequest," and a legatee as " one to
whom a legacy is bequeathed." Worcester says a legacy is
" a gift of goods and chattels by will or testament ; a bequest."
The American Encyclopedia defines a legacy to be " a gift of
any personal property by will." Chamber's Encyclopedia
says a " legacy is a bequest or gift contained in the will of a
deceased person of a chattel or sum of money or other thing."
In Orton agt. Orton (3 Keyes, 486, 488) justice PARKER,
writes " every bequest of personal property is a legacy."
" The word devise is specially appropriate to a gift of lands
and the legacy to a gift of chattels," and he there quotes from
several authorities. Williams quotes from Oodolphin (pt. 3,
chap. 1 sec. 1). "A legacy is defined to be some particular
thing or things given or left, either by a testator in his testa-
ment wherein an executor is appointed, to be paid or
performed by his executor or by an intestate in a codicil or
last will, wherein no executor is appointed to be paid or
performed by an administrator " (2 Wms. on Exrs., [th. Am.
ed.~\, 1113, 1051). Dayton adopts the same definition
(Dayton on Surr. [3d. ed.~\, 396). Jarman quotes the same
language (1 Jar. on Wills, [/. <& T. ed.], 145).
In Sheppard's Touchstone we have (vol. 1, p. 400) : "A
devise, or legacy, is where a man in his testament doth give
anything to another; the first of these terms is properly
applied to the gift of lands and the last to the gift of
goods or chattels ; and, therefore, a devise strictly is said
to be where a man in his testament doth give his lands
to another after his decease ; and a legacy is said to be
where a man in his testament doth give any chattel
VOL. II 52
410 HOWARD'S PRACTICE REPORTS.
Matter of Karr.
to another to have after the death of the testator ; but the
word is promiscuously applied to the one and to the other.
And he that gives bj such a will is called the devisor, and he
to whom the thing is given, the devisee or legatee."
Blackstone says : "A legacy is a bequest or gift of goods
and chattels by testament, and the person to whom it was
given is styled the legatee" (2 Bl. Com., 512).
McClellan writes, citing Orton agt. Orton (supra) : "A
legacy, in general terms, is a gift by will of some property
other than real estate" (Surr. Pr [%d ed.~\, 539).
Roper writes. " We proceed to consider the import of the
word 'legacy.' This word, though properly applicable to
bequests of personal estate only, has, nevertheless, been
extended to property not technically within its import, in
order to effectuate the intention, so as to include real property
and annuities " (2 Roper on Legacies [1st Am. ed., 1829], 335).
In Boumer^s Law Dictionary a legacy is defined as " a
bequest or gift of goods or chattels by testament," and then
adds : " This. word, though properly applicable to bequests of
personal estate only, has nevertheless been extended to prop-
erty not technically within this import, in order to effectuate
the intention of the testator, so as to include real property
and annuities."
Pratt agt. McOee (17 8. G. Rep., 428 ; 8. C., 3 Am.
Prob. Rep., 171) was a case which arose under a statute pro-
viding that " if any child should die in the lifetime of the
father or mother, leaving issue, any legacy given in the last
will of snch father or mother shall go to such issue." The
chief object of the testator's bounty was his son, to whom he
gave his entire real estate. The son died in the lifetime of
the testator, leaving a widow and children. Upon a partition
the children of the deceased devisee claimed that the gift to
their father was saved from lapsing by reason of the statute.
This claim was denied by the court, it holding that the term
" legacy " could not be construed to include a devise of real
estate, but must be construed to apply only to a gift of per-
HOWARD'S PRACTICE REPORTS. 411
McKenna agt. Bolger.
sonalty according to its technical meaning (see, also, Havens
agt. Havens, 1 Sandf. Ch., 324 [335] ).
So far as I have been able to discover, wherever it has been
held that the word " legacy " carried real estate, it has been
placed upon the express ground that from the language of the
will it appeared evident to the court that the testator had
given the word a broader interpretation than would ordinarily
be allowed. This is in accordance with Wigrarrfs First
Proposition.
The ordinary as well as technical meaning of the word
"legacy" is a gift of property by will other than real estate ;.
this is its strict and primary sense, and the one generally
accepted. This is the meaning that will be attached to the
word by the court, unle a s it clearly appear from the will itself
that the testator has used the word in a different sense.
In the judgment of the surrogate, the devisee Clinton
Moss is not entitled to any portion of the residuary estate,.
and it will be distributed to the legatees named in the will
in the proportions therein named. A decree will be entered
accordingly.
SUPREME COURT.
MARY L. McKENNA, temporary administrator, &c.,
respondent, agt. THOMAS BOLGKR, appellant.
Contracts Evidence Oral contract to convey land Admissibility of evi-
dence Code of Civil Procedure, section 829.
An agreement of purchase and sale reduced to writing, &c., is not at all
necessary when an action is brought to recover an agreed price for lands
actually sold and conveyed pursuant to an oral agreement, when the
consideration remains unpaid.
A party is not precluded from testifying to extraneous facts, which tend
to show that one who has testified to such a transaction has testified
falsely, or that it is improbable that his statement can be true.
It is no* the intention of the Code (sec. 829) to prevent a party to a suit
from testifying to any extrinsic fact that tends to contradict a witness
312 HOWARD'S PRACTICE REPORTS.
McKenna agt. Bolger.
who swears to transactions or communications had between such party
and a deceased person, even where he cannot directly testify that no such
conversation or transaction was ever had.
It was not the intention to prevent the contradiction of a living witness,
but to prevent a living party to a transaction or communication from
testifying to it himself when death has closed the mouth of the other
party.
Bo when a living witness swears to a contract made by a defendant with
a deceased party at a specified time or place, there is nothing in the Code
to prevent the defendant from testifying that at the time named he was
in Europe or at some distant place, rendering it impossible that the
witness speaks the truth.
First Department, General Term, May, 1885.
Before DAVIS, P. J.. BRADY and DANIELS, JJ.
APPEAL from a judgment, entered on a verdict.
John McGrone and John T. Fenton, for appellant.
M. J. McKenna, for respondent.
DAVIS, P. J. This action was brought to recover a sura
alleged to have been agreed to be paid by the appellant to the
decedent, John P. O'Neill, for his interest in a certain farm
held and owned by the appellant and O'Neill as tenants in
common. The substance of the alleged agreement is, that on
receiving title to the whole of the iarm through amicable
proceedings to foreclose a mortgage then existing upon it, the
appellant should pay O'Neill $1,666, being one-half of the
sum originally invested by O'Neill in the purchase of the
farm. A foreclosure was had, it is claimed, under this agree-
ment, at which the appellant purchased the farm and took
title to the whole thereof, giving his individual bond and
mortgage in lieu of those previously existing, but afterwards
refused to pay the price stipulated for O'Neill's interest.
We see no reason why such an agreement, when consum-
mated by the actual sale and conveyance of the whole title,
is not a valid one upon which an action can be maintained
HOWARD'S PRACTICE REPORTS.
McKenna agt. Bolger.
for the price agreed upon as for lands sold and conveyed at a
purchaser's request at a stipulated price. An agreement of
purchase and sale reduced to writing, &c., is not at all neces-
sary when an action is brought to recover an agreed price for
lands actually sold and conveyed, pursuant to an oral agree-
ment, where the consideration remains unpaid. And that, in
substance, was the alleged agreement in this case, except that
the purchaser was to take the title through an amicable fore-
closure to be produced and consummated by the seller. We
have already determined this question on the demurrer to the
answer brought before us by appeal from the special term.
But questions as to the admissibility of evidence arose upon
the trial of this case that call for consideration. This action
was brought by O'Neill in his lifetime. On his decease the
present plaintiff was substituted as his temporary administra-
trix. The chief testimony in the case to support the alleged
agreement was given by one Tobias, a lawyer, who was to-
some extent connected with O'Neill in business and acted on
his behalf in carrying out the agreement. He gave testimony
tending to establish the agreement by conversations had in his
office and in his presence between O'Neill and the appellant.
The agreement was denied by the appellant in his answer,
and for the purpose of contradicting or impairing the testi-
mony of Tobias, the defendant sought to give testimony him-
self. showing a condition of things inconsistent with the
alleged making of such an agreement. With this view,
amongst other things he was asked the following question :
" Will you state to the jury what induced you to have the
property foreclosed ? " This question was objected to on the
ground " that it is a personal communication with the
deceased." The objection was sustained and an exception
taken. The appellant was then asked : " State the situation
of the property at the time before the foreclosure suit as to
the payment of interest and all that ? " The same objection
and ruling was made and the same exception taken.
The appellant claimed that the foreclosure was not made
414 HOWARD'S PRACTICE REPORTS.
McKenna agt. Bolger.
because of any such agreement as the plaintiff alleged, but
because of O'.JS"eill's neglect to pay interest on the mortgages
.and to keep up his part of the expenses of carrying the
property. These were extrinsic facts clearly competent to be
proved as tending to maintain the defendant's theory of the
case. We see no reason why they could not be proved by his
testimony. They were not of necessity personal transactions
or communications had between the defendant and the
deceased, and if they turned out to be in whole or in any
part of that character, they could have been to such extent
excluded when the fact appeared.
In Pinney agt. Orth (88 N. Y., 447) it was held that " a
party is not precluded from testifying to extraneous facts
which tend to show that one who has testified to such a
transaction has testified falsely, or that it is improbable that
his statement can be true" (See, also, Lewis agt. Merritt,
98 N. Y., 206).
The facts and circumstances which the questions excluded
were designed to call out may, perhaps, have been such as to
satisfy the jury that Tobias had not testified truly as to the
making of the alleged agreement, and they were not neces-
.sarily within the inhibition of section 829 of the Code, and
therefore the testimony should have been received, and so far
as it appeared to be outside of the inhibition of that section
and suited to the consideration of the jury.
The following questions were also asked the appellant and
excluded under the same objection and exception :
" State whether or not you ever made any agreement with
Mr. Tobias acting for Mr. O'Neill, O'Neill being absent, in
relation to the purchase of O'Neill's interest in such farm ? "
" How many times were you in O'Neill's office in relation
to this transaction ? "
The ruling as to these questions was erroneous. Tobias had
given testimony tending to show that lie had conversations
with appellant on the subject of the alleged agreement when
O'Neill was not present, and in relation to the payment of the
HOWARD'S PRACTICE REPORTS 415
McKenna agt. Bolger.
amount sued for. The defendant was not precluded from
contradicting that testimony or from showing affirmatively
bow often he had been at O'Neill's office, and whether or not
there had been any agreement made between himself and
Tobias in the absence of O'Neill.
In Pinney agt. Orth (ubi su-p.} the court said : " We think
that Mr. Orth, the defendant, was competent to testify that
he was not in the city of New York at the time referred to
by the witness, or that the witness was at some other place, or
that he never met the witness at the office when the conversa-
tions are alleged to have occurred." It is not the intention of
the Code to prevent a party to a suit from testifying to any
extrinsic fact that tends to contradict a witness who swears to
transactions or communications had between such party and a
deceased person even where he cannot directly testify that no
such conversation or transaction was ever had. It was not tho
intention to prevent the contradiction of a living witness, but
to prevent a living party to a transaction or communication
from testifying to it himself where death has closed the mouth
of the other party. So when a living witness swears to a
contract made by a defendant with a deceased party at a speci-
fied time or place, there is in our judgment nothing in the
Code to prevent the defendant from testifying that at the
time named he was in Europe or at some distant place, ren-
dering it impossible that the witness speaks the truth.
Subsequently to the foreclosure and purchase by the defend-
ant of the farm, it was shown that one McOandless commenced
a suit against the defendant and O'Neill, alleging that he was
in equity an owner of one-third of the farm, and that the
proceedings in the .foreclosure suit and in the sale to the
defendant were fraudulently had and taken to deprive him of
his interest in the property. This suit was an amicable one
as between McCandless and O'Neill, it being arranged that no
judgment should be taken against O'Neill, but he should be
made a formal party, because the title of the farm had been,
prior to the foreclosure, in him and the defendant. It was
416 HOWARD'S PRACTICE REPORTS.
Foster agt. The New York Central and Hudson River Railroad Co.
testified that O'Neill furnished all the facts stated in the com-
plaint to the attorney of McCandless, who verified the complaint
(McCandless being a non-resident) upon the statements of
O'Neill. The attorney testified in substance that the state-
ments of the complaint were those made to him by O'Neill,
who, though a defendant, instigated the suit. The complaint
was then offered and rejected and exception taken.
We think the complaint was competent as declarations 'of
O'Neill. The declarations, it is claimed, tended to contradict
the allegations of O'Neill's complaint in this action as to the
reasons for having the foreclosure and sale of the farm. The
complaint offered in evidence is not before us, and we cannot
see how far it would have gone toward that object, but it was
not excluded because it did not tend to such contradiction,
and we think it was error to exclude it.
For these errors, without considering the other points pre-
sented by the appellant, we are of opinion that the judgment
must be reversed and a new trial ordered, with costs to abide
the event.
BRADY and DANIELS, JJ., concurred.
SUPREME COURT.
SAMUEL A. FOSTER agt. THE NEW YORK CENTRAL AND
HUDSON RIVER RAILROAD COMPANY.
Railroads Negligence Questions of fact for jury Contributory negli-
gence When injured party guilty of.
Plaintiff arriving at the passenger depot of the defendants' railroad,
which has two modes of ingress and egress one by Steuben street,
which is on a level with the depot, the other by Maiden lane, which
has a stone stairway maintained and kept by the defendant took the
stone stairway to Maiden lane and while passing such stairway slipped
and fell injuring himself, for which injury he brought an action against
the rariload. At close of plaintiff's case, and also when the testimony
was complete, defendant moved to nonsuit plaintiff on the grounds that
HOWARD'S PRACTICE REPORTS. 417
Foster agt. The New York Central and Hudson River Railroad Co.
negligence of defendants in removing snow and ice from the steps
had not been shown, and that the absence of contributory negligence by
plaintiff did not affirmatively appear, but, on the contrary, the undis-
puted evidence showed that he was guilty of contributory negligence.
The motion was denied and both questions were submitted to the jury
as questions of fact to be determined by them upon a motion for a new
trial.
Held, first. That while the defendant showed by its employes that it had
been diligent in removing all snow and ice, yet on the other hand, there
was evidence on the part of the plaintiff that the snow and ice had been
upon the steps for several days. What was the truth in that particular
was a question- of fact; and whether or not, if the jury believed the
witnesses of the plaintiff rather than those of the defendant, the
defendant has been guilty of negligence in failing to remove such snow
and ice was also a question of fact. These were proper questions to be
submitted to the jury.
Second. When a person who is walking on a dangerous and slippery
place, persists in doing so without using, as he might readily and easily
do, the safeguards there placed for his protection and support; (i. e.)
when, as in this case, the person injured knew he was walking upon slip-
pery steps upon which he was liable to fall, and knowing that he couH
protect himself by grasping a rail placed there for that purpose, yet pro-
ceeds with full knowledge of his peril and of his neglect of a means of
safety; these conceded facts demonstrate that the person injured was
clearly guilty of contributory negligence and should have been nonsuited.
Albany Circuit, January, 1885.
MOTION for new trial on the minutes of the court.
Parker & Country man, for plaintiff.
Hamilton Harris, for defendants.
WESTBROOK, J. The plaintiff had a verdict in this action
for $1,000, which the defendant moves on the judge's minutes
to set aside.
The trial disclosed the following facts : The plaintiff wac
a resident of the city of Albany, and on the 24th day ot
February, 1881, he went to the city of New York to purchase
goods for his employers s "W. M. Whitney & Co. of Albany.
He returned during the evening of the following day by the
VOL. II 53
418 HOWARD'S PRACTICE REPORTS
Foster agt. The New York Central and Hudson River Railroad Co.
railroad of the defendant on the train leaving New York at
six o'clock p. M. On his arrival at the city of Albany he did
not leave the depot grounds by Steuben street, which is 0:1 a
level with the depot, but on coming out of its front entrance
on the westerly side he went southerly along the depot
building and then down severa' steps to Maiden lane. The
depot and grounds though on a level with Steuben street are
considerably higher than Maiden lane. A stone stairway,
maintained and kept by the defendant, is the mode of
ingress and egress to or from Maiden lane, from or to the
depot grounds of the defendant in the city of Albany. The
plaintiff when he went to New York did so by the road of
the defendant, entering the depot by Steuben street. "When
he returned, however, as already stated, he left the grounds
by the stone stairway to Maiden lane. His claim was that
the stairs were icy and dangerous and had been so for a
considerable period of time, and that while descending the
stairs, using all due care, he slipped and fell, breaking the
bones of the two middle fingers of his right hand.
At the close of the plaintiff's case and also when the testi-
mony was complete, the defendant moved to nonsuit the
plaintiff on the grounds that negligence by the defendant in
removing snow and ice from the steps had not been shown ;
and that the absence of contributory negligence by the plaintiff
did not affirmatively appear, but, on the contrary, the undisputed
evidence showed that he was guilty of contributory negligence.
The motion was denied and both questions were submitted to
the jury as issues of fact to be determined by them. To the
refusal to nonsuit and to the submission of the questions to
the jury there were proper exceptions taken by the defendants,
upon which, and upon the further ground that the verdict is
against evidence, a motion is made for a new trial.
Upon the first point, the failure to prove negligence by the
defendant in removing the ice and snow from the stairs, there
was, as it seems to me, no error committed. While the defend-
ant showed by its employes that it had been diligent in
HOWARD'S PRACTICE REPORTS. 419
Foster agt. The New York Central and Hudson River Railroad Co.
removing all snow and ice, yet on the other hand there was
evidence on the part of the plaintiff that the snow and ice had
been upon the steps several days. What was the truth in
that particular was a question of fact, and whether or not. if
the jury believed the witnesses of the plaintiff rather than
those of the defendant, the defendant had been guilty of
negligence in failing to remove such snow and ice, was also a
question of fact. Upon the other, however, the contributory
negligence of the plaintiff, there is very serious difficulty.
There was a rail on both sides of the stairway, placed there
for the protection of the persons using it. The plaintiff dis-
covered the condition of the stairs when he reached the second
step, because he slipped there, and as he testified, " carne very
near falling." Though thus warned of his danger he did not
avail himself of the protection afforded by the rail on either
side. On the contrary, he admitted upon the witness stand,
that while he knew there was a rail on one side, at least, he
continued on his way without resorting to its help, which
unoccupied hands and arms enabled him to utilize, until he got
half way down stairs, when he fell and sustained the injury
before mentioned. Other persons following the plaintiff and
others preceding him, went down in safety. Mr. Arthur J.
Stone, one of his witnesses, who arrived at the foot of the steps
just as the plaintiff fell, testified that he went down the stairs in
safety, because, as he said, '" he had hold of the rail and so
experienced no difficulty." The question, therefore, which is
presented is this : When a person who is walking on a danger-
ous and slippery place, persists in doing so without using, as
he might readily and easily do, the safeguards there placed
for his protection and support, is he or is he not, if he falls
and is injured, guilty of contributory negligence ? It will not
be denied that a case can be conceived when the failure to use
a safeguard against injury might not be negligence, or in
which, at least, it might be a serious question of fact. But
when the facts are, as in this case, undisputed, when the
person injured knew he was walking upon slippery steps upon
420 HOWARD'S PRACTICE REPORTS.
Foster agt. The New York Central and Hudson River Railroad Co.
which he was liable to fall, and knowing that he could protect
himself by grasping a rail placed there for that purpose, yet
proceeds with full knowledge of his peril and of his neglect of
a means of safety, can there then be a question for the jury,
and do not the conceded facts demonstrate that the person
injured was clearly guilty of contributory negligence ? If a
person on a sinking steamer, with full consciousness of his
peril and so cool and collected as to know of the presence of
a life preserver, should refuse the use of such preserver and
drown, or if in the water, with his senses not disturbed by
fright, he should deliberately refuse a proffered rope which he
could easily seize and be rescued, there would in neither case
be room to doubt the presence of contributory negligence.
And so in this case, a man who has not lost his senses by fright,
sees his peril, refuses a proffered support at hand, goes on over
a dangerous road and is injured. Can there be a question as
to the contributory negligence ?
In Durkin agt. The City of Troy (61 Barb., 437) the
plaintiff, in walking on an icy place on a sidewalk in the city
of Troy when he could have avoided it, fell and was injured.
The court held that as plaintiff saw the ice, and was also
warned of it at the time, " he was not in a situation to charge
his injury to the default of the city, if the city was in default,
and should therefore have been nonsuited."
In City of Erie agt. Magill (101 Penn., 616) the plaintiff,
who fell in crossing a dangerous ridge of ice upon the side-
walk, claimed to recover for the injury sustained by the fall
because of " the negligence of the defendant in permitting a
dangerous ridge of ice to accumulate and remain for an unrea-
sonable time on the sidewalk where she fell while lawfully
walking thereon." The defendant " claimed that it appeared
by the plaintiff's own testimony that the plaintiff was guilty
of contributory negligence in attempting to cross the ridge of
ice, having full knowledge of its dangerous condition, when
she could easily have avoided it by walking around where
there was a safe passage." The trial court refused to nonsuit,
HOWARD'S PRACTICE REPORTS. 421
Foster agt. The New York Central and Hudson River Railroad Co.
but submitted as a question of fact to the jury whether or not
the plaintiff was guilty of contributory negligence. The jury
found for the plaintiff. The supreme court of Pennsylvania
granted a new trial, holding that it was not a question of fact
for the jury and that the plaintiff should have been nonsuited.
Justice GREEN, in delivering the opinion of the court, quotes
approvingly from the case of Durkin agt. Troy and con-
cludes thus: "In Butterfield agt. Forrester (11 East, 60) lord
ELLENBOROUGH, 0. J., said : ' A party is not to cast himself
upon an obstruction which has been made by the fault of
another and avail himself of it, if he do not himself use
common and ordinary caution to be in the right.' These
principles are quite familiar and could be sustained, if neces-
sary, by an extensive citation of authorities, but that is not
requisite."
It is not seen why the principle which controlled the cases
cited is not applicable to the present. Indeed, it would seem
that the facts are stronger against the plaintiff in this case
than they were against the plaintiff in either of the others.
"Whether or not a certain piece of ice is so dangerous that it
is carelessness not to avoid it might possibly, in the absence
of a demonstration that it was dangerous by an attempt to
pass it, be questioned. But of the danger which the plaintiff
incurred in passing down those steps he had warning in the
slip and almost a fall on the second step, he not only saw but
felt the peril, and he yet proceeds refusing the help of the
rail. If a person, who was to his knowledge protected in
some way from slipping, had stepped to his side upon the
first slip and proffered aid in the descent and he had refused
it would he not have been negligent ? Wherein does his con-
duct differ from that of the supposed case? The aid was
proffered, the presence of the rail was the offer of help, and
was refused. His friend not so reckless accepts and proceeds
in safety, but he declines and is injured. Is not the proof of
negligence complete ?
How this case upon a cool review impresses me has now been
422 HOWARD'S PRACTICE REPORTS.
Foster agt. The New York Central and Hudson River Railroad Co.
frankly stated. It is clear to my judgment that as matter of
law the plaintiff should be held guilty of contributory
negligence. The jury, however, to whom the facts were sent
to obtain their judgment upon the question of negligence,
have by their verdict said there was.no contributory negli-
gence by the plaintiff. Their error, however, and that
of the trial court in submitting the issue to them, if any
was committed, ought to be corrected by an appeal by the
defendant, and the plaintiff should not be subjected to the
expense of maintaining his verdict by an appeal from an order
setting it aside. The plaintiff should not in my judgment be
deprived of the benefit of his verdict unless the court of last
resort decides that there was no question of fact to be passed
upon by the jury. If that court should eventually hold that
the question was one of fact, then the plaintiff would be
wronged by the granting of a new trial. The maintainance
of the present verdict until it reaches the court of last resort,
where the case ought to and doubtless will eventually go, will
enable that tribunal to settle the questions involved without
the cost of a second trial. If the general term, however,
thinks otherwise it can grant a new trial. It seems to me
though, that the denial ot the present motion places the cause
in the best position to review at the least possible expense to
both parties the questions discussed. With this object in view
the direct presentation of the questions to the court of appeals,
but with a clear conviction what that decision should be, the
motion for a new trial is denied.
HOWARD'S PRACTICE REPORTS. 423
People ex rel. Holler agt. Board of Contract, etc., of the City of Albany.
SUPREME COURT.
THE PEOPLE ex rel. JACOB HOLLER agt. THE BOARD OF
CONTRACT AND APPORTIONMENT OF THE CITY OF ALBANY.
Municipal law Street improvements Contracts for Wlien mandamus
wiH issue to compel execution of a contract Laws of 188"), chapter 252
When governor of state may sign petition Lot owners may petition by
attorney.
When a law for repaying a street has been duly passed, proposals to do
the work invited, bids received, and by resolution of the contracting
board of a city the contract let to the lowest bidder, the proposer has a
right to have the proper contract written out in accordance with his bid
so accepted, and the board has no right to rescind the resolution award-
ing the contract. A mandamus will issue to compel the execution of
the proper contract by the city.
Lot owners may petition a common council for a street improvement by
attorney, and this, although the phrase " or their duly authorized attor-
neys,'' is omitted in the section under which petition is made, although
the phrase is to be found in the preceding section. The want of power
of the attorney to sign is not presumed, but must be proved by those
who attack the petition.
Under chapter 252 of the Laws of 1885, the governor of the state may sign
any petition required by law to be made for the improvement of streets
in cities whenever the land owned by the state fronts on the street to be
improved. It is immaterial that the state does not appear on the tax-
rolls of the city.
The legislature has power to make the certificate of the city surveyor
and engineer of a city conclusive evidence that the required number of
feet are duly represented on a petition for a street improvement.
Albany Special Term, August, 1885.
MOTION for a mandamus.
L. G. Hun, for plaintiff.
S. W. Rosendale, corporation counsel, for defendants.
PECKHAM, J. The parties to this controversy waive all
technical objections to the hearing of the matter, and mutu-
ally desire a decision upon the merits of the case, which will
424 HOWARD'S PRACTICE REPORTS.
People ex rel Holler agt. Board of Contract, etc , of the City of Albany.
involve a judicial construction of the meaning of some por-
tions of the city charter, and of the act (chap. 252 of the
Laws of 1885) entitled "An act relating to improvements
in streets fronting real estate, the title to which is vested in
the people of the state or any department of the state
government."
The facts of the case are substantially stated in the affidavit
of Mr. Holler, the relator, and it is upon such statement that
the court bases its decision herein, not regarding any state-
ment of a mere conclusion of law, however.
The counsel for the defendants interposes several objec-
tions to the granting of the writ, which will be noticed a*
follows :
First. The defendants claim a right to rescind the resolu
tion amending the contract to the relator. The common
council passed the law for the repaying of the street in
question, and directed the defendants to carry the same out
by advertising in the manner provided for by the charter,
which also provides that the contract shall be let to the lowest
bidder.
The common council is the body which originates the pro-
ceeding (after a proper petition has been presented to it), by
passing a law or ordinance for the repaying of the street.
This power is specially given to that body (Charter*
p. 47, sec. 25). The defendants, when such a law has bee
passed, are clothed with the power of carrying out the same,
and by the statute are directed to issue proposals for the con-
tract, which, as I have already said, they must let to ihe
lowest bidder (charter^ pp. 87, 88, sees. 3, 4, 5); when a law
for repaying has been passed and proposals issued, bids
received, and, by resolution of the board, the contract let to
the lowest bidder, he then has a right to go on and have the
proper written contract made out in accordance with his bid
80 accepted, and the board has no right to rescind the resolu-
*Chap. 298, Laws of 1883 ; 1 S. L., p. 359, sec. 25.
fChap. 298, Laws of 1883 ; 1 S. L., p. 383. sec. 5.
HOWARD'S PRACTICE REPORTS.
People ex rel. Holler agt. Board of Contract, etc., of the City of Albany.
tion awarding the contract, provided the law has been
fulfilled and its terms complied with. If, therefore, the
other objections raised by defendants are not tenable, the
relator has a vested right to the contract, and the defendants
cannot deprive him of it by assuming to rescind the resolu-
tion which awarded it to him, he bein^ the lowest bidder.
f O
Second. It is also objected that the certificate of the engineer
is not sufficient, in that it speaks of the petitioners or their
attorneys having signed to the requisite amount, and that the
statute does not provide for a signature by attorney.
There is nothing in the objection. It is one of the most
familiar maxims of the law, that what a man does by his agent
he does himself. It is true that section 30 of the charter,* at
page 49, speaks of the petition being signed by one or more
persons, and leaves out the phrase " or their duly authorized
attorneys," which phrase is to be found in the section imme-
diately preceding. But the omission is wholly immaterial.
The signature of the attorney (being authorized) is as valid as
though made by the owner himself, and it would require
affirmative words in the statute taking away the power to sign
by attorney before said signing would be illegal. If the
people signing as attorneys were not in fact authorized to
sign, such want of power is not to be presumed, but must be
proved by those who attack the petition as invalid. The
general railroad act provides for the articles of association
being signed by twenty-five or more persons Yet it has been
held that signatures of attorneys are valid (if duly authorized),
and there is no presumption of a want of such authority, but,
on the contrary, those who attack the signatures as illegal
must show that they were unauthorized (In re N. Y., L. and
W. R. R. Co., to acquire lands, 21 Week. Dig., 437, Ct. of
App.}. But in this special case it is stated, and I believe
uncontradicted, that there is enough land represented on the
petition without counting the signatures by attorney, provided
the land owned by the state, and which is signed for by the
*Chap. 298, Laws of 1883; 1 S. L., p. 361, sec. 30.
VOL. IT 54
426 HOWARD'S PRACTICE REPORTS.
People ex rel. Holler agt. Board of Contract, &c., of the City of Albany.
governor, should be counted, and as there is not enough in
any event if the state land be excluded from the count, the
point is of not much practical importance.
Third. It is claimed that the signature of the governor, for
the land owned by the state, and fronting on the street, is not
to be taken or counted, because the land owned by the state
does not legally appear upon the tax-roll, and it is further
contended that there must be a petition signed by the owners
of a certain proportion of the land appearing upon such, and
that if the land owned by the state be not counted, the peti-
tion has not enough signers upon it. The last statement of
fact is conceded, while the validity of the rest of the claim is
denied. It is a fact of which the courts will take notice that
many charters of municipal corporations in this state provide
for a petition to the common council, board of trustees, or
other governing body for any improvements of streets, which
petition must be signed by some proportion of owners of the
property fronting the streets before any action looking to such
improvement can be taken. The state owns lands in many of
our cities and villages, and is continually acquiring more for
arsenal and other purposes, and the want of power in some
one to represent this ownership of the state would make and
has naturally made itself felt, particularly since the state is
assessed for improvements of such a nature like any other
owner, unless specially exempted therefrom (Hassan agt. City
of Rochester, 67 N. Y., 528).
Under such circumstances the legislature passed the act
(chap. 252 0/"1885) already referred to. It provides that the
governor may sign any petition required by law to be made for
the improvement of any street by, among other things, repav-
ing, etc., whenever the land owned by the state fronts on such
street. But it is said the land of the state does not appear
on the tax roll, and it is only of land appearing on such roll
that the owners of a certain proportion of the same can bind
the rest of the expenses of the improvement. The answer is,
if such were the law, it is now, in effect, amended, for it now
HOWARD'S PRACTICE REPORTS. 427
People ex rel. Holler agt. Board of Contract, &c., of the City of Albany.
permits the governor to sign any petition required by law, and
if the law in Albany has heretofore required a petition to bo
signed by a certain proportion of owners of land appearing on
the tax rolls, the law now says that snch a petition may be
signed by the governor, provided the land owned by the state
fronts on the street to be improved, and it may be signed by
him, it of course means that the signature is to count for the
number of feet owned by the state fronting on the street.
The object of the act is plain, and that is to permit the
governor to sign any petition for the improvement of a street
on account of the ownership by the state of any land fronting
on the street, in the same manner and with the like effect as if
the land were owned by a private individual, and to that extent
the law is to be regarded as in effect an amendment to every
charter in the state, where, without such act, the governor
could not sign in behalf of the state. It might, with the same-
force, be claimed that the signature of the mayor, under sec-
tion 31 of the charter* (page 49), for the land owned by the
city cannot be counted, because the land does not appear on
the tax rolls. In such case the legislature has made another
and special provision, so that for land owned by the city the
mayor can sign, although the land does not appear on the tax
rolls, and for lands owned by the state the governor can sign,
and such land must in both cases be counted. I have no-
doubt the act of 1885 applies to the city of Albany to the
same extent as if the statute contained the words, " This act
shall apply to the city of Albany."
Fourth. But even if the statute did not apply, the certifi-
cate of the city engineer that there had been secured the
requisite number of feet, is made by the charter conclusive
evidence. This the legislature had undoubted power to do.
There is no allegation of fraud on the part of the officer
making such certificate, and in the absence of all fraud, the
certificate must govern, the legislature had power to provide
*Chap. 298, Laws of 1883; 1 S. L., p. 361, sec. 32.
428 HOWARD'S PRACTICE REPORTS.
Ward agt. Comegys et al.
for a repaying by the direction of the common council, when-
ever in its judgment, it might be expedient, without providing
for the necessity of a petition, or setting up any condition
other than the unlimited discretion of the common council.
Instead of permitting the common council to exercise any
such power, it provides in the charter in question that it shall
be exercised only upon a petition, &c., of owners, and that a
requisite number of owners have signed is to be proved by the
certificate of the engineer, and such certificate is by the very
terms of the statute conclusive evidence of the fact, in the
absence of fraud at any rate. I hold the terms of the statute
under such certificate conclusive, and that the law is a valid and
constitutional exercise of legislative power.
This covers the points made by defendants. None of them
are tenable, and the 'mandamus should issue ; but as the
defendants are public officers acting in good faith, no costs
are awarded against them.
SUPREME COURT.
WARD agt. COMEGYS et al.
Defense Counter-claim Answer Reply Distinction between defense and
counter-claim When reply to answer not allowed.
As a distinction exists between a defense and a counter-claim, when the
defense is intended as a counter-claim it should be explicitly stated in
the answer, so as to advise the opposite party, and in the absence of
such an allegation, especially when the party defines and characterizes
his answer as a defense, and it is uncertain whether a counter-claim is
intended, such party is not in a position to insist that he has actually
set up a counter claim, and the answer should be construed and con-
sidered a defense.
A counter-claim must contain the substance necessary to sustain *n action
on behalf of the defendant against the plaintiff if the plaintlft nad not
sued the defendant.
HOWARD'S PRACTICE REPORTS. 429
Ward agt. Comegys et al.
A plaintiff is not entitled to serve a reply set up in the answer where it is
apparent that the whole object and scope of the defense to which it
is sought to reply is to showjthat some party other than the plaintiff should
have brought the action. The remedy, in such case, would seem to be
a motion to strike out.
Special Term, October,. 1885.
LAWRENCE, J. This is a motion by the defendant Riggs
to strike out a reply served by the plaintiff to his answer, on
the ground that the defenses in the answer to which the reply
is interposed do not constitute a counter-claim, and that the
court has not directed a reply to be served. In the answer,
none of the matters which are set up as defenses are charac-
terized as counter-claims, but in each and every instance it is
alleged that such matters are pleaded as a separate and dis-
tinct defense. In the case of the Equitable Life Assurance
Society agt. Cuyler (75 N. Y., 511), the courts say: "The
answer purports to set up a defense merely and so expressly
states, and it is not claimed therein that it was such counter-
claim. Had the answer advised the plaintiff that a counter-
claim was intended to be set up, a reply would no doubt have
been served, or at least the plaintiff would have been
informed of the nature of the pleading. We think that no
reply was required, for the reason that no counter-claim was
actually interposed by the answer. As a distinction exists
between a defense and a counter-claim, when the defense is
intended as a counter-claim it should be explicitly stated in
the answer, so as to advise the opposite party, and in the
absence of such an allegation, especially when the party
defines and characterizes his answer as a defense, and it is
uncertain whether a counter-claim is intended, such party is
not in a position to insist that he has actually set up a counter-
claim, and the answer should be construed and considered as
a defense. The defendant is bound by his own definition of
the answer and cannot, at his own volition, change the nature
of the pleading which he has characterized, and by so doing
may have misled the plaintiff" (Citing Bates agt. Rosekrans,
430 HOWARD'S PRACTICE REPORTS.
Ward agt. Comegys el al.
4 Abb. \N. &], 276 ; 37 N. Y., 409 ; Wright agt. Delafield,
25 id., ; Burke agt. Thome, 44 Barb., 363). Tested by the
principles enunciated by the court of appeals in that case, it
is quite apparent that the defendant in this action could not,
-at the trial, claim that any of the matters set forth in his
answer constitutes a counter-claim, inasmuch as he has
characterized them as distinct defenses. Besides, it will be
observed that the defendant, in his answer, asks for no affirma-
tive relief. But, independently of the fact that the defendant
is, by his characterization of the answer, estopped from claim-
ing that it contains a counter claim, it is obvious to my mind
that the matter to which the plaintiff has replied does not
constitute a counter-claim. In Vassear agt. Livingston (3
Kern., 249, 252), it was held that a counter-claim which
requires a reply to put it in issue must contain in substance a
cause of action in favor of the defendant against the plaintiff.
The court say, at page 252 : " A counter-claim must contain
the substance necessary to sustain an action on behalf of the
defendant against the plaintiff if the plaintiff had not sued the
defendant." If we turn to the second defense in the answer
it will be found that, while the defendant alleges that in case
of unnecessary delay on the part of the plaintiff to complete
the work, or failure to complete it by the time specified in
the contract, the defendants were to take charge of the work
and charge the increased cost or damage to the plaintiff, to be
taken out of any money already earned, or to be received by
the plaintiff, and that both of the contingencies having
occurred, the work was thrown upon the hands of the
defendants, and that thereupon the plaintiff being unable to
continue the work, on or about September 1, 1883 (long after
the day he was, by the contract, to complete the work),
assigned all his rights, whatever they were, to John "W.
Rutherford, whereby whatever claim, if any, the plaintiff
possessed under said contract, was assigned to said Ruther-
ford and is vested in the hands of the said assignee, the
defendant Riggs nowhere claims that he has been obliged to
HOWARD'S PRACTICE REPORTS. 431
Matter of Smyth.
expend money in excess of the amount which had become
due to the plaintiff. Indeed, it is quite apparent that the
whole object and scope of the second defense to which it is
sought to reply, is to show that Rutherford, and not the
plaintiff, is the party who should have brought this action.
I am therefore of the opinion that the plaintiff was not
entitled to serve a reply in this case. The remedy seems to
be a motion to strike it out (See Develin agt. Kevins. 22
How. Pr., 290 ; .Dillon agt. Sixth Avenue It. It. Co., 46
JSupr. Ct., p. 21).
Motion granted, with ten dollars costs.
COUNTY COURT.
In the Matter of the General Assignment of JOHN F. SMYTH.
Assignment "What passes by general assignment Stock exchange Pledger
and pledgee When relation exists between stock-broker and customer
2 rust funds do not pass to an assignee Rules for tracing them.
Stock purchased on margin by a stock-broker for a customer, becomes the
property of the customer, as between them the relation of pledger and
pledgee is created and exists, and upon payment of the amount due the
customer becomes entitled to the possession of the stock.
Nothing passes by a general assignment except the interest of the assignor,
and if any of the assigned property is freighted with equities the
assignee must recognize the same.
Trust funds do not pass to an assignee of an insolvent, and they may be
followed into the hands of such assignee for the benefit of the cestui que
trust.
Funds wrongfully appropriated may be followed into any property the
wrong-doer may have invested them.
Rules stated for tracing trust funds.
If the fund in the hands of an assignee of an insolvent has been increased
by reason of an appropriation by other parties having a lien upon both,
of one of two classes of securities, the assignee is liable to the claimant
whose property was appropriated to the extent of the increase. General
creditors cannot get on an equality with those having superior claims
through any action of a prior lienee.
432 HOWARD'S PRACTICE REPORTS.
Matter of Smyth.
Under the rules of the New York Stock Exchange, when a member
assigns, all securities held by other members of the exchange for indebt-
edness to them of the member failing, may be sold at once and without
notice, and all members have a lien upon the seat in said exchange of
any member indebted to them for the amount of the indebtedness.
S., of Albany, N. Y., a stock-broker and a member of the New York Stock
Exchange, assigned. His New York correspondents were H. B. & Co.
He bought all stock and bonds for his customers through them. They
held bonds belonging to the customers of S., and also stock bought on
margin. H. B. & Co., knew no one in their transactions but S. H. B.
& Co., immediately after the failure of S., sold the stock and bonds of
the customers of S. and applied the proceeds on their claim against S.,
and the assignee afterwards selling the seat, paid H. B. & Co., the
balance due them, retaining the remainder thereof.
Held, that the owners of the stock and bonds so sold, had a claim superior
to the general creditors of S., and were entitled to have their several
interests allowed out of the moneys in the hands of the assignee, arising
from the sale of the seat in said exchange.
Albany, September, 1885.
THE facts are sufficiently stated in the opinion.
Hamilton. Harris, William P. Rudd, W. C. MoHarg,
Mead & Hatt, Hungerford & Hotaling, for claimants.
D. C. HerricJc, for assignee.
NOTT, (?. J. On the final accounting herein, a controversy
has arisen as to the rights of certain claimants to the avails of
certain negotiable bonds and stock that were in the hands of
the assignor, before the assignment, and sold afterwards ; all
the parties in interest have signed a full statement of the facts,
submitting their rights to the determination of the court.
John F. Smyth, on the 9th day of May, 188-4, executed a
general assignment for the benefit of his creditors, to John C.
Connor. He was engaged, at that time, in business in Albany,
as a stock-broker, being a member and having a seat in the
New York Stock Exchange. By the rules of the exchange,
when a member assigns, all securities held by other members
of said exchange for indebtedness to them of the member fail-
HOWARD'S PRACTICE REPORTS. 433
Matter of Smyth.
ing, may be sold at once and without notice, and all members
have a lien upon the seat or membership in said exchange
of any member indebted to them, for the amount of such
indebtedness. Smyth's New York correspondents were Hotch-
kiss, Burnham & Co., stock-brokers, who were members of said
exchange. Hotchkiss, Burnham & Co., were to purchase, pay
for and carry for said Smyth and sell on his order, such stock
as Smyth directed, he to keep on deposit with them, a margin
in cash or securities of ten per cent, of the par value of the
stock purchased.. The accounts between Hotchkiss, Burnham
& Co. and Smyth, charged him with the amount paid by
them for stock, and credited him with proceeds of sales and
margins paid in cash or securities deposited. Hotchkiss,
Burnham & Co. knew no party in any transaction except
Smyth. The certificate or scrip of stock remained with
Hotchkiss, Burnham & Co., and if any dividend was declared
thereon, the same was received by Hotchkiss, Burnham & Co.,
and credited to Smyth in his account, and he in turn credited
his customers. If any of Smyth's customers desired the scrip,
he was entitled to it on payment of its full price.
When Smyth's assignment was announced, Hotchkiss, Burn-
ham & Co. sold all the stock and securities held by them on
Smyth's account, and after crediting them with the avails
thereof, he still owed them $14,148.32. Subsequently, Smyth's
assignee sold Smyth's seat in the stock exchange, for the sum
of $23,500. Out of this sum, Hotchkiss, Burnham & Co.
were paid the balance due them, the residue was retained by
the assignee. Does this residue go to the creditors, or is it
impressed with superior claims of others? To determine this
a statement of the position of the claimants must be made.
George W. Knowlton bought stock of Smyth, at various timej,
but closed his account, paying on March 7, 1884, a balance
due Smyth of $565.33. Instead of depositing with Smyth
the usual margin, Knowlton left with Smyth a negotiable
bond, par value, of $1,000. Smyth sent this bond, without
notice to Knowlton, to Hotchkiss, Burnham & Co., and he
VOL. II 55
434 HOWARD'S PRACTICE REPORTS.
.Matter of Smyth.
was credited with this amount by them. Shortly after,
March seventh, Knowlton requested Smyth to sell the bond at
a price not less than 11 5; after Smyth's assignment, Knowl-
ton had an interview with the assignee and asked where said
bond could be found. Being told where it was, Knowlton
demanded its return to him from Hotchkiss, Burnham & Co.,
who, however, sold it for $1,100, giving credit to Smyth for
the amount thereof.
"William P. Rudd had dealings with Smyth, and in a stock
transaction, Rudd became entitled to give scrip negotiable
bonds, which were held by Smyth for sale, as Rudd might
direct. These bonds were delivered by Smyth to Hotchkiss,
Burnham & Co., who sold them after the assignment, credit-
ing the avails thereof to Smyth's account with them.
William C. McHarg, John G. Campbell, Joseph D. Craig,
John C. Connor and James Middleton, had severally dealt
with Smyth, buying stocks on margin, and claim that their
stock having been sold after tire assignment by Hotchkiss,
hurnham & Co., they each have a claim for the amount that
should have come to them out of the transaction if Smyth had
continued in business and fulfilling his business engagements.
From the foregoing statement, it appears that Hotchkiss,
Buruham & Co. had a lien upon and the right of sale of two
distinct classes of securities ; one of which belonged to Smyth
himseH, his seat in the exchange, the other was the securities
held for margin, among which were those above stated. They
eold the latter, thus freeing to a considerable extent, their lien
upon the seat in the exchange.
The bonds of Knowlton and Rudd continued to be their
property, Smyth was a mere bailee for hire ; he had no charge
against them or lien of any kind at the time of his failure,
and if the bonds were in the actual custody of the assignee,
trover or replevin would lie therefor. And so as to the stock
of McHarg and others, the title to which passed to them, as
against Smyth, and the relation of pledger and pledgee was
created and existed (Markham agt. Jaudon, 41 N. Y., 236 ,
HOWARD'S PRACTICE REPORTS. 435
Matter of Smyth.
Bates agt. Drake, 53 N. Y., 211), and upon payment of the
amount due beyond the margin, the pledger would be entitled
to the possession of the stock ( Wf Meier agt. Newbould, 16
N. Y., 398 ; Wilson agt. Little, 2 N. Y., 443). This would
have been the legal position of the several parties, had not
the property been hypothecated to Hotchkiss, Burnham, &
Co. Do the sales therefor made by Hotchkiss, Burnham, &
Co., extinguish the rights of these parties, or can they now be
accorded any better position than the general creditors ? It
would be very unreasonable to hold that the sales did extin-
guish those rights, and to deny to these claimants any relief.
Nothing passed by the assignment, except the property of the
assignor, and if any property was freighted with equities the
assignee should recognize the same (Dos lassos on /Stock
Brokers and Stock ^Exchanges, 162, 163).
In Haggerty agt. Duane (1 Paige Ch., 231), an assignee for
benefit of creditors sold property, title to which was contracted
for, but had not passed and remained in the assignor's vendor.
Chancellor W ALWORTH directed the money arising from that sale
.to be paid into court by the assignee until the question of title
was settled. In Rip agt. Bank of New York(W Johns., 63),
it was held that under the assignment of an insolvent, no
other estate vests in the assignee than that of which the
insolvent had the legal or equitable title, and that property
held in trust by the assignor did not pass, and if sold by the
assignee, the proceeds might be traced for the benefit of the
cestui que trust. The difficulty of tracing the fund suggested
by the court in that case is admirably explained in the rules
given in the note to Ilooley agt. Gieve (9 Abb. N. 0., 41), as
follows: " 1. Where trust moneys have lost their individu-
ality, by being commingled with other moneys or turned into
other property, equity may establish a charge on the entire
fund in favor of the cestui que trust to the extent to which
that can be done without injustice to those having other
equities in the fund. 2. In doing this, it may trace the
moneys by all the means that book-keeping and an equitable
43G HOWARD'S PRACTICE REPORTS.
Matter of Smyth.
application of payments afford, so as to fasten on the resulting
fund a charge or lien for the amount divested so far as the
fund can justly be subjected to the trust, but no further"
(p. 41). If the bonds and stock had been sold by Smyth prior
to the assignment and the proceeds mingled with his other
funds, the case of Illinois Trust and Savings Sank agt.
First National Bank (15 Federal Rep., 858), would apply.
The general rule that funds wrongfully appropriated may be
followed into other hands and reach the property into which
it has been invested is well established (Pleasant Valley agt.
Calvin, 13 N. W. Hep., 80; Bank agt. Simonton, 14 Rep.,
315 ; SouthparTc Comn. agt. Kerr, 13 Federal Rep., 502 ;
Ferris agt. Van Vechten, 73 N. Y., 113).
The rights and interests of Hotchkiss, Burnham & Co.
could have been fully protected by the sale of the seat in the
exchange, and it cannot be that the rights of the claimants
here can depend upon the notion of the New Fork brokers
in choosing to sell their negotiable collaterals rather than the
property which was impressed with no equity, but was com-
mon to all the creditors of the assignor. The law will not
permit Hotchkiss, Burnham & Co. to act as an arbiter and
make such an appropriation of securities as suit them ( Waller
agt. Lacy, 1 Man. < Or., 54).
It is true that the proceeds of the bonds and stocks in ques-
tion never came into the hands of the assignee, as they had been
used to extinguish a debt of the assignor, which was secured as
well by a property to which the general creditors of the insolv-
ent had an unquestioned right. It is indisputable, therefore,
that the funds in the hands of the assignee have been increased
at the expense of the claimants, and, under those circumstances,
I think the rights of the claimants are impressed upon the
funds so received by the assignee (Alston agt. Holland, 4
Chy. App. Cases, 168 ; Taylor agt. Plumer, 3 Maule <& Selwyn,
562 ; Broadbent agt. Barlow, 3 De Gex, Fisher & Jones, 570).
And we have the high authority of lord ELLENBOROUGH, who
says : "And, indeed, upon a view of the authorities, it should
HOWARD'S PRACTICE REPORTS. 437
Matter of Smyth.
seem that if the property in the original state and form was
covered with a trust in favor .of the principal, no change of
that state or form can divest it of such trust, or give the factor,
or those who represent him in right, any other more valid
claim, in respect to it, than they respectively had before such
change. The difficulty of tracing property, which arises in
such a case, is a difficulty of fact and not of law."
Under the heading of " marshaling of securities," Mr.
justice STORY says : " The general principle is that if one party
Has a lien on or interest in two funds, for a debt, and another
party has a lien on or interest in one only of the funds, for
another debt, the latter has a right in equity to compel the
former to resort to the other fund in the first instance for
"atisfaction, if that course is necessary for the satisfaction of
4he claims of both parties wherever it will trench upon the
rights, or operate to the prejudice of the party entitled to the
double fund" (1 Story's Eq. Jur. [12M ed.], sec. 633).
It seems to be clear from the authorities (many of which I
have examined, but not cited), that Knowlton and Rudd, also
McIIarg, Campbell, Craig, Connor and Middleton have rights
and interest superior to the general creditors; they did not,
as did the general creditors, repose upon the personal respon-
sibility of the -assignor, but depended upon the property in
his hands, or in the hands of his brokers. To the extent of
such rights and interests the assignee must give proper
recognition.
An order will be drawn in accordance with the foregoing
opinion. If the parties agree on the form thereof it will be
entered, if not, any party may have the same settled on five
days' notice.
438 HOWARD'S PRACTICE REPORTS.
Arrnitage agt. Hoyle et al.
SUPREME COURT.
MART ARMITAGE agt. THOMAS HOYLE et al.
Custody of minor children Right of parents to dispose of Laws of 1871,
chapter 32 Injunction Action will lie and injunction- will be granted
to prevent interference with the person to whom such custody has been given.
By the Revised Statutes, as amended by chapter 32 of Laws of 1871, a
father may by deed or last will duly executed, dispose of the custody
and tuition of any child under the age of twenty-one years and unmar-
ried during its minority.
Where a father has by deed duly executed, disposed of the custody and
tuition of a minor child, and the person to whom such disposition has
been made has accepted the sa.me; an action will lie to enforce the
rights of such person, and an injunction will be granted restraining the
interference of not only the father, but of all persons acting under him
and by his procurement, with the rights of such person to such custody
and tuition under said deed.
The injunction in such actions run not only against a party, but also
against his attorneys, counselors, agents, &c.
Gayuga Special Term, July, 1885.
MOTION for injunction pendente lite.
F. I). Wright, for plaintiff.
L. E. Warren, for defendant.
ANGLE, J. The principal defendant, Thomas Hoyle, with
his wife, who was a daughter of the plaintiff, on the 5th Dec-
ember, 1883, by a deed duly executed by them, disposed of
the custody and tuition of their infant daughter Edith Evelyn
Hoyle during its minority to the plaintiff, as provided by the
Revised Statutes, as amended by chapter 32, Laws of 1871.
This deed was recorded in Cayuga county clerk's office on the
21st day of July, 1884, having been first duly acknowledged.
At the time of the execution of this deed, Mrs. Hoyle was
fatally ill, and she afterwards died. The plaintiff accepted
the custody and tuition of the child under said deed. The
HOWARD'S PRACTICE REPORTS. 439
Armitage agt. Floyle et al.
moving papers abundantly establish that Thomas Hoyle and
persons acting under him and by his procurement, interfere
with the rights of the plaintiff to such custody and .tuition, and
annoy and embarrass her in the exercise of her rights under
said deed. No question is made as to the validity of the deed
and it is valid and effectual against the father of the infant.
The action is to enforce the rights of the plaintiff under the
deed and to compel a regard for these rights in the defendants.
A precedent for the action is found in Swift agt. Swift (3-i
Beav., 2fi6), a case in which by articles of separation between
husband and wife, the former covenanted that their ' two
children should at all times thereafter be under the sole care,
management and protection of the wife." Afterwards the
husband endeavored forcibly, but ineffectually, to obtain pos-
session of one of the children, in consequence of which
the wife commenced an action praying for an injunction to
restrain the husband from removing from or prosecuting any
proceedings to obtain the children from her custody, or inter-
fering with her in their care, management and protection,
and the master of the rolls awarded an injunction.
The case of Swift agt. Swift presented other features,
among which was the principle of the English law that it was
against public policy for a parent, by contract, to deprive
himself of parental authority and power; but that case is
clearly an authority under our statute for an injunction in the
present case.
There is nothing in the papers to warrant a suspicion that
plaintiff's contemplated visit to England is in bad faith, or
with intent not to return with the child ; and even if it were
so, the authorities cited by plaintiff's counsel seem to hold
that she has the right to change the domicile of the child.
It was strongly urged by counsel for the defendants that it
would be an unwarrantable assumption of jurisdiction to
restrain attorneys and counselors from practicing their profes-
sion by taking such legal proceedings, by habeas corpus or
otherwise, as they might deem proper for the protection of
440 HOWARD'S PRACTICE REPORTS.
Bowe agt. The United States Reflector Company and others.
the rights of clients. But the restraining of proceedings at
law is an old head of equity jurisdiction, and in such actions
the injunctions run, not only against a party, but also against
his attorneys, counselors, agents, &c.
The plaintiff is entitled to an injunction substantially as
prayed for in the complaint, and if counsel cannot agree upon
the form it will be settled upon notice of four days.
Ten dollars costs of motion to the prevailing party in the
action, to abide the event.
SUPKEME COURT.
PETEE BOWE, respondent, agt. THE UNITED STATES REFLECTOR
COMPANY and others, impleaded, &c., appellants.
Sheriff's fees Attachment Code of Civil Procedure, section 709, declared
unconstitutional.
The provision of section 709 of the Code of Civil Procedure permitting
the sheriff to hold property taken under an attachment after the war-
rant of attachment has been vacated on the application of defendant,
until his costs and expenses have been paid, and sell it for their pay-
ment, is unconstitutional, as being in effect to allow him to hold and
dispose of the property of one party to pay the debt exclusively of
another \See Hall agt. United States Reflector Company, 66 How., 51).
First Department, General Term, September, 1885.
Before DAVIS, P. J., BRADY and DANIELS, JJ.
APPEAL from an interlocutory judgment overruling demur-
rer to plaintiff's complaint.
Edward P. Wilder, for appellants.
Malcolm Graham, for respondent.
DANIELS, J. The object of this action is to obtain a judg-
ment declaring the plaintiff, as late sheriff, to have a lien upon.
HOWARD'S PRACTICE REPORTS.
Bowe agt. The United States Reflector Company and others.
certain personal property for Iris fees, disbursements and
expenses, and for the sale of the property to satisfy the same.
The property consists of a stock of manufactured articles and
other things seized by the sheriff under an attachment issued
in favor of Bolton Hall and others against The United States
Reflector Company.
After the seizure of the property it remained in the posses-
sion of the sheriff until on or about the 5th of May, 1883,
when it was ordered in the action that the warrant of attach-
ment be vacated, annuled and set aside, unless the plaintiffs
should increase the security given by them upon the attach-
ment. They failed to do that, and " on the 5th of June,
1883, it was ordered that said attachment be vacated, annulled
and set aside.'' A copy of this order was served upon the
plaintiffs, with notice of its entry, and it has remained in force
in the action ever since that time. The fees, expenses and
disbursements of the sheriff under the attachment were
adjusted, and upon the sum allowed the plaintiffs paid the
sheriff $3,740, leaving a balance still unpaid to the sheriff
of $5,429.78. The attached property has remained in the
possession of the plaintiff, notwithstanding a demand made
for its delivery on behalf of the defendants in the action, and
it is for the collection and satisfaction of this balance that the
plaintiff is now proceeding by this action to eriforce.it as a
lien in his favor against the attached property, and for which
it is claimed that the sale of the property shall be made.
This right on the part of the sheriff is asserted to have
been created by section 709 of the Code of Civil Procedure,
and it has been directed by it that, where a warrant of attach-
ment is vacated or annulled, or an attachment is discharged
upon the application of the defendant, the sheriff must, except
in a case where it is otherwise specially prescribed by law,
deliver over to the defendant or to the person entitled thereto,
upon reasonable demand and upon payment of all costs,
charges and expenses legally chargeable by the sheriff, all the
attached personal property remaining in his hands, or that
VOL. II 56
HOWARD'S PRACTICE REPORTS.
Bowe agt. The United States Reflector Company and others.
portion thereof as to which the attachment is discharged, or
the proceeds thereof if it has been sold by him. The right
of the sheriff to hold the property after the discharge of the
attachment has been denied by the defendants, who claim that
the legislature had no authority to subject it to the obligation
of paying the sheriff's costs, charges and expenses after the
attachment had been discharged.
The attachment was not issued at the instance or under the
authority of either of the defendants, but solely at the instance
and upon the application of the plaintiffs in the action. It
was as to the defendants an adverse proceeding, whose object
was to seize the property of the party against whom the
attachment was issued and hold it as a security for the plain-
tiff's demand in the action. By such a proceeding the owner
of the attached property entered into no obligation or duty to
pay its costs, charges or expenses. But so far as a liability for
their payment would arise out of the facts, it must be exclu-
sivelj that of the persons in whose favor and at whose instance
the attachment was issued and the property was seized. Its
seizure arose out of no fault of the defendant, as has been
demonstrated by the fact that the attachment has been volun-
tarily abandoned, and also set aside by an order of the court.
But without its consent its property was taken under it and
placed in the possession of the sheriff, where, since it seizure,
it has remained. To permit the sheriff to hold it now, after
the attachment has been set aside, until his costs, charges and
expenses have been paid, and sell it for their payment, would
be to allow him to hold and dispose of the property of one
party to pay the debt exclusively of another. For no further
proceedings can be instituted or maintained in this action
which will convert his demand into a legal liability of the
defendant proceeded against. It must still remain and continue
to be a demand owing by other parties, and the point, there-
fore, arises to be determined whether the legislature has the
authority to provide that the property so seized after the dis-
charge of the attachment can ba applied or appropriated by
HOWARD'S PRACTICE REPORTS.
Bowe agt. The United States Reflector Company and others.
the sheriff to the payment and satisfaction of such a demand.
To apply and appropriate it in that manner is to take the
property of one party against his or its consent and apply it
to the payment or discharge of the obligations of another, and
that has not been considered to be within the authority of the
legislature.
Upon this subject care has been taken to preserve and pro-
tect the rights of the owners of property against interference
of this description, even though that may have been provided
for by an act of the legislature. To prevent such interference
it has been declared that " no member of this state shall be
disfranchised or deprived of any of the rights or privilege*
secured to the citizens thereof, unless by the law of the land
or the judgment of his peers.'-' " Nor be deprived of life^
liberty or property without due process of law" (Const., art.
1, sees. 1 and 6). And these provisions have been so construed
as to maintain the rights of property against mere legislative
interference, and as requiring a legal proceeding following
other ordinary forms of law, and in resulting in a judgment
upon some obligation or contract or liability incurred by the
party proceeded against before he can be divested of hia
property and it can be applied to the uses of another party.
They protect the owner against the taking of his property by
color of legislative authority, to bestow it upon, or give, or
devote it to the uses of another person. This was generally
considered in New York and Oswego Railroad Company
agt Van Horn (57 N. Y., 473). And it was held by the
court that the legislature never can take the property of one
individual without his consent and give it to another. And
this salutary general principle has also been maintained in
Embury agt. Connor (1 Const., 511-517) ; Taylor agt. Porter
(4: Hill, 141) ; Wiesmer agt. Douglass (64 N. Y., 91, 105).
That is precisely where an attachment has been set aside,
vacated or annulled, either by the abandonment of the party
in whose favor it is issued or by an order of the court what
this section of the Code has provided may be done with the
441 HOWARD'S PRACTICE REPORTS.
Bowe agt. The United States Reflector Company and others.
property of the defendant when it has been seized under an
attachment. This direction in its practical effect is to take
the property of the defendant after the lien of the attachment
has in this manner been removed and apply it to the payment
of the debt created by issuing and serving it, and afterwards
detaining the defendant's property under its authority ; and
no more flagrant violation of the rights of an owner of prop-
erty can well be imagined. If it should be sustained there
will be nothing to prevent a repetition of what seems to have
taken place in this instance, that the defendant's stock in
trade shall be taken into the possession of the sheriff, his
business interrupted and for the time destroyed, and when the
attachment can be no longer maintained, to leave him, as the
only alternative for resuming the possession of his property,
the payment of the costs, fees and expenses of the proceedings
by which he may have been despoiled. And it was in part
to protect parties against disasters of this description that those
constitutional provisions were adopted, and to prevent them
from being produced by the mere fiat of a legislative direction.
It will be no answer to the protection which these provisions
of the Constitution were designed to afford that the person
whose property may be taken from him and held by the sheriff
until he shall pay his costs, charges and expenses, may reim-
burse himself for the amounts paid by a suit upon the under-
taking. For that will ordinarily afford him no equivalent for
the loss and destruction of his business after it has been
brought about in this manner.
A suit upon an undertaking where the defendant's stock in
trade may have been taken from his possession, and his
business interrupted and suspended, would afford him no
redress for the most serious injury he will appear to have
sustained. For the loss to which he be subjected by the
interruption of his business must usually be incapable of being
proved in such a manner as to render it the subject of com-
pensation in an action. But if that could be proven the per-
plexity, delay and suspense to which the defendant would
HOWARD'S PRACTICE REPORTS. 445
Bowe agt. The United States Reflector Company and others.
necessarily be subjected in the prosecution of an action would
to a great extent deprive him of anything like adequate redress
for the injury inflicted upon his affairs. Then, before an action
even upon the undertaking could be maintained, the costs,
charges and expenses of the sheriff would require to be paid,
and it is not every person whose property may be seized and
whose business may be thereby interrupted, who would have
the ability to raise the money required to make such payments.
That may very well be the position of the defendant against
which the attachment issued in this case. For before posses-
sion of its property can be assumed, it has been required under
the authority of this section of the Code to raise and pay to
the sheriff this large sum of $5,429.78. An action the right
to maintain which can only be secured in this manner, must
evidently fall far short of adequate means of redress to the
party whose property may be seized and held in the manner
in which this stock was taken and held by the sheriff. It
would not justify legislation of the description of that con-
tained in this section of the Code. For it would permit the
taking of the property of another and applying it to the dis-
charge of the obligation of the party taking it, without
affording any adequate means of redress for the wrong so
committed.
The case of Woodruff agt. Imperial Fire Insurance Com-
pany (90 JV, Y., 521) in no manner tends to maintain the
authority of this legislation ; for there the defendant settled
with the plaintiffs, paying the amount of his claim, and
thereby conceded the -regularity of the attachment, which
might very well primarily subject him to the payment of the
sheriff's costs, charges and expenses, while in this case there
was no such concession in any form whatever ; but the regu-
larity of this seizure was practically superseded by the order
made vacating the attachment. The case of Hall agt. United
States Reflector Company (66 How., 31), does not consider
the power of the legislature to devote the property of the
defendant in an attachment after it has been annulled or
446 HOWARD'S PRACTICE REPORTS.
Bowe agt. The United States Reflector Company and others.
vacated, to the payment of the fees and expenses not in any
manner created or incurred by its owner, but it in effect
declined to consider the rights of the sheriff, as it there
appeared that they were being made the subject of determ-
ination in other legal proceedings, and no authority has been
found lending its sanction to the theory that the legislature
may subject the property of a defendant to the payment of
the sheriff's fees and expenses, after his entire power over it
has been ended by vacating or setting aside the attachment.
The principle is entirely different from that which has been
held to sustain the right of a receiver to compensation from
the property itself or its owner after it has been remitted to
the. care and protection of such an officer in the course of
legal proceedings.
That was the case of Hopfensach agt. Hopfensach (61
How., 498). There the property was held and preserved for
the benefit of all the parties to the controversy, and for that
reason it was properly decided that the receiver could not be
divested of his possession without the payment of his fees,
while here the property was not taken or held in any sense
for the benefit of the defendant in the attachment, but that
was exclusively for the advantage and benefit of the plaintiff.
So far, therefore, as the claim of the sheriff against the
property consisted of costs, fees and expenses, unauthorized
or sanctioned by the defendant in the attachment, he had no
lien upon or right of possession to the property which had
been taken under the attachment. And to 'that extent no
legal authority exists in support of his action brought to sell
the property for the satisfaction of his costs, charges and
^expenses.
At the time when the property was taken it was in the
store known as No. 4 Great Jones street, and both the
plaintiff and the president of the defendant in the attach-
ment entered into a stipulation by which they agreed that the
sheriff should pay the rent then owing for the premises and
such rents as should afterwards fall due until the property
HOWARD'S PRACTICE REPORTS. 447
Bowe agt. The United States Reflector Company and others.
should be finally disposed of, and that the rent should be
treated and regarded as expenses of the sheriff in this action
under the process held by him. This stipulation and another
of the like effect afterwards made seem to have been entered
into upon the understanding that the sheriff could hold the
property for his fees and expenses under the attachment, and
to induce him to pay the rent and protect himself in this
manner because of this understanding. He did pay for the
rent of these premises after these stipulations were made, and
before his right to do so under their authority was in any
manner withdrawn or denied, the sum of $3,605. And for
so much of that as was not discharged by the payments which
the plaintiff made to the sheriff on account of his fees and
expenses, he had the right to hold this property. For it is
fair to assume that he would not have paid this rent if these
stipulations had not been entered into. He was induced by
them to make the payments, and that was done by the con-
currence arid authority of the defendant in the attachment as
well as that of the plaintiff. And after having induced him
to make such payments with the expectation and implied
assurance that the amounts paid should be secured by the
property attached, the defendants are not at liberty to deny
the right of the sheriff to this remedy. So far as he holds
the property for the rent paid, this action may well be main-
tained. To that extent the sheriff has a right of action for
the sale of this property to reimburse him for the amount
still owing to him, which was paid out upon the faith of these
stipulations. But beyond that he has no right to proceed
against this property for the satisfaction of his costs, charges
and expenses. As, however, something still remains due to
him on account of the rent paid, the action to that extent
must be maintained, and that will require the judgment from
which the appeal has been taken to be affirmed, but with lib-
erty to the defendants to withdraw their demurrers and to
answer on payment of costs.
DAVIS, P. J., and BEADY, J., concurred.
448 HOWARD'S PRACTICE REPORTS.
Schneider et al. agt. Altman.
NEW YORK CITY COURT.
PETER SCHNEIDER et al. agt. IGXATZ ALTMAN.
Supplementary proceedings Assignment far benefit of creditors Exam*
inations not limited Code of Civil Procedure, section 2460.
In examinations in supplementary proceedings in the city court, where
it appears that the judgment debtor has made a general assignment for
the benefit of his creditors, the examination need not be limited to
property acquired since the assignment.
General Term, September, 1885.
Before HAWES and HALL, JJ.
HAWES, J. It appears from the record that the defendant,
a judgment debtor, was under examination in proceedings
supplementary to execution, and that while being examined
the fact was disclosed that he had made a general assignment
to one Charles Cass, for the benefit of his creditors. Upon
such disclosures, the defendant's counsel objected to any and
all questions " relating back prior to the filing of the assign-
ment." This objection was sustained, the court holding that
" the examination must be limited to property acquired since
the assignment," to which an exception was taken, and this
ruling and exception is now presented for review.
It is quite clear that as to property acquired prior to the
assignment, an examination could only furnish proof of its
fraudulent disposition, and the judgment creditor would, in
one sense, be securing evidence and not property, and as this
court possesses no equitable jurisdiction, and could not enter-
tain a suit to set the assignment aside, the judgment creditor
could secure no advantages in this tribunal, and for economic
reasons the examination has frequently been restricted to after
acquired property.
I am unable, however, to see how this course can be sus-
tained upon any legal or equitable principle. It is well settled
HOWARD'S PRACTICE REPORTS.
Schneider et al. agt. Altman.
in the court of common pleas that " no examination will be
allowed which seeks to set aside the assignment, and will only
be permitted where it is in aid of it." The examination
should not extend to an inquiry as to whether the preferences
are fraudulent, or as to whether the assignors, either in making
the assignment or in transactions anterior to the assignment,
did any act that was fraudulent in fact or fraudulent in con-
templation of law. No inquiry as to what the assignors, prior
to the assignment, did with the borrowed money or with their
own property should be permitted (In re Rindskopf, Dist.
Gt. Jour., January 9, 1885, opinion ~by YAN HOESEN, J.'
see to same effect, Matter of Everitt, 10 Daly, 99). Nowhere
else can an examination therefore be had as to the property of
the judgment debtor concealed under the guise of a general
assignment, except in the court where the judgment was
obtained, and in all fairness it would seem .that they were justly
entitled to it. They are invited to this forum, and after the
recovery of a judgment they find themselves powerless to
investigate concealed property.
All the other courts of record in this department allow such
an examination (Seligman agt. Wallach, 6 N~. Y. Civil Pro.
R., 232; Bennigan agt. Piek, Chambers Sup. Ct., May, 1884,
unreported ; Mechanics and Traders'* Bank agt. Ilealy, 14:
N. T. Weekly Dig., 120), and I am unable to see why the
judgment creditor is not legally entitled to it as a matter
of right. The mere fact that he must bring another proceed-
ing, and that that must be in another forum, does not affect
his rights. In nearly all cases where fraudulent transfers have
been made, and the apparent title is in a third person, he is
compelled to bring an action, and in doing so he can select his
own tribunal ; but it would not for a moment be held that
therefore he should not be allowed to inquire as to this con-
cealed property. There is nothing sacred about a general
assignment as distinguished from any other. If a judgment
debtor fraudulently disposes of some of his property, and
places it in the apparent ownership of a third person, an
VOL. II 57
450 HOWARD'S PRACTICE REPORTS.
Schneider el al. agt. Altman.
examination as to such disposition is allowed ; but if lie so
disposes of all his property, an opposite rule has prevailed
in this court ; but I find no warrant for such a conclusion
either in the Code or in the equitable treatment which the
court owes the suitors who seek its protection. The Code
(sec. 2460) expressly provides that a party shall not be excused
from answering a question on the ground that his examination
will tend to prove that he has been " a party or privy to, or
knowing of a conveyance, assignment, transfer or other dis-
position of property for any purpose." The examination of
a judgment debtor is designed to be liberal and exhaustive,
and to discover if possible any property which the judgment
debtor may have, wherever located, and whoever might hold
the apparent title.
Property fraudulently conveyed to a general assignee involv
ing fraudulent preferences and fictitious debts is still in equity
the property of the judgment debtor and its discovery under
such circumstances is not the discovery of evidence, but the
actual discovery of property, and its recovery is solely a ques-
tion of practice and procedure which is but a mere incident.
A general assignment is simply a personal disposition of prop-
erty, and the law has thrown about it no special safeguard.
The property so conveyed is subject to the claims and demands
of creditors in any form or method of proceeding which they
may institute to reach it, and to protect a fraudulent debtor
in such concealment has, in my opinion, no warrant or justi-
fication in law. The case of Lathrop agt. Clapp (40 N. Y.,
328), cited by appellants, presents this question fully and
conclusively.
It may be irksome for this court to allow these examinations
with full knowledge that the court can grant no relief for its
recovery by reason of its want of equity jurisdiction, but this
furnishes no sufficient reason why its litigants should be
deprived of their rights to discover the property of a judg-
ment debtor, however concealed or transferred. The method
by which the judgment creditor shall secure its possession, is,
HOWARD'S PRACTICE REPORTS. 451
Bonnell agt. Griswold.
in my view of the case, a subject wholly foreign to the ques-
tion at issue. Such an examination clearly tends to discover
the judgment debtor's property, and that fact is sufficient to
justify the question asked in the case at bar, and all other
similar questions.
Order reversed, with costs to appellants.
SUPREME COURT.
SAMUEL BONNELL, Jr., agt. CHESTER GRISWOLD.
Manufacturing corporations Abatement and remvor Cause of action to
recover penalties Does not abate on death of sole plaintiff.
A cause of action to recover the penalties imposed by sections 12 and 15
of the general manufacturing law does not abate on the death of a sole
plaintiff (although otherwise on the death of a sole defendant), but may
be revived and continued by and in the name of the personal repre-
sentatives of the deceased plaintiff.
", Special Term, May, 1885.
THE complaint set forth three causes of action, one for a
failure to make and file a report, as required by section 12 of
the general manufacturing law, one for making a false report,
within the meaning of section 15 of said law, and the other
for entering into a fraudulent scheme to form a bogus corpora-
tion thereunder. The case was tried before the court Avithout
a jury, and while under advisement the plaintiff died. There-
upon this motion was made to revive and continue the action
by and in the name of the personal representative of the
plaintiff.
A. Pond, for motion.
Wm. C. Holbrook, opposed.
452 HOWARD'S PRACTICE REPORTS.
Bonnell agt. Griswold.
BOCKES, J. Motion to revive and continue the action by
and in the name of the personal representative of the plaintiff,
who has died since its trial and while the case was in the
hands of the trial judge for decision.
The action was by Bonnell, sole plaintiff, against Griswold
and others, to recover against them for penalties imposed by
section 12 of chapter 40 of the Laws of 1848 and amendments
thereof. The plaintiff having died, revivor and continuance
of the action are now asked for by his administrator. The
answer to the motion is this: that the action being for penal-
ties imposed by statute, abated by the plaintiff's decease. The
death of a defendant in such an action would produce an
abatement of it as to such deceased party (Stokes agt. Stickney,
96 N. Y., 323), and as was held in Reynolds agt. Mason (54
How., 213 ; 8. C. on appeal, 6 W. D., 531), a like result would
follow by the death of the plaintiff. It seems that the affirm-
ance in the last case cited was put solely upon the doctrine of
the previous decision in the Bank of Oalifornia agt. Collins
(5 Hun, 209), which, unlike the present, was a case where
revivor and continuance was asked for against the executor of
a deceased defendant, as in Stokes agt. Stickney.
In Carley agt. Hodges (19 Hun, 187), the decison in the
Bank of California agt. Collins was not deemed applicable
or controlling in a case like the present, and it was held in the
former case that the right of action survived to the executor
of the deceased creditor. The question now before me arising
upon the decease of a plaintiff does not seem to have been
authoritatively decided, unless we accept Carley agt. Hodges
as decisive of it. As a necessary inference it would seem to
follow from many decisions that the action may be continued
by and in the name of the personal representative of the
deceased plaintiff. Actions based upon a claim that is assign-
able may be thus revived and continued ; and an assignment
of such claim against the company would carry a right of
action to the assignee for the penalty imposed by section 12
of the Act of 1848 (Pier agt. George, 86 N. Y., 613 ; Bolen
HOWARD'S PRACTICE REPORTS. 453
Bonnell agt. Griswold.
agt. Crosby, 49 N. Y., 183 ; Hoag agt. Lamont, 60 N. Y.,
96). So in Stokes agt. Stickney (96 ^. Z., 323, above cited),
it is said that the statute of 1848, providing for this cause of
action, gives it to the creditors of the corporation, and the
debt itself being assignable, it follows that whoever becomes
the owner thereof takes as the incident thereof the right to
the penalty, and is by the terms of the statute, entitled to
maintain the action (page 327). This, too, is the doctrine of
the decision in Carley agt. Hodges (19 Hun, 187, above cited).
Now, the administrator of the deceased plaintiff as such
has become the owner of the claim against the corporation,
which claim constitutes the foundation of the right of action,
with the incident thereof, to wit, the right to the penalty ;
and, again, quoting from StoTf.es agt. Stickney, " is by the terms
of the statute entitled to maintain the action." Indeed an
administrator is deemed in law to be the assignee of the assets
of the estate which he represents. Judge DENIO says, ill
Zabriskie agt. Smith (13 N. Y., on page 333), "an adminis-
trator represents the person of the deceased, and is in law his
assignee."
In view of these decisions in the court of appeals, I think
1 must hold that this action may be revived and continued
by and in the name of the administrator of the deceased
plaintiff.
Motion granted.
454 HOWARD'S PRACTICE REPORTS.
People ex rel. Pres. , &c. , of D. & H. Canal Co. agt. Roosa and others.
SUPREME COURT.
THE PEOPLE ex rel. THE PRESIDENT, MANAGERS AND COMPANY
OF THE DELAWARE AND HUDSON CANAL COMPANY agt.
ZACHARIAH ROOSA and others, assessors of the town of
Marbletown.
Assessments How ihe value of railroad or canal property is to be determined.
Although in determining the value of railroad or canal property, for the
purposes of taxation, the cost of creating it may be considered, yet it
earning capacity should be the more controlling consideration or test.
Ulster Special Term, June, 1885.
CERTIORARI to review assessments.
Peter Cantine, for relator.
J. Newton Fiero, for respondents.
WESTBROOK, J. By separate writs of certiorari prosecuted
under chapter 269 of the Laws of 1880 the relator seeks to
review its assessments in the town of Marbletowu, Ulster
county, in the years 1882 and 1S83. A referee was appointed
to take the evidence and the proceedings are now submitted,
after argument, upon the report of the referee.
The relator owns a canal extending from Eddyville, the
head of navigation upon the Rondout creek, in the county of
Ulster and state of New York, to Honesdale in the state of
Pennsylvania.
The total length of the canal is 108 miles, four miles of
which are within the town of Marbletown. The total assess-
ment of the relator in such town is $180,000, all of which is
for the canal, except about $10,000 which is for other property.
The valuation of the canal in the town is about $2,500 per
mile.
The total assessed value of personal property in the town
is $10,450 /or the year 1882 and $12,025 for the year 1883.
HOWARD'S PRACTICE REPORTS. 455
People ex rel. Pres., &c., of D. & H. Canal Co. agt. Roosa and others.
No evidence was given in regard to these valuations, and their
correctness will, for the purposes of the present proceeding,
be assumed, though it seems incredible that in an entire town
of the wealth and size of Marbletown the amount of personal
property liable to taxation is so inconsiderable.
It is conceded that all the real estate in the town with the
exception of that of the relator is valued upon the rolls for
the years 1882 and 1883 at forty-four and seven-tenths per
cent of its actual value. This admission renders unnecessary
any discussion as to the valuation of such other property and
narrows it to one single point, the value of the canal per mile.
In view of the fact that the assessors of the town concede
they have valued all the real estate of the town, with the
exception of that owned by the relator, at less than half its
actual value, it is not improper to fay that they admit a clear
violation of the statute, which declares : "All real and personal
estate liable to taxation shall be estimated and assessed by the
assessors at its full and true value as they would appraise the
same in payment of a just debt due from a solvent debtor "
(2 R. S. \^th ed.~\, 992, sec. 17). In view of the same con-
cession it is difficult to conceive how the respondents could
swear, as they did swear for two years, and as the statute
required them to do (2 R. S. \7th ed.], 994, see. 8), that in the
valuation of the real estate in the town they had complied
with this enactment. It is perhaps, however, due to the
respondents to say that, doubtless, long practice in their town,
which, believing to be right, they adopted, somewhat softens
the moral view to be taken of their conduct, but the bald fact
still remains that there has been a gross and clear departure
from a very plain statute.
In ascertaining the value of property, similar to that owned
by the relator, this court held in the The People ex rel. The
Wallkill Valley Railroad Company agt. Keator and others
(67 flow., 277), recently affirmed at general term, but as yet
unreported, and in The People ex rel. The Albany and Green-
l)ush Bridge Company agt. Weaver and others (67 ffow., 477),
456 HOWARD'S PRACTICE REPORTS.
People ex rel. Pres , &c., of D. & H. Canal Co. agt. Roosa and others.
also affirmed at general term (34 Han, 327), and likewise in
the court of appeals, that its earning capacity was largely the
test.
The canal of the relator, as shown by its acts of incorpora-
tion, and as is well known in fact, was built to supply an
avenue to bring its own anthracite coal from its mines in
Pennsylvania to the Hudson river. The transportation of
suph coal to market is the principal use of the canal. The
total amount of tolls received by the relator, for the use of its
canal by other parties, was $60,007.52 in the year 1882, and
$52,403.39 in the year 1883. The cost of operating and
maintaining the canal was $175,6 17.42 in 1882, and $183,525.58
in 1883. As the results for the two years referred to are not
phenomenal, but are a fair average of a number of years, it is
safe to say that the cost year by year of maintaining and
operating the canal is three times as great as its receipts. It
is true that in making this statement no allowance is made for
the coal belonging to the relator which passes over the canal,
for that pays no toll, and therefore furnishes no revenue,
though it must be more or less of a benefit to the relator.
The total amount of the revenues of the canal is, however,
an important factor to ascertain its value for the purposes of
taxation ; and in this connection the further fact must be
considered that while the canal originally was the sole outlet
for the relator's coal, the cost of transportation thereover, as
compared with that by rail, has diverted more than two-thirds
of the production of its mines from that avenue to others
created by railroad.
The assessors are not, however, to value the property accord-
ing to its needs to the relator, but "at its full and true value
as they would appraise the same in payment of a just debt
from a solvent debtor." Applying this test, at what sum
should the canal be valued ? The buyer would be informed
that the receipts of the canal were far less than its maintaining
and operating expenses to be paid out. If he had no coal to
transport to market he would probably conclude that it was not
HOWARD'S PRACTICE REPORTS. 457
People ex rel. Pres., &c., of D. & H. Canal Co agt. Roosa and others.
worth the taking if it was to be maintained and operated, and
if he had the coal for the carrying of which he could utilize
the property he would naturally insist that if he took such an
old and obsolete way as a canal, it should be put to him at a
price so cheap that it would better pay him to put his capital
in it than in a railroad.
Under circumstances such as have been described it is dif-
ficult to value the property. The day of canals has clearly
gone by. Not only is this shown by the evidence of the
relator, but the history of those owned by the state demon-
strates that they can no longer be a source of revenue to their
owners. Feeling the force of this fact the witnesses called by
the relator (principally its officers, with the exception of Mr.
Slevens an eminent canal and railroad engineer from New
Jersey), value the canal at a sum not exceeding $8,000 per
mile, while some of them regard it as of no value except for
the bed of a railroad to be constructed. Nor is this evidence
substantially controverted by the respondents. One of their
two witnesses on valuation, Mr. Sweet, makes its value com-
puted upon its cost $50,000 per mile, but he declines to give
an estimate of its value based upon its capacity to earn money.
It is difficult, as has been before stated, to say what valuation
should be put upon the property. If its value is estimated by
its earning capacity, solely, to a buyer other than the present
owner (to whom it is of some value to transport its own prop-
erty), as the statute contemplates, it would be worth nothing.
No person not the owner of coal lands in Pennsylvania
would take it as a gift if the gift was coupled with a covenant
by him to maintain and operate it as a canal; and the owner
of coal lands, who had to find an outlet for the production
would only pay a price, which by its cheapness would make it
-an object for him to invest his money therein rather than in
a railroad. The relator, however, owns this property, and
has coal in Pennsylvania to be mined and to be transported.
It must, for that purpose, have some value or it would be
abandoned. It forms a part of the property of the town, and
VOT,. II 58
458 HOWARD'S PRACTICE REPORTS.
People ex rel. Pres., &c., of D. & H. Canal Co. agt. Roosa and others.
should bear a part of its burdens. Mathematical accuracy is
impossible, but if it is valued at a sum twice as great as the
highest value placed upon it by the relator's witnesses, the
respondent will have no cause of complaint. It is clearly
overvalued upon the tax rolls. Taking into account the earn-
ing capacity of the canal it is plain that it should not be valued
beyond $16,000 per mile. It is a sum believed to be greater
than any creditor of the relator would receive it for in
extinguishment of its debts ; and the taxable valuation is fixed
at that sum as being the very highest which the testimony
will warrant. As the relator's property should be taxed at the
same rate with that of all other property in the town, the con-
clusion is that during'the years 1882 and 1883 the valuation of
the canal should have been at a sum which forty-four and seven,
tenths per cent of SI 6,000 per mile would produce, and at the
same per cent upon 10,000 of property other than the canal.
The remaining question is one of costs. The highest val
uation placed upon the canal of -the relator, and that was an
estimate based upon cost, and not its earning capacity, was
$50,000 per mile. With what justice did the respondent?
estimate its value at 42,500 or thereabouts per mile, when
they knew they had estimated their own property and that of
their neighbors by a different rule 1 Will they pretend that
they valued the property of the relator, as they did that of
others, at only forty -four and seven -tenths per cent of its actual
value ; or must they admit that while swearing to act impar-
tially they have done the reverse? If the property of the
relator was valued at the same rate as that of others, they must
have deliberately determined that its actual value per mile
was about 95,000, a sum so much in excess of their own
evidence that it is difficult to predicate good faith in their
action. Perhaps, however, charity requires the conclusion
that the errors are mistakes rather than crimes, and acting
upon that assumption no costs will be imposed.
HOWARD'S PRACTICE REPORTS.
Thatcher et al. agt. Rankin.
SUPREME COURT.
GEORGE THATCHER et al. agt. CARL B. RANKIN.
Removal of causes to United States courts Cause for removal Steps to
be taken.
Where the petition for removal of a cause from the state court to the
United States court is made by a plaintiff who claims that he is a resi-
dent of New Jersey and that the defendant is a resident of New York,
before or at the time of filing such petition, the petitioner must make-
and file in the state court an affidavit that he has reason to believe, and
does believe, that from prejudice or local influence, he will not be able
to obtain justice in such state court.
Where a petitioner fails to comply with this requirement he cannot
accomplish the removal of the action.
Where the petition and bond have been " accepted, allowed and approved"
by a justice of the state court, such acceptance, allowance and approval
imply that said justice was satisfied, and decided that the amount irx
dispute did exceed the sum of $500; and if such decision can be
reviewed at all in the state court, the application, if made to a judge
other than the one who made such decision, must be on notice of
motion to set aside such acceptance, allowance and approval as having
been improvidently made.
Special Term, July, 1885.
ANDREWS, J. It seems to me that this action is still in this
court. It is doubtful whether it involves more than $500, as
the term of employment is of uncertain duration, but the act
of congress requires that the fact that the amount or value in
dispute exceeds $500 should " be made to appear to the satis-
faction " of the state court when the petition and bond are
preeented. The petition and bond in this case have been
" accepted, allowed and approved " by a justice of this court,
and such acceptance, allowance and approval imply that said
justice was satisfied, and decided that the amount in dispute
did exceed the sum of $500 ; and if such decision can be
reviewed at all in this court, the application, if made to a
judge other than the one who made such decision, must be
460 /* HOWARD'S PRACTICE REPORTS.
Thatcher et al. agt. Rankin.
on notice of motion to set aside such acceptance, allowance and
approval as having been improvidently made.
I think, however, without regard to the question as to the
sum in controversy, that the petitioner has failed to comply
with the act of congress in an important particular, and for
that reason has not accomplished the removal of the action to
the United States circuit court.
The petition for the removal was made by the plaintiff, who
claims that he is a resident of New Jersey, and that the
-defendant is a resident of New York. The right to remove
the action therefore depends oa subdivision 3 of section 639
of the United States Revised Statutes, which requires that
before or at the time of filing the petition, the petitioner
must make and file in the state court au affidavit that he has
reason to believe, and does believe, that, from prejudice or
local influence, he will not be able to obtain justice in such
state court.
Upon my request to the clerk to be furnished with all the
papers filed in this action I have received several, but there is
no such affidavit among them, and I conclude, therefore, that
no such affidavit has been filed.
As the petitioner has apparently failed to comply with this
important requirement of the act of congress, it seems to me
that the action is still pending in this court, and I should now
Sfive the plaintiffs an opportunity, if they desired it, to be
heard on the merits of the motion to continue the injunction,
but for the fact that, on looking over the papers submitted
t>y the defendant, I am convinced that the injunction cannot
be dissolved.
The defendant entered into a written contract, whereby he
engaged himself to the plaintiffs, for the season, and as it
would be impossible for them to prove their damages in an
action at law, they are entitled to the injunction.
The statements in the defendant's affidavit as to what Prim-
rose told him do not amount to such an allegation of fraud in
inducing the defendant to make the contract as, if true, would
HOWARD'S PRACTI.CE REPORTS. 461
O'Donohue et al. agt. Simmons.
enable the defendant to have the contract annulled on that
ground. The failure of the plaintiffs to reply to defendant's
telegram did not authorize him to make another engagement
nor in any way operate to relieve him from the obligations of
his contract with the plaintiffs.
The motives of the plaintiffs in holding the defendant to
the performance of his contract cannot be inquired into, nor
is it material how many or how few contracts the plaintiffs
have made in the belief that the defendant would keep his-
engagement.
As I have reached this conclusion from an examination of
the defendant's papers, I shall return all the papers to the
clerk, arid the respective attorneys will take such course as.
they may think proper in regard to submitting or not sub-
mitting an order to be entered on this decision.
SUPREME COURT.
JOSEPH J. O'DoNOHUE et al. } respondents, agt. ZAOHABIAH E.
SIMMONS, appellant.
Sheriff Bond of indemnity Liability of the sureties thereon,
In an action upon a bond of indemnity to the sheriff, it was error to refuse
to charge the jury that if neither the sheriff nor any of his deputies
judged the property taken under the execution in reference to which
the indemnity applied was owned by the judgment debtor, then the
defendant was entitled to a verdict.
First Department, General Term, September, 1885.
Before DAVIS, P. J., BRADY and DANIELS, JJ.
APPEAL from a judgment rendered upon a verdict.
A. M. Whitehead, for appellant.
James M. Smith, for respondent.
462 HOWARD'S PRACTICE REPORTS.
O'Donohue et al. agt. Simmons.
BEADY, J. This action was brought by the plaintiff's upon
a bond of indemnity executed by the defendant and one
Michael S. Purcell (since deceased) to the plaintiff's assignor,
James O'Brien, then sheriff of the city and county of New
York. The case is here for the second time on appeal, and
several of the questions which are now presented are kindred
to those already passed upon on the first appeal, the result of
which is reported in 31 Hun (p. 267). It is not at all
improbable that a consideration of all the other exceptions in
the case would result favorably to the respondents, but it is
not deemed necessary or advisable to consider them for the
reason that one exception appears to be fatal to the maintenance
of the judgment. The bond is in the usual form of a bond
of indemnity, and provides for protection to the sheriff and
all persons assisting him from any damages that might accrue
to him or them for levying, attaching and making sale under
and by virtue of the execution, of all or any personal property
which he or they should or might judge belonged to the
judgimnt debtor named.
The defendant's counsel requested the court to charge that
if neither the sheriff nor any of his deputies judged the
property taken under the execution in reference to which the
indemnity applied was owned by the judgment debtor, then
the defendant was entitled to a verdict. The court refused so
to charge, and an exception was duly taken. What was said
on that subject, if anything otherwise, does not appear,
inasmuch as the charge is not given in the record. As said in
the case of Clark agt. Woodruff (83 N. Z., 525) " it is never
the purpose of these indemnities to make the obligors
responsible for trespass which they do not direct or authorize.
We should not yield to such a construction. The mischiefs
resulting wonld be very great, not only to the parties and to
the public, but to the officers themselves." And in the same
case in the supreme court (18 ffun, 423) it was said : " It
can hardly be supposed that the parties who executed the
bond intended to create a roving commission by which the
HOWARD'S PRACTICE REPORTS. 463
O'Donohue et al. agt. Simmons.
plaintiff would be at liberty to seize by way of experiment,
any property which he might even judge to belong to others,
and rely upon such bond for protection against loss."
The refusal of the judge to charge the proposition stated,
necessarily results in a d3claration of a converse proposition,
namely, that the defendant would be responsible, if property
should be taken by the sheriff which neither he nor his deputies
judged to be the property of the judgment debtor, and thus
would sanction the seizure of property in the language of
Clark agt. Woodruff (supra) by way of experiment. The
mere fact of the levy is not to be construed, when an issue is
created in regard to it, as the exercise of judgment or an act
in conformity to the bond. A jury may be called upon to
determine whether the levy was made within the spirit of the
bond itself which was designed to secure the appropriation of
the property of the debtor, if, in the judgment of the officer
intrusted with the execution of the process, it was proper to
levy upon and thus to secure its appropriation to the payment
of the judgment.
It is no answer to this proposition that there was no conflict-
ing evidence on the subject of the levy. It may be said that
except from the mere act of levying there is no evidence that
the property was judged to belong to the judgment debtor by
the persons who made the levy. At all events, as already
suggested, the defendant was entitled to a submission of the
question to the jury, and which was rejected as we have seen,
whether the act of the sheriff upon which his liability rested
was done in conformity to the bond.
For these reasons the judgment should be reversed and a
new trial ordered.
DANIELS, J., concurred.
DAVIS, P. J. (dissenting). The official act of levying
property under an execution was sufficient prima facie evi-
dence that the officer judged it to belong to the defendant in
the execution. There was nothing in the case rebutting or
464 HOWARD'S PRACTICE REPORTS .
Baker agt. Johns.
impairing this prima facie evidence, and therefore no occasioo
to make the charge requested. If there had been a contro-
versy by evidence so as to make an issue on the question
whether or not the officer judged the property levied on to
be that of the execution defendant, then the charge requested
would have been proper and its refusal fatal. Otherwise it
was not error to decline to charge at all on that question.
I dissent from the conclusion that, on the ground considered
in the opinion of BEADY, J., there should be a reversal and
new trial.
SUPREME COURT.
FREDERIOA BAKER, respondent, agt. GEORGE JOHNS and
CHARLES NETZ, appellants.
Ejectment Lease Indian reservation Who entitled to renewal of lease
under act of congress Evidence.
By the act of congress, approved February 15, 1875, it was provided that
the then existing Indian leases should be valid and binding for the term
of five years thereafter, unless by the terms thereof they expired before
that time. The same act gave the holder of such leases the right to a
renewal thereof in case he was the owner of " improvements erected
upon " the land leased.
George Jemison, a Seneca Indian, residing on the reservation, made to the
plaintiff a lease of certain premises (of which those in question are a
part) for the term of twelve years, and on the 16th day of June, 1875, the
same Jemison executed and delivered to the defendant Johns a lease of
the land in question, and the defendant Netz is his tenant, and in
possession. Under the act of congress the defendant Johns made
application to the council of the Seneca nation on the 25th December,
1879, for renewal of his lease which was gran ted and lease made of that
date, and on 20th day of January, 1880, the plaintiff made a like
application for renewal of her lease, which was granted by the
councilors, and lease made of date of May 8, 1880, which included the
land in lease to defendant. In action of ejectment by plaintiff, to
recover the land held by defendant :
Held, first, that plaintiff had made improvements on the land covered by
her lease, and within the meaning of the act of congress was the owner
of them, and therefore entitled to a renewal of her lease.
HOWARD'S PRACTICE REPORTS. 465
Baker agt. Johns.
Second. That the leases to the plaintiff and defendant Johns were in the
strict legal sense invalid prior to the act of congress of 1875, and that
they had no legal rights in respect to the leased premises, except that
afforded by possession, but that act confirmed and made leases then
outstanding valid, and established rights under them as effectually as
of the time of their execution as if they had been made by persons
competent to vest the rights they purported to give. In that view the
plaintiff became the lessee of the entire premises covered by her lease
by the force of the act from the time it was made, and that to the
defendant Johns was ineffectual to vest in him any right to the laud
embraced in it.
Third. That the plaintiff was entitled to renewal of her lease entire, and
the continued possession of the premises covered by it, and the defendant
Johns had in fact no existing lease, and no right to any renewal in
respect to the premises in question, unless the plaintiff had relinquished
them to him in such sense that he might be treated as in possession as
her lessee or assignee.
Fourth. That the provision in the act of congress for renewal of leases
to persons who own improvements, has reference to those only who at
the time the application is made, lawfully claim under a lease, or under
some one who has taken a lease which is then valid, and does not
include one who has unlawfully as against such leaseholder (entitled
to renewal), entered and made improvements upon some portion of the
premises.
Fifth. That it is conclusively established by adjudication that the defendant
Johns derived no right to possession of the premises from the plaintiff,
and he had no position which enabled or permitted him as against the
plaintiff to apply for or take the renewal lease under which he claims,
but the right was exclusively in the plaintiff to have a renewal lease
covering the entire premises embraced within that first taken by her.
Sixth. That as it was the custom, and had been for years, of the council of
the Seneca nation to assemble for the transaction of its business, and
the action of the council when so assembled was governed by rules and
by-laws, and a formal record of the proceedings was kept in a book by
the clerk, a copy of such record certified by him is competent evidence-
Fifth Department, General Term, April, 1885.
Before HAIGHT and BRADLEY, JJ.
APPEAL from a judgment, entered in favor of plaintiff, on
verdict of Cattaraugus circuit, and from order denying new
trial.
VOL. II 59
460 HOWARD'S PRACTICE REPORTS.
Baker agt. Johns.
Ansley <& Davie, for appellants.
Henderson & Wentworth, for respondent.
BRADLEY, J. The action is ejectment, to recover the pos-
session of land which is part of the Allegany Indian reserva-
tion and situated in the village of Salamanca, county of
Cattaraugus.
On the 26th day of May, 1871, George Jemison, a Seneca
Indian residing on the reservation, made to the plaintiff a
lease of certain premises (of which those in question are a
part) for the term of twelve years. And on the 16th day of
June, 1874, the same Jemison, executed and delivered to the
defendant Johns a lease of the land in question, and the
defendant Netz is his tenant, and in possession. The plaintiff
had a verdict and judgment from which and from order
denying new trial this appeal is taken.
By act of congress of February 19, 1875, entitled "an act
to authorize the Seneca nation of New York Indians to lease
lands within the Cattaraugus and Allegany reservations and to
confirm existing leases," it was provided that the president
of the United States appoint three commissioners to sur-
vey, locate and establish proper boundaries of the villages
of Vandalia, Carrollton, Great Yalley, Salamanca, West
Salamanca and Red House, on the Allegany reservation,
make maps thereof and designate on the maps defined as near
as may be the lands therein then leased, and to deposit the sur-
veys and maps in the clerk's office of that county for record
and preservation. That the then existing leases within those
boundaries should be valid and binding for the term of 'five
years thereafter, unless by the terms thereof they expired before
that time. And at the end of that time and on the expiration
of term of leases before then, the Seneca nation should be
entitled to the possession of the lands so leased.
But it was further provided that the leases should at expira-
fion of the term or of that time be renewable for a period
HOWARD'S PRACTICE REPORTS. 467
Baker agt. Johns.
not exceeding twelve years, and that the persons who may be
at such time the owner or owners of improvements erected on
such lands shall be entitled to such renewed leases, and con-
tinue in possession on such conditions as may be agreed upon
by them and the councilors of the nation. And if they
could not agree, the terms to be fixed by referees selected in
a manner prescribed by the act (18 U. S. Statutes at Large,
330).
The surveys and maps were made, filed and recorded pur-
suant to that act of congress.
The defendant made application to the council of the
Seneca nation on the 25th day of December, 1879, for renewal
of the lease before mentioned to him which was granted and
lease made of that date. And on 20th day of January, 1880,
the plaintiff made a like application for renewal of her lease
which was granted by the councilors, at a meeting on the 8th
day of May, 1880, and lease of that date made to her, which
included the land in the lease to the defendant.
The plaintiff had made improvements on the land covered
by her lease and within the meaning of the act of congress
was the owner of them, and therefore entitled to a renewal
of her lease. The only question is whether she had the right
to include within her renewed lease that portion of the land
in question.
The defendant Johns claims that he had made and owned
improvements on it, and that he was within the act entitling
him to renewal of his lease. There is evidence tending to
prove that he made improvements on this land in April, 1879 ;
that there was a house on it which was built there in 1873,
which he bought of one Nelson in 1874, who had purchased
it on a mechanic's lien sale shortly before ; that the plaintiff
was advised of the purchase by Nelson, and of his purpose to sell
it to defendant Johns and made no objection but said that it
belonged to her brother and she had no claim on it and it
appears that her brother with her permission built the house
and lived in it for a short time and left it, and that the plain-
468 HOWARD'S PRACTICE REPORTS.
Baker agt. Johns.
tiff improved and cultivated the land in question until the
defendant Johns took possession without her consent in 1879.
As between persons competent to contract, the one prior in
time of two stipulations, to the same effect would give the
superior right. And such rule should be applied here unless
the anomalous situation before the act of congress and the
effect of its provisions since do not permit the application of
sucli rule. For many years prior to that act the Seneca
nation had a system of allotment of lands to respective Indians,
for occupation, cultivation and improvement, and in aid of
such purpose there was some legislation of this state (Laws of
1845, chap. 150, sec. 6 ; Laws of 1849, chap. 378) pursuant
to which individual occupancy was observed. And it was
also common for those occupants or those so entitled to occupy
to make leases. But our attention is not called to any law which
gave legality to any leases to white persons, prior to the act of
congress before referred to, except so far as relates to police
regulations and to preserve the peace and to prevent intrusion
upon the reservation, the legislative power in respect to the tribe
and the lands occupied by them is exclusively in congress. And
the relation of the Indians is that in the nature of ward of
the general government. It, therefore, may be assumed that
the leases to the plaintiff and defendant Johns were in the
strict legal sense invalid prior to the act of congress of 1875.
And that they had no legal right in respect to the leased
premises except that afforded by possession, but that act
confirmed and made leases then outstanding valid, and
established rights under them as effectually as of the time of
their execution as if they had been made by persons competent
to vest the rights they purported to give. In that view the
plaintiff became lessee of the entire premises covered by her
lease by the force of the act from the time it was made, and
that to the defendant Johns was ineffectual to vest in him
any right to the land embraced in it. Then comes the effect
of the act in respect to the right to have renewal. That
necessarily related to an existing lease and one under which
HOWARD'S PRACTICE REPORTS. 4G9
Baker agt. Johns.
rights were vested by virtue of it in view of the confirming act,
and limited such right to those lessees who were the owners
of improvements erected on the lands covered by their leases
respectively. And except so far as the lessee had relinquished
to another the right to renewal of the lease, is not qualified so
as to permit the reduction or severance of the premises covered
by it.
While the act in terms does not distinguish between con-
flicting leases nor declare a preference of those of the earlier
dates, in such case it must be assumed that the purpose of the
statute was that the rights of the lessees and their assigns,
such as the law would recognize in respect to priority should
be observed and such is the fair and proper construction and
effect of the act and the equitable rule to be applied (Ryan
agt. Knorr, 19 Hun, 540). If this proposition is correct it
follows that the plaintiff was entitled to renewal of her lease
entire, and the continued possession of the premises covered
by it, and the defendant Johns had in fact no existing lease
and no right to any renewal in respect to the premises in
question, unless the plaintiff had relinquished them to him in
such sense that he might be treated as in possession as her
lessee or assignee.
The evidence does not permit the conclusion of any such
relation between them. There is nothing appearing in con-
nection with the circumstances of his purchase of the house
on her part which can be construed as a surrender of the
possession of the premises in question to him. And as between
those parties the defendant had no right to the possession.
The provision in the act of congress for renewal of leases to
persons who own improvements has reference to those only
who at the time the application is made, lawfully claim under
a lease or under some one who has taken a lease which is then
valid, and does not include one who has unlawfully as against
euch lease holder (entitled to renewal) entered and made
improvements upon, some portion of the premises. It
appears that the plaintiff resisted the interference by the
470 HOWARD'S PRACTICE REPORTS.
Baker agt. Johns.
defendant Johns with her possession and enjoyment of the
premises which he claims, that in June, 1876, she prosecuted
him by action for trespass committed on them in the years
1872, 1873 and 1874, in the county court, and a trial was had
and she recovered.
And that about the 1st of May, 1879, she commenced an
action in this court against him to recover the possession of
the same premises, which he defended, and at the trial (May
24, 1880) it appearing that the plaintiff's title on which the
action was based at the time of its commencement had expired
on 19th February, 1880, a verdict was rendered for the
plaintiff for damages for the wrongful detention from her of
the premises by the defendant, upon which judgment was
entered against the defendant, with costs, pursuant to the
statute in such case (2 R. S., 308, sec. 31 ; Lang agt. Wilbra-
hane, 2 Duer, 171 ; Van Rensselaer agt. Owen, 48 Bar!)., 61).
This recovery is conclusive evidence as to the title of the
plaintiff as against the defendant Johns up to the 19th day
of February, 1 880, and has no greater or other force or effect
beyond that action between them as an adjudication (2 R. S. y
309, sec. 36 ; Beebe agt. Elliott, 4 Barb., 457 ; Briggs agt.
Wells, 12 Barb., 567; Cagger agt. Lansing, 64 N. Y., 417;
Dawley agt. Brown, 79 N. Y ., 890). And this conclusive
effect is wholly given by the statute (Bates agt. Stearns, 23
Wend., 482).
Thus is conclusively established by adjudication that the
defendant Johns derived no right to the possession of the
premises from the plaintiff. And if we are right" in the
views above given he had no position which enabled or per-
mitted him as against the plaintiff to apply for or take the
renewal lease under which he claims, but the right was exclu-
sively in the plaintiff to have a renewed lease covering the
entire premises embraced within that first taken by her.
The contention of the defendant's counsel that the evidence
presented a question of fact in respect to the action of the
council on the plaintiff's application for the renewal of her
HOWARD'S PRACTICE REPORTS. 471
Baker agt. Johns.
lease and therefore the direction of the verdict was error, is
not, we think, supported. It was the custom, and had been
for many years, of the council of the Seneca nation to assemble
for the transaction of its business.
The action of the councilors when so assembled was
governed by rules and by-laws, and a formal record of the
proceedings was kept in a book by the clerk. And a copy of
them certified by him are competent evidence (Laws of 1847,
chap. 365, sec. 7).
It is not necessary to hold that the original record or a copy
certified by the clerk is conclusive evidence that they were,
correctly entered in the book.
They would not be such in a direct proceeding within a
proper time to attack directly action based upon them. But
in a collateral action or proceeding to which the nation is not
a party and which involves inquiry into the validity of the
execution of a contract made pursuant to the record of the
proceedings as entered to which the nation is a party, and
executed by the council by its president according to its estab-
lished rules and custom, it is very questionable whether their
proceedings as they appear on the record, and the execution
of such contract in fact so made can be attacked in that man-
ner. But here the plaintiff was entitled to the renewal which
she received. The only question open to the council of the
Seneca nation was that of terms. The nation do not com-
plain of them and the defendant cannot. And the terms are
in all respects thoSe appearing in the record of the proceed-
ings of the council.
If the propositions we have adopted as applicable to this
case are correct it follows that no error was committed by the
trial court, and that the judgment and order should be
affirmed.
HAIGHT, J., concurred; BARKER, J., not sitting.
472 HOWARD'S PRACTICE REPORTS.
The People ex rd. Cass el al. agt. Hosmer et al.
SUPEEME COUET.
THE PEOPLE ex rel. CASS et al. agt. HOSMEB et al. inspectors
of election of the thirty-fourth election district in the twenty-
third assembly district ; and twenty-seven other cases against
the same inspectors.
Election law Registration of voters Duties of board of registration No
right to refute to register all duly qualified voters who may fiave made appli-
cation for registration within the time prescribed by law.
Under the act relating to the registration of voters in the city and county
of New York, it is the duty of the inspectors to register every duly
qualified voter who presents himself within the place of registration
before the hour of nine o'clock in the evening and demands to be sworn,
and the true construction of the statute is that the place of registration
shall be closed at that hour, but not that the inspectors shall refuse after
that hour to register those who have applied within the time prescribed
by law.
New York Chambers, October, 1885.
LAWRENCE, J. The relators show that they are citizens of
'he state of New York, of full age, and have resided in the
state more than one year, four months in the county and thirty
days in the election district, and that they are duly qualified
and entitled by virtue of such citizenship and residence to
appear and be registered as voters at the next general election ;
that on the 24th of October, inst., they each appeared before
said inspectors for said thirty-fourth election district, some of
them as early as<7.4:5 o'clock p. M., and all of them before the
hour of nine o'clock, p. M., for the purpose of being sworn and
examined as to their qualifications as voters and for the purpose
of being registered as required by law. It also appears from the
affidavits that each of the relators remained continually in the
place of registration from the time of his entry therein up to
nine o'clock p. M., and that each demanded that the said board
of inspectors should register his name, and requested to be
sworn by them, but that the said board of inspectors declared
HOWARD'S PRACTICE REPORTS. 478
The People ex rel. Cass et al. agt. Hosmer et al.
the registry closed at nine p. M. and refused to enter the
relators' names on the registry, &c. The act relating to the
registration of voters in the city and county of New York
(chap. 24 of chap. 410 of the Consolidation act of 1882, as
amended April 21, 1883), provides (sec. 1858) that the inspect-
ors of election appointed pursuant to the provisions of this
chapter, shall at the times in this chapter designated for a
general registration, meet in their respective election districts,
at the places which, as provided in this chapter, shall be
designated therein for such meetings, and at such time's in
each election district the said inspectors of election shall
openly and publicly do and perform the following acts, viz. :
1. They shall organize as a board by selecting one of their
number to act as chairman ; but in the case of failure to so
organize within fifteen minutes after the time fixed for the
meeting, the chairman shall be selected by lot. 2. They shall
receive the application for registration of such male residents
of their several election districts as then are, or on the day of
election next following the day of making such applications
would be, entitled to vote therein, and who shall personally
present themselves, and such only. 3. They shall remain in
session on each of said days between the hours of eight o'clock
in the morning and nine o'clock in the evening,, and shall
administer to all persons who personally apply to register the
following oath of affirmation, viz. : " You do solemnly swear
(or affirm) that you will fully and truly answer all such ques-
tions as shall be put to you touching your place of residence,
name, place of birth, your qualifications as an elector and your
right as such to register and vote under the laws of this state."
The next subdivision of this section relates to the entries to
be made in the registry, and it is not necessary to set it forth
at length. The question in these cases is whether the books
of registry are to be closed at nine o'clock in the evening,
although duly qualified voters are within the place of regis-
tration demanding to be sworn as to their qualifications as
voters, or whether it is the duty of the inspectors to register
Vor.. II 60
474 HOWARD'S PRACTICE REPORTS.
The People ex rel. Cass ei at. agt. Hosmer et al,
all such voters as may have made application for registration,,
and are within the place of registration at the hour of nine
in the evening. I am of the opinion that it is the duty of
the inspectors to register every duly qualified voter who pre-
sents himself within the place of registration before the hour
of nine o'clock in the evening and demands to be sworn, and
that the true construction of the statute is that the place of
registration shall be closed at that hour, but not that the
inspectors shall refuse after that hour to register those who-
have applied within the time prescribed by law. The object
of the registry law is to enable it to be ascertained who are
duly qualified voters. The electors are required to present
themselves within certain hours for the purpose of having
their qualifications ascertained in each of these cases. The
affidavits show that the relators personally presented them-
selves for registration before the hour for closing the place of
registry had arrived. Surely they should not be deprived of
their right to vote when they have done everything which the
law required them to do, for the purpose of proving their
qualifications as electors. [ am strengthened in this conclu-
sion when I compare the phraseology of section 1843 of the
act with that of section 1858. Section 1843 provides "that
at all elections hereafter held in the city and county of New
York, the polls shall be opened at six o'clock in the morning
and closed at four o'clock in the afternoon." The language
of subdivision 3 of section 1858 is that the inspectors " shall
remain in session on each of said days, between the hours of
eight o'clock in the morning and nine o'clock in the evening,
and shall administer to all persons who personally apply to
register the following oath," &c. There is no positive pro-
vision that the inspectors shall close their books at nine o'clock
in the evening if there are persons waiting to be registered
who are duly qualified as voters and who have appeared before
them before nine o'clock. In section 1843 the mandate i&
that " the polls shall be closed at four o'clock." The language
D O
of section 1S58 is not mandatory as to the closing of the
HOWARD'S PRACTICE REPORTS.
Dodge agt. Colby.
books, and there is nothing in it from which it can be inferred
that the books are to be closed and thereby duly qualified
electors deprived of their registration, although they have
done everything within their power to obtain such registration,
and are personally present before the inspectors when the hour
of nine in the evening arrives. The affidavit presented on
behalf of the relator Mr. Sherwood is defective, inasmuch a&
it is simply corroborative of the affidavit of Cass, and does
not show that Sherwood made the same demand in his own
behalf as Cass made. The intention undoubtedly was to
adopt the affidavit of Cass, and to allege that the same facts
existed in the case of Sherwood ; but the affidavit does not
state so. In all the other cases I shall direct that peremptory
writs issue, but until a further affidavit is presented on behaL
Mr. Sherwood his motion must be denied.
SUPREME COURT.
GEORGE E. DODGE, respondent, agt. JOHN S. COLBY, appellant.
Complaint Demurrer Code Civil of Procedure, section 484 Slander of
title What must be alleged to maintain Jurisdiction Courts of this
state no jurisdiction for trespass to lands without the state Trespass and
slander of title cannot be joined.
The courts of this state have no jurisdiction for trespass to lands without
the state.
To maintain slander of title, it must be alleged to have been malicious
It is no slander to allege ownership and that plaintiff has no title.
Under section 484 of the Code of Civil Procedure, trespass and slander oi
title cannot be joined in the same complaint.
First Department, General Term, October, 18S5.
Before BKADY, P. J., and DANIELS, J.
APPEAL from an interlocutory judgment overruling a
demurrer to the plaintiff's complaint.
476 HOWARD'S PRACTICE REPORTS.
Dodge agt. Colby.
Stephen B. Brague, for appellant.
John E. Parsons, for respondent.
DANIELS, J. The plaintiff has brought this action as the
owner of about 300,000 acres of land, situated in the state of
Georgia, to recover damages for timber and turpentine taken
from the land, and a n so for the slander of his title by the
defendant. The complaint contains two causes of action for
the timber and turpentine. To present the first of these
causes of action it has been alleged that the defendant and
others acting with him ' ' have caused various persons to cut
timber and to take turpentine, the property of the plaintiff,
from the same." The second cause of action has been
similarly stated. For that purpose it has been alleged that
the defendant and others for whom he was acting, represented
to lawless and irresponsible persons that they would protect
such persons " in trespassing upon said lands and removing
turpentine and timber, the property of the plaintiff, from the
same." And that various persons " thus encouraged and pro-
tected by the defendant and his said agents, and relying upon
their assurance and protection, and directly instigated by them,
have taken turpentine and timber from the said lands, the
property of the plaintiff, of great value." By these allegations
the facts upon which the plaintiff's right to recover has been
made to depend, were trespasses upon real estate situated in
the state of Georgia, and for such trespasses no action can be
maintained in the courts of this state (Gragin agt. Lovell, 88
N. Y., 258).
An effort has been made to distinguish this case from that
authority, upon the fact that the plaintiff in this action claims
to recover the value of the timber and turpentine as so much
property belonging to him, which has been converted by the
persons who removed it from the land, under the authority
or at the instigation of the defendant. But the removal of
the timber and turpentine and its appropriation to the use of
the persons taking it, will not entitle the plaintiff to maintain
HOWARD'S PRACTICE REPORTS. 477
Dodge agt. Colby.
this action in this state, for the conversion and appropriation
were merely acts by which the trespass itself was made com-
plete, and its fruits diverted to the use of the persons commit-
ting these wrongs upon the land.
A similar proposition was presented in American Union
Telegraph Company agt. Middlelon (80 N. Y., 408), but it
failed to receive the sanction of the court. And it was held
that the acts of trespass themselves could not be separated
from those of the removal and appropriation of the property
in such a manner as to allow an action to be maintained for
the value of the property actually converted. The case i*
directly applicable in this respect to the one now under con-
sideration, and although it may conflict in this conclusion with
the decisions cited from the reports of the state of Pennsyl-
vania, it must still be held to be controlling as to its disposition.
It has been urged that a different conclusion was arrived at
in Newman agt. Godard (3 Hun, 70), but that is a mistaken
view of that case, for the propert}^ for which it was held a
recovery might there be had was no part of the freehold, but
it was personal property, in no manner whatever connected
with the premises from which it was taken. This case cannot
be brought within the principle upon which that proceeded,
but it is to be controlled by the authorities previously men-
tioned. Neither of these subdivisons present a cause of action
within the jurisdiction of this court, and that part of the
demurrer by which this point has been raised was therefore
well taken.
The residue of the complaint containing what has been
relied upon as a third cause of action consists in brief of the
charge that the defendant and others acting under his authority
had both publicly and privately denied the plaintiff's title to-
this land. But in no part of the complaint relating to this
cause of action has it been alleged that this denial of the plain-
tiff's title was maliciously made, and that is an essential fact
the existence of which has been required to sustain an action
for the slander of a title (Like agt. McKinstry, 41 Barb., ISO).
478 HOWARD'S PRACTICE REPORTS.
Dodge agt. Colby.
But it appears further from the allegations contained in this
subdivision of the complaint that the defendant and those act-
ing with him claimed an adverse title to the property to tho
plaintiff, and stated that they had been confirmed in the
propriety of that claim by the unanimous decision of four
able legal gentlemen who had investigated the subject, and
concluded that the plaintiff was not the owner of the land.
It is entirely manifest from the alleged statements contained
in the complaint that the defendant claimed to be interested
as owner in this property. And where a claim may be made
of that description, together with the assertion that the plain-
tiff is not the owner of the property, an action of slander can-
not be maintained for the mere making of the assertion
{Smith agt. ISpooner, 3 Taunton, 2-16). And this case, as well
as the preceding authority, proceeded further upon the
principle that the words by which the title in question may
have been assailed, must be shown to have been spoken
maliciously. Indeed that is essential in all actions of slander,
and before such proof can regularly be given the complaint
itself must contain an allegation that such was the fact. In
no part of this complaint, therefore, was any cause of action
disclosed against the defendant.
But if it should be held that each division of the complaint
contained a cause of action, then it was subject to the further
objection mentioned in the demurrer, that the causes of action
were improperly joined. For by section 484 of the Code of
Civil Procedure, an action of slander cannot be joined with an
action for injuries to real property or for injuries to personal
property ; but the causes of action which may be regularly
united in the same complaint must belong to one of the sub-
divisions contained in that section.
The judgment overruling the demurrer was erroneous, and
it should be reversed and judgment ordered for the defendant
upon the demurrer, with leave to the plaintiff to amend within
the usual time on the payment of costs.
HOWARD'S PRACTICE REPORTS. 479
People ex rel President, &c., of D. and H. Canal Co. agt. Keator.
SUPKEME COURT.
THE PEOPLE ex rel. THE PRESIDENT, MANAGERS AND COMPANY
OF THE DELAWARE AND HUDSON CANAL COMPANY agt.
ABJRAM P. KEATOR, CONRAD SCHINNEN AND JAMES RODDEN,
as assessors of the town of Rosendale in the county of Ulster.
Taxation of railroads or canals Evidence of value.
The assessors in estimating the value of railroad or canal property, within
a town, are not to be governed solely by its cost, but rather, though not
exclusively, by its productiveness for railroad or canal purposes.
The taxable value of the part of a canal which lies within a town in which
the tax is laid, is to be ascertained by valuing, as a part of a whole a
continuous way to carry freight from one point to another, and the
profits of its use for that purpose (See ante, 454).
Ulster Special Term, July, 1885.
CERTIORARI to review assessments.
/*. & C. F. Cantine, for relators.
A. T. Clearviater, for respondents.
WESTBROOK, J. The relator, by certiorari, seeks to have
its assessments in the town of Rosendale, Ulster county, New
York, during the years 1882 and 1883, reviewed and corrected.
It is the valuation of its canal within the limits of that town
of which the relator complains ; such valuation, including its
telegraph line, being $268,000 in 1882, and $292,000 in 1883.
The canal extends from Eddyville in the county of Ulster
and state of New York, to Ilonesdale in the state of Pennsyl-
vania, and is 108 miles in length, five and one-half of which
are within said town of Rosendale. The valuation, therefore,
of the canal per mile in the town was $-48, 727.26 in 1882 and
$49,454 in 1883. The only point to be discussed is the valua-
tion of the canal. The valuation of the real estate of other
parties than the relator and the Wallkill Yalley railway in
such town was examined by the judge writing this opinion
480 HOWARD'S PRACTICE REPORTS.
People exrel. President, &c., of D. and H. Canal Co. agt. Keator.
upon the certiorari prosecuted by such railway, and such-
valuation was found to be forty per cent only of its actual
value. That conclusion was recently sustained at general term,
and need not now be discussed. The evidence of valuation
given upon these proceedings is the same as was given upon
the certiorari in the other, except that the appraisers who
valued the property of the town upon a recent appeal to the
state assessors were examined, and sucli evidence will be found
fully to justify the conclusion as to value in the other proceeding.
Neither will it be necessary at this time to discuss at any
length the value of the canal per mile. That question has
also been recently examined in the certiorari brought by the
present relator to review the assessments in the town of
Marbletown during the same years. The conclusion reached
in that proceeding was that the actual value of the canal per
mile, estimated as the statute directs the assessors to do, " at
its full and true value as they would appraise the same in
payment of a just debt due from a solvent debtor " (2 R. S.
\^th ed.~\, 992, sec. 17), was not greater than $16,000 per mile.
The reasons for reaching that conclusion are contained in the
other opinion and to that reference is made.
In view of the elaborate argument, however, of the counsel
for the respondents it is proper to say a few words in addition
to the opinion in the other case. The statute to which
reference has been made directs the valuation to be estimated
not upon its cost nor upon its value to the relator, but upon
the transfer of the property to a creditor in the payment of a
debt. No creditor would receive it for any other purpose than
as an investment, and in receiving it he would calculate its
earning capacity. The canal is undoubtedly of greater value
to the relator than it would be to any other person. It is still
used as the way to transport its own coal from its mines in
Pennsylvania to tide water upon the Hudson. For this
purpose it was built, and has ever since been operated. Its
tolls are very much less than its operating and maintaining
expenses, the latter being more than three times as great as
HOWARD'S PRACTICE REPORTS. 481
People ex rel. 1 'resident, &c., of D. and H. Canal Co. agt. Keator.
the former. This canal, however, in addition pays something
to the relator as an outlet for its own production. If, however,
it was parted with to another, the use which the relator makes
of it would have very little effect. If the buyer had no
coal to transport, when he ascertained that the cost of mainte-
nance and operation was three times as great as any receipts
he could expect, what would he give ? And if he had coal
to transport, what would he give for this old and almost obso-
lete way ? The relator, of course, cannot afford to throw
away its canal and build a railroad. It would then sink the
capital invested in the canal, and invest additional capital in
a new mode of transportation. Not only would it sink the
capital invested in the canal, but all the money invested in its
boats, machinery and appliances, adapted to its navigation,
and pay out very large sums for a railroad, cars, appliances and
machinery therewith to do its business. In short the aban-
donment of its canal by the relator is throwing away its
money invested in the structure and the machinery, boats, &c.,
required for its business, and the expenditure of a very large
sum for a new avenue and means of transportation. The
creditor buying would, however, have a different problem
before him. He has money to invest, and he would have a
choice between an investment in a canal, which would involve
also a large additional sum for boats, machinery and appliances
adapted for the canal, and a railroad. Necessarily he would
consider the question from a different standpoint than the
relator, for the selection of either involves no sinking and
throwing away of capital already invested. The question is,
what would such a person give for the canal per mile ? It is
difficult to say, it is true, but it certainly would be iinsafe to
say that he would give a greater sum per mile than individu-
als of the experience, character and standing of the late Mr.
Dickson, and Mr. .Young, estimate it to be worth from
$5,000 to $8,000 per mile. When its value is put, as it was
in the Marbletown case, and as it will be in this, at $16,000
per mile, a sum twice as great as the persons referred to and
VOL. II 61
482 HOWARD'S PRACTICE REPORTS.
People ex rel. President, &c. , of D. and H. Canal Co. agt. Keator.
best knowing its value by their highest figures place it, it is
believed that the other taxpayers of the town should be more
than satisfied. Neither does the fact that the late Mr. Dick-
son, Mr. Young, and others did or do now sustain official
relations to the relator, detract from their evidence. They
were or are men who grew up on the canal, having passed
through all its grades of employment from boatmen up, and
their years of faithful service enabled them, not only to speak
as experts, but also with the weight of character which hon-
orable conduct gives.
It has already been said that the other property in the town
was valued at forty per cent of its actual value. Do the
respondents claim that the same rule was applied to that of
the relator ? The law, justice, and official oaths demand that
they should have done so. The valuation of the canal per
mile during the two years averages 8-19,090. If that be forty
per cent of its actual value, then we have the astonishing
result, that the respondents found the actual value of the
canal about 122,000 per mile. Upon this fact comment is
unnecessary.
To equalize the taxation of the relator with others in the
town, its canal should be appraised at a sum per mile, which
forty per cent of $16,000 would produce.
With some doubt as to its correctness no costs will be
imposed upon the respondents. Their conduct in deliberately
valuing other property in the town at only forty per cent of
its value, after their attention had been drawn to the error by
the opinion in the Wallkill Valley Railway Case has not been
overlooked. It was, however, the opinion of a single judge,
and perhaps good faith in their action should be imputed.
There are some things to which attention has been called now
and some which were commented upon in the other proceed-
ing against them by the railway, which are worthy of atten-
tion on the question of good faith. Believing, however, that
wrong practice for years in their town has misled the respond-
ents, no costs will be imposed.
HOWARD'S PRACTICE REPORTS. 483
People ex rel. Cole agt. Board of Supervisors of Greene County.
SUPEEME COUKT.
THE PEOPLE ex rel. EDWARD M. COLE agt. THE BOARD OF
SUPERVISORS OF GEEENE COUNTY.
Courts Contingent expenses Power of court to order publication of terms
Duty of county treasurer as to payment Mandamus
Courts must determine what is a legal and proper expense and charge to
be paid by a county treasurer in regard to the holding of such courts.
There are contingent expenses necessarily incurred in the holding of
courts for which no express statute provides, and the board of super-
visors of a county must provide a fund, to be placed in the hands of its
county treasurer, " to pay such contingent expenses as may become pay-
able from time to time," and a court held in such county must determ-
ine what is a proper and lawful charge upon such fund.
Where the relator, in pursuance of an order made by the court, published
in his newspaper the terms of the various courts appointed to be held in
Greene county, and the clerk, in pursuance of said order, issued a cer-
tificate for the amount of the bill for performing the service ordered,
payable out of the fund provided for the contingent expenses of the
court :
Held, that the order for its payment should be obeyed by the county
treasurer, and is enforceable against him by mandamus.
It is not the prerogative of a board of supervisors nor of a county treasurer
to adjudge an order of the court void and incapable of enforcement.
Where a bill for publishing the terms of the court (such publication having
been done under an order of the court) was presented to the board of
supervisors of the county of Greene for audit, and on the rejection
of such bill upon the ground that the same was not a legal charge
against the county, the relator asked that a mandamus to compel its
audit might issue:
Held, that although the order made by this court should have been obeyed
by the county treasurer, and obedience thereto is enforceable against
him, a mandamus against the board of supervisors will not be granted.
Greene -Special Term, December, 1884.
MOTION by the relator for a mandamus commanding the
respondent to audit and allow a bill for printing and publish-
ing in his newspaper the terms of courts in the third judicial
district, pursuant to an order of this court.
484 HOWARD'S PRACTICE REPORTS.
People ex rel. Cole agt. Board of Supervisors of Greene County.
E. A. Chase, for relator.
Sidney Crowell and J. B. Olney, for respondent.
WESTBROOK, J. The relator has, in compliance with an
order of this court dated November 5, 1878, published in a
newspaper owned and controlled by him and printed in the
county of Greene, the terms of the supreme court, circuit
court and court of oyer and terminer appointed to be held in
the third judicial district of this state, of which the county
of Greene forms a part, during the time of such publication.
His bill was presented to the board of supervisors of the
county of Greene for audit, and on the rejection of such bill,
upon the ground that the same was not a legal charge against
the county, the relator asks that a mandamus to compel its
audit may issue.
It should be further stated that the order required the clerk
of the court to issue a certificate for the amount of the bill
for performing the service ordered, payable out of the fund
provided for the contingent expenses of the court.
The application presents two questions, viz. : (1st.) Was the
order one within the power of the court ; and (2d.) Has the
relator chosen the proper remedy ?
In the discussion of the first question it will be assumed,
for the point is too clear to admit of discussion, that the hold-
ing of courts in a county must oftentimes involve expenses
for which statutes make no provision. If proof of this asser-
tion is needed, it will be found in the many orders made
during a session of the court for payments which no express
enactment warrants and the justice and legality of which no
one will question. Such expenses are properly covered by the
term " contingent expenses," which, when " necessarily
incurred for the use and benefit of a county, are a county
charge " (2 R. S. \lth ed.~\, 979, sub. 15, sec. 2) ; and to enable
"their respective county treasurers to pay such contingent
expenses as may become payable from time to time, the board
of supervisors of the several counties shall annually cause
HOWARD'S PRACTICE REPORTS. 485
People ex rel. Cole agt. Board of Supervisors of Greene County.
such sum to be raised in advance in their respective counties,
as they shall deem necessary for that purpose" (Same vol.
and page of R. S., sec. 5).
As, then, there are contingent expenses necessarily incurred
in the holding of courts for which no express statute provides,
and as the board of supervisors of a county must provide a
fund to be placed in the hands of its county treasurer, " to
pay such contingent expenses as may become payable from
time to time," it necessarily follows that a court held in a
county must determine what is a proper and lawful charge
upon such fund. Either this conclusion must be adopted, or
lse the position must be assumed that the county treasurer
is to pass upon the validity of every court order directing a
payment from the contingent fund. The statute contemplates
a payment by the county treasurer " in advance " of an audit
by the supervisors, and hence it follows that the assertion just
made is correct, that either the court or the county treasurer
must determine what is a legal expense against the county and
a valid charge upon its contingent fund. It is not difficult to
determine as between the two, the court and the county
treasurer, where the authority to decide is and should be
lodged. The thought is not to be entertained that the legis-
lative intent was that the means necessary to conduct the
machinery of courts should be under the control of any body
or officer other than those who are charged with the official
duty of controlling its action and directing its energy. It is
true that the power of a court may be abused, but reasoning
.against the existence of a power based upon its liability to
abuse is as effectual against any other body in which it uaay
be supposed to reside as it is in regard to courts ; and as a
fact it will be found that courts are as economical in the
expenditure of money as boards of supervisors, and their
judgment as to legality, need and propriety of an expendi-
ture made in connection with the holding of courts in a
county, as safe and as wise as that of supervisors or county
treasurers.
486 HOWARD'S PRACTICE REPORTS.
People ex rel. Cole agt. Board of Supervisors of Greene County.
Having reached the conclusion that courts must determine
what is a legal and proper expense and charge to be paid by
the county treasurer in regard to the holding of such courts,
it follows that the order made by the court in favor of the
relator should be obeyed by the county treasurer. IN either
the propriety nor the need of the order can be now considered.
Both were determined when such order was made ; and this
court, though held by another judge, will not sit in judgment
upon an order duly entered when presided over by one of his
associates. To do so would be to confer upon every county
treasurer the power to block the machinery of a court by
refusing to obey an order as to the disposition of a fund
in his hands, placed there to keep such machinery in motion,
until the same court held by another judge again passed upon
its propriety and legality. If, however, the discretion of the
judge who made the order is in this way reviewable, it is due
to him to say that there are no facts shown to justify the infer-
ence of an abuse of power. The advertisement of the terms
of the courts directed by the order was, it seems to me, a wise
and proper act. It is important that the people of a county
should be informed as to the sittings of courts in their midst,
and the very small expenditure incurred for that purpose is
scarcely equal to the sum which the county will pay for the
increased per diem allowance to its representatives while they
have considered the propriety and legality of the charge.
This statement is made without any intent to criticise the
action of the board of supervisors, or to question its good
faith, but only for the purpose of forcibly presenting the
comparatively small expenditure which is resisted.
While entertaining no doubt that the order made by this
court should have been obeyed by the county treasurer, and
that obedience thereto is enforceable against him, it is not
seen, however, on what ground the mandamus asked against
the board of supervisors can be granted. Its members have
disobeyed no order of this court ; on the contrary, the order
sought to be enforced is upon and against a fund in other
HOWARD'S PRACTICE REPORTS 487
People ex rel. Cole agt. Board of Supervisors of Greene County.
hands, and against and to another official. While, however,
the present motion must for the reason just stated be refused,
such denial will be without costs, and without prejudice to
the right of the relator to move for a mandamus against the
county treasurer. It is evident that the legality of the order
of November 5, 1878, has been the subject of controversy, and
not the liability of the body against which this proceeding is
taken. Indeed, it was stated upon the argument that in
refusing to obey the order the county treasurer acted by
direction of the board of supervisors. As the court thinks
that the action of the county treasurer in refusing to obey
the order was unjustifiable, and that of the supervisors in
upholding him in such refusal equally erroneous, it cannot
award costs against a party who has a real grievance to redress,
because he has taken his legal remedy against a party who is
morally but not legally responsible for the facts which make
a proceeding in a court a necessity.
Perhaps it ought to be said, in conclusion, that if at any
time an order for payment of a bill out of the fund provided
for the contingent expenses of courts is unwise or improvi-
dent, any judge to whose attention it is called will cheerfully
correct or revoke it, but it is not the prerogative of a board
of supervisors nor of a county treasurer to adjudge an order
of this court void and incapable of enforcement.
488 HOWARD'S PRACTICE REPORTS.
Eberle asrt. Kauffeld.
CITY COURT OF NEW YORK.
MART EBERLE agt. JOHN KAUFFELD, treasurer of the Abraham
Lincoln Conclave No. 8 of the Free Order of the Seven
Wise Men.
Benevolent society Action for benefits Wfiat must be alleged and proved.
The provisions of the constitution and by-laws of a benevolent society
providing for the payment of sick or death benefits are in the nature of
a contract, and the plaintiff must allege and prove a breach of said
provisions before he can maintain an action. The question whether
the action should be brought against the subordinate or grand lodge,
considered.
Trial term, November, 1885
TRIAL by the court without a jury.
William E. lliff, for plaintiff.
M. E. Goodhard, for defendant.
Me ADAM, G. J. The defendant is an unincorporated
benevolent association, consisting of more than seven mem-
bers, and it is sued according to the statute, in the name of its
treasurer, by the plaintiff, the wiflow of Peter Eberle, who
died while a member of the order. The action is to recover
$500, which the widow claims she is entitled to receive under
the constitution and by-laws of the association It has been
stipulated that, if entitled to recover, the plaintiff shall have
judgment for $250, so that the question of damages is no
longer an issue in the case, and the contention is narrowed
down to the right of the plaintiff to maintain the action
against the defendant. Two objections are urged to a
recovery.
First. It is said that the plaintiff's husband was not a
member in good standing in the order at the time of his
death, because on the 22d day of April, 1885, the said Peter
HOWARD'S PRACTICE REPORTS. 489
Eberle agt. Kauffeld.
Eberle was in arrears to his lodge in the sum of four dollars
and sixty-five cents, and that for such default the said Peter
Eberle was on the evening of that day suspended from the
association. But section 14 of the by-laws, authorizing the
suspension of members, only applies to those who have been
in arrears for four months ; and there is no proof that Eberle
was in arrears for this length of time, so that the suspension
was unauthorized, and in consequence illegal and inoperative.
Second. That the remedy of the plaintiff is against the
" grand conclave " and not against the defendant, which is
merely a subordinate lodge, not charged with the duty of
levying assessments to pay death benefits, nor with the duty of
paying them when the assessments levied for the purpose
have been collected.
It appears that by the scheme of the order subordinate
lodges are called " conclaves," and the grand lodge or central
body the " grand conclave." The constitution and by-laws to
which Eberle subscribed and by which he is bound, provide
the following system of levying and paying death benefits :
"Article sixth. The grand conclave makes the assessment
in all cases of death ; the subordinate conclave collects the
assessment from its own members after notice of the death of
a member."
"Article seventh. The constitution of the grand conclave
governs each subordinate conclave, and each subordinate con-
clave pays to the grand conclave the sum of fifty cents for
each and every member on its roll, and when collected by the
grand conclave a committee of five members pay it over to
the widow."
By these provisions it will be observed that the " grand
conclave " makes the assessments in case of death, and each
subordinate lodge after notice so to do collects assessments
from its own members at the rate of fifty cents for each
member on its roll, and that after the assessments are levied
and collected by the grand conclave a committee of five mem-
bers selected by the grand conclave pay the death benefits
VOL. II (}-j
490 HOWARD'S PRACTICE REPORTS.
Eberle agt. Kauffeld.
thus collected over to the widow. It is neither alleged nor
proved that the " grand conclave " levied any assessments in
this instance or that it has collected any funds for death bene-
fits from the subordinate conclaves, or that it has paid over to
the defendant or to any committee appointed by it any
moneys with directions to pay the same to the widow, nor is
it alleged or proved that the defendant, as a subordinate lodge,
failed to perform any duty owing to the plaintiff in this
respect. Under the circumstances no cause of action has
been established against the defendant. The constitution and
by-laws of an unincorporated association providing for sick
or death benefits is in the nature of a contract, and a recovery
thereon can only be had by alleging and proving a breach of
its terms by the party against whom the recovery is sought.
The mode of collecting death benefits in this order may be
circuitous, but it is made so by the provisions to which Eberle
on becoming a member assented. They apply alike to all
similarly situated, and are binding on all who assented to them.
It does not follow that the plaintiff is remediless. Pier
remedy is to require the grand and subordinate conclaves to
perform their duty in the premises, and if they refuse to do so
an action for breach of duty will no doubt lie.
The complaint must be dismissed, with costs, and without
prejudice to a new action on a proper complaint charging the
grand or subordinate conclave with breach of the duty imposed
upon them by the constitution and by-laws of their order.
HOWARD'S PRACTICE REPORTS
Bigart agt. Jones.
SUPREME COURT.
WILLIAM BIGART, as executor of the last will and testa-
ment of THOMAS HOPKINS, deceased, agt. FREDERICK C. A.
JONES, as administrator, &c., of CECILIA JONES, deceased,
and others.
Will Construction of Practice Executors Action.
Where a will presents upon its face questions of complication, uncertainty
and difficulty, an executor may institute and maintain an action for the
purpose of obtaining a judicial construction thereof, and for direction
to him as to the manner in which he should discharge his duties in
executing the will as such executor
It is the policy of the law, in regard to the construction of wills, to give
effect to every pait thereof, to the end that every beneficiary shall
receive the bounty of the testator, according to his intention, as fairly
gathered from the entire instrument.
Where the testator by his will bequeathed, after the payment of debts and
funeral charges, all of his personal and real estate, except a lot which
Elizabeth Akin was to occupy, to his wife, to be used and enjoyed by
her during her natural life, or until she should marry. Upon the mar-
riage or death of his widow his daughter Cecilia became entitled to the
use and enjoyment during her natural life of the estate, real and personal:
Held, that Cecilia did not take a fee under the will, but that her estate
should be regarded merely as a life estate. It follows that at the death
of Cecilia, if she had left lawful issue her surviving, such issue would
have been entitled absolutely to the estate, real and personal. As
Cecilia died without leaving such issue the estate, real and personal,
vested in the persons designated in the sixth clause of the will, subject
to the payment of the bequest specified in the will.
It seems to have been the purpose and intention of the testator to consoli-
date into one fund the real and personal estate at the death or marriage
of his widow, and to bequeath or devise the same accordingly, subject
to the satisfaction of the burdens which he imposed upon his estate for
the benefit of the persons designated therein, to whom he gave certain
sums by way of legacy.
Special Term, November, 1885.
THIS action is instituted for the purpose of obtaining a
judicial construction of the said will, and for direction to the
plaintiff as such executor in regard to its execution.
492 HOWARD'S PRACTICE REPORTS.
Bigart agt. Jones.
Charles E Patterson, for plaintiff.
Martin 1, Townsend, R. A. Parmenter, R. H. McClellan
and S. Van Santvoord, for defendants, severally.
INGALLS, J. The will in question presents upon its face
questions of complication, uncertainty and difficulty, sufficient
to justify the plaintiff in asking for instruction from the court
in regard to the manner in which he should discharge his
duties in executing the will as such executor. Such direction
necessarily involves a construction of the will, which I pro-
ceed to give without unnecessary prolixity, as I understand
its provisions, interpreted as an entire instrument and in accord-
ance with what I conclude to have been the intention of the
testator as gathered from the will. By such will the testator
bequeaths, after the payment of debts and funeral charges, all
of his personal and real estate, except a lot which Elizabeth
Akin was to occupy, to his wife, to be used and enjoyed by
her during her natural life, or until she should marry. Upon
the marriage or death of his widow, his daughter Cecilia
became entitled to the use and enjoyment, during her natural
life, of the estate, real and personal.
The fourth item of the will is not to be construed as stand-
ing alone ; but in connection with the other provisions of such
will, and be interpreted in accordance with what seems to
have been the entire scheme devised by the testator, and
sought to be effectuated by the draftsman of the instrument.
It is the policy of the law in regard to the construction of
wills, to give effect to every part thereof, to the end that
'every beneficiary shall receive the bounty of the testator
according to his intention as fairly gathered from the entire
instrument. This principle of construction is aptly declared
by Judge ALLEN in Terry agt. Wiggins (47 N. F., 517), as
follows : " But the will must, if possible, be so interpreted as
to reconcile its different provisions and give effect to e^ery
part of it, and such construction should be put upon the
language consistent with the whole scope and terms of the
HOWARD'S PRACTICE REPORTS. 493
Bigart agt. Jones.
will as to accomplish this result." In my judgment to hold
that Cecilia took a fee under the will would render the subse-
quent provisions meaningless, and defeat the apparent intent
of the testator ; but regarding her estate merely as a life
estate which was obviously intended, all of the provisions of
the will become harmonious, and each beneficiary will be
protected.
It is worthy of remark that all of the beneficiaries under
the will are relatives of the testator and natural objects of his
bounty. Every will must necessarily receive construction
according to its peculiar provisions, as it is rare that two are
found precisely alike in structure. If this view is correct, it
follows that at the death of Cecelia, if she had left lawful issue
her surviving, such issue would have been entitled absolutely
to the estate, real and personal. As Cecilia died without
leaving such issue the estate, real and personal, vested in the
persons designated in the sixth clause of the will, subject to
the payment of the bequest specified in the will. Such I
deem to have been the intention of the testator as gathered
from the entire will, and I do not think such intention should
be defeated by declaring the devise contained in the sixth
item repugnant to the devise contained in the fourth item of
the will (Norris agt. Beyea, 13 N. T '., 273; Hat-field agt.
Sneden, 42 Barl., 615 ; Terry agt. Wiggins, 47 N. Y., 512;
Tyson agt. Blake, 22 N. Y., 558).
It seems to have been the purpose and intention of the
testator to consolidate into one fund the real and personal
estate, at the death or marriage of his widow, and to bequeath
or devise the same accordingly, subject to the satisfaction of
the burdens which lie imposed upon his estate for the benefit
of the persons designated therein to whom he gave certain sums
by way of legacy (Lent agt. Howard, 89 .N. Y., 169-177).
The executor is justified in asking instruction and the com-
plaint can be sustained for that purpose at least (Basty agt.
Briggs, 56 N. F., 407 ; Week agt. Root, 14 N. Y. IF. Dig.,
90 ; Wager agt. Wager, 89 N. Y., 161).
494 HOWARD'S PRACTICE REPORTS.
Matter of Catharine Shaffer, deceased.
SURROGATE'S COURT.
In the Matter of Proving the last Will and Testament of
CATHARINE SHAFFER, deceased.
Will Insufficient signing and witnessing of a will.
Where a will has been so drawn as to allow blank spaces m the body
thereof of such a nature as to allow the insertion of dispositions with-
out interlineations, and
Where the testatrix does not subscribe her name in the presence of both
witnesses, and does not acknowledge her signature to the witnesses,
although she informs the witnesses that it is her will she wishes them
to witness:
Held, that there was no sufficient signing of the will by the deceased in
the presence of the witnesses, nor a sufficient acknowledgment to them
that she had done so to satisfy the requirement of the statute, and that
the paper was not entitled to be admitted to probate.
Westchester county, November, 1885.
A PAPER intended for a last will and testament was pre-
pared and came into the hands of the deceased some time in
1882. There are several blank spaces in the body of it suf-
ficiently large to permit the writing of disposing clauses with-
out interlineations, and a space at the end of the paper for the
signature. Spaces were also left for the day, month and year,
which remained unfilled. Then follows an attestation clause,
thus :
" Subscribed by the testator in the presence of each of us
and at the same time declared by her to us to be her last will
and testament, and thereupon we, at the request of the testator,
sign our names hereto, as witnesses, this day of , 1882.
" And is here signed.
"CATHARINE SHAFFER,
Admix.
"J. M. DEARBORN,
M't Vernon.
"JOHN BERRY,
M't Vernon. N. Y."
HOWARD'S PRACTICE REPORTS. 495
Matter of Catharine Shaffer, deceased.
The paper so executed was propounded for probate bj
Charles F. Holm, one of the persons named as executors
therein. John Berry, one of the witnesses, testified that the
deceased came into his store with a paper so folded that he
could see no part of the writing, except the last line of the
attestation clause, " and asked me if I would witness her sig-
nature, and she made her signature in my presence and asked
me to witness it," which he did, and then she said she must
^ro in to see Mr. Dearborn, and get him to do the same thing.
Mr. Dearborn's store was a few doors from Mr. Berry's, and
he was not present when the paper was signed by Mrs. Shaffer.
Berry could not remember that Mrs. Shaffer said it was her
last will and testament, but if she had, thinks he would
remember it. Mr. Dearborn, the other witness, had no recol-
lection whatever on the subject, but admitted the genuineness
of his signature. Both of them had acted as witnesses to a
will of the deceased in 1878, the circumstances attending the
execution of which they recollected. Subsequently, Mary A.
King, a servant of the deceased, to whom a legacy of $200
had been given by the alleged will, testified that she accom
panied the deceased to the stores of the respective witnesses,
and that the deceased substantially asked Mr. Berry if he
would sign her will and testament, to which he assented ;
that she and the deceased then went to Mr. Dearborn's store
and asked him to sign her will.
Charles F. Holm, in person (Isaac N. Mills, of counsel),
for proponent.
Chauncey Shaffer, for Louisa Portens and another, heirs,
contestants.
Jacob Fromme, for George W. Shaffer, husband, contestant.
Joseph II. M. Porter, for Kate M. Pen rose, heir.
Win. M. SMnner, Jr., guardian ad litem, for minor heirs.
496 HOWARD'S PRACTICE REPORTS.
Matter of Catharine Shaffer, deceased.
COFFIN, S. The contestants contend that the will was not
properly executed, taking the statements of Mrs. King to be
true, because the testatrix did not acknowledge her signature
to Dearborn, one of the witnesses, who did not see her sign
her name, and cite on this point the case of Mitchell agt
Mitchell (16 Hun, 97). There the deceased came into the
store where the two witnesses were and handed out a paper
and said : " I have a paper that I want you to sign." One of
them took the paper and partly opened it and saw what it
was. The witness probably, from his testimony, saw the sig-
nature. The testator said : " This is my will, I want you to
witness it." Then the two witnesses signed the paper under
the attestation clause. It does not appear that the other wit-
ness saw the testator's signature. The testator then took
the paper and said : " I declare this to be my last will and
testament." At the time of this transaction the paper had
the name of the deceased at the end of the paper, but the.
witnesses did not see him sign, nor was there any acknowledg-
ment by him of his signature in their presence, unless the
facts above stated are such acknowledgment. The court held
that there was no acknowledgment of the signature to either
of the witnesses and rejected the will. This decision was
affirmed on appeal in 77 New York, 596, but by a divided
court.
In Chafee agt. The Baptist Missionary Society (10 Paige,
85} the testatrix, who had subscribed the will by making her
mark, but not in the presence of the attesting witnesses, after-
wards, and in their presence, placed her finger on her name
and said : " I acknowledge this to be my Jast will and testa-
ment." It was held that the will was not well executed.
This is approved in the case of Willis agt. Mott (36 N. Y.,
486). It is difficult to see any distinction between the case
of the putting the finger upon the name with the mark and
declaring it to be his last will and testament and that of a
presentation of a paper with the testator's signature written
by him at the foot of it with a declaration that it is his last
HOWARD'S PRACTICE REPORTS. 497
Matter of Catharine Shaffer, deceased.
will and testament. I am satisfied on the whole that the
decision in the case of Mitchell agt. Mitchell required that
more should be done than merely requesting the witnesses to
subscribe their names to a paper with the name of the alleged
testator at the end of it, which he says is his last will and
testament. By doing so he complies with only two of the
distinct requirements of the statute. The other one, that he
shall sign it in their presence, or acknowledge that he has
signed it, is as equally distinct and imperative as the others,
and in the absence of proof that he did one or the other, the
requirements of the statute have not been sufficiently com-
plied with to render it a valid testamentary act. But in the
case of Baskin agt. Baskin (36 N. Y., 416) it was held to be
a sufficient acknowledgment of the testator's signature where
he produces a paper to which he has personally affixed his
name, and requests the witnesses to attest it and declares it to
be his last will and testament, and that in so doing he does all
that the law requires. This doctrine seems to be distinctly
affirmed In the Matter of Will of Phillips (98 N. Y., 267).
Curiously it appears from the surrogate's report of the
case in 8 Denio, 459, that the testator did acknowledge
his signature to both the witnesses, Skinner and Beach,
during his conversation with each of them ( And see Rumsey
agt. Goldsmith, 3 Den., 494). Hence, although the reasoning
of judge LEARNED in the case of Mitchell agt. Mitchell may
seem the stronger, the result reached in 98 New York is con-
trolling here, and assuming that the paper was executed and
properly attested in the presence of one witness and presented
to the other so executed and attested by him, then if the tes-
timony of Mrs. King is to be regarded as true, it might be
held that it was well executed as a will.
But I am unable to bring my mind to a belief of her credi-
bility. She and Mr. Berry are in conflict as to their statements
of the transaction. He is one of the leading business men in
Mount Vernon, a man of character, intelligence and large
experience in affairs, and the same may be said of Mr. Donr-
VOL. II 63
498 HOWARD'S PRACTICE REPORTS.
Matter of Catharine Shaffer, deceased.
born, while Mrs. King had for many years been a servant, a
part of the time in the family of the deceased, could neither
read nor write, and was named as a legatee in the alleged will
to the extent of $200. Mr. Berry's statement of the circum-
stances is substantially this : the deceased came to his store
alone and asked him if he would witness her signature, to
which he assented. She then produced a paper so folded that
only one line of the writing could be seen, to wit, "our names
hereto as witnesses this day of , 1&82," and of which
he did not read a word, signed her name, and he signed his,
and thinks she requested him to write his place of residence
after it, which he did. She then said she must go and get Mr.
Dearborn to do the same thing, and left his store. There was
nothing said by her to impress his mind with the fact that it
was an important document. He thinks if she had said it was
a will he should have remembered it. She was there only
two or three minutes. Under these circumstances it seems to
me highly improbable that he was informed of the nature of
the instrument, and it was not at all unlikely that a person
unfamiliar with the manner of the execution of a will, as the
deceased was, as is shown by her signing her name at the foot
of the attestation clause and appending to it the abbreviation
"adm'x." should have omitted to state what the paper was,
especially in her anxiety to conceal its contents as manifested
by her.
Mr. Dearborn, the other witness, had no recollection of the
matter whatever, but recognized his signature, which was
written above Mr. Berry's, apparently for lack of room
below it, and although he knew both Mrs. Shaffer and Mrs.
King, he does not remember ever seeing them in his store
together.
After the lapse of a month from the first examination of
these witnesses, Mary A. King was produced as a witness, and
was objected to as incompetent, because named as a legatee,
to testify concerning any transaction or communication
between herself and the deceased. Her examination, how-
HOWARD'S PRACTICE REPORTS. 490
Matter of Catharine Shaffer, deceased.
ever, was conducted in sncli a manner as to avoid the objec-
tion. She testified only to conversations in which she took no
part, and which had no relation to any transaction bet'.veen
her and the deceased. She was engaged in cleaning house
for the deceased, when the latter asked her to go with her
to Mr. Berry's store as she wanted to see him. It was
but a short distance to the store and was, as she states,
between two and three o'clock in the afternoon. It strikes
one as a singular proceeding for a lady to take a servant from
her work at that hour, to accompany her for no apparent
reason. She says she went into the store with deceased " and
she shook hands with Mr. Berry and asked him if he would
sign her will and testament." He asked her if she was going
to die, and she said " no." Then he said " I will sign it."
So he went with her up to the desk. " She says they were
there about twentyor twenty -five minutes " (Mr. Berry says
not more than two or three) and she, witness, was buying
ruffling for deceased. They then went to Mr. Dearborn's,
where deceased u asked him to sign her will," and he kind of
laughed and asked, " have you come with the will ? " and she
said, " certainly." They then went back to the desk, while
the witness bought some salad dressing. They were at Dear-
born's twenty-five or thirty minutes. This witness when
asked to whom she had communicated these facts, for some
time insisted that she had told them to no person whatever,
but after much questioning admitted that she had to her
lawyer, who proved to have been not her's, but her son's, but
she claimed that he was her lawyer in this proceeding. She
finally, after denying that she had done so, acknowledged that
she had also told another counsel in the case. Taking into
consideration all the facts detailed, the material interest which
this witness had at stake, evidenced by her having engaged
counsel to look after it, her alleged recollection of conversations
which, had they occurred, would have so impressed the minds
of the intelligent gentlemen who signed the paper that they
would not have been readily forgotten and who, after much
500 HOWARD'S PRACTICE REPORTS,
Matter of Catharine Shaffer, deceased.
reflection, are unable to recall anything of the kind, lead me
to place no credence in the testimony of Mrs. King. It is a
pregnant and important fact that Mr. Berry and Mrs. King
differ very materially in reference to what both profess to
recollect well. The former says the deceased requested him
to witness her signature ; the latter says she asked him to sign
her will and testament. Both statements cannot be true.
One witness is surely in error and I feel constrained to believe
Mr. Berry. Mrs. King professes to give all of the conversa-
tion and she does not state that Mrs. Shaffer requested Mr.
Berry to witness her signature. The two statements are con-
flicting and cannot be reconciled, nor can one be taken as
amounting to a publication and the other as a request to
sign as a witness, thus together making a valid execution.
According to her evidence neither of the witnesses was asked
by the deceased to sign her will as a witness. That perhaps
was not essential, provided the circumstances warranted the
inferring of such request. But relying upon the testimony of
Mr. Berry, it must be held that there was no publication of
the instrument as a will and it must therefore be rejected.
No reference has been made to the attestation clause as an aid
in the solution of this matter, as it was manifestly untrue as to
one of the witnesses and the other one declares that he did
not read a word of it.
The testimony of Mr. Yetman, offered for the purpose of
impeaching Mrs. King as to a statement made by her must be
disregarded as no sufficient foundation therefor was laid. The
evidence supplied by the attorney who drew the will, the
object of which was to show that deceased knew the
character of the paper, and which was objected to as incom-
petent under section 835 of the Code, has been disregarded by
me as wholly immaterial. The deceased was an intelligent
lady and it can hardly be assumed that she did not know the
contents and nature of the paper she took to Mr. Berry's
store ; besides such knowledge on her part is shown by the
testimony of Harry Skidmore.
HOWARD'S PRACTICE REPORTS. 601
The People ex rel. Lent agt. Carr.
An order must be entered denying probate of the paper
offered as a will, with costs to proponents and contestants out
of the fund to be taxed.
COUKT OF APPEALS.
THE PEOPLE ex rel. SMITH LENT, respondent, agt. JOSEPH B.
CARR, secretary of state, appellant.
Surrogates The limitation of seventy years of age, does not apply to
surrogates.
The provisions contained in section 13 of article 6 of the constitution, tot.be
effect that "no person sliall hold the office of judge or justice of any
court longer than until and including the last day of December next
after he shall be seventy years of age," does not apply to persons hold-
ing the office of surrogate.
Decided November, 1885.
Marcus L. Cobb, for relator.
Calvin Frost, for respondent.
RAPALLO, J. The question to be determined on this
appeal is whether the provision contained in section 13 of
article 6 of the constitution, to the effect that " no person
shall hold the office of judge or justice of any court longer
than until and including the last day of December next after
he shall be seventy years of age," applies to persons holding
the office of surrogate.
The important judicial functions exercised by surrogates
may afford reason for applying to them a disqualification by
age similiar to that prescribed with respect to judges and
justices of courts, referred to in the constitution. But the
question before us is not whether the disqualification shouM
have been extended to those officers, or whether it should bo
deemed by analogy to apply to them, but whether by the terms
502 HOWARD'S PRACTICE REPORTS.
The People ex rel. Lent agt. Carr.
of the constitution they are included in it under the designa-
tion of persons holding the office of " judge or justice of any
court." For the ] urpose of determining this question it is
necessary, in the first place, to consider the context in which
the language quoted is used in section 13 of article 6 of the
constitution, the whole of that article having been adopted
by the vote of the people at the same time, in 1869, as a
separate article, known as the judiciary article.
Section 5 of article 5 establishes a court of appeals, to be
composed of a chief judge and six associate judges, and to
hold office for the term of fourteen years.
Section 6 provides for the continuance of the existing
supreme court, to be composed of the justices then in office,
with an additional justice to be elected.
Section 12 provides that the superior court of the city of
New York shall be composed of six judges ; the court of
common pleas of the same city, of the three judges then in
office, and three additional judges ; the superior court of
Buffalo, of the judges then in office, and their successors, and
the city court of Brooklyn of such number of judges, not
exceeding three, as may be provided by law.
Section 13 provides for the election of justices of the
supreme court- and judges of all the other courts mentioned
in section 12, and declares that the official terms of the said
justices and judges, who shall be elected after the adoption of
the article, shall be fourteen years, and then follows immedi-
ately in the same section the provision " but no person shall
hold the office of judge or justice of any court longer than
until and including the last day of December next, after he
shall be seventy years of age."
Section 14 next follows, providing that a compensation shall
be established by law for the services of the judges arid
justices hereinbefore mentioned, which shall not be diminished
during their official terms.
It must be observed that up to this point no person has-
been designated in the constitution as a judge or justice of any
HOWARD'S PRACTICE REPORTS. 502
The People ex rel. Lent agt. Carr.
court except the judges of the court of appeals, the justices of
the supreme court, and the judges of the superior court aiid
court of common pleas of the city of New York, of the
superior court of the city of Buffalo, and of the city court of
Brooklyn.
That the limitation as to age was intended to apply to the
judges and justices of those courts is too clear to be capable
of misapprehension. The only other officer or body having
judicial powers, mentioned in the sections of article 6 preced-
ing section 13, is the commission of appeals. That high
tribunal had power, under section 4, to hear and determine
certain causes pending in the court of appeals ; and by sec-
tion 5 it was provided that the decisions of the commission
should be entered and enforced as the judgments of the court
of appeals. But the commission was not designated in the
constitution as a court, nor the commissioners as judges, but
as commissioners, and it was therefore assumed that the dis-
qualification of age under section 13 did not apply to them,
for it is a matter of history that one venerable commissioner
held his office without question for several years after he had
passed the age of seventy ; and in the case of Settle agt. Van,
Evera (49 N. Y., 280), it was decided that section 27 of
article 6, which prohibits any judge of the court of appeals
from acting as referee, did not apply to a commissioner of
appeals because he was not a judge of the court.
All the provisions of article 6 of the constitution beaiing
upon the question at issue which precede sections 13 and 14:
have now been examined, and we next come to section 15,
relating to county courts. This section continues the existing
county courts and provides Aat the judges thereof then in
office shall hold their offices until the expiration of their
respective terms, and that their successors shall be chosen by
the electors of the counties for the term of six years. These
judges come literally within the words of the constitution, for
they are judges of courts designated as such by the constitu-
tion (People agt. Gardner, 45 N. Y., 812; People ex rel.
504 HOWARD'S PRACTICE REPORTS.
The People ex rel. Lent agt. Carr.
Joyce agt. Brundaye, 73 N. Y., 403). No judicial officer,
other than those who have been already named, is in any part
of the constitution designated as a judge or justice of any court.
Justices of the peace are mentioned in section 15, and they
exercise judicial powers. Two justices of the peace, together
with the county judge, compose courts of sessions, with such
criminal jurisdiction as the legislature shall prescribe, and
such justices may also exercise jurisdiction to a limited extent
in civil cases and may hold courts for that purpose. At the
same time they exercise other powers. They are in numerous
sections of the constitution designated not as judges or justices
of any court, but as justices of the peace r and are elected
under that designation, and on these grounds it was decided
in the late case of People agt. Mann (97 N. Y., 532) that
they did not come within the disqualification of age contained
in section 13 of article 6.
Surrogates are throughout all the provisions of article 6
designated as officers by that name, and not as judges or jus-
tices of any court. By section 15 of article 6 it is provided
that the county judge shall also be surrogate of his county,
but that in counties having a population exceeding 40,000
the legislature may provide for the election of a separate offi-
cer to be surrogate, whose term of office shall be the same as
that of the county judge, which is six years. By section 19
the legislature is empowered, on application of the board of
supervisors, to provide for the election of local officers, not
to exceed two in any county, to discharge the duties of county
judge and of surrogate in cases of their inability or of a
vacancy.
In section 25 surrogates are coupled with justices of the
peace and other local judicial officers. Section 27 refers to
surrogate's courts, and for their relief authorizes the legisla-
ture to confer upon courts of record in any county having a
population exceeding 40,000, the powers and jurisdiction of
surrogate. In no part of the constitution are surrogates men-
tioned as judges or justices of any court, and at the time of
HOWARD'S PRACTICE REPORTS. 505
The People ex rel. Lent agt. Carr.
the adoption of article 6, surrogate's courts were not even
courts of record, they having been first declared to be such
in the Code of 1880.
Reading the clause of section 13, which imposes the dis-
qualification by reason of age, in connection with all the
other provisions referred to, it seems to us more reasonable
to suppose that the people who voted for the adoption of
article 6 understood the disqualification as applying to persons
who, in the constitution itself, were in express terms desig-
nated as judges or justices of courts, and were popularly
known as such and elected by those designations, than to
a.-sume that the voters so minutely analyzed the nature of the
functions of officers elected under other names as to discover
that some of their duties were of a judicial character, and
that therefore they might, though not named as such, be con-
strued to be judges. In interpreting constitutions regard
must be paid to the popular sense in which words are gen-
erally used (People agt. Goodwin,. 50 Barb., 562 ; Common-
wealth agt. Dallas, 4 Dall., 218 ; Gibbon agt. Ogden, 9 Wheat.,
188 ; Settle agt. Van Ev*ra, 49 N. Y., 280).
The constitutional provision in question is quite clear and
intelligible as applicable to persons popularly known as judges
or justices of courts, and named as such in the constitution
itself, but we think it would be unwarrantable to extend it by
construction to every officer exercising judicial powers,
though not commonly known as a judge or justice of a
court, but elected by a different title.
The legislature of 1870, which immediately followed the
adoption by the people of the judiciary article (art. 6),
clearly indicated its understanding of the disqualification in
accordance with the views above expressed. The act of 1870
(chap. 86) was passed for the purpose of carrying into effect
the provisions of the judiciary article, and section 8 of that
act required all the judges and justices of the courts named
in article 6, viz., the judges of the court of appeals, the jus-
tices of the supreme court, the judges of the court of com-
Voi, IT 64
506 HOWARD'S PRACTICE REPORTS.
The People ex rel. Leut agt. Carr.
mon pleas and of the superior courts of the cities of New
York and Buffalo, and of the city court of Brooklyn, and
judges of county courts, to file in the office of the secretary
of state a certificate of their age, for the purpose undoubt-
edly of showing whether they would be disqualified by age
from holding their offices before the expiration of the term
for which they were elected. It will be observed that there
was no provision requiring surrogates or justices of the peace
to file any such certificate, clearly indicating that- in the judg-
ment of the legislature the disqualification did not apply to
those officers.
This legislative action, so closely following the adoption of
the constitutional provision, is entitled to great consideration
by the court in construing the provision (MARSHALL, C. J., in
Cohen agt. Virginia. 6 Wheat., 420 ; MARCY, ./., in People
agt. Green, % Wend., 274; CHURCH, C. J., in People agt.
Brundage, 78 N. Y., 403).
Our conclusion is that the office of surrogate of West-
chester will not become vacant on the thirty-first of Decem-
ber next by reason of the present incumbent, surrogate Coffin,
having attained the age of seventy years in July last, and that
the secretary of state was right in refusing to give notice of
the election of a successor.
The orders of the special and general terms should there-
fore be reversed and the motion for a mandamus denied, with
costs.
All concur.
HOWARD'S PRACTICE REPORTS. 507
Howe agt. Welch.
CITY COURT OF NEW YORK.
EPHKAIM HOWE agt. JAMES P. WELCH.
Code of Civil Procedure, section 390 Statute of limitations of a foreign state
When a defense to action brought here New promise to pay "when
able " Burden on plaintiff to prove ability to pay.
Before the adoption of the Code of Civil Procedure, the statute of
limitations of a foreign state constituted no defense to an action brought
here, but section 390 of the Code of Civil Procedure has changed the
rule to some extent.
In this case the cause of action does not come within the exceptions of
section 390, for the reasons: First. The cause of action did not
originally accrue in favor of a resident of this state, but in favor of a
resident of the state of Ohio. Second. Because before the expiration of
the period of limitation the person in whose favor the cause of action
originally accrued did not become a resident of the state of New York
as he lived and died in Ohio; and because, Third. The cause of action
was not assigned before the expiration of the time so limited to a
resident of this state.
Where it is sought to revive a debt barred by the statute of limitations
by a new promise to pay "when able " the burden is on the plaintiff to
prove ability to pay. Failure to establish the conditions upon which
the new promise was made is a failure to revive a debt barred by the
statute of limitations.
Special Term, November, 1885.
Stickney da Shepard and N. S. Spencer, for plaintiff.
Abbott Bros, and Albert A. Abbott, for defendant.
BROWNE, J. This is an action brought to recover a balance
upon a promissory note for $1,000, dated February, 1868, due
February, 1869, drawn by the defendant to the order of
John Gregg, who at the time resided in Ohio and continued
to reside there until his death in 1877. Administrators of
Mr. Gregg's estate were appointed upon his death, who also
resided in Ohio up to August 12, 1884, when they assigned
the note in question to the plaintiff, a resident of this city.
508 HOWARD'S PRACTICE REPORTS.
Howe agt. \Velch.
This action was commenced September 21, 1884. When the
note became due, the defendant resided in the state of
Missouri. In October, 1872, he removed to the State of Iowa
and continued to reside there till May, 1883. About January,
1882, the defendant received a credit on the note to the amount
of $500 and interest.
At the trial all the defenses were waived except the defense
that the action was barred by the statute of limitation of the
state of Iowa. Before the adoption of the Code of Civil
Procedure, the statute of limitation of a foreign state con-
siituted no defense to an action brought here (Miller agt.
Brenharns, 68 N. Y., 83), but section 390 of the Code has
changed that rule to some extent. Its provisions, so far as
applicable to case at bar, are as follows : " That where a cause
of action * * * accrues against a person who is not a
resident of the state, an action cannot be brought thereon
* * * after the expiration of the term limited by the laws
of his residence for bringing a like action except, first, where
the cause of action originally accrued in favor of a resident of
this state ; second, where before the expiration of the time so
limited the person in whose favor it originally accrued was or
became a resident of the state ; or, third, where the cause of
action was assigned to and thereafter continuously owned by
a resident of the state."
The prescriptive laws of Iowa are contained in the Code of
Iowa, section 2529 which provides that " the following actions
may be brought within the times herein limited respect-
ively, after their causes accrue and not afterwards, except
when otherwise specially declared. * * * Those founded
on written contracts * * * within ten years."
Et has been conclusively shown that the cause of action does
not come within the exceptions of section 390 of the Code, for
the reasons assigned by the learned counsel for the defendant
in his brief, from which I quote the following : " Because,
first, the cause of action did not original!} 7 accrue in favor of
a resident of this state, but in favor of a resident of the state
HOWARD'S PRACTICE REPORTS. 509
Howe agt. Welch.
of Ohio ; and because, second, before the expiration of the
period of limitation the person in whose favor the cause of
action originally accrued, did not become a resident of the
state of New York, as he lived and died in Ohio ; and because,
third, the cause of action was not assigned before the expira-
tion of the time so limited to a resident of this state. The
period of limitation was ten years from October, 1872. No
assignment of the cause of action to a resident of this state
was made until August, 1884."
It follows, therefore, that the action cannot be maintained
unless the cause of action was revived by a new promise to pay the
debt or an acknowledgment or admission in writing made by
the defendant within the period of limitation. It is claimed
by plaintiff that such a promise and admission have been
established by certain letters which were received in evidence
in which defendant admits an indebtedness to the original
payee and also to his administrators. None of the letters-
refer specifically to any indebtedness upon the note in suit,
nor to any specific sum due thereon to the parties to whom
the letters were addressed. Without the aid of extrinsic evi-
dence the text of the letters affords no clue to the nature or
amount of the debt to which the admission and new promise
referred, and it can only be presumed that the letters had rela-
tion to the note in suit from the fact that no evidence of other
indebtedness was presented. Without questioning its suf-
ficiency, it may be assumed that the letters referred to the note
in suit, but the promise established by these letters is coupled
with a condition that he would pay the debt " when able."
This is not the precise language used in the letters, but it is
a fair construction of the terms contained in them, excepting
the condition in which the promise is predicated upon the
payee advancing moneys to aid the defendant in other matters.
None of the conditions upon which the promise was predicated
have been shown to have been fulfilled. Failure to establish
the conditions upon which the new promise was made is a
failure to revive a debt barred by the statute of limitations
610 HOWARD'S PRACTICE REPORTS.
Howe agt. Welch.
( Wakeman agt. Sherman, 9 N. Y., 85 ; Tompkins agt.
Brown, 1 Denio, 247 ; Wetzell agt. Bussard, 11 Wheat., 309 ;
Cocks agt. IFtfd&s, 7 Z/-i7, 45 ; JeAo agt. Robinson, N. Y. Gt.
App., October 6, 1885 ; 1 Eastern Rep., 768).
The evidence offered by plaintiff in support of the defend-
ant's ability to pay was not sufficient to submit to a jury as a
question of fact.
It is earnestly and forcibly urged by the learned counsel for
the plaintiff that the fair construction to be given to section 390
of our Code is to allow the same rules of revivor in courts of the
state of the residence of the party liable on the contract, and he
contends that under the provision of the Iowa Code the pro-
scription is removed by establishing a bare written admission of
the debt within ten years, and cites the section of the Iowa
Code bearing upon the question, which is as follows (sec. 2539) :
" Causes of action founded on a contract are revived by an
admission that the debt is unpaid, as well as by a new promise
to pay the same."' And in support of his contention he
claims he is aided by the courts of that state, which gave the
statute a construction by its decision in the case of Penley
agt. Waterhouse (3 Iowa, 418). An examination of that case
does not disclose that the court passed upon the question of
the effect of an admission coupled with a condition as to time
of payment. The facts upon which the decision was based
are susceptible of but a single meaning, to wit, that the party
liable admitted the debt and was unable to pay it. Nothing
was said as to when or under what circumstances the party
would pay it, and I can find nothing in the context that the
court went farther in its decision than to determine that the
language used in the writings was an admission of the debt,
void of all conditions. This is strongly indicated by the fact
that it was urged by the defendant there that the language
used implied an unwillingness to pay the debt, which, if so
found, would deprive the admission of its cogency as an inferen-
tial promise to pay. We are thus led to the conclusion that
the courts of Iowa in nowise depart from the rule existing in
HOWARD'S PRACTICE REPORTS. oil
Howe agl. Welch.
this state that the admission or acknowledgment must show
euch an evident intention to pay the debt that the law will
imply a promise to pay, and if there be a condition attached either
to the express or implied promise, the creditor must accept the
promise with its accompanying condition, or not at all. The
statutes of this state and those of Iowa do not differ materi-
ally as to what is necessary to revive the debt. Our statute
requires a promise to pay the debt or " an acknowledgment ' :
in writing, while the Iowa statute requires a like promise or
an " admission " of it. The words are synonymous, and such
being the case the decisions of our own courts are controlling as
to what is necessary to revive a debt barred by the statute of
limitation. The plaintiff urges in support of his views that
a bare admission of the debt being sufficient, one of the let-
ters of the defendant contains such admission in the follow-
ing words : " Be patient and I will pay you all." This sen-
tence is prefaced by another in the letter referred to upon the
same subject, in which the defendant says : " 1 dislike to owe
any one a, cent, and will not any longer than I can make the
money to pay off all that I owe you and all the rest of
mankind."
It L a well settled rule of evidence that all parts of the
writing should be considered in determining the meaning or
intention of the writer. Applying that rule to the letter
referred to, it will be readily seen that the defendant intended
to limit the promise to pay upon the condition of his ability
to make the money to pay his debts. In truth, each of the
letters contains an admission of a debt, a promise to pay and
a condition of payment, none of which were fulfilled.
It is settled beyond dispute that the plea of the statute of
limitations is a plea to the remedy, and consequently the lex
fori must prevail. Parties sued in our courts may call to their
aid the statute of limitation of the place of their residence
within the prescribed limits. Section 390 of our Code adopts
so much of the Iowa law as limits the number of years within
which this action may be brought. It adopts no more. The
512 HOWARD'S PRACTICE REPORTS.
Burkhart agt. Babcock.
policy of oar law is to exclude the influence of foreign laws
upon the jurisdiction or practice of our courts hence the
time within which the action may be brought against a resi-
dent of Iowa in this state is limited to ten years, subject only
to the expirations provided in section 370. The provision of
limitations may be assimilated to our statute of limitations, so
that in the case of a resident of Iowa it would read ten years
instead of six, the exceptions of the statute as to revival to
be determined by the laws of our own state. We cannot by
implication give the force of law to more of the statute of
another state than the express provision of our laws permit.
Our state has not adopted the statute of Iowa with respect to
causes which revive an action. It retains its right t:> determ-
ine the degree of the consideration which revives a debt
barred by the statute of limitations of another state.
For the reasons stated the verdict directed for the plaintiff
will be vacated and judgment directed for the defendant.
SUPREME COURT.
JOHN M. BURKHART agt. JAMES BABCOCK.
Costs Allowance Code of Civil Procedure, section 3252.
In an action by a vendor to foreclose a land contract, in which the plain
tiff recovers, he is not entitled to the additional allowance provided by
section 3252 of the Code of Civil Procedure.
Monroe Special Term, August, 1885.
MOTION by defendant for retaxation of costs.
Q. Van Voorhis, for defendant.
II. W. Morris, for plaintiff.
ANQLE, J. This is an action by a vendor to foreclose a
land contract, in which the plaintiff recovered, and on the
HOWARD'S PRACTICE REPORTS. 513
Burkhart agt. Babcock.
taxation of costs the per cent provided by section 3252 was
allowed to the plaintiff.
I regard the case of Randolph agt. Stedman (4 Abb., 262 ;
3 E. D. Smith, 648), as an authority against the allowance of
this item. That was an action to foreclose a mechanics' lien
and arose under section 308, Code of Procedure, the pro-
visions of which are embodied in section 3252 of the Code of
Civil Procedure. In it the court say : " It is suggested that
the course of procedure is analogous to the foreclosure of a
mortgage in which case an extra allowance may be granted.
It is very true that this proceeding is analogous to the fore-
closure of a mortgage, for which alone provision has been
made in the section referred to. It is also suggested that it
is in the nature of a claim upon real property ; but it is not
in the language of the statute a proceeding for the determina-
tion of claims to real property. As it falls, therefore, within
none of the cases provided for by section 308, there is no
authority for granting an extra allowance." DALY, J., at the
conclusion of his opinion, says : " As the point is suggested
for the first time, I have conferred with my brethern and
they agree with me that we have no powei to grant an extra
allowance in such a case." When the above decision was
made, section 308, Code Procedure, gave the court power to
make allowance, instead of declaring, as section 3252, Code
Civil Procedure does, that the plaintiff was entitled to the
allowance in certain cases ; but that can make no difference
in the question of construction here involved.
In M'Mulkin agt. Hovey (46 flow., 405), in an action on
the part of a vendor to compel the vendee to complete a land
contract the special term said, obiter, that it was not one of
the actions named in section 308, Code Procedure. The item
complained of must be stricken out.
The clerk was perhaps misled by note C, Bliss' Code (vol.
2, p. 990, to sec. 3252), that " allowances may be granted in
proceedings to foreclose a mechanic's lien," citing Randolph
agt. Foster (supra), but as we have seen the case does not so
VOL. II 65
51* IJO WARD'S PRACTICE REPORTS.
Mason agt. Mason el al.
hold. The same note " C " also says, the allowance may be
granted in an action to compel specific performance of a con-
tract for the sale of real estate, citing Weeks agt. Southwick,
(12 How., 170) ; but as I read that case the court said (p. 171)
*' nor is this a case for an extra allowance. The action is not
brought to recover money or property, but merely for equit-
able relief. Such a case is not within the provisions of three
hundred and eighth section of the Code."
The motion is granted, without costs.
SUPREME COURT.
ADELAIDE E. MASON agt. CLARISSA MASON et al.
Dower When provision for wife should be held to be in lieu of dower
Partition.
Where a testator devised one-third of his real property to his widow for
life with remainder to his sons, also devising the other two-thirds to
ihe sous:
Held, that there was thus a total disposition of his realty, and any allow-
ance of dower to the widow in addition to the devise would overturn
the plain scheme of the will, and is inconsistent with the disposition
made of the rest of the estate. In such case the court infers an inten-
tion of the testator that the provision for the wife should be in lieu of
dower.
That the testator has left his widow a life estate in one-third of the prem-
ises does not prevent the owners in fee of the two-thirds from partition-
ing the property and realizing their shares. The rights of the tenant
for life may be protected by provision in the decree.
Special Term, November, 1885.
Isidor Grayhead, for plaintiff.
Jacob L. Hanes, for defendant Clarissa Mason.
Horace Secor, Jr., for defendant Sarah A. Mason.
John T. Cornell, for guardian ad litem.
HOWARD'S PRACTICE REPORTS. 515
Mason agt. Mason et al.
BEACH, J. The plaintiff is possessed of an estate of
inheritance in an undivided portion of the premises described
in the complaint. This fact makes inapplicable section 1533,
Code of Civil Procedure, which relates wholly to an action for
partition between joint tenants or tenants in common of an
estate in reversion or remainder. The case of Sullivan agt.
Sullivan (66 N. Y., 37) was met by the above Code provision,
and only held that a reversioner could not maintain partition,
because of not having either an actual or constructive posses-
sion. I do not think it possible that because the defendant
Clarissa Mason has a life estate in one-third of the premises,
the owners in fee of the two-thirds are prevented from parti-
tioning the property and realizing their shares. The rights
of the tenant for life may easily be protected by provision in
the decree.
The testator devised the third of his real property to his
widow, the defendant Clarissa Mason, for life, with remainder
to his sons. The other two-thirds he devised to them. There
was thus a total disposition of his realty, and any allowance
of dower to the widow in addition to the devise would over-
turn the plain scheme of the will, and is inconsistent with the
disposition made of the rest of the estate. In sjich case the
court infers an intention of the testator that the provision for
the wife should be in lieu of dower ( Vernon agt. Vernon, 53
N. ., 351 ; Dodge agt. Dodge, 31 Barl., 413 ; Bull agt.
Church, 5 Hill, 206).
Judgment for plaintiff, with costs.
516 HOWARD'S PRACTICE REPORTS.
Cole agt. Cole et al.
SUPREME COURT.
ALIDA J. COLE agt. GEORGK W. COLE et al.
WiM Construction of Dower When provisions of icitt must be regarded
as intended in lieu of dower.
Where there is no direct expression of intention that the provision con-
tained in the will shall be in lieu of dower, the question always is
whether the will contains any provision inconsistent with the assertion
of a right to command a third of the land to be set out by metes and
bounds for dower. Tje intention of the testator need not be declared
in express words, it may be implied if the claim of dower would be
plainly inconsistent with the will.
Where the will gave all the testator's real and personal estate to plaintiff
(widow) as executrix and John M. Corliss and William Carley as execu-
tors in trust for uses and purposes therein stated, among which are the
following: "First. To receive and collect the income thereof, and to
pay the same for my debts, and the incumbrances upon my estate, after
the payment of such sums as may be necessary for the support and
education of my family and children, in which matters I desire my
executrix and executors to be liberal. Second. To purchase in their
own names as such executrix and executors a homestead for my wife
and family if I shall not do so in my lifetime, and in such homestead
all my children shall be entitled to a home while they remain unmarried. "
The testator in his lifetime purchased the homestead and owned it at
the time of his death:
Held, that the intention of the testator is reasonably clear that the widow
should take all of her interest in that homestead under the will. She
is given an interest equal to that of each child. The devise mu^t
contemplate a homestead discharged of dower, otherwise the object of
the testator as expressed m ight be defeated by assumption of dower
right, and possible sale of the homestead under such claim.
The testator directed that in case of the remarriage of his wife all of his
estate shall be divided equally among his four children, and be paid to
them respectively as they arnte at full age:
Held, that if one-third of the real estate were to be set apart to the widow
as dower, a division of all of the estate among such children could not
take place until the widow's death notwithstanding a remarriage by her.
Thus a provision of the will would be defeated.
Special Term, November, 1885.
HOWARD'S PRACTICE REPORTS. 617
Cole agt. Cole el al.
Robert S. Hudspeth, for plaintiff.
Robert H. McCiellan, for defendants.
OSBORN, J. This is an action for admeasurement of
dower, &c. In November, 1883, upon notice of plaintiff's
attorneys, and without opposition on the part of the defend-
ants' attorney, the action was sent to a referee to take proof
of the material facts stated in the complaint and report
thereon to the court. And such report was subsequently
made, and in April last interlocutory judgment was granted
by me without opposition by defendants' attorney. The case
is now before me on application for final judgment in favor
of the plaintiff, which is resisted by defendants' counsel, who
now maintains that plaintiff is not entitled to dower as
claimed ; that such claim is repugnant to the will referred to
in the complaint, and that the provisions of such will in favor
of the plaintiff having been accepted by her constitute a bar
to the demand she makes in this action.
The position now taken by defendants' counsel should it,
seems to me, have been assumed at an earlier stage in the case,
but as counsel for plaintiff has raised no objection to its being
now considered, I shall assume that none is claimed.
The question presented is certainly difficult of a clear and
satisfactory solution. The authorities to which my attention
has been directed by plaintiff's counsel, and which I have been
able to obtain for examination, argue with much force the
general propositions advanced by him, and particularly San-
ford agt. Jackson and others (10 Paige, 266); Lewis agt.
Smith (9 N. F., 502). But upon a careful analysis of the
will in this case, compared with the provisions of the wills
referred to in the reported cases above mentioned, and in the
light of the more recent decisions of Savage agt. Hurnham
(17 N. Y., 561); Tobias agt. Ketoham (32 N. Y., 319); and
Matter of Surplus Moneys, &o., in Estate of John C. Zahrt
(94 N. IT., 605), I am of opinion that in this case the pro-
618 HOWARD'S PRACTICE REPORTS.
Cole agt. Cole et al.
visions made for the plaintiff by the will must be regarded as
having been intended by the testator in lieu of dower.
Where there is no direct expression of intention that the
provision contained in the will shall be in lieu of dower, the
question always is whether the will contains any provision
inconsistent with the assertion of a right to demand a third
of the land to be set out by metes and bounds for dower
(Matter of Zahrt, supra). The intention of the testator need
not be declared in express words ; it may be implied if the
claim of dower would be plainly inconsistent with the will.
The will under consideration gives all the testator's real and
personal estate to this plaintiff as executrix, and John M. Cor-
liss and William Curley as executors, in trust for uses and
purposes therein stated, among which are the following as
stated in the will :
" First. To receive and collect the income thereof, and to
pay the same for my debts and the incumbrances upon my
estate, after the payment of such sums as may be necessary for
the support and education of my family and children, in which
matters I desire my executrix and executors to be liberal.
" Second. To purchase in their own names as such executrix
and executors a homestead for my wife and family, if I shall not
do so in my lifetime, and in such homestead all my children
shall be entitled to a home while they remain unmarried.'"
It was conceded on the argument (as I understood it) that
the testator in his lifetime purchased the homestead and
owned it at the time of his death. I take it that the inten-
tion of the testator is reasonably clear that the widow should
take all of her interest in that homestead under the will. She
is given an interest equal to that of each child. The devise
must contemplate a homestead discharged of dower, other-
wise the object of the testator, as expressed, might be defeated
by assumption of dower right and possible sale of the home-
stead under such claim (Miall agt. Brain, -t Mad. Rep., 119 ;
Roadley agt. Dixon, 3 fiuss. Rep., 192 ; Sanford agt. Jack-
son, 10 Paige, 27<>).
HOWARD'S PRACTICE REPORTS. 619
Birney agt. Wheaton.
In Lewis agt. Smith (supra) the court says : ' ; There is no
person who takes an interest under the will during her (the
widow's) lifetime with which the claim of dower will con-
flict.'' This can hardly be said of the will in the case at bar.
Other provisions of the will, in connection with those I
have mentioned, indicate to my mind that the intention of the
testator was that the widow's interest in his estate should be
in common with his children so long as she remained his
widow ; that it should arise from the will, and that she should
have no other or further interest. The testator directs that
in case of the remarriage of his wife all of his estate shall be
divided equally among his four children, and be paid to them
respectively as they arrive at full age. If one-third of the
real estate were to be set apart to the widow as dower, a divi-
sion of all of the estate among such children could not take
place until the widow's death, notwithstanding a remarriage
by her. Thus a provision of the will would be defeated.
If the view I have taken is ^"-i-ect, this action cannot be
maintained. Plaintiff's application for final judgment is
therefore denied. An order to carry out this decision will be
settled by me upon notice to counsel.
NEW YORK CITY COURT.
EMMA BIRNEY agt. JONAS S. WHEATON.
Married women Separate personal effects Wlien may be detained by
virtue of innkeeper's lien Evidence.
Where husband and wife board at a hotel the husband is presumptively
liable for the bill, but it is competent for the hotel-keeper tc stow that
the husband was impecunious, and that credit was given to the wife
so as to justify the detention of her property by virtue of the hotel-
keeper's lien.
General Term, November, 1885.
Before Me A DAM, G. </., NEHRBAS and HYATT, JJ.
520 HOWARD'S PRACTICE REPORTS.
Birney agt. Wheaton.
APPEAL from judgment, entered on verdict in favor of the
plaintiff.
McAuAM, G. J. Independently of the statute of 1884
(chap. 381), enacted after the board bill herein was contracted
(and on that account inapplicable to the present contention),
a married woman might have contracted a board bill on her
own credit and responsibility. In the present case the defend-
ant, in order to establish his lien upon the plaintiff's property,
offered to prove that the plaintiff was the head of the family,
was the guest in the defendant's house, and the person who
was trusted ; that she had money and credit and her husband
none ; and all this testimony was ruled out under exception.
We think the testimony was competent and ought to have
been admitted. If upon such evidence the jury had found
that the credit was given to the plaintiff, and not to her hus-
band, the defendant, as a hotel-keeper, had the right to detain
the plaintiff's property until the board bill was paid, and was
not liable to her in the present aciion of claim and delivery
without proof of tender of the amount due and refusal to
deliver after tender made. The case of Mcllvaine agt. Hilton
(7 Hun, 594) only applies where the wife is supported by the
husband, and the credit is given to him.
We cannot imagine why a wife with credit cannot take her
husband, who has none, to a hotel, and in order to procure
board and shelter for her family arrange that she and not the
impecunious husband shall pay the bills (Maxon agt. Scott, 55
N. Y., 247 ; Tiemeyer agt. Turnquut, 85 N. I 7 ., 516). If
this were not so, a wife, however wealthy, might find it diffi-
cult to find rooms in a hotel, simply because her husband was
unfortunate enough to be impecunious. These observations
are made simply to show that the rulings made at the trial
might lead to the impracticable results suggested.
It follows, therefore, that the judgment appealed from
must be reversed and a new trial ordered, with costs to the
appellant to abide the event, to the end that the proof excluded
HOWARD'S PRACTICE REPORTS. 521
Scott and others agt. Reed.
may be admitted upon the new trial, and the question of fact
whether the credit was given to the husband or wife submitted
to the jury.
NEHKBAS and HYATT, JJ., concurred.
SUPKEME COURT.
JAMES SCO-IT and others, respondents, agt. ALEXANDER
REED, Jr., appellant.
Arrest Sufficiency of proof to support order of Code of Civil Procedure,
section 550.
Proof tbat one of two partners withdrew a large amount of money from
the business of (he firm for the reason that it had suffered severe losses,
and that the other partner had already transferred a large portion of his
property to his wife without consideration, will not support an order
of arrest against the partner who withdrew the money, without further
proof that he had either disposed of any part of this sum or intended to
do so to defraud his creditors.
First Department, General Term, November, 1885.
Before DAVIS, P. J., BRADY and DANIELS, JJ.
APPEAL from an order denying a motion to vacate an order
of arrest.
James M. Smith, for appellant.
F. N. Bangs, for respondents.
DANIELS, J. The order was made under the authority of
subdivision 2, section 550 of the Code of Civil Procedure.
The application for it depended wholly upon two affidavits, one
of which was devoted to proof of the indebtedness in this
action, and of other indebtedness owing by the defendant who
VOT,. II 66
HOWARD'S PRACTICE REPORTS.
Scott and others agt. Reed.
has appealed, and his copartner. By the other affidavit it was
stated that the partner of the appellant had informed the
person making it, that the appellant had withdrawn $4,S<">0
in cash, being the larger portion of his capital, from the firm,
and had concealed its withdrawal by false entries made by him-
self in the copartnership books. This statement was commu-
nicated to Reed, .the appellant, who admitted that he had with
drawn this amount from the funds of the firm, but excused
himself for doing so by the statement that losses had been suf-
fered in the business, and that his partner Atwater had trans-
ferred a large portion of his property to his wife without con-
sideration. From this statement and a statement exhibiting
the financial condition of the firm to a mercantile agency, the
conclusion was drawn by the persons making the affidavit that
both defendants, since the making of their purchases, had
removed or disposed of their property, or were about to do so,
with intent to defraud their creditors. And the latter part of
the statement made by the appellant as it was further sus-
tained by the information received from Mr. Bradley, showing
the transfer of corporate stock by Atwater to his wife, may
have been sufficient to support an order for his arrest on this
ground against Atwater. But the fact that he may have dis-
posed of his property to defraud his creditors, or the creditors
of the firm, will not support an order for the arrest of his
copartner Heed. To entitle the plaintiff to such an order the
law requires that the charge of fraudulent misconduct of the
alleged description shall be sustained against the person to be
arrested, and that will not be proved simply by showing such
misconduct on the part of his partner (National Bank, t&%
agt. Temple, 39 How., 432 ; Hathaway agt. Johnson, 55 N~.
Y., 93 ; Sherman agt. Smith, 42 How., 198).
But neither of the affidavits establishes the fact that any
fraudulent disposition was made or intended by Reed. All
that has been proved against him is that he drew this amount
of money from the business of the firm for the reason that it
had suffered severe losses, and his partner Atwater had already
HOWARD'S PRACTICE REPORTS. 628
Matter of Cohen & Company.
transferred a large portion of his property to his wife with-
out consideration. It cannot be inferred from these facts,
without further proof, that Reed had either disposed of any
part of this sum of money or that he intended to do so, to
defraud any of his creditors, and without that inference being
supported, the plaintiff was not entitled to an order for his
arrest (Hoyt agt. Godfrey, 88 N. Y., 669). In this respect
the case is distinguishable from Hitchcock agt. Peterson (14
Hun, 389), where positive fraud was found to be sustained
against both of the defendants.
To entitle a party to an order of arrest, a reasonably plain
case must be made out. That has been so frequently held as
to require no reference to the authorities supporting the prin-
ciple. Such a case was not made out against the defendant
Reed, and the order from which the appeal has been taken
should be reversed, with ten dollars costs and also the disburse-
ments, and an order made vacating the order of arrest.
DAVIS, P. J., and BRADY, J., concurred.
N. Y. COMMON PLEAS.
In the Matter of the Assignment of JACOB S. COHEN & Co.
to SAMUEL P. HINMAN.
Removal of assignee What is proper notice in proceedings for removal,
where there are three assignors Practice.
In a proceeding for removal of an assignee who has misconducted himself ,
\\ here there are three assignors, one of whom has left the state, notice
to one assignor is properly notice to all; though the better course would
be to give the statutory five days' notice to the two within the state, in
the ordinary way and to serve the absent assignor by depositing a notice
in the post-office, addressed to him at his last known place of residence
giving double the time.
Special Term, November,
524 HOWARD'S PRACTICE REPORTS.
Matter of Cohen & Company .
DALT, C. J. Where a statute declares what is to be done
in giving notice, it must be strictly followed. But except in
those particulars which the statute specifies, everything else
in reference to the notice is under the control of the courts.
All that the statute here specifies is that due notice of not
less than five days of the motion to remove the assignee is to
be given to the assignor. Where the term due notice is used
in a statute, it is generally understood as referring to the
length of time that it is to be given ( Wade on the Law of
Notices, sec. 1324), and it has no greater signification here,
where the length is fixed by the statute. The act simply
provides for a notice to the assignor, but in this case there
are three assignors, one of whom has left the state and whose
whereabouts are unknown, further than that he is somewhere
in Florida.
The only interest the assignors have under the assignment
is the possibility that something may remain after the pay-
ment of their creditors to which they would be entitled an
interest which would be a joint interest, and where parties
have a joint interest as in the case of partners, service of
notice upon one has been regarded as equivalent to notice to
all (1 Wood's (Jolly er on Partnership, 715 ; Brown agt.
Turner, 15 Ala., 832 ; Carman agt. Townsend, 6 Wend., 206).
But as this is a statutory provision there may be some doubt
as to whether this rule would apply to it, and I think the
better course is to hold that the notice should be given to each
of the assignors. As two of them are within the state, it can
be served upon them in the ordinary way, and as respects the
remaining one, who has left the state, and whose precise
whereabouts are unknown, the service may be such as the
court shall direct, there being nothing in the statute as to the
service of notice, except that the time is to be at least five
days. We would not, in such a case, be justified in applying
the provision made in the act for giving notice to creditors
residing out of the state, for that notice is by an advertisement
once a week for six weeks ; wftile the provision under con-
HOWARD'S PRACTICE REPORTS. 52*
Matter of Cohen & Company.
sideration here is for a notice of not less than five days, and
the delay incurred for such a length of time as six weeks,
might be a very serious matter in cases where the assignee
had misconducted himself, and where his prompt removal was
essential to preserve the assigned property and secure tiie
faithful administration of the trust. As the statute has made
no provision for a case like this, of an assignor who has left
the state and yet requires notice, I think the proper course is
to follow as nearly as possible the provision of the Code
respecting the service of notices and other papers in actions ;
that is, by depositing the notice, as provided in section 797, in
the post-office, addressed to the absent assignor at his last
known place of residence, giving double the time as required
by the next section, which would in this case be ten days.
It is true that such a service is a mere formality, but when the
party to be served has left the state and his whereabouts are
unknown, it is all that the circumstances of the case will
admit of.
As the statute requires that notice of the motion shall be
given, and has not in a case like this provided how it is to be
served, all that the court can do in compliance with the
statute is to direct the kind of notice to be given, even though
it be but a mere formality ; for it is very plain that the statute
did not intend that creditors should be deprived of the right
which it gives them, to have an assignee removed who has
misconducted himself or is incompetent, .because notice cannot
be brought home to the knowledge of an assignor who has
left the state and whose place of abode could not be ascertained
after diligent inquiry.
526 HOWARD'S PRACTICE REPORTS.
Timerson agt. Timerson.
SUPREME COURT.
MARY I. TIMERSON agt. CHARLES "W. TIMERSON.
Divorce Adultery Complaint Demurrer When condonation of adul-
tery by subsequent cohabitation with knowledge not a bar to an after-brought
action for divorce for such adultery.
Condonation of adultery by subsequent cohabitation with knowledge does
not bar an after-brought action for divorce predicated on such adultery,
where the condonation is upon the promise by the guilty party (the hus-
band) that he would in all things thereafter treat his wife kindly and in
a proper manner, and would be in all things a good and affectionate
husband to her, when such promise has been violated
Cayuga Special Term, July, 1884.
DEMURRER to complaint for divorce on the ground of
adultery.
L. E. Warren, for defendant.
F. D. Wright, for plaintiff.
ANGLE, J. The question on tins demurrer is whether
condonation of adultery by subsequent cohabitation with
knowledge bars an after-brought action for divorce predicated
on such adultery, where the condonation is upon the promise
by the guilty party (the husband) that he would in all things
thereafter treat his wife kindly and in a proper manner, and
would be in all things a good and affectionate husband to her,
and which promise he has violated.
The Code of Civil Procedure (sec. 1758) declares that the
plaintiff is not entitled to a divorce, although the adultery be
established, where the offense charged has been forgiven by
.the plaintiff, and that the forgiveness may be proved, either
affirmatively or by voluntary cohabitation of the parties with
knowledge of the fact. The language of the Revised Stat-
utes (2 R. $., 145, sec. 145, sub. 2) is that the court may
denv a divorce in such case. Counsel have cited and exam-
HOWARD'S PRACTICE REPORTS. 527
Timerson agt. Timerson.
ined many authorities as to whether condonation, evidenced
by cohabitation with knowledge, is, by legal inference, condi-
tioned upon subsequent kind and proper treatment. The
argument in favor of such an implied condition is stated by
chief justice SAVAGE in Johnson agt. Johnson (14 Wend., 642,
643, 644), while the argument opposed is set forth in the
opinion of senator TRACY in the same case (pages 646, 647).
A majority of the court of errors agreed with the chief jus-
tice. This case of Johnson agt. Johnson has been subject to
some criticism, the above question having been decided by
but one majority for the reversal of the decision of the chan-
cellor, but it is a binding authority, I think. The case of
King agt. Baldwin (17 Johns., 384) was also a case where the
decision of the chancellor had been reversed by a majority of
one. Afterwards there were dicta condemning the rule in
King agt. Baldwin, and the question of its authority came
before the court of appeals in jRemsen agt. Beekman (25 N.
Y., 552), and the two judges (WRIGHT and GOULD) writing
opinions (pages 556, 561), regard King agt. Baldwin as
authority settling the rule involved in the case.
The present case however involves another question than
Johnson agt. Johnson. There the question was whether the law
raised a certain implication ; here the complaint avers the exist-
ence of the fact which was in Johnson 'agt. Johnson sought to
be implied, viz., that the husband actually promised the wife,
as part of the agreement, that he would thereafter treat her
kindly and in a proper manner. The law is lenient towards
the wife in regard to condonation by cohabitation (Harnett
agt. Harnett, 55 Iowa, 48).
My conclusion is that the violation by the defendant of the
conditions of the condonation revives the wife's right of
action for his previous adultery, or rather that the alleged
condonation is not a bar to such action.
Judgment ordered for plaintiff on demurrer to complaint,
with leave to defendant to answer on payment of costs of
demurrer.
528 HOWARD'S PRACTICE REPORTS.
Dennison agt. Taylor.
SUPREME COURT.
PORTER G. DKNNISON agt. WILLIAM F. TAYLOR.
Deed Conveyance Reservation One who parts absolutely with the title
to land to another cannot reserve to himself tlie right to its 'purchase-money
when subsequently sold.
He who conveys the absolute fee of real estate to another cannot retain
the right to the purchase-price when subsequently sold. There is a
distinction between the occupancy of one's property which must be
temporary, unless the title of the owner is acquired, and one which is
known to be permanent because the right to maintain it exists; and he
who parts absolutely with the title to land to another cannot reserve to
himself the right to its purchase-money where subse quently sold, because
such a reservation would be inconsistent with the grant.
The defendant who was the owner in fee of a farm of land through which
a railroad passed, and also of that part thereof which such railroad
occupied and upon which it was constructed, which ownership was
derived by and through a warranty deed to him from the assignor of
the plaintiff, recovered from sucli railroad or its receiver the sum of
$1,000 as a compensation for the fee of the land which the road occupied,
and for the depreciation in value of the entire farm by reason of such
title being acquired to the strip occupied by the railroad :
Held, that the defendant's right to such damages was perfect through the
deed from the plaintiff's assignor, which the reservation therein contained
in favor of the grantor did not and could not reserve to such grantor,
because such a reservation would be inconsistent with and repugnant to
the deed and the estate in fee which it conveyed to the defendant; and as
the defendant recovered such damages for himself and not for the plain-
tiff, the latter cannot maintain this action which rests upon the theory
that the moneys paid to the defendant therefor were received to and
for the use of the plaintiff.
Ren&selaer Circuit, January, 1884.
j??. H. McClellan and E. L. Fursman, for plaintiff.
Mr. Foster, for defendants.
WESTBROOK, J. In this cause, which was tried before the
court without a jury at the Rensselaer circuit in January,
1884, the plaintiff claimed to recover for certain mone} T s
HOWARD'S PRACTICE REPORTS. 629
Dennison agt. Taylor.
received by the defendant under the following circumstances :
On the 13th day of January, 1873, by deed bearing date on
that day, one George T. Dennison and wife conveyed to the
defendant a farm situate in the town of Berlin, Rensselaer
county and state of New York. At the time of such con-
veyance a strip of land about four rods in width and running
across the premises conveyed was in possession of the
Lebanon Springs Railroad Company, but to it the company
had acquired no title, and the fee thereof passed to the
defendant Taylor by the deed from Dennison just mentioned.
The deed to Taylor contained this clause : " There is reserved
all the damages sustained in consequence of railroad crossing
lands herewith conveyed."
In 1881, in a proceeding instituted by him for that pur-
pose against the receiver of the Lebanon Springs Railroad,
there was awarded to the defendant the sum of $1,000 for
the land occupied by it, and the depreciation in value of the
farm by the railroad crossing through it, upon his executing
and delivering to the receiver a conveyance in fee of the
premises occupied by the railroad. The defendant executed
such conveyance and received the $1,000 from the receiver.
The plaintiff, who is the assignee of George T. Dennison,
the defendant's grantor, demanded from the defendant the
sum of $1,000 paid by the receiver of the Lebanon Springs
Railroad, and on the refusal of the defendant to pay brought
this action to recover the same.
The claim of the plaintiff is founded upon the clause in
the deed to the defendant hereinbefore given, which " reserved
all the damages sustained in consequence of railroad crossing
lands conveyed," and upon the construction to be given to
such clause and the validity thereof the action depends.
The argument of the plaintiff is in brief this : at the time
of the conveyance to the defendant the damages were com-
plete. The railroad was then in possession of the strip of
land through the farm, and the damage done to such farm by
depriving the owner of a part of his property, and the depre-
VOT, II 67
530 HOWARD'S PRACTICE REPORTS.
Dennison agt. Taylor.
elation in value of the remainder by reason of the occupation
of the strip for railroad purposes had then been sustained,
and because then existing they were reserved by the deed to
the defendant's grantor.
If the premise that all the damages existed at the time
of the conveyance was true, and if the grantor of the fee of
real estate could legally reserve to himself the purchase-price
thereof when subsequently sold by his grantee, it would be
difficult to resist the conclusion. The premise, however, is
not true, and he who conveys the absolute fee of real estate
to another cannot retain the right to its purchase-price when
subsequently sold. The premise ignores the distinction
between an occupancy of one's property, which must be tem-
porary unless the title of the owner is acquired, and one which
is known to be permanent, because the right to maintain it
exists ; and he who parts absolutely with the title to land to
another cannot reserve to himself the right to it* purchase-
money when subsequently sold, because such a reservation
would be inconsistent with the grant (De Peyster>. Michael,
6 A 7 . Y., 467, 492, 493, 494, &c\ At the time of the con-
veyance to the defendant the damage to the farm by the
extinguishment of the owner's title in a part thereof had not
been sustained, and the right to permanently occupy such
part as owner for the purpose of a railroad to the depreciation
in value of the remainder had not been acquired. The rail-
road was then in possession of a part of the land, either as a
squatter or by permission of the owner for a limited time.
Such occupation, while it lasted, of course damaged the owner
by depriving him of the enjoyment of a part of his property
and subjecting him to the annoyance and inconvenience of a
railroad track across his farm, but damage to a farm caused by
an occupancy of a part, capable of being soon ended and term-
inated, is quite another and different thing from an occu-
pancy founded upon actual title to the land occupied, which
permanently deprives an individual of a part of his farm, and
permanently subjects him to the annoyance and inconvenience
HOWARD'S PRACTICE REPORTS. 531
Dennison agt. Taylor.
of a railroad operated through its center. In other words,
a right of occupancy for a short period of time, or an occu
pancy which is a trespass, and therefore capable of a speedy
determination, depreciates the value of the entire farm much
less than one which is permanent, because founded on an
acquired right. The damages which had been " sustained " by
an occupancy founded upon either a temporary right derived
from the owner, or upon no right, but in either case soon
determinable, were those which existed at the time of the con-
veyance to the defendant ; but a right as owner to occupy had
not been acquired by the railroad, and the damage to the
owner by the extinguishment of his title to a part of his
farm, which injures, both by permanently depriving him of
the enjoyment and use of the property taken and the incon-
venience to the farm as a whole in future years, had not yet
been " sustained." Under such circumstances the conveyance
is made to the defendant of the fee of the whole farm,
including that occupied by the railroad. Can it be reasonably
or even plausibly argued that the grantor intended otherwise
than he did ? That when he conveyed to the defendant a
strip of land in the possession of a railroad company, war-
ranting that the deed of conveyance gave the defendant a
good title in fee thereto, he intended to reserve to himself the
purchase-price of such land if the railroad company subse-
quently acquired it ? To these questions the answer, it seems
to me, is plain. The clause in the deed reserved to the grantor
the damages which had been " sustained " when the deed was
made, and not th^se which would 1)& "sustained" by the
extinguishment of the owner's title, which could only have
their being when such right was acquired. Nay, the fact
that Dennison conveyed the fee of the land occupied by the
railroad to the defendant forbids the construction of the res-
ervation claimed by the plaintiff. The absolute ownership of
property involves the right to its purchase-price when
sold, and the reservation of the purchase-price, or any part
thereof, to the grantor upon a subsequent sale by the grantee,
532 HOWARD'S PRACTICE REPORTS.
Dennison agt. Taylor.
would be, as has been before stated, void (De Peyster agt.
Michael, 5 N. Y .. 467, 492, 49:5, 494, <fc?., before cited). The
clause in the deed upon which the present action is based
must, therefore, receive some other interpretation than one
which withholds from the purchaser of the fee of land one
of its most legitimate fruits the right to dispose of it to
some other person and to receive its purchase-price.
What is evident from the language of the deed is made
still more apparent by the conduct of the parties when the
deed to the defendant was given. His grantor at first pro-
posed to retain the title to the land occupied by the railroad,
but the defendant refused to accept the conveyance if that
exception was made. The conveyance was finally drawn in
the form it now is, and was accepted. If the value of the
title, or rather if the right to receive compensation for the
land when the same should be conveyed or sold, was intended
to be reserved, there was still only one way of accomplishing
it, and that was to except the land from the conveyance and
retain its ownership. When a conveyance in that form was
refused, and one required and given which passed the fee of
the whole property, whatever else was intended by the reser-
vation, it is reasonably clear that it could not have been its
intention to reserve to the grantor and seller its purchase-price
at a future sale, or if that was intended the intention was
defeated by the conveyance of the fee, with which such
intention was utterly inconsistent. It could, therefore, have
only one legal meaning, and that is plainly embodied in the
reservation itself "the damages sustained;" i. e., those
already suffered, and not those to be "sustained" or suffered
by the acquisition of actual title, were those reserved, and no
other.
For the reasons which have been given the defendant is
entitled to judgment with costs. It is not seen that the
defendant has recovered from the railroad or its receiver any
damages which belonged to the plaintiff. The execution of
the conveyance by the defendant to the railroad of the land
HOWARD'S PRACTICE REPORTS. 533
Dennison agt. Taylor.
occupied by it shows the ground of his recovery. He received
$1,000 for the value of the land of which he was the absolute
owner in fee and for the depreciation in value of the rest of
his farm caused by the right then, first acquired by the railroad
to permanently occupy the same. These are the only items of
damages for which the defendant recovered and neither of
those were reserved or could be reserved in favor of a grantor
who conveys the absolute fee of real estate to another. If in
the making up of the judgment which the defendant recovered
any item of damage reserved by the deed to him in his
grantor was recovered for, though none is seen, that must
present a question between the plaintiff and the railroad.
The defendant could only recover for that which belonged
to himself. His deed was on record. With its contents the
railroad and its receiver are presumed to have been familiar.
If the defendant has recovered for anything to which he had
no title the plaintiff is not damaged, for his own action is still
perfect and it was folly for the railroad to submit to a wrong
recovery. Indeed the argument just presented is applicable
to the entire claim of the plaintiff. The defendants sued and
recovered for damages and injuries sustained by himself.
He did not sue or profess to sue for the benefit of the plaintiff
or any other person but for his own. His rights and those of
the plaintiff were open and of record. The recovery Avas for that
which was adjudged to be his The recovery may be wrong,
but that is a question between him and the party from whom
it was recovered. The money he received was for his own
use and not for the use of the plaintiff. If the defendant had
no right to the money because the damage for which it was
awarded belonged not to him, but to the plaintiff, the latter
lias a remedy by seeking his rights from those who did him
the injury. The damages "sustained" when the deed was
given to the defendant, and all that such deed could legally
reserve to him are still his due from the party causing them.
The record is his protection. An unauthorized payment to
another of what is due to him is no defense to his claim, his
634 HOWARD'S PRACTICE REPORTS.
Dennison agt. Taylor.
cause of action, if any exists, is still perfect and without any
flaw caused by the recovery of the defendant (Patrick agt.
Metcalfe, 37 N. Y., 332 ; Butterworth agt. Gould, 41 N.
Y., 451). To the money received by the defendant the
plaintiff has no title. The former collected it as his own, and
if the ground upon which the plaintiff rests his present
action that the damages for which the defendant obtained his
recovery belonged to himself and not to the defendant, as
shown by the recorded deed under which the defendant
claimed, is sound, the defendant has done him no injury for
he may still enforce the rights which he reserved for his own
benefit, and which no payment to another could bar.
In conclusion, the case may thus be summarily presented.
The defendant who was the owner in fee of a farm of land
through which a railroad passed and also of that part thereof
which such railroad occupied and upon which it was con-
structed, which ownership was derived by and through a
warranty deed to him from the assignor of the plaintiff,
recovered from such railroad or its receiver the sum of
$1,000 as a compensation for the fee of the land which the
road occupied, and for the depreciation in value of the entire
farm by reason of such title being acquired to the strip
occupied by the railroad. The defendant's right to such
damages was perfect through the deed from the plaintiff's
assignor, which the reservation therein contained in favor of
the grantor did not and could not reserve to such grantor,
because such a reservation would be inconsistent with and
repugnant to the deed and the estate in fee which it conveyed
to the defendant ; and as the defendant recovered such
damages for himself and not for the plaintiff, the latter cannot
maintain this action which rests upon the theory that the
moneys paid to the defendant therefor were received to anrt
for the use of the plaintiff.
DIGEST .
CONTAINING THE WHOLE Of
HOWARD (New SEKIES), ANTE, AND QUESTIONS OF PRAC-
TICE CONTAINED IN S5 AND 86 HUN, AND 98
AND 99 NEW YORK REPORTS.
Attention is called to the four additional headings "CODE OF CIYIL PROCEDURE,"
"CODE op CRIMINAL PROCEDURE," "CODE or PROCEDURE " and "PENAL CODE," under
which (for the convenience of the reader) will be found collated decisions bearing upon
the various provisions of the Codes.
ABATEMENT AND REVIVAL.
1. A cause of action to recover the
penalties imposed by sections 12
and 15 of the general manufactur-
ing law does not abate on the
death of a sole plaintiff (although
otherwise on the death of a sole
defendant), but may be revived
and continued by and in the name
of the personal representatives of
the deceased plaintiff. (Bonnell
agt. Qriswold, ante, 451.)
2. Survival of action for slander
brought by partners when the
action does not abate by reason of
the death of one of the partners.
(See Shale agt. Schantz, '65 Hun,
622.)
8. The cause of action, given by the
statute (chap. 450, Laws of 1847;
Code of Civil Pro., sec. 19' >2) to the
representatives of a decedent,
whose death was caused by the
negligence of another, abates upon
the death of the wrong-doer, and
an action cannot be maintained
against his representatives. (Hege-
rich agt. Keddie, 99 N. Y., 258.)
4. The history of the statutory modi-
fications in this state of the rule
of the common law as to the sur-
vivability of actions given, and
the authorities upon the subject
collated. (Id.)
5. An action under civil damage act
abates on the death of defendant
and cannot be revived against
his personal representatives. (See
Moriorty agt. Bartlett, 99 N. Y.,
651.)
ABDUCTION.
1 . It is not necessary, to constitute
the crime of abduction, as de-
fined by subdivision I of section
283 of the Penal Code, that the
accused should in any case use
any force or practice any fraud or
deception, and it is sufficient
within the statute if the female is
induced by his request, advice or
persuasion to go from the place
where the accused met and ap-
proached such female with the
request and solicitation for her to
accompany him, or meet him at
some other place indicated by the
accused, with the intent and pur-
pose there to accomplish the act
of her defilement. (The People
agt. Seeley, ante, 105.)
2. The offense maybe accomplished
without an actual manual cap-
ture of the female, nor is it neces-
sary that she should be taken
against her will, nor is it neces-
sary that the girl should be taken
from her parents or other custo-
dian of her person. (Id.)
536
HOWARD'S PRACTICE REPORTS.
Digest.
ACTION.
1. An action may be brought by
one of the next of kin of a de-
ceased person "on behalf of
herself, and also for the benefit of
all the heirs-at-law and next of kin
of the said deceased, who will
come in and contribute to the ex-
penses," against the personal rep-
resentatives of the testator, to
procure an adjudication upon the
validity of his will, and to have a
trust dec-hired and established in
favor of said heirs at-law and
next of kin as against the admin-
istrators with the will annexed
and for equitable relief. (Varnam
agt. Barnum, ante,
2. One next of kin may maintain
an action of this character for the
benefit of all. (Id.)
3. Where the question is one of a
common or general interest of
many persons, or where the per-
sons w r ho may be made parties are
very numerous, it being imprac-
ticable to bring them all before
the court, then one may sue for
the benefit of all. The word
"many" is not used in section 448
of the Code of Civil Procedure to
express the idea of very numerous
persons. There are two classes
named, where one may sue for all.
One is, where many persons have
a common interest and another
where the parties are so numerous
that it is impracticable to bring
them all before the court. While
the word "many" as here used,
contemplates more than one, it
does not necessarily very numerous
Arsons, while the word "many "
as ordinarily used is synonymous
in meaning with " numerous.'' As
used in this section, in connec-
tion with the words "common or
general interest of the persons," it
means a limited number. It is
the character of the interest which
controls rather than the number
of persons. The third class men-
tioned " very numerous," one is
allowed to sue for all, as a matter
of convenience in the administra-
tion of justice by the court. (Id.)
4. Actions against administrators,
as well as actions against assignees
for the benefit of creditors, brought
to set aside an assignment, are ex-
ceptions to the rule that all parties
having an equitable interest
named by the decree, are neces-
sary parties thereto. (Id.)
5. On a demurrer to a complaint
the test of the unity of interest
intended by the 448th section, is
that the joint connection with or
relation to the subject-matter,
which by the established practice
of the common law courts will
preclude a separate action. (Id.)
6. The provisions of the constitu-
tion and by-laws of a benevolent
society providing for the payment
of sick or death benefits are in
the nature of a contract, and the
plaintiff must allege and prove a
breach of said provisions before
he can maintain an action. The
question whether the action
should be brought against the
subordinate or grand lodge, con-
sidered. (Eberle agt. Kauffeld,
ante, 488.)
7. Where a will presents upon its
face questions of complication,
uncertainty and difficulty, an ex-
ecutor may institute and maintain
an action for the purpose of ob-
taining a judicial construction
thereof, and for direction to him
as to the manner in which he
should discharge his duties in ex-
ecuting the will as such executor.
(Bigart agt. Jones, ante, 491.)
8. Corporation action by a stock-
holder against the corporation and
directors, to restrain waste of its
property when a demand upon
the corporation to bring the action
need not be made. (See Currier
agt. N. Y., W. S. and B. R. Co., 35
Hun, 355.)
9. Statute of limitation when an
HOWARD'S PRACTICE REPORTS.
537
Digest.
action will be treated as one to
recover damages for personal in-
jury resulting from negligence--
Code of Civil Procedure, section
383, subdivision 5. (See Webber
agt. llerkimer and Mohawk Street
B. R. Co., 35 Hun, 44.)
10. Against a non-resident when a
defendant answering generally
does not subject himself to the
jurisdiction of the court. (See
Hamburger agt. Baker, 35 Hun,
455.)
11. This action was brought by the
plaintiff upon a promissory note
made by the defendant to the
order of and indorsed by one
Terhune. The plaintiff was in-
corporated by a special act of the
legislature of New Jersey. In
1877, on the petition of a stock-
holder and creditor, a receiver of
its property was appointed, under
a statute of that state which de-
clares that when any corporation
shall be dissolved the chancellor
may appoint a receiver to take
charge of the estate and effects of
the corporation, and collect its
debts and property due and be-
longing to it, with power to pros-
ecute and defend, in the name of
the corporation or otherwise, all
such suits as may be necessary
and proper for that purpose :
Held, that the complaint was
properly dismissed upon the
ground that the action was not
prosecuted by the receiver, the
real party in interest, as required
by section 449 of the Code of
Civil Procedure. (Merchants' Loan
and 'trust Co. agt. Glair, 36 Hun,
362.)
12. That the New Jersey statute,
authorizing the receiver to bring
an action in the name of the cor-
poration, had no extra-territorial
force. (Id.)
13. Right of an assignee of a foreign
judgment to sue thereon in this
state when a stay granted in a
foreign country is operative here.
II 08
(See Nazro agt. McCalmont Oil Go.,
36 Hun, 296.)
14. For money had and received
when it lies against a town for
money collected on an invalid
assessment. (See Day agt. Town
of New Lots, 36 llun, 263.)
ADDITIONAL ALLOWANCE.
1. In an action by a vendor to fore-
close a land contract, in which the
plaintiff recovers, he is not entitled
to the additional allowance pro-
vided by section 3, J 52 of the Code
of Civil Procedure. (Burkluirt
agt. Babcock, ante, 512.)
AFFIDAVIT.
1. It is not necessary to state in the
affidavit to obtain order for exami-
nation of a judgment debtor, in
proceedings supplementary to ex-
ecution, that the city court of New
York is a court of record, that no
previous application for an order
to examine judgment debtor has
been made in the action or that
the judgment was rendered upon
the judgment debtor's appearance
or personal service of the summons
upon him (Sayer agt. MacDonald,
ante, 119.)
See ATTACHMENT.
Doctor agt. Schnepp, ante, 52
AMENDMENT
, The court may on the trial allow
the pleadings to be amended by
striking out the words "and sou"
in the title of the action and in-
serting in place thereof the name
of the son. (Banner man agt.
Quackenbush et al , ante, 293.)
2. The defendants were sued as ex-
ecutors, and the complaint alleged
and the answer admitted that they
held the securities in their repre-
538
HOWARD'S PRACTICE REPORTS.
Digest.
sentative capacity. After the trial
the complaint was amended, upon
the plaintiff's motion, so as to
make the action one against the
defendants individually, and a
judgment against them as indi-
viduals was entered: Held, that
the court erred in allowing the
amendment to be made. (Van
Cott agt.Preiitice, 35 Hun, 317.)
3. Execution against the person
irregularities in the recital when
amendable stipulation not to sue
for false arrest power of the
courts to compel a party to make
it Code of Civil Procedure,
sees. 723, 1372, 1489. (See Walter
agt. Isaacs, 36 Hun, 233.)
4. Service of summons by publica-
tion when the order directing
it may be subsequently amended.
(See Coffin agt. Lester, 3(5 Hun,
347.)
5. It is within the power and discre-
tion of a referee, on trial of an ac
tion, to allow an amendment of
the complaint, which does not af-
fect the issue upon determination
of which plaintiff's right to relief
depends, or which does not bring
in a new cause of action ; and his
decision thereon is not reviewable
here. (Price agt. Brown, 98 N.
T., 388.)
ANSWER.
1. A denial in an answer "on in-
formation and belief of all the
allegations in the complaint con-
tained not hereinbefore admitted
or denied and not containing the
allegation that the defendant had
not sufficient knowledge or infor-
mation to form a belief as to the
other statements in the complaint,
and for that reason he denied them,
does not put in issue a material
allegation of the complaint, and all
such allegations will be taken as
admitted. (Schroeder agt. Wanzor,
ante, 13.)
APPEAL.
1. A stay of proceedings should not
be vacated pending appeal when
such an appeal presents reasona-
ble questions for review. (Matter
of Case agt. Campbell, ante, 85.)
2. The court of appeals will enter-
tain a motion to dismiss an appeal
for which there is no foundation,
without waiting until the case is
reached in its regular order on the
calendar. (Stouyhton agt. Lewis,
ante, 331.)
3. A plaintiff is not precluded from
making a motion to dismiss an
appeal taken by a defendant, be-
cause he (the plaintiff) has noticed
the case for argument and placed
it upon the calendar. He waives
nothing by so doing. It is still
optional with him to wait until
the case is reached on the calen-
dar, or to make his motion to
dismiss on the ground that the
appeal is unauthorized. (Id.)
4. Where, in an action to foreclose
a mortgage, a complaint contain-
ing all the requisite allegations has
been served upon defendant, who
afterwards obtained a stipulatioa
from plaintiff's attorney for fur-
ther time to answer, agieeing not
to put in any answer and not to
ask any further extension of time.
On the last day defendant served
a demurrer which was, on motion,
overruled and stricken out, and
plaintiff proceeded as if no de-
murrer or answer had been inter-
posed and obtained bis judgment
by default. The defendant ap-
pealed to the general term, where
it was affirmed, and from the
affirmance defendant appeals t
this court:
Held, that, the demurrer having
been overruled, the judgment
went by default in the same man-
ner as if no demurrer had been
served, and no appeal is allowed
from a judgment entered by de-
fault. The order overruling the
demurrer not having been ap-
HOWARD'S PRACTICE REPORTS.
Digest.
pealed from cannot be assailed on
an appeal merely from the judg-
ment, (fd.)
5. Review of a trial before a judge
or referee unless the case shows
that it contains all the evidence
bearing on a disputed finding of
fact, the court will assume that
there was evidence sufficient to
sustain the finding under the
new Code no exception lies to a
finding of fact, unless it be wholly
unsupported by evidence nor
does any exception lie to a refusal
to find a fact as requested. (See
Porter agt. Smith, 35 Hun, 118.)
6. Additional allowance when
the general term will not reverse
an order resting in the discretion
of the court below the amount
involved may be considered in
passing upon the application. (See
Goading agt. Brown, 35 Hun, 153.)
7. Trial by the court findings of
fact and conclusions of law must
be made and signed a trial of
a contested question of fact by
the court cannot be reviewed un-
less such a decision be made. (See
Benjamin agt. Allen, 35 Hun, 115.)
8. When an order granting or re-
fusing a new trial in an equity
case is appealable when an error
will be disregarded when the
judgment will be reversed. (See
Bowen agt. Becht, 35 Hun, 434.)
9. Will the correctness of the
. adjudication admitting it to pro-
bate is only reviewable on appeal.
(See Wells agt. Stearns, 35 Hun, 323.)
10. When a new trial may be had
in a county court on appeal from
a justice's judgment Code Civil
Procedure, section 3068. (See
Reynolds agt. Swick, 35 Hun, 278.)
11. Not the remedy for an irregular
entry of judgment. (See Robinson
agt Hall, 35 Hun, 214.)
12. Effect of an order directing
that a judgment be marked sus-
pended upon appeal. (See Judg-
ment. )
13. Upon the application of the
water commissioners of Amster-
dam to acquire title to land, an
order was made at a special
term allowing them to amend
their petition. By an indepen-
dent provision contained in the
order ten dollars costs of the mo-
tion were awarded to the respond-
ents, landowners, who had re
sisted the application, not as a
condition to the granting of the
motion, but absolutely. The land-
owners having accepted the ten
dollars costs which were tendered
to them, appealed from the order:
Held, that under the circum-
stances of this case the land-
owners did not, by accepting the
costs, waive their right to appeal.
(Matter of Water Commissioners of
Amsterdam, 36 Hun, 534.)
14. The doctrine of waiver only ap-
plies in those cases where the
appellant has attempted to enforce
the order in his favor, or some
part thereof connected with or
dependent upon such other part
as he seeks to avoid by his appeal,
or in which he has accepted a
benefit having such connection or
dependency. (Id.)
15. An order of a county court,
denying a motion for a new trial
upon the ground of surprise and
newly discovered evidence, is ad-
dressed to the discretion of that
court, and is not reviewable upon
appeal by the general term of the
supreme court. (Myers agt. Riley,
36 Hun, 20.)
16. The supreme court has no power
to review the exercise by the
county court of a discretionary
power vested in the latter court.
(Id.)
17. Where upon an appeal from a
judgment, entered upon the ver-
dict of a jury, and from an order
540
HOWARD'S PRACTICE REPORTS.
Digest.
denying a new trial, it does not
appear that the case contains all
of the evidence, questions of fact
or errors of the jury cannot be
considered. (Cornish asi Graff,
36 Hun, 160.)
18. When a case is settled and filed,
after entry of judgment, the judge,
referee or court should make an
order directing the case to be
annexed to the judgment-roll. (Id.)
19. Examination of a person having
property belonging to the estate
of a deceased person all the
executors or administrators should
be parties to the proceeding
Code of civil Procedure, section ]
2706 an order denying a mo-
tion to dismiss the proceeding is
appealable. (See Matter of Slinyer-
land, 36 Hun, 575.)
20. Review on appeal of a decision
of the special term in proceedings
to correct an erroneous assess-
ment 18SO, chapter 269 how
objections to the reception of evi-
dence should be stated errone-
ous admission of evidence when
the decision will not be reversed
therefor. (See People ex rel. Rail-
road agt. Keator, 36 Hun, 592.)
21. County court orders resting in
its discretion are not reviewable
at general term. (See Kugelman agt.
Rhodes, 36 Hun, 269.)
22. Right to review on appeal chal-
lenges to jurors Code Criminal
Procedure, section 455, sub. 2 ;
1873, chapter 427. (See People agt.
Willett, 36 Hun, 500.)
23. Where, in pursuance of an order
of the supreme court confirming
the award of commissioners in
proceedings under the general
railroad act (chap. 140, Laws of
1850), to condemn lands belonging
to the city of New York for rail-
road purposes, the railroad com-
pany paid over the sum awarded
to the city chamberlain, who re-
ceipted therefor : Held, that at
least in the absence of evidence
that the city had used, or iu some
way interfered with the money,
such payment and receipt did not
deprive the city of its right to ap-
peal from the order. (In re 2f.
T. and H. R. R. Co., 98 N. Y., 12.)
24. It seems that under said act (sec.
18) a landowner does not waive his
right to appeal from an order con-
firming an award by receiving the
sum awarded : the effect of the
payment or deposit, as directed by
the order of the sum awarded, is
to divest the landowner of all in-
terest in the land as well as the
use thereof during the existence
of the railroad corporation, but it
does not deprive either party of
the right to appeal. (Id.)
25. An order of general term revers
ing an order which confirmed an
award and directing a new ap-
praisal is not reviewable here.
(Id.)
26. Whereupon trial exceptions are,
without objection, ordered to be
heard at first instance at general
term, the party succeeding at
general term may not object to a
review of its decision here, on the
ground that the case was not one
proper to be so heard. ( Wyckoff
agt. DeGraaf, 98 jV. Y., 134.)
27. In an action for partition, O.,the
holder of a mortgage on the prem-
ises, was made a party defendant;
the lien of his mortgage being
questioned, he answered, alleging
it to be a valid and subsisting
lien, and asked that the premises
be declared subject thereto, or that
it be paid out of the proceeds of
sale if a sale is decreed. (). ap-
peared and took part in the trial.
An interlocutory judgment was
rendered, adjudging that the mort-
gage was not a valid lien : Held,
that as O. had, without objection,
thus submitted his rights to the
court, and sought to have them
enforced, conceding he could not
have been compelled thus to liti.
HOWARD'S PRACTICE REPORTS.
541
Digest.
gate them (as to which quaere), he
could not raise the objection on
appeal ; and this, although he
asked the trial court to find as a
conclusion of law that no affirma-
tive relief could be given against
him in that form of action. (Bar-
nard agt. Onderdonk, 98 N. T.,
158.)
28. This court, on appeal in criminal
actions, may not consider objec-
tions to portions of the charge as
to which no exceptions were taken
on the trial. (People agt. Mills, 98
N. T., 176.)
29. The surrogate refused probate of
a will contested on the ground of
undue influence; he found all the
facts in favor of the proponent,
save as to undue influence ; there
was no evidence to establish this:
Held, that it was proper for the
general term, on appeal from
the surrogate's decision, to direct
judgment admitting the will to
probate. (In re Martin, 98 ^V. T.,
193.)
30. The reversal of the surrogate's
decree in such case is upon a ques-
tion of law, and so the provision
of the ' 'ode of Civil Procedure
(sec. 2588), requiring where the re-
versal is upon a question of fact,
that a jury trial shall be ordered,
does not apply. (fd.)
31. Also fold, that the case required
an exercise of the power conferred
by the Code (sec. 2589), to impose
costs upon the unsuccessful party.
(Id.)
32. The validity of an undertaking
given under the Code of Proced-
ure (sec. 348), for the purpose of
staying proceedings on appeal to
the general term of the supreme
court, depends upon its efficacy in
securing to the appellant the stay
desired; where the obligee elects
to treat it as invalid, and is per-
mitted by the court to proceed and
collect his judgment in disregard
thereof, he cannot afterward main-
tain an action and hold the obli-
gors liable thereon. (Hemmingway
agt. Poucher, 98 N. T., 281.)
3H. It is within the power and dis-
cretion of a referee, on trial of an
action, to allow an amendment of
the complaint, which does not af-
fect the issue upon determination
of which plaintiff's right to relief
depends, or which does not bring
in a new cause of action ; and his
decision thereon is not reviewable
here. (Price agt. Brown, 98 N. T.,
388.)
34. Where improper evidence has
been received under objection and
exception, which subsequently, on
motion of the party against whom
it was offered, is stricken out, this
is to be deemed an abandonment
of the exception, and such party
may not have the benefit of it on
appeal. (Id.)
35. The act of 1881 (chap. 48(5, Laws
0/1881), "to facilitate the giving
of bonds required bylaw," does
not repeal or affect the provision
of the Code of Civil Procedure
(sec. 1384), requiring two sureties
to an undertaking on an appeal to
this court. (Nichols agt. MacLean.
98 J\ r . 7"., 458.)
36. The appellant himself may not
sign as surety. (Id.)
37. It is not a ground for dismissal
of appeal tht the appellant has
failed to notice the case for argu-
ment and place it on the calendar;
he is bound only to file the return
and serve the printed cases; if
the respondent wishes to expedite
it, he may notice. (Id.)
38. The practice of referring in an
answer to parts of the complaint
which the pleader intends to admit
or deny, as " at " or " between "
certain folios, does not conform to
the spirit of the provision of the
Code of Civil Procedure (xec. 22),
which requires pleadings to be
made out " in words at length and
542
HOWARD'S PRACTICE REPORTS.
Digest.
not abbreviated," and serves no
useful purpose on appeal where
original folios do not appear in the
case. (Caulkins agt. Bolton, 98 _/\~.
T., 511.)
39. The general term of the court
of common pleas of the city of
New York, on appeal to it from a
judgment of the general term of
the city court (late marine court),
affirmed the judgment and granted
leave to the appellant to appeal to
this court from the judgment to be
entered on its decision An order
of affirmance was entered in the
court of common pleas, and there-
after, a judgment was entered in
the city court, which recited that
a remittitur had been sent down
from the court of common pleas,
and made the judgment of that
court the judgment of the city
court. The appellant served a
notice of appeal " from the judg-
ment entered in the office of the
clerk of the city court," without
referring to the judgment or order
of the common pleas: Held, that
the appeal was improperly taken;
that no appeal lies to this court
from a judgment of the city court.
(Ansonia B. and C. Co. agt. Con-
ner, S8N. T., 574.)
40. The appeal should have been
from the determination of the
court of common pleas. (Id.)
41. Where a judgment is affirmed in
this court without an opinion, and
without formally adopting the
opinion below, it is not to be un-
derstood that the affirmance is
upon grounds substantially dif-
ferent from those taken below;
on the contrary, the inference is
the other way, as in case of such
a difference the court would deem
it proper to state the reason for
affirmance. (Higgins agt. Crich-
ton, S8N. T., 626.)
42. In an action upon a promissory
note the answer was a general de-
nial. Plaintiff gave evidence on
the trial sufficient to establish
prima facie the execution of the
note by the alleged maker. De-
fendant gave in evidence certain
letters written by plaintiff to the
maker, and at the close of the case
asked the court " to direct a ver-
dict for defendant in view of those
letters. " The request was denied.
Upon appeal defendant sought to
sustain his exception to the ruling
on the ground that the letters
"showed the note to be without
consideration:" Held, that de-
fendant, to avail himself of this
point, should have called the at-
tention of the trial court to it, and,
having failed to do so, could not
raise it on appeal. (Langley agt.
Wadsworth, 99 N. F., 61.)
43. So far as the cross-examination of
a witness relates to facts in issue,
or relevant facts, it may be pur-
sued by counsel as matter of right
but when the object is to test the
accuracy or credibility of the wit-
ness, its method and duration are
subject to the discretion of the
court, and the exercise of this dis-
cretion unless it is abused, is not
the subject of review. (Id.)
44. Where the decree of a surrogate
settling the accounts of an execu-
tor is, on appeal to the general
term, reversed, so far as it charges
the executor with certain items, on
the ground that he is not properly
chargeable therewith, and the de-
, cree is remitted to the surrogate
for resettlement in accordance
with the decision of the general
term, its judgment is final so far
as relates to any judicial action,
and so is appealable to this court.
(Stimson agt. Vroman, 99 N. T.,
74)
45. It seems that where the findings
of a trial court are apparently in-
consistent, it is the duty of the
appellate court, if possible, to re-
concile them and give effect to the
real meaning and intent of the
court in making them. (Health
Department agt. Purdon, 99 N.
T.. 237.)
HOWARD'S PRACTICE REPORTS.
543
Digest.
46. Although on appeal from a judg-
ment, in an action tried by the
court, no exceptions appear to the
findings of fact, or error in their
determination, but the general
term draws a different legal con-
clusion therefrom than that of the
trial court, this does not authorize
it to render a final judgment in
accordance with its own conclu-
sion. Whenever the character of
the issues framed by the pleading
is such that, upon a new trial, it
will be possible for the respondent
to recover, a new trial should be
ordered. Having succeeded on the
trial, he is not required to procure
the appearance of exceptions upon
the record, and so the appellate
court cannot determine that there
were no exceptions or errors.
(Thomas agt. JV. T. L: Ins. Co., 99
N. Y., 250.)
47. In proceedings under the general
railroad act (sec. 22, chap. 140, Laios
of 1850) by an aggrieved land-
owner to procure a change of the
proposed route of a railroad, an
appeal to this court does not lie to
review questions of fact passed
upon by commissioners after hear-
ing testimony and personally in-
specting the locus in quo. (In re
N. Y., L. E and W. R R Go., 99
N. Y., 888.)
48. As to whether an order in such
a proceeding is in any case review-
able here, quaere. (Id.)
49. A court having power to, and
which appoints a receiver of the
assets of an insolvent corporation,
may, in aid of that appointment,
forbid any after interference, by
way of levy and seizure by attach-
ment or execution, with the prop-
erty in his possession. (Woeris-
hoffer agt. N. R Con. Co., 99 N.
PT, 398.)
60. The exercise of the right to re-
strain such interference being in
the discretion of the court, its
determination is not reviewable
here. (Id )
51. Where a former judgment be-
tween the parties is not pleaded as
an estoppel or given in evidence
on the tiial, its effect as bearing
upon the facts in issue may not be
considered on appeal (Hebrew f.
S. Assn. agt. Mayor, &c., 99 N.
Y., 488.)
52. The judge to whom application
is made under the general assign-
ment act (chap. 46(5, Laws oflS77)
for examination of witnesses be-
fore a referee has a discretion in
the matter, and unless an abuse of
this discretion appears, his deci-
sion may not be reviewed on ap-
peal. (In re Uolbrook, 99 N. Y.,
539.)
53. When an order of general term,
reversing a judgment of convic-
tion in a criminal action, omits to
show that the court exercised its
discretion and refused a new trial
upon the facts and granted it only
for error of law, it is not review-
able here. (People agt. Poucher,
99 N. Y., 610.)
54. Where objection as to form of
verdict not taken on trial may not
be raised on appeal. (See Brigg
agt. Hilton, 99 N. Y., 517.)
55. When surety in undertaking on
appeal becomes insolvent, respond-
ent entitled to a new undertaking.
(See Mahon agt. Noon [Mem.], 99
N. Y, 625.)
56. Where party has sufficient remedy
at law against a public officer, court
not absolutely bound to grant a
writ of mandamus, but may. in its
discretion, refuse, and this discre-
tion not reviewable here. (See
People ex rel. agt. Thompson \Metn.~\,
99 N. Y., 641.)
APPEARANCE.
1. The defendant corporation in this
case, although it had not been
served with a copy of the sum-
mons and complaint, moved, with-
544
HOWARD'S PRACTICE REPORTS.
Digest.
ARREST.
1. Where the petitioner was arrested
for converting to his own use
moneys and securities belonging
to the plaintiff, while acting in a
fiduciary capacity, and was im
prisoned in default of bail, and on
his application for a discharge his
examination showed that in viola-
tion of his trust he had used the
money and property for his own
benefit:
Held, that he was entitled to his
discharge, because it did not ap-
pear that he had disposed or made
over any part of his own property,
with a view to the future benefit
of himself or his family, or with
intent to injure or defraud any of
his creditors. (Matter of Caamano,
ante, 240.)
2. Proof that one of two partners
withdrew a large amount of
money from the business of the
firm for the reason that it had
suffered severe losses, and that the
other partner had already trans-
ferred a large portion of his prop-
erty to his wife without consider-
ation, will not support an order
of arrest against the partner who
withdrew the money, without fur-
ther proof that he had either dis-
posed of any part of this sum or
intended to do so to defraud his
out serving any formal notice of
appearance, to have the complaint
made more definite and certain.
Thereupon the plaintiff procured
an ex parte order discontinuing
the action as to the corporate
defendant: Held, that this was
proper; that the service of the
notice of motion was not equiva- |
lent to an appearance. ( Valentine ''
agt. Myers' Sanitary Depot, 36 Hun,
201.)
2. Under section 421 of the Code of
Civil Procedure, a defendant can
only appear by serving a notice of
appearance or a copy of a demur-
rer or answer. (Id. )
creditors. (Scott and others agt.
Reed, ante, 521.)
ASSESSMENTS.
1. Although in determining the
value of railroad or canal prop-
erty, for the purposes of taxation,
the cost of creating it may be
considered, yet its earning capac-
ity should be the more controlling
consideration or test. (People ex
rel. Pres. , &c. , of D. and H. Canal
Co. agt. lloosa and othen, ante,
454.)
ASSIGNEE.
1. In a proceeding for removal of
an assignee who has misconducted
himself, where there are three as-
signors, one of whom has left the
state, notice to one assignor is
properly notice to all ; though the
better course would be to give
the statutory five days' notice to
the two within the state, in the
ordinary way and to serve the ab-
sent assignor by depositing a
notice in the post-office, addressed
to him at his last known place of
residence giving double the time.
(Matter of Cohen & Company, ante,
523.)
ASSIGNMENT.
1. A surviving partner has no power
without the consent and concur-
rence of the representatives of the
deceased partners to make an as-
signment to a trustee for the bene-
" fit of creditors of the firm, and to
create preferences umong the cred-
itors by such an assignment; and
the attempt to do that is such an
abuse of the surviving partner's
powers as justifies the representa-
tives of the deceased partner in
applying to a court of equity to
take possession of the estate by a
receiver. (Nelson agt. Tenney,ante,
272.)
2. Stock purchased on margin by a
HOWARD'S PRACTICE REPORTS.
545
Digest.
stock-broker for a customer, be-
comes the property of the cus-
tomer, as between them the rela-
tion of pledger and pledgee is
created and exists, and upon pay-
ment of the amount due the cus-
tomer becomes entitled to the pos-
session of the stock. (Matter of
Smyth, ante, 431.)
3. Nothing passes by a general as-
signment except the interest of the
assignor, and if any of the as-
signed property is freighted with
equities the assignee must recog-
nize the same. (Id.)
4. Trust funds do not pass to an
assignee of an insolvent, and they
may be followed into the hands of
such assignee for the benefit of
the cestui que trust. (Id.)
5. Funds wrongfully appropriated
may be followed into any property
the wrong-doer may have invested
them. (Id.)
6. Rules stated for tracing trust
funds. (Id.)
7. If the fund in the hands of an
assignee of an insolvent has been
increased by reason of an appro-
priation by other parties having a
lien upon both, of one of two
classes of securities, the assignee
is liable to the claimant whose
property was appropriated to the
extent of the increase. General
creditors cannot get on an equality
with those having superior claims
through any action of a prior
lienee. (Id.)
See CREDITOR'S ACTION.
Iselin et al. agt. Henlein et al.,
ante, 211.
ATTACHMENT.
1. An affidavit for an attachment
made by H. states as follows: " I
am a member of the firm of D. &
Co., and one of the plaintiffs
above-named, the only plaintiffs
VOL. II 69
so above-named being D. and him-
self, it is a fair presumption that
they constitute the firm. " (Doctor
agt. Schnepp, ante, 52.)
2. It is to be presumed that if coun-
ter-claims existed in favor of the
defendant, that some knowledge
of that fact would have been pos-
sessed by the plaintiff H. making
the affidavit. For the purposes
of the statute his knowledge con-
stituted that which was known to
the plaintiffs, and his allegation is
a substantial compliance there-
with. (Id.)
3. An affidavit by B. which states
that he was the bookkeeper of
the plaintiffs and personally ac-
quainted with the defendant; that
the defendant had in his possession
several statements showing a
balance due to the plaintiffs for
the goods sold and delivered to
him, and that he had frequently
acknowledged to the affiant his
indebtedness to the plaintiffs for
the amount claimed, is sufficient
to show the existence of a cause
of action in favor of the plaintiffs
against the defendant. (Id.)
4. An affidavit by B., which states
that " a short time ago he (defend-
ant) represented himself to be a
man of means," clearly indicates
that he had arrived at mature
years and that he was an adult,
and is a sufficient compliance
with subdivision 5 of section 3169
of the Code of Civil Procedure.
(Id.)
5. The provision of section 709 of
the Code of Civil Procedure per-
mitting the sheriff to hold prop-
erty taken under an attachment
after the warrant of attachment
has been vacated on the applica-
tion of defendant, until his costs
and expenses have been paid, and
sell it for their payment, is uncon-
stitutional, as being in effect to
allow him to hold and dispose of
the property of one party to pay
the debt exclusively of another
546
HOWARD'S PRACTICE REPORTS.
Digest.
{See Hall agt. United States Reflector
Company, 66 How., 51). (Bowe
agt. United States Reflector Com-
pany and others, ante, 440.)
6 An attachment against the prop-
erty of the defendants was granted,
upon the application of the plain-
tiff, on the ground that the de-
fendants had fraudulently dis-
posed of their property with in-
tent to defraud their creditors.
The affidavit upon which it was
issued was made by one Snow,
the vice-president, and a director
of the plaintiff, a national bank.
It stated "that the plaintiff, the
ilarine National Bank, is, as de-
ponent is informed and verily
believes, entitled to recover of the
defendants * * * the said
sum of $7,000, over and above all
counter-claims known to the
plaintiff or to deponent:" Held,
that it was fatally defective in fail-
ing to show that the plaintiff was
entitled to recover the sum stated
therein, over and above all counter-
claims known to it, as required
by section 686 of the Code of
Civil Procedure. (Marine Nat.
Bank of N. T. agt, Ward, 35 Hun,
895.)
7. Although such an affidavit may
be made by an agent of the plain-
tiff where the facts are within his
personal knowledge or where the
facts upon which his information
and belief are based are disclosed
by the affidavit, and are such as
to show satisfactorily that the
plaintiff is entitled to recover the
sum named, over and above all
counter-claims known to the plain-
tiff and the affiant, yet it is not
sufficient, where the agent or offi-
cer makes such statement upon
information and belief, without
showing whence and from whom
the information was derived, and
why the affidavit of his informant
was not produced. (Id.)
8. The allegations in this affidavit,
all of which were made upon in-
formation and belief, were also
held to be insufficient to show
that the defendants had fraudu-
lently disposed of any of their
property with intent to defraud
their creditors. (Id.)
9. The affidavit which section 636
of the Code of Civil Procedure
requires the plaintiff to furnish
on applying for an attachment,
need not be made by the plaintiff
himself but may be made by an
agent. (Oribbon agt. Back, 35
Hun, 541.)
10. The fact that the amount claimed
is due to the plaintiff, over and
above all counter-claims known to
him, may be established by an
affidavit of the agent, where it
appears from his affidavit that the
plaintiffs, who reside in Great
Britain, had no personal connec-
tion with the transaction set forth,
and that the agent personally sold
and delivered the goods, (id.)
11. The first cause of action set
forth in the complaint in this
action was to recover damages
occasioned by the sale of goods,
which was induced by the false
and fraudulent representations of
the defendant. The second cause
of action alleged that the defend-
ant purchased the goods when in-
solvent, and with the intent to
cheat and defraud the plaintiff, and
not pay for them. It then alleged
that the defendant had converted
the goods to his own use to the
plaintiff's damage: Held, that
the complaint set forth a cause of
action for the " wrongful conver-
sion of personal property," within
the meaning of subdivision 2 of
section 635 of the Code of Civil
Procedure, and that the action
was one in which an attachment
might issue. (Oladke agt. Maschke,
35 Hun, 476.)
12. Under an attachment issued in
an action brought by one Hall
against the defendants, the sheriff
seized certain articles of personal
property belonging to them, and
HOWARD'S PRACTICE REPORTS.
547
Digest.
held the same until an order was
made setting aside and vacating
the attachment, because of the
failure of the plaintiff in that ac-
tion to increase the security given
by him therein. The sheriff, claim-
ing to be entitled, under section
709 of the Code of Civil Proced-
ure, to retain the property until
all his legal costs, charges and ex-
penses had been paid, refused to
deliver the same to the defend-
ants, and brought this action to
have a lien thereon to that extent
adjudged to exist in his favor, and
to have the property sold to sat-
isfy the same : Held, that in so far
as the said section of the Code
attempts to compel a defendant to
pay the costs, charges and ex-
penses incurred by the sheriff in
levying upon his property under
an attachment issued in an action
brought by a third person in a
case in which such attachment
has been subsequently vacated and
set aside, it is unconstitutional and
void, as depriving the 'defendant
of his property without due pro-
cess of law. (Bowe agt. U. 8.
Reflector Co., 36 Hun, 407.)
13. At the time the property was
taken it was agreed between the
sheriff and the defendant that it
should remain in the store in
which it then was, and that the
sheriff should pay the rent for the
store, and that the amount so paid
should be treated as expenses in-
curred by him in enforcing the
attachment: Held, that to the ex-
tent of the rent so paid the sheriff
was entitled to a lien upon the
property. (Id.)
14. The certification of a check drawn
upon a bank by the owner of a
fund on deposit therein does not,
while the check is outstanding in
the hands of the drawer, exempt
the fund from the lien of an at-
tachment against him, levied
thereon. (Gibson agt. National
ParkBk., 98 N. Y., 87.)
15. The liability of the bank for fail-
ure to hold the fund subject to
the lien can be defeated only by
showing either a payment of the
check in good faith to a bona fide
holder, or that it, was outstanding
in the hands of such a holder.
(Id.)
16. Where a debt has been legally
attached, in an action against the
creditor an active duty is imposed
upon the debtor, and he is liable,
when by inaction he allows the
attached fund to be removed from
his possession. (Id.)
17. When, however, a negotiable
security, representing the amount
of a debt, has been delivered by a
debtor to his creditor, it is essential
to a recovery of such debt by an
attaching creditor, that he obtain
possession and return the security
to its maker, on or before trial, or
show that it was paid in bad faith
and is then in the possession of the
maker. (Id.)
18. Defendants, in response to a
demand by an officer holding an
attachment for a certificate of the
property and credits of the attach-
ment debtors in their hands, de-
livered an account current show-
ing a balance to the credit of said
debtors. In an action by the
attachment creditors wherein they
sought to recover an amount in
excess of the balance so shown:
Held, that the only essential part
of the account was that showing
the balance; that while the items
therein might be taken as admis-
sions against defendants, they were
not estopped thereby, but the same
were open for explanation. (Almy
agt. Thwber,99N. F.,407.)
ATTORNEY AND CLIENT.
1. B. being the attorney and agent
of the mortgagee, as such, so
long as he had the bond and mort-
gage in his possession is author-
iaed to receive the interest accru-
ing thereon, and the mortgagor is
548
HOWARD'S PRACTICE REPORTS.
Digest.
safe in paying the same to him.
But the possession of these papers
alone gives him no authority to
receive a part of the principal sum
secured by the mortgage before it
was due. (Crane agt. Ecans, ante,
310.)
2. A mortgagor who pays interest
or principal upon a mortgage to
any one other than the mortgagee
himself, when the person receiv-
ing the moneys has not in his pos-
session the obligation, does so at
his peril. In order to hold the
principal to such payment he
must be prepared to prove express
authority. (Id.)
3. Persons employed as attorneys
and counselors to perform serv-
ices for others must be reasonably
well informed of the legal princi-
ples applicable to and governing
the disposition of the business
committed to their charge; and
when they fail to inform them-
selves of statutory provisions or
well settled principles of law
readily accessible by means of or-
dinary care and attention, and in
consequence thereof the business
committed to them is misman-
aged, and the persons employing
them are deprived of their legal
rights, they will not only forfeit
all leaal claim for compensation,
but in addition be justly held re-
sponsible for any loss or injury
sustained by means of such mis-
conduct by the person or persons
for whom they may be employed.
(Carter agt. Tallcott, ante, '652.)
4. An attorney who is employed to
defend two actions arising out of
the same contract, and sets up the
same counter-claim, consisting of
an indivisible demand as a de-
fense in both actions, and upon
the trial of the first action with-
draws the counter-claim, except
so much thereof as is necessary
to extinguish plaintiff's demand,
and thereby deprives defendant
of the benefits of the remainder
of the counter-claim upon the
trial of the second action, is not
entitled to compensation for the
services so rendered. (Id.)
5. An attorney who appeals from
an order referring an action in-
volving a long account with a
view of taking the appeal to the
supreme court of the United
States, on the ground that the
order violated the provisions of
the Constitution of the United
States requiring jury trials, is not
entitled to compensation for the
services rendered on such appeal
and is liable to indemnify his
client against the expenses to
which he was subjected in prose-
cuting it. (Id.)
6. Upon the hearing of an appli-
cation for an order to compel an
attorney to pay over to his client
money which he had received for
the purpose of investment, it ap-
peared that the client had, prior
to instituting such proceedings,
comtcenced an action against the
' attorney in which she had caused
him to be arrested, and that the
said action was still pending:
Held, that the pendency of this ac-
tion furnished a sufficient ground
for denying the application. (Mat-
ter of Mott, 36 Hun, 569.)
ATTORNEY'S LIEN.
1. The taxable costs in an action
are not subject to set-off. (Turno
agt. Parks et al., ante, 35.)
2. An attorney has a lien for his
services in a particular case, as a
mechanic would upon the product
of his labor, and equity inter-
venes to save it for him, but this
lien would ordinarily be measured
by his taxable costs, but might
embrace a further fee, and will
not always be limited to such
costs if a special contract had
been made in good faith between
the client and his attorney, but,
it seems, it must refer to his serv-
ices in the particular action. (Id.)
HOWARD'S PRACTICE REPORTS.
549
Digest.
3. Where prior to the recovery of
the judgment the plaintiff assign-
ed to his attorney herein all his
interest in the cause of action in
payment for services in the suit
of Parks agt. Turno, and also for
money loaned, and the attorney
held this assignment prior to the
recovery of judgment, and due
notice was given the defendants:
Held, that the equity of the at-
torney is superior to that of the
plaintiff, and no right of set-off
exists. (Id.)
4. The lien of an attorney attaches
to the cause of action ; but if the
client has no cause of action at
the time of suit brought, there is
nothing to which the lien attaches
unless it be the papers in the case.
(Kipp agt. Rapp et al., ante, 1(39.)
6. If a judgment be recovered
wholly for costs, it belongs to the
attorney, who is regarded as the
equitable assignee thereof, and he
may prosecute in his own name
the undertaking given to secure
its payment, (Id.)
6. When the plaintiff in an action,
after recovering judgment therein,
assigned his cause of action, &c. ,
to one "P.," and the action was
thereafter continued in the name
of the original plaintiff, and a
judgment for costs in his favor
recovered in the court of appeals,
"which he also assigned to said
"P.," and thereafter an action
was brought in the name and with
the consent of the original plain-
tiff by his attorney, who was the
attorney of record for the re-
spondent on said appeal, to re-
cover from the sureties on appeal
the amount of said judgment:
Held, that the action could not
be maintained; that the attorney,
being the equitable owner of the
judgment, should have brought
the action in his own name. (Id.)
7. In such a case, the fact that the
attorney obtained an order, after
issue joined, permitting him to
prosecute the action for the en-
forcement of his lien, did not
alter the legal status of the parties
to the action, or vest in the plain-
tiff a cause of action. (Id.)
See SUPPLEMENTARY PROCEEDINGS.
Moore agt. Taylor and another,
ante, 343.
BAR.
1. Condonation of adultery by sub-
sequent cohabitation with knowl-
edge does not bar an after-brought
action for divorce predicated on
such adultery, where the condona-
tion is upon the promise by the
guilty party (the husband) that he
would in all things thereafter treat
his wife kindly and in a proper
manner, and would be in all things
a good and affectionate husband
to her, when such promise has
been violated. (Timerson agt.
Timer son, ante, 526.)
BENEVOLENT SOCIETY.
1. The provisions of the constitu-
tion and by-laws of a benBvolent
society providing for the payment
of sick or death benefits are in the
nature of a contract, and the plain-
tiff must allege and prove a breach
of said provisions before he can
maintain an action. The ques-
tion whether the action should be
brought against the subordinate
or grand l-jiljru, considered. (Eberle
agt. Kauffeld, ante, 488.)
BOOKS AND PAPERS.
1. A person who takes proceedings
under the Revised Statutes, to
compel the delivery by another to
him of the books and papers of
an office, should at least show a
prima facie title to the office, and
this would be properly proved by
the official canvass showing claim-
ant to have received the greatest
550
HOWARD'S PRACTICE REPORTS.
Digest.
number of votes. (Matter of Case
; gt. Campbell, ante, 85.)
2 Such proceedings to compel the
delivery of books, &c. , are not to
be used to try the title to an office;
and when the result of an election
is declared by the official can-
vassers, a county judge has no
power, upon such an application,
to take evidence and determine
the result of an election. (Id.)
3. It is only in a clear case, 01 in one
free from reasonable doubt, that
the authority conferred upon the
court by the Revised Statutes to
compel the delivery of books and
papers in the possession of one
officer to the custody of another
will be exercised. The remedy is
only given where the case is so
clear that the conduct of the party,
in refusing to deliver, could be
called willful or obstinate, and not
in a case in which a person in
good faith holds possession of an
office supposing himself to be its
lawful incumbent, and with that
possession the custody of books
and papers essential to the proper
discharge of its duties. (Bridg-
man agf. Hall, ante, 173.)
4. Do the provisions of the Revised
Statutes under which this pro-
ceeding is instituted apply to the
office chamberlain or treasurer
of a municipal corporation cre-
ated by special charter which
each of the parties to this pro-
ceeding claim to be entitled to?
Quaere'! (Id.)
BROKERS AND FACTORS.
1. Where a broker has possession of
goods to be sold, and sells them in
his own name, he is a factor, and
any offset existing against the lat-
ter may be sot up to a claim made
by the true owner of the property
to recover the contract-price, pro-
vided the vendee purchased in
good faith and without notice of
the true facts. (Bannerman agt.
Quackenbush et al., ante, 293.)
2. The distinction between brokers
and factors and their rights and
liabilities, considered. (Id.)
3. Perhaps, in the case put, the true
owner might reclaim his goods
from the vendee, if the right to do
so is exercised within a reasonable
time. But the right may be lost
by delay or by bringing an action
to recover the price. (Id.)
CEMETERY LOTS.
1. Where it appeared that a certain
lot in Greenwood cemetery was
purchased by the husband of the
plaintiff as a burial lot for herself,
her husband and their family, and
that it had been greatly improved,
not only at his but at her expense,
and their family dead had been
placed in the lot as their final rest-
ing place:
Held, that these facts were suffi-
cient to disable the husband from
afterwards conveying it away to
another person, and thereby de-
voting it to a distinct and different
purpose. The plaintiff had be-
come so far interested in the prop-
erty by its improvement, and the
interment of her parents as to pre-
vent her husband from making a
legal or valid sale of it. (Schroeder
agt. Wanzor, ante, 13.)
2. The case of Thompson agt. Ilickey
(8 Abb. N. C., 159 ; opinion by VAN
VORST, J.) cited with approval.
(Id.)
CITY COURT OF NEW YORK.
1. In examinations in supplementary
proceedings in the city court,
where it appears that the judg-
ment debtor has made a general
assignment for the benefit of his
creditors, the examination need
not be limited to property acquired
HOWARD'S PRACTICE REPORTS.
551
Digest.
since the assignment. (Schneider
et al agt. Altman, ante, 448.)
2. Where a judgment was recov-
ered and entered in the city court
of New York and execution issued
thereon for more than $2,00.', and
the excess was remitted and the
judgment and execution was
amended nunc jyro tune. On mo-
tion by a subsequent execution
creditor to vacate the judgment
and execution for want of juris-
diction and other alleged defects
and irregularities :
Held, that the jurisdiction of
this court extends to any action
wherein the complaint demands
judgment for a sum of money
only, whatever may be the
amount claimed. The amount
claimed does not affect the juris-
diction of this court. If jurisdic-
tion vests at the commencement
of the action, it cannot be ousted
by any subsequent act, although
entry of judgment for the excess
of its jurisdiction may have been
an irregularity which the defend-
ant might have objected to, a
third party cannot. (Roof agt.
Meyer, ante, 20.)
3. There being no want of jurisdic-
tion, if there are any defects or
irregularities in the judgment, or
proceedings or execution, they
can be taken advantage of only by
the defendant. (Id )
CITY MARSHAL.
1. The sureties on the official bond
of a city marshal are not liable
until after a valid judgment has
been recovered against their prin-
cipal. (In re Mary Braiser, ante,
154.)
CIVIL SERVICE.
1. By section 2 of chapter 410 of
the Laws of 188 1, it is the duty
of the mayor of each city to pre-
scribe such regulations for the
admission of persons into the civil
service of such city; and to carry
out the design and intention of
the law it was provided that the
mayor shall, from time to time,
employ suitable persons to con-
duct such inquiries and make ex-
aminations; and the power to em-
ploy includes the obligation to
provide for their compensation.
(The People ex rel. Wright agt.
Common Council of Buffalo, ante,
61.)
2. Where, under the charter of the
city of Buffalo, the mayor made
the estimate for what he consid-
ered would be the necessary ex-
penses of carrying these provi-
sions of the laws of the state into
execution, and communicated and
presented such estimate to the
common council :
Held, that the common council
had no power to wholly reject
such estimate. Although it may
alter or amend the estimate, it has
no authority to arbitrarily reject
it. Its duty is to consider it in
good faith, with sound judgment
and discretion; and if any misap-
prehension has intervened in its
amount, to correct it and appor-
tion it to the probable necessities
of the service. (Id.)
3. A writ of mandamus is the ap-
propriate remedy by which the
common council may be required
to consider the estimate and vote
the amount thought necessary to
carry out the law. (Id.)
4. A citizen and a taxpayer has the
power and right to apply for the
writ. (Id.)
5. It is only when the application
for the writ is made to secure
some personal or private redress
that the applicant must be shown
to be interested in obtaining it
before the writ can be directed to
issue. Where the act omitted to
be performed affects the public
interests generally, and all citi-
552
HOWARD'S PRACTICE REPORTS.
Digest.
zens are equally concerned in se-
curing its performance, and that
has been enjoined by a law of the
state, it is sufficient, to support
the application, that the applicant
is a citizen and entitled to insist
upon the execution of the laws of
the state. (Id.)
CODE OF CIVIL PROCEDURE.
1. Section 8, sub. 3 Contempt of
court when the failure of a
defendant to comply with the di-
rections of a final judgment, can-
not be treated as a contempt
Code of Civil Procedure, sees.
1773,1769, 1241, sub. 2 "man-
date," meaning of. (See Jacquin
agt. Jacquin, 36 Hun, 378.)
2. Section 8, sub. 5 Contempt
the refusal of a witness to answer
questions may be punished either
criminally or civilly Code of
Civil Procedure, sec. 8, sub. 5;
sec. 14, sub. 5; sec. 2285 length
of the confinement form of the
commitment. (See People ex rel.
Jones agt. Davidson, 35 Hun, 471.)
3. Section 14, sub. 5 Contempt
the refusal of a witness to answer
questions may be punished either
criminally or civilly Code of
Civil Procedure, sec. 8, sub. 5;
sec. 2285 length of the confine-
ment form of the commitment.
(See People ex rel. Jones agt. David-
son, 35 Hun, 471.)
4. Section 22 The practice of re-
ferring in an answer to parts of
the complaint which the pleader
intends to admit or deny, as " at "
or " between " certain folios, does
not conform to the spirit of the
provision of this section of the
Code of Civil Procedure, which
requires pleadings to be made out
"in words at length and not ab-
breviated," and serves no useful
purpose on appeal where original
folios do not appear in the case.
(Caulkins agt. Bolton et ai, 98 N.
7., 511.)
5. Section 66 Where orders were
granted for the examination of a
judgment debtor on proceedings
supplementary to execution, upon
affidavits in the usual form made
by one of the attorneys who re-
covered the judgments for the
plaintiff. On motion by the judg-
ment debtor to vacate such orders
upon the ground that prior to the
granting of the orders the title to
the judgments had passed to a
receiver :
Held, that the judgment debtor
had the right to make such motion.
Held, further, that an attorney
must obtain leave of the court
before he can institute supple-
mentary proceedings upon a judg-
ment in favor of his own client
after the title to that judgment has
passed from the client to the re-
ceiver, and especially where the
proceedings are instituted by an
affidavit that says nothing about
the lien of the attorney. (Moore
agt. Taylor, ante, 343.)
6. Sections 66, 440 The lien of
an attorney attaches to the cause
of action; but if the client had no
cause of action at the time of suit
brought, there is nothing to which
the lien attaches unless it be the
papers in the case.
If a judgment be recovered
wholly for costs, it belongs to the
attorney, who is regarded as the
equitable assignee thereof, and he
may prosecute in his own name
the undertaking given to secure
its payment. (Kipp agt. Rapp et
al., ante, 169.)
7. Section 191 In an action not
founded upon contract, the sum
for which the complaint demands
judgment is deemed to be the
amount of the matter in contro-
versy within the meaning of this
section. (Zoeller agt. Riley, 98 N.
T., 668.)
8. Section 315 Where a judgment
was recovered and entered in the
city court of New York and ex-
ecution issued thereon for more
HOWARD'S PRACTICE REPORTS.
558
Digest.
than $2,000, and the excess was
remitted and the judgment and
execution was amended nunc pro
tune. On motion by a subsequent
execution creditor to vacate the
judgment and execution for want
of jurisdiction and other alleged
defects and irregularities:
Held, that the jurisdiction of
this court extends to any action
wherein the complaint demands
judgment for a sum of money
only, whatever may be the amount
claimed. The mount claimed does
not affect the jurisdiction of this
court. If jurisdiction vests at the
commencement of the action, it
cannot be ousted by any subse-
quent act, although entry of judg-
ment for the excess of its juris-
diction may have been an irregu-
larity which the defendant might
have objected to, a third party
cannot.
There being no want of juris-
diction, if there are any defects
or irregularities in the judgment,
or proceedings or execution, they
can be taken advantage of only by
the defendant. (Roof agt. Meyer,
ante, 20.)
9. Sections 376, 381 After a judg-
ment of foreclosure and sale, the
owner of the equity of redemp-
tion executed another mortgage
upon the premises as collateral to
the judgment. Held, conceding
that by stipulations in said mort-
gage enforcement of the judgment
by sale was stayed for ten years,
after the lapse of the ten years,
and of twenty years thereafter,
the lien of the judgment and of
the new mortgage were lost and
the enforcement of either was
barred ; and this, whether the
question was considered under the
limitation prescribed by the He-
vised Statutes (i, R. S., 293, sec.
DO), or the Code of Procedure (sec.
90), or the Code of Civil Proced-
ure (Sec. 381.)
Also held, that neither the pro-
vision of the Revised Statutes (2
R. S., 301, sec. 47), nor that of the
<Jodeof Civil Procedure (sec. 3i6),
raising a presumption of payment
after twenty years of a judgment
or decree governed the case of
a foreclosure jundgment, as it
is not for the payment of any
sum of money, such judgment
only being authorized in case of
a deficiency after a sale. (Bar-
nard et al. agt. Onderdonk, 98 N.
Y., 158.)
10. Section 38'2, sub. 5 Duress
when a contract will be set aside
on the ground of action for re-
lief on account of, barred in six
years. (See Schoener agt. Lissauer,
36 Hun, 100.)
11. Section 38-J, sub. 5 Statute of
limitation when an action will
be treated as one to recover dam-
ages for personal injury resulting
from negligence. (See Webber agt.
Herkimer and Mohawk Street R. R.
Co., 35Llun, 44.)
12. Sections 388, 394 The provision
of the Code of Civil Procedure
(sec. 394), limiting to three years
the time for bringing an action
against a director or stockholder
of a moneyed corporation " to
recover a penalty or forfeiture
imposed, or to enforce a liability
created by law," does not apply
to an equitable action against the
director of such a corporation to
require an accounting and to re-
cover damages for their neglect
and inattention to the duties of
their trusts whereby they suffered
corporate funds to be lost and
wasted. Such an action is simply
the enforcement of a common-law
liability, while the words of the
provision, " a liability created by
law," have reference only to a lia-
bility created by statute., The
limitation applicable to such an
action is ten years (Sec. 388).
Where a national bank had be-
come insolvent and one of its
directors had been appointed
receiver, an action was brought
against him and the other directors
for neglect of their duties, by one
of the stockholders on behalf of
l, IJ
ro
551
HOWARD'S PRACTICE REPORTS.
Digest.
himself and the other stockhold-
ers: Held, that as to other stock-
holders who became parties to the
action upon their petition, the
statute of limitations began to run
from the time of the commence-
ment of the action, not from the
time of filing their petitions; that
for the purposes of the statute of
limitations the action must be
treated as if all the stockholders
were originally plaintiffs.
It seems that the original plaintiff
could, at any time before other
stockholders were made parties,
and before judgment, have settled
his individual claim and executed
a release thereof and discontinued
the action, but upon prosecution
to judgment it is for the benefit
of all the stockholders and he
ceases to have control over it.
It seems, also, that as to stock-
holders who do not come in, the
suit having been commenced for
their benefit, the rights are not
barred by any lapse of time after
the commencement. (Brincterhoff
et al. agt. Bostwick etal., 'J'J ^V". T.,
185.;
13. Section 390 Before the adop-
tion of the Code of Civil Procedure '
the statute of limitations of a for-
eign state constituted no defense
to an action brought here, but this
section of the Code of Civil Pro-
cedure has changed the rule to
some extent.
In this case the cause of action
does not come within the excep-
tions of this section, for the rea-
sons: First. The cause of action
did not originally accrue in favor
of a resident of this state, but in
favor of a resident of the state of
Ohio. Secoml. Because before the
expiration of the period of limita-
tion the person in whose favor the
cause of action originally accrued
did not become a resident of the
slat*' of New York as he lived and
died in Ohio; and because, Third.
The cause of action was not as-
signed before the expiration of the
time so limited to a resident of
this state. (Howe agt. Welch, ante,
50.'.)
14. Section 421 Appearance it
must be made either by service of
anotice of appearance, or of a de-
murrer or answer. (See Valentine
agt. Myers' Sanitary Depot, 36
Hun, 201.)
15. Section 432 Defendant issued
a freight receipt with the name of
person served upon it as agent ;
receipt to be signed for agent not
for company; receipt printed in
blank with " Form 21, N. V.," at
head:
Held, that the Code does not spe-
cify agency, except person served
must be managing agent. * * *
Every object is attained when the
agent served is of sufficient char-
acter and rank to make it reason-
ably certain that the defendant
will be apprised of service made.
The statute is satisfied if he be
managing agent to any extent.
(Palmer "agt. The Pennsylvania
Company, ante, 166.)
16. Section 432 Foreign corpora-
tion service of the summons
upon a managing agent within
this State who is to be deemed
a "managing agenf, " within the
meaning of th's section of the
Code of Civil Procedure. (See
Palmer agt. Pennsy!cania Co., 35
Hun, 3G9.)
17. Sections 438, 439 Where there
was furnished to the judge who
made the order for the service of
a summons by publication a veri-
fied complaint showing a sufficient
cause of action against the defend-
ants to be served, and positive
proof by affidavit that they resided
in Ireland, and that the attorneys
for the plaintiff delivered copies
of the summonses to B. with direc-
tions to serve them ; proof by the
affidavit of one of the attorneys for
plaintiff that he was informed and
believes that the summons could
not, after due diligence, be served
on the defendants, supplemented
by the affidavit of B , who was
charged with the duty of making
the service ; that he had served
HOWARD'S PRACTICE REPORTS.
oo
Digest.
the summons on a number of the
defendants, but that he had been
unable, with due diligence, to make
personal service on the three
defendants named, and he also
proved their uon -residence :
Held, that the statutory require-
ments of the Code of Civil Proced-
ure have been complied with, and
that the affidavits are sufficient.
The statutes do not require ex-
treme diligence or extraordinary
exertion. They only require pro-
per and suitable diligence, such
as the circumstances of the case re-
quire. ( Wunnenberg agt. Gerarty,
ante, 1;;1.)
18. Section -138, sub. ft'. Service of
summons by publication upon an
absent resident in an action of
foreclosure. (See Coffin agt. Les-
ter, 30 Hun, 347.)
19. Sections W, 451 Where, in
an action of foreclosure, unknown
owners are made defendants, as
authorized by these sections of
the Code of Civil Procedure
and are described in the
summons, the addition of the
words ' if any," does not invali-
date the process. (Abbott agt.
Curran, 98 N. Y, 665.)
20. Section 439 Service of sum-
mons by publication what facts
show inability to make a per-
sonal service. (See Wunnenberg
agt. Gearty, 36 Hun, 243.)
21. Section 448 Where the ques-
tion is one of a common or general
interest of many persons, or where
the persons who may be made par-
ties are very numerous, it being
impracticable to bring them all
before the court, then one may sue
for the benefit of all. The word
"many" is not used in this section
of the Code of Civil Procedure to
express the ide;i of very numerous
persons. There are tw r o classes
named, where one may sue for
all. One is, where many persons
have a common interest and an-
other where the parties are so
numerous that it is impracticable
to bring them all before the court.
While the word ''many" as here
used, contemplates more than one,
it does not necessarily very nu-
merous persons, while the word
"many," as ordinarily used, is
synonymous in meaning with
"numerous." As used in this
section, in connection with the
words "common or general in-
terest of the persons," it means a
limited number. It is the charac-
ter of the interest which controls
rather than the number of per-
sons. The third class mentioned
" very numerous," one is allowed
to sue for all, as a matter of con-
venience in the administration of
justice by the court.
On a demurrer to a complaint,
the test of the unity of interest
intended by this section is that
the joint connection with or re-
lation to the subject-matter, which
by the established practice of the
common law, courts will preclude
a separate action. (Farnam agt.
Barnum, ante, 390.)
'12. Section 449 An action must
be brought by the real party in
interest. (See Merchants' Loan
and Trust Co. agt. Glair, 30 Hun,
302)
23. Sections 451, 1932, 1934, 1935
The court may on the trial allow
the pleadings to be amended by
striking out the words " and son"
in the title of the action and in-
serting in place thereof the name
of the son. (Bannerman agt.
Quackenbush et al., ante, 293.)
24. Sections 452, 499 Under the
provisions of these sections of the
Code of Civil Procedure although
the defendants in an action by
omitting to raise an objection of
defect of parties by demurrer or
answer, must be deemed to have
waived it, yet where the granting
of relief against the defendant
will prejudice rights of other*
who are not parties to the action,
and their rights cannot be saved
556
HOWARD'S PRACTICE REPORTS.
Digest
by the judgment, and the contro-
versy cannot be completely deter-
mined without their presence, the
court must direct them to be made
parties before proceeding to judg-
ment, and a failure so to do is
fatal to the judgment. (Oster-
Jwvdtet al .agt. Bd. Supers etal., 98
N. T., 239.)
25. Section 484 Under this section
of the Code of Civil Procedure,
trespass and slander of title can-
not be joined in the same com-
plaint (Dodge agt. Colby, ante.,
475.)
26. Sections 525, 526 A verifica-
tion of a pleading made by the
secretary of a domestic corpora-
tion in the usual form, as re-
quired by the Code, when a
pleading is verified by the party,
is a sufficient verification.
It is only agents or attorneys
that are required, when verifying
pleadings, to set forth the grounds
of their belief as to all matters
not stated upon their knowledge,
and the reason why the verifica-
tion is not made by the party.
A corporation cannot take an
oath, and the statute points out
the way in which it must verify a
pleading. Such verification is
the verification of the corporation
and a verification by the party.
(American Insulator Co agt. Bank-
ers and Merchants' Telegraph Co.,
ante, 120.)
27. Section 546 Motion to make a
complaint more definite and to
state causes of action separately
within what time it must be made.
(See Brooks agt. Hanchett, 156 Hun,
70.)
28. Section 550 Proof that one of
two partners withdrew a large
amount of money from the busi-
ness of the firm for the reason that
it had suffered severe losses, and
that the other partner had already
transferred a large portion of his
property to his wife without con-
sideration, will not support an
order of arrest against the partner
who withdrew the money, with-
out further proof that he had
either disposed of any part of this
sum or intended to do so to de-
fraud his creditors. (Scott and
others agt. Reed, ante, 521.)
29. Section 603 A court having
power to, and which appoints a
receiver of the assets of an insol-
vent corporation, may, in aid of
that appointment, forbid any after
interference, by way of levy and
seizure by attachment or execu-
tion, with the property in his
possession.
The provisions of sections 603
et seg., in reference to injunctions,
have no application to such a case.
The exercise of the right to re-
strain such interference being in
the discretion of the court, its
determination is not re viewable
here. (Woerishoffer agt. JS'orth
River Const' n Co., 99 JV". T., 398 )
30. Section 635, sub. 2 Attach-
ment when the action is one for
a wrongful conversion of per-
sonal property. (See Gladke agt.
Maschke, 35 Hun, 476.)
31. Section 635 Contract when
a foreign judgment is deemed to
be one Code of Civil Procedure,
sec. 635 right of an assignee of
a foreign judgment to sue there-
on in this state when a stay
granted in a foreign country is
operative here. (See Nazro agt.
McCalmont Oil Co., 36 Hun, 2'J(3.)
32. Section 636 An affidavit for an
attachment made by H. states as
follows: " I am a member of the
firm of D. & Co., and one of the
plaintiffs above-named, the only
plaintiffs so above-named being
D. and himself, it is a fair pre-
sumption that they constitute the
firm."
It is to be presumed that if
counter-claims existed in favor of
the defendant, that some knowl-
edge of that fact would ha^ve been
possessed by the plaintiff H. mak
HOWARD'S PRACTICE REPORTS.
557
Digest.
ing the affidavit. For the pur-
poses of the statute his knowledge
constituted that which was known
to the plaintiff s. and his allegation
is a substantial compliance there-
with.
An affidavit by B. which states
that he was the bookkeeper of the
plaintiffs and personally acquaint-
ed with the defendant; that the
defendant had in his possession
several statements showing a bal-
ance due to the plaintiffs for the
goods sold and delivered to him,
and that he had frequently ac-
knowledged to the affiant his in-
debtedness to the plaintiffs for
the amount claimed, is sufficient
to show the existence of a cause
of action in favur of the plaintiffs
against the defendant. (Doctor
agt. Schne-pp, ante, 52.)
33. Section 636 Attachment
when the affidavit may be made
by an agent. (See Qribbon agt.
Back, 85 Hun, 511.)
84. Section 636 Attachment
affidavit by agent it must show
the source from which the in-
formation is derived. (See Marine
Nat. Bank of N. T. agt. Ward,
35 Hun, 395.)
35. Section 709 The provision of
section 709 of the Code of Civil
Procedure permitting the sheriff
to hold property taken under an
attachment after the warrant of
attachment has been vacated on
the application of defendant,
until his costs and expenses have
been paid, and sell it for their
payment, is unconstitutional, as
being in effect to allow him to
hold and dispose of the property
of one party to pay the debt ex-
clusively of another (See Hall agt.
United States Reflector Company,
6<i How, 51). (Bowe agt. The
United States Reflector Company
aiul otJiers, ante, 440.)
30. Section 709 Vacating an at-
tachment when the defendant
cannot be compelled to pay the
sheriff's costs and expenses Code
of Civil Procedure, sec. 709, its
provisions directing the payment
of sheriff's costs, &c., is uncon-
stitutional . (See Bowe agt. U. 8.
Reflector Co., 36 Han, 407.)
37. Sections 72 <, 724 There being
no want of jurisdiction, if there
are any defects or irregularities in
the judgment, or proceedings or
execution, they can be taken ad-
vantage of only by the defendant.
The alleged irregularities and
informalities may be amended or
corrected by an order to be en-
tered herein. (Root agt. Meyer,
ante, 20.)
38. Section 723 Execution against
the person irregularities in the
recited when amendable stip-
ulation not to sue for false ar-
rest power of the court to com-
pel a party to make it Code of
Civil Procedure, sees. 1372, 1489.
(SV0 Walter agt. Isaacs, 36 Hun,
233.)
39. Sections 738, 1278, 1932 Where
defendants were sued as partners
upon a partnership indebtedness,
and one appeared and defended
the action, the other defendant not
being served with process and not
appearing, the one appearing
served an offer to allow judgment
to be taken " against Mm " for
sixty-five dollars and fifty-four
cents, with interest and costs.
The plaintiff recovered a judg-
ment against the defendants
"jointly" for seventy-two dollars
and ninety-one cents, but this in-
cluded interest, so that the judg-
ment, " in amount," is not more
favorable than the offer:
Held, that a joint judgment
could not have been entered upon
the offer; and, therefore, the re-
covery is more favorable, as it is
enforceable against the joint prop-
erty of both defendants, as well
as the property of the defendants
served, and the plaintiff is entitled
to tax his costs. (Banner/nan agt.
Quackenbush et al., ante, 82.)
558
HOWARD'S PRACTICE REPORTS.
Digest.
40. Section 740 Upon a motion by
an attaching creditor to set aside
a judgment and execution, which
judgment had been entered upon
plaintiff's acceptance of an offer
made by defendants, because the
acceptance did not have annexed
thereto any affidavit to the effect
that the plaintiff's attorneys were
duly authorized to accept said
offer, as required by this section
of the Code of Civil Procedure:
Held, that the court has power
to allow an amendment nunc pro
tune, annexing the proper affida-
vit; and where it appears that the
omissions to annex the proper affi-
davit to the acceptance was an
inadvertence of the attorney, and
that the authority to accept ac-
tually existed, the amendment
should be granted. (Stark agt.
Stark and another, ante, 360.)
41. Section 757 Order of substi-
tution an assignee may be sub-
stituted as plaintiff although a
counter-claim has been pleaded.
(See Schlichter agt. 8. Brooklyn
Saw Mill Co., 35 Hun, 339.)
42. Section 779 The costs imposed
upon the first motion made in this
matter by the party now moving
remaining unpaid, the court is
powerless to entertain the present
motion, as by the non-payment of
such costs all proceedings on the
part of the party required to pay
them are stayed. (The National
Sank of Port Jervis agt. Hansoe,
ante, 200.)
43. Section 829 It is not the in-
tention of the Code (sec. 829) to
prevent a party to a suit from
testifying to any intrinsic fact
that tends to contradict a witness
who swears to transactions or
communications had between
such party and a deceased person,
even where he cannot directly
testify that no such conversation
or transaction was ever had.
It was not the intention to pre-
vent the contradiction of a living
witness, but to prevent a living
party to a transaction or commu-
nication from testifying to it him-
self when death has closed the
mouth of the other party.
So when a living witness swears
to a contract made by a defend-
ant with a deceased party at a
specified time or place, there is
nothing in the Code to prevent
the defendant from testifying that
at the time named he was in Eu-
rope or at some distant place,
rendering it impossible that the
witness speaks the truth, (M&
Kenna agt. Bolger, ante, 411.)
44. Section 829 Evidence when
inadmissible as relating to a per-
sonal transaction with a deceased
person. (See Boughton agt. Bogar-
dus, 35 Hun, 198.)
45. Section 829 Evidence mean-
ing of the words " interested in
the event " in this section of the
Code of Civil Procedure. (Set
Moore agt. Omatt, 35 Hun, 216.)
46. Section 829 Objections to evi-
dence must be specific. (See Riggs
agt. American Home Mis. Society,
35 Hun, 656.)
47. Section 829 Evidence when
inadmissible as involving a per-
sonal transaction between a party
and a dead person. (See Oliver
agt. Freligh, 36 Hun, 638.)
48. Section 829 The provision of
this section of the Code of Civil
Procedure, prohibiting a party to
an action from testifying in his
own behalf against an executor,
&c., of a deceased person "con-
cerning a personal transaction or
communication between the wit-
ness and the deceased person,"
does not necessarily, and under
all circumstances, exclude the evi-
dence of a party so testifying,
when it tends only to negative or
affirm the existence of such a
transaction or communication.
Where the party representing
the deceased person has as a wit-
ness in his own behalf given ma-
HOWARD'S PRACTICE REPORTS.
559
Digest.
terial evidence, the adverse party,
although precluded from directly
proving the existence of such a
transaction or communication,
may testify as to extraneous facts
tending to controvert such evi-
dence, although those facts may
incidentally tend to establish the
inference that such a transaction
or communication has or has not
taken place. ( Lewis agt. Merritt,
98 JV. Y., 206.)
49. Section 834 The contract of
insurance contained a condition
that if the insured should commit
suicide or die by his own hand the
policy should become void. The
defendant proved and the plain-
tiff conceded that the insured did
die by his own hand. The plain-
tiff sought to prove that the in-
sured was insane at the time, and
that in a legal sense he did not
commit suicide or die by his own
hands, and called the physician
who attended the deceased during
all the period of his mental dis-
turbance, on this question. De-
fendant objected to this evidence
on the ground that he was not
competent by reason of the pro-
hibition contained in this section
of the Code of Civil Procedure:
Held, that as the evidence was
produced for the purpose of pro-
tecting the estate of the deceased,
and to uphold a contract made by
him in his lifetime with the de-
fendant, the executors, as his per-
sonal representatives, possessed
the right and privilege of releasing
the physician from the statutory
obligation of secrecy, and defend-
ant had no ground for an excep-
tion.
After the plaintiff had intro-
duced all his evidence on the ques
tion of the insanity of the de-
ceased, and had rested his case for
the second time, the defendant
offered evidence to show the na-
ture of the insanity of deceased,
and that the insanity with which
he was afflicted was hereditary in
its character. The offer was re-
jected upon the ground that the
defendant's case had been rested,
and that it had not been pleaded:
Held (BARKER, J.), that the first
reason for rejecting the evidence
was not well founded for the rea-
son that prior to the time of this
offer it would not have been per-
tinent for the defendant to give
any evidence on the subject of
the insanity of the insured, as no
question had then been made as
to such insanity. The plaintiff
raised that question and gave evi-
dence tending to prove the in-
sanity of- the insured at the time
he took his own life, with a view
of avoiding the legal effect of the
act, and the defendant sought to
meet this position of plaintiff and
to show the nature and degree of
the insanity, and this made the
evidence offered material and
competent (SMITH, P. J., and
HARDIN, J., dissenting).
Held, further (BARKER, J.), that
the other ground was equally
without foundation, as it is set
forth in the answer that it was a
condition of the contract, in case
the insured should commit sui-
cide or die by his own hand, the
policy of insurance should be-
come null and void, and it is also
alleged he did commit suicide
and did die by his own hand.
( Westover agt. The JEtna Life Ins.
Co., ante, 108.)
50. Section 834 By this section of
the Code of Civil Procedure, a
physician is prohibited from dis-
closing any information which he
acquired in attending a patient in
a professional capacity, and which
was necessary to enable him to
act in that capacity, and the seal
of the law placed upon such dis-
closures can be removed only by
the express waiver of the patient
himself.
Whenever the evidence comes
within the purview of the statute
it is absolutely prohibited and
may be objected to by any one,
unless it be waived by the person
for whose benefit the statute was
enacted.
560
HOWARD'S PRACTICE REPORTS.
Digest.
An executor or administrator
does not represent a deceased per-
son for the purpose of making
such a waiver. He represents
him simply in reference to right
of property and not in reference
to those rights which pertain to
the person and character of the
testator (Reversing S. C., ante, 103).
( Westocer agt. The jEtna Life Ins,
Co., ante, 184.)
51. Section 837 Actions against
trustee to recover corporate debts
as a penalty for failure to tile an-
nual reports are "penalties,"
within the meaning of section 837
of the Code of Civil Procedure.
In such actions a party defendant
is privileged from answering any
question concerning the facts al-
leged in the complaint and cannot
be compelled to answer upon an
examination before trial any
question which would support
the claim of the plaintiffs, either
against himself or his co-defend-
ants. (Hughen agt. Woodward,
ante, 127.)
52. Section 870 Examination of a
party before trial when not re-
fused because it might tend to
show the party guilty of a crim-
inal offense. (See Davies agt. Fish,
35 Hun, 430.)
53. Section 873 Order for the ex-
amination of a corporate party be-
fore trial a defaulting, defend-
ant may be examined. (See N. T.,
L. E. and W. R. R. Co. agt. Car-
hart, 36 Hun, 288.)
54. Section 983 Under the provi-
sions of the act of 1875 (sees. I, 2,
3, chap. 4(>5, Laws of 1875), as
amended (chap. 359, Laws of 1876;
chap. 153, Laws of 1879), imposing
a penalty upon the agent of a for-
eign insurance company who
effects or procures an insurance
against fire upon property within
the limits of a city or incorporated
village, without having first given
a bond to the treasurer of the fire
department of the municipality,
conditioned for the payment to
such treasurer of a percentage on
premiums received, the cause of
action so given arises in the muni-
cipality; it is immaterial where
the contract of insurance was
actually signed.
Under the provision, therefore,
of this section of the Code of Civil
Procedure requiring that an action
to recover a statutory penalty
shall be in the county " where the
cause of action, or some part
thereof, arose," an action to re-
cover such a penalty is triable in
the county wherein the city or
village is located. (Ithaca Fire
Department agt. Beecher et al., 99
N. Z.429.)
55. Section 1003 Trial of a specific
question by a jury in an equitable
action when an order granting
or refusing a new trial in, is ap-
pealable Code of Civil Proced-
ure, sec. 1347, sub. 2 (See Bowen
agt. Becht, 35 Hun, 434.)
56. Section 1019 The sixty days
in which a referee must make his
report do not commence to run
until the cause is submitted.
Where briefs are to be submit-
ted, there is no submission of the
cause until the time to hand in
the briefs is passed.
The referee has power to en-
large the time for the submission
of briefs.
Having his report ready and ten-
dering it on payment of his fees,
within the sixty days, is sufficient
(See to same effect decision by gen-
eral term, first department, Little
agt. Lynch, 1 How [N. S.], 95).
(Aforrison agt. Lawrence, ante, 72.)
57. Section 1166 If a trial pro-
ceeds, and a verdict be rendered
without a jury being sworn, such
a verdict is not irregular and void,
when neither party asked that the
oath should be administered.
That which the law requires to
be done for the protection of a
party, may be waived, and the
failure to object is a waiver.
HOWARD'S PRACTICE REPORTS.
561
Digest.
Nor can failure to object be ex-
cused by alleged ignorance. (Jen-
kins agt. City of Hudson, ante, 244.)
58. Sections 1240, 1241, 176;), 1773,
3343 Business partnerships be-
tween husband and wife are not
authorized.
Therefore a husband cannot
claim under a business copartner-
ship with his wife, the right to a
dissolution of the same and the
appointment of a receiver.
This is adverse to Zimmerman
agt. Erhard and Dodge (59 How.,
11) ; and Graff et al. agt. Kinney
(\ How. [N. S.], 5 ( J) ; see, also,
Fairlee agt. Bloomingdale (67 How. ,
292). (Jacquin agt. Jacquin, ante,
51.)
59. Section 1241, sub. 2 Contempt
of court when the failure of a
defendant to comply with the di-
rections of a final judgment can-
not be treated as a contempt
Code of Civil Procedure, sees.
1773, 1769; sec 8, sub. 3 "man-
date," meaning of. (See Jacquin
agt. Jacquin, 36 Hun, 378.)
60. Section 1256 Lien of a judg-
ment effect of opening the judg-
ment and allowing it to stand as
a security for what may be there-
after recovered. (See Holmes agt.
Bush, 35 Hun, 637.)
61. Section 1323 Under the pro-
vision of this section of the Code
of Civil Procedure authorizing an
appellate court, on reversal of a
final judgment, to " make or com-
pel restitution of property or of a
right lost by means of the erro-
neous judgment," such court can-
not restore property taken and
sold under another judgment, al-
though the effect of the reversal
is to decide that the property was
taken from the party legally en-
titled to it; it may interfere in this
summary manner only to restore
property or rights lost by the
judgment reverbed. (Murray agt.
Berdell et al., 98 N. T., 480.)
62. Section 1347, sub. 2 Trial of
a specific question by a jury in an
equitable action when an order
granting or refusing a new trial
in, is appealable Code of Civil
Procedure, sec. 1003. (See Bowen
agt. JBecht, 35 Hun, 434.)
63. Sections 1370, 450 In an action
wherein an attachment had been
issued, upon the ground that de-
fendant, a resident of the state.had
departed therefrom with intent to
defraud his creditors, or to avoid
the service of a summons, the ex-
ecution directed the sheriff to col-
lect the judgment out of the at-
tached personal property, and if
that was insufficient, out of the
real estate attached : Held, that,
so far as the real estate was con-
cerned, the execution was void,
and a sale under it conveyed no
title; that the provision of the
Code of Civil Procedure (sec. 1370,
sub. 2) prescribing the form of ex-
ecution in such case is peremp-
tory, and the attached real estate
could not be resorted to until the
remedy against the debtor's per-
sonal property, both attached and
unattached, had been exhausted.
It seems that where the attach-
ment judgment and execution are
regular, a bona fide purchaser on
sale acquires a good title, although
after a conveyance to him the de-
fendant is allowed to come in and
defend as authorized by the Code
(sec. 445) and succeeds in his de-
fense.
Under a void process, however,
no title can be acquired, and a
bona fide purchaser, as against the
owner of the property, stands in
no better position than one pur-
chasing with full knowledge of
the invalidity. (Place agt. Riley
etal, QSJf.'Y., 1.)
64. Section 1 3 '. 2 Execution against
the person irregularities in the
recital when amendable stipu-
lation not to sue for false arrest
power of the court to compel a
party to make it Code of Civil
VOL. II
71
562
HOWARD'S PRACTICE REPORTS.
Digest.
Procedure, sees. 723, 1489. (See
Walter agt. Isaacs, 36 Hun, 233.)
65. Sections 1390, 1391 Exempt
property. (See Salsbury agt. Par-
sons, 36~Hun, 12.)
66. Section 1893 Deposit of pen-
sion in savings bank exempt
from execution. (See Stockwell
agt. Nat. Bank of Malone, 36
Hun, 583.)
67. Section 1393 What property
is exempt, as pay of a soldier.
(See Burgett agt. Fanclier, 35 Hun,
647.)
68. Section 1489 Execution against
the person irregularities in the
recital when amenable stipula-
tion not to sue for false arrest
power of the court to compel a
party to make it Code of Civil
Procedure, sees. 723, 1372. (See
Walter agt. Isaac*, 36 Hun, 233.)
69. Sections 1667, 1668 Costs
when the plaintiff is entitled to
them, on the ground that the title
to real property is put in issue by
the pleadings Code of Civil
Procedure, sec 3228, sub. 1. (See
Ci-owell agt. Smith, 35 Hun, 182.)
70. Section 1758 Condonation of
adultery by subsequent cohabita-
tion with knowledge does not bar
an after-brought action for divorce
predicated on such adultery,
where the condonation is upon
the promise by the guilty party
(the husband) that he would in
all things thereafter treat his wife
kindly "and in a proper manner,
and would be in all things a good
and affectionate husband to her,
when such promise has been vio-
lated. (Timerson agt. Timerson,
ante, 526).
71. Section 1769 Contempt of
court when the failure of a de-
fendant to comply with the di-
rections of a final judgment can-
DOt be treated as a contempt
Code of Civil Procedure, sec.
1773 ; sec. 1241, sub. 2 ; sec. 8,
sub. 3 "mandate," meaning of.
(See Jacquin agt. Jacquin, 36
Hun, ;!78.)
72. Section 1773 Contempt of
court when the failure of a de-
fendant to comply with the di-
rections of a final judgment can-
not be treated as a contempt
Code of Civil Procedure, sees.
1773, 1739 ; sec. 1241, sub. 2 ; sec.
8, sub. 3 "mandate," meaning
of. (See Jacquin agt. Jacquin, 36
Hun, 378.)
73. Sectionl776 In proceedings by a
railroad corporation to acquire title
to lands, the petition averred the
due incorporation of the petitioner.
A counter affidavit denied any
knowledge or information sum'
cient to form a belief as to the
truth of said averment: Held,
that considering this simply as an
affidavit, it was not a denial of the
averment; that treating it as an
answer, there was no such denial
as put the petitioner to proof of
its incorporation, as under this
section of the Code of Civil Pro-
cedure a corporation plaintiff is
not required to prove its corporate
existence unless the answer con-
tains an affirmative allegation that
plaintiff is not a corporation; that
therefore, conceding the land-
owner might, without a formal
denial, disprove the fact, the bur-
den was upon it of proving the
petitioner was not a corporation.
(Master of Petition of N. Y., L. and
W. R. Co., 99 N. Y., 12.)
74. Section 1780 When one for-
eign corporation can sue another
in'this slate. (See Duquesne Club
agt. Penn Bank of Pittsburgh, 35
llun, 390.)
75. Section 1780 Foreign corpora-
tion right of a non-resident to
sue it in this state. (See Adams
agt. Penn Bank of Pittsburgh, 35
Hun, 393.)
76. Section 1835 Where the claim,
as presented, was for f 4,728. 78, and
HOWARD'S PRACTICE REPORTS.
563
Digest.
the defendant not only rejected
the entire claim of the plaintiff,
but set up a counter-claim against
him for the sum of $2,624.55, for
which sum she asked an affirma-
tive judgment against the plain-
tiff, with interest, besides costs
of the action and the referee ap-
pointed to hear and decide the
issues, rejected the counter claim
entirely and found $021.55 due to
the plaintiff from the estate:
Held, that the attempt made by
the defendant to recover judgment
for a large and independent claim
against the plaintiff, in which she
entirely failed, constituted an
unreasonable resistance to the de
mand of plaintiff and entitled him
to the costs of the action.
Held, further, that the attempt by
the defendant to recover through
the suit brought against her a large
counter-claim against the plaintiff,
brings her within the cases pro-
vided for by section 1835 of the
Code of Civil Procedure, in which
costs may be awarded to the
plaintiff. (Button agt. Newton,
ante, 56.)
77. Section 18/1 Judgment cred-
itor's action when maintainable
after the judgment has ceased to
be a lien upon real estate. (See
Scoville agt. Shed, 86 Hun, 165.)
78. Section 1871 A judgment
creditor's action, whether insti-
tuted under the Revised Statutes
(2 R. S., 174, sees. 38 et seq.), or
the Code of Civil Procedure (sees.
1871 et seq.), can reach only prop-
erty belonging to, or things in ac-
tion due to the judgment debtor
or held in trust for him. The fact
that the debtor paid the consider-
ation for property conveyed at his
instance to another, does not alone
authorize a judgment directing
the taking of the property to sat-
isfy the debt. (Niver agt. Crane
etal, 98 N. Y., 40.)
59. Section 1871 Where a trust
provides for the payment of the
income of the trust fund to the
beneficiary, a judgment creditor
of such benificiary may maintain
an action in equity to reach and
appropriate to the payment of his
judgment the surplus income be-
yond what is necessary for the
suitable support and maintenance
of the cestui que trust and those
dependent upon him.
This rule applies as well where*
the trust fund from which the in-
come is derived is personal prop-
erty as where it is real estate.
The disposition of the income
may not be anticipated by the
cestui que trust or incumbered by
any contract entered into by him,
'providing for its pledge, transfer,
or alienation previous to its accu-
mulation.
The creditor, by the commence-
ment of the action, acquires a lien
upon the accrued and unexpended
surplus, or that subsequently aris-
ing from the fund superior to the
claims of general creditors or
assignees of the cestui que trust.
(Tolles agt. Wood et al, 99 N. Y.,
616.)
80. Sections 1902, 1904 The facts
that the children of a person killed
through the negligence of another
are of full age, are living away
from the home of the deceased,
and are supporting themselves, do
not alone establish that they have
sustained no such pecuniary dam-
ages as will authorize a recovery
in an action under the statute
(chap. 450, Laws of 1847 ; Code of
Civ. Pro., sees. 1902-4) against the
wrong-doer. (Lockwood agt. JV.
Y., L. E. and W. R E. Co., 98
N. Y., 523.)
81. Section 1902 The cause of
action given by the statute (chap.
450, Laws of 1847; Code cf Civil
Pro., sec. 1902) to the representa-
tives of a decedent, whose death
was caused by the negligence of
another, abates upon the death of
the wrong-doer, and an action can-
not be maintained against his
representatives (Yertore agt. Wis-
wah, 16 How. Pr., 8, overruled;
564
HOWARD'S PRACTICE REPORTS.
Digest.
Needham agt. G. T. R. R Co. , 38
Vt.. 294, distinguished).
The history of the statutory
modifications in this state of the
rule of the common law as to the
survivability of actions given, and
the authorities upon the subject
collated (Hegerich agt. Keddie, 32
Hun, 141, reversed). (Hegerich agt.
'Keddie, 99 N. T., 258.)
82. Section 194 1 2 Release of one of
several joint debtors. (See Marx
agt. Jones, 36 Hun, 290.)
83. Sections 2239 to 2265 The
court may restrain, by injunction,
summary proceedings, if the jus-
tice goes beyond his jurisdiction,
either in taking cognizance of the
proceedings or while he is acting
in it, and if it appears that the jus-
tice who granted the warrant, the
enforcement of which is sought to
be restrained, was without juris-
diction, the injunction should be
continued.
A justice has no power in sum-
mary proceedings to adjourn the
same except for the purpose of
enabling a party to procure his
necessary witnesses.
Where, upon the return of the
precept, the tenant filed a verified
traverse of the return and moved
to dismiss the proceedings, and the
justice, after hearing the testi-
mony of the parties as to the
service of the precept instead of
rendering his decision upon the
close of the evidence, adjourned
the proceedings for the purpose of
decision :
Held, to operate as a discontinu-
ance of the proceedings.
A justice, other than the one
before the precept is returnable,
has no jurisdiction to issue the
warrant. (Kiernan agt. Reming,
ante, 89.)
84. Section 2285 Contempt the
refusal of a witness to answer ques-
tions may be punished either crim-
inally or civilly Code of Civil
Procedure, sec. 8, sub. 5; sec. 14,
sub 5 length of the confine-
ment form of the commitment.
(See People ex rel. Jones agt. David-
son, 35 Hun, 471.)
85. Section 2458 It is not neces-
sary to state in the affidavit to
obtain order for examination of a
judgment debtor, in proceedings
supplementary to execution, that
the city court of New York is a
court of record, that no previous
application for an order to ex-
amine judgment debtor has been
made in the action or that the judg-
ment was rendered upon the
judgment debtor's appearance or
personal service of the summons
upon him. (Sayer agt. MacDonald,
ante, 119.)
86. Section 2460 In examinations
in supplementary proceedings in
the city court, where it appears that
the judgment debtor has made a
general assignment for the benefit
of his creditors, the examination
need not be limited to property
acquired since the assignment.
(Schneider el al. agt. Alt man, ante,
448.)
87. Sections 2467, 2408 The title
to the personal property of a judg-
ment debtor, residing in another
county than that in which the
judgment-roll in the action is
filed, is not vested in a receiver in
supplementary proceedings until
the order appointing him has been
filed in the office of the clerk of
the county where the judgment-
roll is filed, and a copy of the
order, certified by that clerk, is
filed with the clerk of the county
where the judgment debtor resides.
And until then the receiver is
not entitled to an order requiring
the judgment debtor to deliver his
personal property to him. (Staats
agt. Wemple, ante, 161.)
88. Section 2481, sub. 6 Surrogate
power to open decrees inter-
mediate accounting by a guardian
or trustee no decree can be en-
tered by the surrogate. (See Mat'
ter of Hawley, 36 Hun, 258.)
HOWARD'S PRACTICE REPORTS.
505
Digest.
89. Sections 2516, 2717, 2718
Where a claim against an estate
is presented, in proper form and
duly verified, to the person and at
the place named in the statutory
notice to creditors given by execu-
tors, and after a reasonable op-
portunity to examine into its
validity and fairness, the execu-
tors do not offer to refer on the
ground that they doubt its justice,
or do not dispute it, it acquires
the character of a liquidated and
undisputed debt against the es-
tate (Tucker agt. Tucker, 4 Keyes,
136; S. C'., 4 Abb. Gt. of App. Dec.,
428: Hoyt agt. Bonnett, 50 N. T.,
538, distinguished).
Although where application is
made by the creditor, by petition
to the surrogate to direct payment
of such a claim, it is in the power
of the executors under the provi-
sions of the Code of (Jivil Proced-
ure (*ecs. 2717, 2718), to divest the
surrogate of jurisdiction and put
the claimant to his proof in an-
other court; if they fail to do
this, it is only necessary for the
surrogate to be satisfied by proof,
that there is personal property of
the estate applicable to the pay-
ment or satisfaction of the claim,
and which may be applied with-
out injuriously affecting the rights
of others (Sec. 2718, mb. 2).
An oral plea of a general denial
in answer to the petition is in-
effectual for any purpose
It seems that in any case as the
jurisdiction of the surrogate to
direct payment of a debt is con-
fined to undisputed claims, the
petitioner is neither required to
state the tacts which go to make
out his debt, nor if stated, will he
be permitted to establish them.
The presentation of the petition,
and the citation issued thereon
{see. 251 1>), bring in the executor,
not to plead or respond to the pe-
tition, but by a verified written
answer to set forth affirmatively
facts, if any exist which show
" that it is doubtful whether the
petitioner's claim is valid and
legal," and also " denying its va-
lidity or legality absolutely or
upon information and. belief."
The answer must meet both re-
quirements to require a dismissal
of the petition. (Lambert agt.
Craft, 98 N. T., 342.)
90. Section 2561 Allowance by a
surrogate for an additional day
occupied on a trial allowable on
a trial before a referee not for
an adjournment. (See Matter of
Clark, 36 Hun, 301.)
91. Section 2570 Costs on appeal
from a surrogate's court. (See
Walsh agt. Van Allen, 36 Hun,
629 )
92 Sections 2588, 2589 Where
the probate of a will was contest-
ed on the ground of undue influ-
ence, and it appeared that the
testatrix had testamentary capa-
city, a present knowledge of the
contents of the will, and that its
execution was surrounded by all
the guards the statute has pre-
scribed to prevent fraud and im-
position: Held, that the will could
only be avoided by proof of influ-
ence amounting to force or coer-
cion ; and that the burden of
proving this was upon the party
making the allegation ; also held,
the facts that the proponent of the
will was a son of the testatrix,
that he communicated to the
scrivener the provisions to be in-
serted in the will, and was him-
self a beneficiary, were insuffi-
cient.
To establish undue influence,
there must be evidence that the
parent was imposed upon or over-
come by the practices of the chile],
to the benefit of the latter.
The surrogate refused probate ;
he found all the facts in favor of
the proponent, save as to undue
influence; there was no evidence
to establish this: Held, that it
was proper for the general term,
on appeal from the surrogate's
decision, to direct judgment ad-
mitting the will to probate.
The reversal of the surrogate's
566
HOWARD'S PRACTICE REPORTS.
Digest.
decree in such case is upon a
question of law, and so the pro-
vision of the Code of Civil Pro-
cedure (sec. 2588), requiring, where
the reversal is upon a question of
fact, that a jury trial shall be or-
dered, does not apply.
Also held, that the case required
an exercise of the power conferred
by the Code (sec,. 2589), to impose
costs upon the unsuccessful part}'.
(Matter of Will of Wtrttn, 98 N.
Y., 193 )
93. Section 2607 Sureties on an
executor's bond when an action
lies against them before any order
or claim against the executor has
been made in the surrogate's
court. (See Jlaight agt. Brisbin,
36 Hun, 5i9.)
94. Section 2636 Executor or trus-
tee right of a surrogate to re-
move him for habitual drunken-
ness 1873, chap. 79 3 R. S.,
(7th ed.), 2289. . (See Matter of
Cody, 36 Hun, 122.)
95. Section 2643 <Vhere there are
two or more persons equally en-
titled, under this section of the
Code, to receive letters of admin-
istration with will annexed, the
surrogate will appoint that person
who ceteris paribus has the largest
interest under the will. (In the
estate of C/isirles Morgan, deceased,
ante, 194.)
96. Sections 2090, 2814 The sur-
rogate cannot justly permit an
executor or trustee to resign his
trust against the wishes of the
legatees or cestuis que trustent, un-
less sufficient reasons are shown
to exist for allowing such resigna-
tion. (In the estate of John Baier,
deceased, ante, 3^3.)
97. Sections 2706, 2714 First. It
is by these sections of the Code
of Civil Procedure, and not by
section 222 of chapter 410 of the
Laws of 1382, that the procedure
is now regulated by which the
public administrator can cause in-
quiry to be instituted into the
alleged withholding or conceal-
ment of property belonging to an
intestate's estate, whereof such
public administrator is in charge
by virtue of letters issued to him
by the surrogate.
Second. The interposition of an
answer such as is contemplated
by section 2710 bars all inquiry
concerning property to which the
respondent by such answer prop-
erly claims title.
Third. But where the applicant
alleges that the person cited has in
his possession or control certain
specified articles of property be-
longing to the decedent at the time
of his death, and the respondent
asserts his title to a portion of
such property only, such an an-
swer does not effectually bar all
further inquiry.
Fourth Whether an affidavit is
an "answer" within the meaning
of section 2710 quwe. (In the es-
tate of Ellis H. Elias, deceased, ante,
158.)
98. Section 2706 Examination of
a person having property belong-
ing to the estate of a deceased
person all the executors or ad-
ministrators should be parties to
the proceeding. (See Matter of
Slingerland, 36 Hun, 575.)
99. Sections 2717, 2718 Proceed-
ings to compel the payment of a
legacy a surrogate cannot decide
disputed questions arising therein.
(See Matter of Heading Meth. Epis.
Church, 35 Hun, 315.)
100. Section 2718 During the
pendency of proceedings for the
probate of an alleged will, the
contestant, who was one of the
next of kin of the decedent and
was named in the disputed paper
as a legatee, applied for an order
directing the payment of a sum of
money to be charged against her
legacy or her distributive share
accordingly as the disputed paper
might thereafter be granted or re-
fused probate. Such paper con-
HOWARD'S PRACTICE REPORTS.
567
Digest.
talned a provision declaring that
any legatee or devisee who should
contest its validity should forfeit
thereby the bequest or devise in
his favor.
The respondents having filed
an answer setting forth the fore-
going facts and alleging that be-
cause of them the legality and
validity of the petitioner's claim
was doubtful.
Held, that under this section of
the Code of Civil Procedure the
application must be dismissed.
(In the estate of Frederick Grote,
deceased, ante, 140.)
101. Section 2817 One who is a
lawful incumbent of the office
of guardian, either by appoint-
ment of the surrogate or by virtue
of a testamentary provision, can
successfully resist in this court an
application for his removal until
such facts and circumstances have
been established as furnish statu-
tory warrant for his suppression.
If, within the meaning of sub-
division 2 of this section of the
Code of Civil Procedure, a guar-
dian has been guilty of " miscon-
duct in the execution of her
trust," and has thereby become
" unfit " to be continued in her
office, she must be removed ; other-
Avise the surrogate is powerless to
displace her. (Mutter of King,
ante, 307.)
103. Section 2863 Justices' court-
amount involved when an action
does not involve the accounts of
the parties within this section of
the * ode of Civil Procedure.
(See Brisbane agt. Bank of Bata-
via, 36 Hun, 17.)
103. Section 2891 Practice in jus-
tice's court when the plaintiff
cannot recover without proving
his claim 1881. chap. 414. (See
Oulman agt. Schmidt, 35 Hun,
345.)
>*)4. Section 3017 The filing of a
justice's transcript in the county
clerk's oJize. makos the judgment
of the justice a judgment of the
county court for all purposes.
The statute of limitations appli-
cable to such a judgment, is the
statute applicable to judgments
rendered in courts of record.
(Spencer agt. Wait, ante, 117.)
105. Section 3068 When a new trial
may be had in a county court on
appeal from a justice's judgment.
(See Reynolds agt. Swick, 35 Hun,
278.)
106. Section 3169 An affidavit by
B., which states that " a short time
ago he (defendant) represented
himself to be a man of means,"
clearly indicates that he had ar-
rived at mature years and that he
was an adult, and is a sufficient
compliance with subdivision 5 of
section 3169 of the Code of Civil
Procedure. (Doctor agt. Schnepp,
ante, 52.)
107. Section 3228, sub. 1 Costs
when the plaintiff is entitled to
them, on the ground that the title
to real property is put in issue
by the pleadings Code of Civil
Procedure, sees. 1667/1668. (See
Crowell agt. Smith, 35 Hun, 182.)
108. Section 3228, sub. 3 Costs
when an action is on contract,
and when in tort. (Sue Feeney
agt. Brooklyn City R. R. Go., 36
llun, 197.)
109. Section 3234 r Jnder this sec-
tion of the Code of Civil Procedure
the same rule prevails in ejectment
as in replevin.
Where in an action of ejectment
the complaint contained but one
count to recover two separate par-
cels of land, separately described
in the count, and as to both par-
cels the plaintiff's right to recover
was put in issue by the answer,
the verdict of the jury being in
favor of the plaintiff as to one
parcel, and in favor of the' defend-
ant as to the other, the defendant
is entitled to costs as well as the
568
HOWARD'S PRACTICE REPORTS.
Digest.
plaintiff. (Coon agt. Diefendorf,
ante, b89.)
110. Section 3234 Costs when the
defendant is not entitled to costs,
although he succeeds upon some
of the issues costs cannot be
taxed for an attachment which
has been set aside. (See Barlow
agt. Barlow, 35 Hun, 50.)
111. Section 3234 Costs when
each party is entitled thereto.
(See Ackerman agt. De Lude, 3o
Hun, 44.)
1!2. Section 3240 Costs on appeal
from a surrogate's court Code of
Civil Procedure, sec. 2370. (See
Wnlsh agt. Van Allen, 36 Hun.
629.)
113. Section 3247 Under the sec-
ond subdivision of this section, it
being the same as section 321 of
the Code of Procedure, a person
becoming in any manner possessed
of a cause of action after suit
brought thereon is liable for all
the costs of the action ' the same
as if he were a party," as well
those accruing before as after he
becnnie so possessed. (Olmstead
agt. Keyes, ante, 1 )
114. Sections 3251, 420, 738 In an
action upon contract, where the
amount due is capable of compu-
tation, and may be easily ascer-
tained in that way, and the
defendant serves an offer of judg-
ment for a specific sum, with in-
terest and costs ; and after the
offer is made both parties serve
notice of trial, after which time
the plaintiff accepts the offer, he
is only entitled to costs before
notice of trial fifteen dollars.
No application, to the court was
necessary, and but fifteen dollars
are recoverable.
Where the action is against a
receiver, and the plaintiff has to
obtain leave to sue the receiver,
he is not entitled to costs as upon
application to the court. (Doug-
la,** agt. Macdurmid, ante, ?* }
1 15. Section 3252 In an action by
a vendor to foreclose a land con-
tract, in which the plaintiff re-
covers, he is not entitled to the
additional allowance provided by
section 325\; of the Code of Civil
Procedure. (Barkhart agt. Bab-
cock, ante, 512.)
116 Section 3253 Where, in an
action brought by taxpayers to
have a contract made by a muni-
cipal corporation, by which it
agreed to pay a sum specified for
the performance of certain work,
declared invalid, the plaintiff was
defeated and judgment was ren-
dered in favor of the contractor
with the corporation, adjudging
the contract to be valid, and that
it had been performed by the con-
tractor: Held, that " the value of
the subject-matter involved " was
for the purposes of computing an
extra allowance, the contract price
for the work, not simply the profits
made thereon. (Mingay et al. agt.
Holly Mfg. Co., D'J N. Y., 270.)
117. Sections 3268, 31fiO In an
action in the city court of New
York, a plaintiff residing without
the state, but having an office in
the city of New York, where he
regularly transacts business in
person, cannot be required to give
security for costs.
Sections H208 and 8160 Code of
Civil Procedure construed. ( Wyck-
off agt. Devlin, ante, 33-J.)
118. Section 3271 A person who
brings an action in the name of
the overseer of the poor under
chapter 6-'8 of the Laws of 1857,
as amended by chapter 820 of the
Laws of 1873, to recover penalties
for a violation of the excise law
cannot be required to file security
lor costs under this section of the
Code of Civil Procedure.
This section does not apply
(Sharp agt. Fancher, 29 Hun, lsK,
criticised and not folio iced ; Board
of Commissioners <>f Excise agt. J/c-
Orath, 2T Han, 425, followed). ( Mat-
ter of Martin, ante, 26.)
HOWARD'S PRACTICE REPORTS.
569
Digest.
119. Sections 3333, :!334, 3240 A
proceeding under the general
railroad act (sec. 28, chap. 140,
Laws of 1850) by one railroad cor-
poration to secure a crossing over
the track of another railroad is a
special proceeding (Code of Civ.
Pro., sees. 3333, 3334), and the
costs therein are, as a general
rule, in the discretion of the
court (Sec. 3240; RAPALLO and
MILLER, JJ., dissenting}. (Matter
of Cortland, &c., Horse R. R. Co.,
98 N. Y., 336.)
120. Section 3343 Under subdivi-
sion 18 of this section of the Code
of Civil Procedure, the location
of a federal corporation is deter-
mined by the place of its princi-
pal office. Its domicile is where
its principal office is. (Rosenbaum
agt. Union Pacific Railway Co.,
ante 45.)
121. Sections 3355, 00, 25 II That
in view of section 3355 of the
Code, sections 90 and 2511 must
be construed as if they had simul-
taneously become law, and that
so construed, "a clerk or other
person employed in the surro-
gate's office " is competent to act
as referee, in a proceeding pend-
ing in the surrogate's court, pro-
vided he is appointed with the
written consent of all the parties
appearing.
That the stenographer of the
surrogate's court is not within the
scope of section 90 or of section
2511. (In the estate of Tunis
Cooper , deceased, ante <J8.)
CODE OF CRIMINAL PRO-
CEDURE.
1. Section 8, sub. 3 Right of one
accused of crime to be confronted
with witnesses meaning of the
requirement U. S. Const. , art.
<5; and art. 14, sec. 1 bill of
rights, sec. 14. (See People agt.
Williams, 35 Hun, 516.)
2. Sections 273, 275 Pleadings in
VOL. II 72
criminal cases how affected by
the Code of Criminal Procedure,
sections 273, 275, 323 form of
indictment motion in arrest of
judgment when a verdict will
not be set aside because of the
misconduct of the jurors. (See
People agt. Menken, 30 Ilun, 90.)
3. Section 323 Upon what grounds
a motion in arrest of judgment
cannot be made. (See People agt.
Menken, 36 Hun, 90.)
4. Section 369 Peremptory chal-
lenge when the right must be
exercised the time for the exer-
cise of the right cannot be limited
by the court. (See People agt.
Carpenter, 36 Ilun, 315.)
5. Section 376 Jurors in a crimi-
nal actionwhen not disqualified
by reason of having formed an
opinion. (See People agt. Willett,
36 Hun, 500.)
6. Sections 411, 415 Misconduct
of juror when the court cannot
punish it as a criminal contempt
Penal Code, sec. 73 Code of
Civil Procedure, ^ sec. 8, sub. 3
meaning of wo'rd "mandate."
(See People ex rel. Munsell agt.
Oyer and Terminer, 36 Hun, 277.)
7. Section 455, sub. 2 Right to
review on appeal challenges to
jurors 1873, chap. 427. (See
People agt. Willett, 36 Hun, 500.)
CODE OF PROCEDURE.
1. Section 317 The repealing act
of 1877 leaves this section of the
Code of Procedure still in force,
and consequently, as provided
thereby in a reference under the
Revised Statutes of a claim against
a dead person's estate, the prevail-
ing party is entitled to recover the
disbursements provided for by
that section. (Button agt. Newton,
ante, 57.)
2. Section 317 When upon a ref.
570
HOWARD'S PRACTICE REPORTS.
Digest.
erence of a claim under the
Revised Statutes against a de-
ceased person's estate, a report has
been made in favor of the claim,
costs are not recoverable unless the
payment of such claim has been
unreasonably neglected or resisted.
A large reduction of the balance
claimed by the bill as presented
justifies the jesistence.
Neither is it unreasonable for
the executrix, who is a sister of
the claimant, when such claim is
for board furnished to the dece-
dent and his wife, the defendant,
during a period of several years,
and the value thereof is one of the
questions in dispute, to insist that
the amount to be paid shall be
established by a reference.
Nor is it unreasonable for the
residuary legatee under the will
of the decedent, who is a stranger
to the whole transaction, to inquire
by means of a reference into the
justice and legality of the claim.
Upon such a reference, however,
" the prevailing party shall be en-
titled to recover the fees of referees
and witnesses and other necessary
disbursements to be taxed accord-
ing to law."
The clause in this section of
"The Code of Procedure," which
gave them, was not repealed by
the adoption of part 2 of " The
Code of Civil Procedure; " nor by
chapter 245 of the Laws of 1880,
which professed to repeal " The
Code of Procedure " left unre-
pealed by chapter 31 S of the Laws
1877, with the exceptions therein
stated. The repealing act of 1880
retained and preserved " the right
of a prevailing party to recover "
such disbursements, using the
exact language of this section.
Upon a full consideration of the
question, the decisions in Button
agt. Newton(2 Hoic. [j\*. S.}. of>) and
in Hall agt. Edmunds (67 How.,
202) adhered to; and Miller agt.
Miller (32 Hun, 481) held unten-
able. (Overheiser agt. Morehouse,
ante, 257.)
8. Section 321 Under this section
of the Code of Procedure, one
taking an assignment or becoming
in any manner possessed of a cause
of action after suit brought thereon
is liable for all the costs of the
action ' ' the same as if he were a
party," as well those accruing be-
fore as after the assignment.
Section 3247 of the Code of Civil
Procedure took effect September 1 ,
1880, and at that date this section
of the old Code was repealed, but
section 3352 of the Code of Civil
Procedure protects all rights law-
fully accrued or established pre-
vious to the repeal of this section.
(Olmstead agt. Keyes, ante, 1.)
COLORED SCHOOLS.
See NEW YORK (CITY OP).
The People ex rel. Ray agt. Daven-
port, ante, 17.
COMMISSIONS.
1. Full commissions should be al-
lowed executors or trustees on
receiving and paying out the in-
come, notwithstanding the trustee
has received full commissions on
a former accounting for receiving
and investing the principal. (Mat-
ter of Goodrich, ante, 291.)
COMMISSIONERS.
See RAILROADS.
Matter of the New Tark, Lcka-
wanna and Western Railway
Co., ante, 225.
COMPLAINT.
1. The complaint in an action to re-
cover real estate ought to aver that
the plaintiff is the owner or seized
in fee, and is entitled to the posses-
sion or that defendant wrongfully
or unlawfully witholds possession
HOWARD'S PRACTICE REPORTS.
571
Digest.
from plaintiff. (Alvord agt. Hetsel,
ante, 88.)
2. Alleged fraud cannot alter or
change the statute. Fraud may
relieve a person from an agree-
ment, but it cannot extend the
statute for bringing an action or
making an election. If an action-
able fraud has been perpetrated,
damages by way of compensation
may be awarded, but the court
cannot relieve from a statute bar.
(Aken agt. Kellogg and others, ante,
136.)
3. Where the complaint alleged
fraud, there should also be an
averment that the statement made
to the plaintiff was for the interest
or purpose of influencing her ac-
tion, as the fraud is not a state-
ment of a fact, but the expression
of an opinion. (Id.)
4. The courts of this state have no
jurisdiction for trespass to lands
without the state. (Dodge agt.
Colby, ante, 475.)
5. To maintain slander of title, it
must be alleged to have been
malicious, (la.)
6. It is no slander to allege owner-
ship and that plaintiff has no title.
(Id.)
7. Under section 484 of the Code
of Civil Procedure, trespass and
slander of title cannot be joined
in the same complaint. (Id.)
CONDITIONAL SALES.
1. Every contract in the nature of a
conditional sale agreement must
be filed according to the laws of
1884, chapter 315, or it is void
as to subsequent purchasers and
mortgagees in good faith. (Camp-
bell Printing Press Company agt.
Oltrogge, ante, 31'.).)
2. The object of the statute is 4o
render secret liens upon personal
property ineffectual as to innocent
purchasers, and the courts will not
permit the statute to be evaded.
(Id.)
3. In determining whether the con-
tract comes within the statute, the
whole instrument is to be taken
together and the ruling intention
of the parties, to be gathered from
the whole of it, is what is to be
regarded (Id.)
CONTEMPT.
1. The court has no power to punish
a husband as for a contempt for
non-payment of costs and counsel
fee, which he was directed to pay
by the final judgment in an action
for separation. Such costs and
counsel fee should be collected by
execution. (Jacquin agt. Jacqmn,
ante, 206.)
2. Upon the trial of one Short for
a criminal assault, the jury rend-
ered a verdict of acquittal, which
verdict was inconsistent with ihe
evidence as recapitulated in the
charge of the judge presiding at
the trial. During the trial one of
the jurors, without the permission
or suggestion of the court, went,
during a recess, to the premises
where the assault was alleged to
have been committed, for the
purpose of examining them and
so acquiring information not fur-
nished by the evidence submitted
to the jury. The judge had not,
upon the adjournment of the
court, admonished the jury, as
required by section 415 of the
Code of Criminal Procedure, that
it was their duty not to converse
among themselves on any subject
connected with the trial, or to
form or express any opinion there-
on, until the case was finally sub-
mitted to them: Held, that al-
though the juror was guilty of a
misdemeanor under section 73 of
the Penal Code, yet he was not
guilty of a criminal contempt for
which he could be summarily
572
HOWARD'S PRACTICE REPORTS.
Disrest.
punished by the court. (People
ex rel. Munsell agt. Oyer and Ter-
miner, 86 Hun, 277.)
3. That the word "mandate," as
used in subdivision 3 of section
8 of the Code of Civil Procedure,
authorizing the court to punish
for a criminal contempt a person
guilty of a willful disobedience
to " its lawful mandate," means
only a written direction or order.
(Per DAXIELS, J.)
4. That it includes a verbal direc-
tion or order. (Id.)
CORNELL UNIVERSITY.
1. The person to be selected for a
free scholarship in the Cornell
University must be a student from
one of the academies or public
schools of the county from which
he or she is to be selected. (The
People ex rel Wright agt. Genung,
ante, 824.)
2. The State Normal School, located
at Cortland, is not one of the pub-
lic schools of Tompkins county
within the intent and meaning of
the statute, and an attendance at
such school does not entitle a
person to such scholarship. (Id.)
3. The candidates for such free
scholarship should, each year, be
selected from scholars in the ac-
ademies and public schools during
that year, and not from the best
scholars who have at any time
attended the public schools and
academies of the count}'. (Id.)
4. The position that a person is not
a scholar of a high school because
she was graduated at the close of
its last term, and hence ineligi-
ble as a candidate, cannot be sus-
tained. For the purposes of the
act she must be regarded as a
scholar of that school, at least
until the end of the school year,
and until that school shall again
commence its sessions. The in-
tention of the statute is that she
may have all the advantages of
that school so long as she is a
member of it, and upon her final
examination and graduation may
then become a candidate for such
scholarship. (Id. )
CORPORATIONS.
1. Under section 3343, subdivision
18 of the Code of Civil Procedure,
the location of a federal corpora-
tion is determined by the place of
its principal office. Its domicile
is where its principal office is.
(Rosenbaum agt Union Pacific Rail-
way Company, ante, 45.)
2. Where an act provides that cor-
porations consolidated under it
shall assume as a condition of the
right the payment of the liabilities
of the several corporations which
are absorbed in the new corpora-
tion, each holder of coupons in
either of the corporations so ab-
sorbed is at liberty to maintain
an action directly upon contract
against the new corporation, by
reason of its having absorbed the
one which issued the bonds. (Id.)
3. Actions against trustee to recover
corporate debts as a penalty for
failure to file annual reports are
" penalties," within the meaning
of section 837 of the Code of Civil
Procedure. In such actions a
party defendant is privileged from
answering any question concern-
ing the facts alleged in the com-
plaint and cannot be compelled
to answer upon an examination
before trial any question which
would support the claim of the
plaintiffs, either against himself
or his co-defendants. (Hughen
agt. Woodward, ante, 127.)
4. Corporations attacked by the state
for insolvency can, even after a
receiver is appointed, use their
corporate funds for their own pro-
. tection in the litigation if their
action is taken in yood faith and
IIO WARD'S PRACTICE REPORTS.
573
Digest.
with a reasonable hope of success
in the controversy. (Matter of the
Attorney General agt. Atlantic Mu-
tual Life Ins. Co. , ante, 146.)
5. Defendant issued a freight re-
ceipt with the name of person
served upon it as agent; receipt
to be signed for agent not for
company ; receipt printed in blank
with "Form 21, N. Y.," at head:
Held, that the Code does not spe-
cify agency, except person served
must be managing agent. * * *
Every object is attained when the
agent served is of sufficient char-
acter and rank to make it reason-
ably certain thai the defendant
will be apprised of service made.
The statute is satisfied if he be
managing agent to any extent.
(Palmer agt. The Pennsylvania Com-
pany, ante, 150.)
6. A trustee of a corporation, whose
attendance is necessary to make a
quorum, cannot act upon a claim
in his own favor to bind the cor-
poration, and by his presence he
thus acts. ( United States Ice and
Refrigerator Go. agt. Reed et al.,
ante, 2~)3 )
7. Such a transaction could be at
once assailed in a court of equity,
and would be set aside in a suit
brought by the corporation, or in
the event of its unwillingness to
proceed at the instance of the
stockholders interested at the
time. (Id.)
8. But such conduct and action on
the part of the trustees of a cor-
poration may, with knowledge
thereof, be acquiesced in and ac-
cepted by the corporation and the
stockholders, in which event they
could not afterwards assail it,
especially when such acquiescence
has continued for several years,
and the stock donated has been
actually received by the donee,
and has formed the subject of new
engagements and liability on his
part with others. (Id.)
9. When stockholders neglect to
promptly and actively condemn
the unauthorized act of the trus-
tees, and to seek judicial relief,
they will be deemed to have ac-
quiesced in it, and an uncon-
scionable agreement will not be
disturbed when there has been a
ratification of it after time has
been had for consideration. (Id.)
COSTS.
1. Under section 321 of the Code of
Procedure, one taking an assign-
ment or becoming in any manner
possessed of a cause of action after
suit brought thereon is liable for
all the costs of the action "the
same as if he were a party," as
well those accruing before as after
the assignment. (Olmstead agt.
Keyes, ante, 1.)
2. Section 3247 of the Code of Civil
Procedure took effect September 1,
1S80, and at that date section 321
of the old Code was repealed, but
section 3352 of the Code of Civil
Procedure protects all rights law-
fully accrued or established pre-
vious to the repeal of section 321.
(Id.)
3. Where the right to the costs
claimed had become fixed and es-
tablished by judgment, and the
interest of the person, in the cause
of action had been acquired prior
to the repeal of section 821, his
liability for the costs still con-
tinues. (Id.)
4. Under the second subdivision of
section 3247, it being the same
as section 321 of the Code of
Procedure, a person becoming in
any manner possessed of a cause
of action after suit brought thereon
is liable for all the costs of the
action "the same as if he were a
party," as well those accruing
before as after he became so pos-
sessed. (Id )
5. The repealing act of 1877 leaves
HOWARD'S PRACTICE REPORTS.
Digest.
section 317 of the Code of Pro-
cedure still in force, and conse-
quently, as provided thereby in a
reference under the Revised Stat-
utes of a claim against a dead per-
son's estate, the prevailing party
is entitled to recover the disburse-
ments provided for by that section.
(Sutton agt. Newton, ante, 56.)
G. Where, by agreement of the par-
ties, an action is brought " in lieu
of a reference," that is to say, is
substituted therefor, and the plain-
tiff is the prevailing party, he is
entitled to recover the fees of the
referee and witnesses and other
necessary disbursements to be
taxed according to law. (Id.)
7. Where the claim, as presented,
was for $4, 738. 78, and the defend-
ant, not only rejected the entire
claim of the plaintiff, but set up a
counter-claim against him for the
sum of $2,624.65, for which sum
she asked an affirmative judgment
against the plaintiff, with interest,
besides costs of the action and the
referee appointed to hear and
decide the issues, rejected the
counter-claim entirely and found
$621.55 due to the plaintiff from
the estate:
Held, that the attempt made by
the defendant to recover judgment
for a large and independent claim
against the plaintiff, in which she
entirely failed, constituted an
unreasonable resistance to the de-
mand of plaintiff and entitled him
to the costs of the action.
Held, further, that the attempt by
the defendant to recover through
the suit brought against her a large
counter-claim against the plaintiff,
brings her within the cases pro-
vided for by section 1835 of the
Code of Civil Procedure, in which
costs may be awarded to the
plaintiff. (Id.)
8. Where defendants were sued as
partners upon a partnership in-
debtedness, and one appeared and
defended the action, the other de-
fendant not being served with
process and not appearing, the one
appearing served an offer to allow
judgment to be taken "against
him " for sixty-five dollars and
fifty-four cents, with interest and
costs. The plaintiff recovered a
judgment against the defendants
"jointly" for seventy-two dollars
and ninety-one cents, but this in-
cluded interest, so that the judg-
ment, "in amount," is not more
favorable than the offer:
Held, that a joint judgment could
not have been entered upon the
offer; and, therefore, the recovery
is more favorable, as it is enforce-
able against the joint property of
both defendants, as well as the
property of the defendants served
and the plaintiff is entitled to
tax and costs. (Bannerman agt.
Quackenbush et al. , ante, 82. )
9. A judgment entered on an inter-
locutory order awarding costs is
not a valid judgment. Such costs
are practically motion costs, and
must be collected as such. (In re
Mary Brasier, ante, 154.)
1 0. When upon a reference of a claim
under the Revised Statutes against
a deceased person's estate a report
has been made in favor of the
claim, costs are not recoverable
unless the payment of such claim
has been unreasonably neglected
or resisted. ( Ocerheiser agt. More-
house, ante, 257.)
11. A large reduction of the balance
claimed by the bill as presented
justifies the resistance. (Id.)
12. Neither is it unreasonable for the
executrix, who is a sister of the
claimant when such claim is for
board furnished to the decedent
and his wife, the defendant, dur-
ing a period of several years, and
the value thereof is one of the ques-
tions in dispute, to insist that the
amount to be paid shall be estab-
lished by a reference. (Id.)
13. Nor is it unreasonable for the
residuary legatee under the will of
HOWARD'S PRACTICE REPORTS.
575
Digest.
the decedent, who is a stranger to
the whole transaction, to inquire
by means of a reference into the
justice and legality of the claim.
(18.)
14. Upon such a reference, however,
" the prevailing party shall be
entitled to recover the fees of
referees and witnesses and other
necessary disbursements to be
taxed according to law." (Id.)
15. The clause in section 317 of
" The Code of Procedure," which
gave them, was not repealed by
the adoption of part 2 of "The
Code of Civil Procedure; " nor oy
chapter 245 of the Laws of ] 880,
which professed to repeal "The
Code of Procedure " left unre-
pealed by chapter 3l8 of the Laws
1877, with the exceptions therein
stated. The repealing act of 1880
retained and preserved " the right
of a prevailing party to recover "
such disbursements, using the ex-
act language of said section 317.
(Id.)
16. Upon a full consideration of the
question, the decisions in Sutton
agt. Newton (2 How. \N. S], 56)
and in Hall agt. Edmund* ((37 How.,
202) adhered to; and Miller agt.
Miller (32 Hun, 481) held unten-
able. (Id.)
17. When the question to be determ-
ined relates to the status of a stat-
ute which is involved in a maze of
legislation, the same weight can-
not be given to a decision of the
general term as there would be to
one involving a pure legal princi-
ple. In such a case, it is the duty
of the special term when it sees
plainly that statutory provisions
have been overlooked to follow its
own clear convictions, stating its
reasons therefor respectfully, thus
leaving to the general term a re-
view of the subject. (Id.)
18. In an action upon contract, where
the amount due is capable of com-
putation, and may be easily ascer-
tained in that way, and the defend-
ant serves an offer of judgment for
a specific sum, with interest and
costs; and after the offer is made
both parties serve notice of trial,
after which time the plaintiff ac-
cepts the offer, he is only entitled
to costs before notice of trial
fifteen dollars. No application to
the court was necessary, and but
fifteen dollars are recoverable.
(Douglass agt. Macdurmid, ante,
289.)
19. Where the action is against a re-
ceiver, and the plaintiff has to
obtain leave to sue the receiver, he
is not entitled to costs as upon ap-
plication to the court. (Id.)
20. Under section 3234 of the Code
of Civil Procedure the same rule
prevails in ejectment as in re-
plevin. (Coon agt. Diefendorf,
ante, 389.)
21. Where in an action of ejectment
the complaint contained but one
count to recover two separate par-
cels of land, separately described
in the count, and as to both par-
cels the plaintiff's right to recover
was put in issue by the answer,
the verdict of the jury being in
favor of the plaintiff as to one
parcel, and in favor of the defend-
ant as to the other, the defendant
is entitled to costs as well as the
plaintiff. (Id.)
22. The complaint alleged that the
defendant, without leave, wrong-
fully entered upon the farm and
premises of which the plaintiff
then was, and still is, the owner
and possessor, and then and there,
without leave, wrongfully cut and
broke down, carried away and
destroyed, a large number of trees
there standing and growing, to
the plaintiff's damage of $100,
wherefore he demanded judgment
for treble damages. The answer
denied each and every allegation
of the complaint. The jury found
a verdict in favor of the plaintiff
for twelve dollars and fiftv cents
576
HOWARD'S PRACTICE REPORTS.
Digest.
actual damages, and that he was
entitled to recover treble damages
No certificate showing that the
title to real property came in ques-
tion upon the trial was given:
Held; that as the claim to recover
treble damages could, under sec-
tions 16(57 and 1668 of the Code of
Civil Procedure, only be made by
the owner of the laud, and as the
plaintiff's right to recover such
damages was denied by the an-
swer, an issue was raised by the
pleadings as to the title to the
land and that the plaintiff was
entitled to costs. (Crowell agt.
Smith, 35 Hun, 182.)
23. Where a complaint, in an action
of trespass, alleges an injury to
the inheritance, a denial of the
allegation of the complaint by the
defendant in his answer laises a
question as to the title to real
property, even though the plain-
tiff has alleged in his complaint
possession of, as well as title to,
the land. (Id.)
24. The complaint set forth two
causes of action : the first upon a
promise made by the defendant to
pay an agreed price for work and
labor performed and rendered by
the plaintiff prior to March, 1868;
the second upon an implied prom-
ise to pay for work and labor per-
formed and rendered by her after
that time and prior to 1880 Upon
the trial before a referee she re-
covered upon the first, but not
upon the second cause of action.
The court directed that the de-
fendant's costs be taxed and set off
against the plaintiff's judgment:
Held, that this was error. (Barlow
agt. Barlow, 35 llun, 50.)
25. That the defendant was not en-
titled to recover costs as the sub-
stantial cause of action was the
same upon each issue, within the
meaning of these terms as used in
section 3234 of the Code of Civil
Procedure, and because the de-
fendant had not "recovered"
upon any issue within the mean-
ing of the said section. (Id.)
26. Where the plaintiff is entitled to
recover the costs of the action, he
cannot include therein items for
issuing and serving a writ of
attachment which was subse-
quently set aside as having been
improperly granted. (Id.')
27. Where an order granting to the
defendants an extra allowance,
under section 3253 of the Code of
Civil Procedure, is made by the
justice before whom the action
was tried, and the order recites
that it was made " on the plead-
ings, evidence, findings and deci-
sion of the court, statements and
affidavits of counsel and other
papers," the court at general term
will not reverse the order, in the
absence of an abuse of the discre-
tionary powers vested in the court
below, even though the papers
presented on the appeal do not
show that the case was a difficult
or extraordinary one, as the facts
necessary to show that it was of
such a character may have been
orally presented to the court
below. (Qooding agt. Brown, 35
N. Y., 158.)
28. In determining whether or not
an additional allowance should be
granted under the said section,
the amount involved in the action
may be considered ; as the fact
that a large amount depends upon
its decision increases the anxiety
and responsibility of the attorney
and justifies the employment of
eminent counsel. (Id.)
29. After the commencement of this
action, brought by the plaintiff to
procure a separation from the de-
fendant, her husband, on account
of his cruel and inhuman treat-
ment of her, an agreement was
made by whicli she was to return
to and live with him as her hus-
band, and he was to pay the costs
and expenses of her attorney.
After the plaintiff had returned to
HOWARD'S PRACTICE REPORTS.
577
Di crest.
her husband tue husband served a
verified answer in the action and
refused to pay to the plaintiff's
attorney his costs and expenses:
Held, that the court had power,
upon the application of the plain-
tiff, to compel him to pay the
costs and expenses of the action
as fixed by the court. (Smith agt.
Smith, 35 Han, 378.)
30. The plaintiff's testatrix, an un-
married woman, of the name of
Emma Sandland, deposited with
the defendant, a savings bank, a
sum of money in the name of
Emily Sands. Before bringing
this action to recover the amount
of the deposit the plaintiff exhib-
ited to the bank the pass-book
containing the account, proof of
his appointment as executor, and
an affidavit showing the identity
of his testatrix with the depositor,
and that the bank book was
found among her effects: Held,
that the referee in directing a
judgment in favor of the plaintiff,
properly charged the defendant
with the costs of the action.
(Davenport agt. Bank for Savings,
36 Hun, 303.)
31. Section 259 of chapter 409 of
1882, placing the costs in certain
actions against savings banks, in
the discretion of the court, only
applies to the particular cases dis-
tinctly specified , in the section,
viz., to actions by a husband to
recover moneys deposited by his
wife in her own name, and to
actions to recover money deposit-
ed when there are claimants to
the fund, other than the plaintiffs,
who are not parties to the action.
(Id.)
32. In this action of replevin,
brought to recover certain arti-
cles of clothing of the value of
$852.38, alleged to have been
wrongfully taken and detained by
the defendant, the complaint set
forth but one cause of action.
Upon the trial the plaintiff re-
covered a judgment for $180.20,
as the assessed value of so much
of the clothing as was sold after
a certain date, and the defendant,
the plaintiffs having obtained pos-
session of the clothing in this
action, recovered a verdict for
$350.20, as the assessed value of
so much thereof as had been sold
prior to that date, with twenty-
five dollars damages: Held, that
although the complaint set forth
but a single cause of action, yet,
as it appeared that the sales were
made at different times, and that
each sale did in fact constitute a
separate cause of action, each
party was, under section 3234 of
the Code of Civil Procedure, en-
titled to costs, and that the clerk
erred in refusing to allow costs to
the defendant. (Ackerman agt.
De Lude, 36 Hun, 44.)
33. The plaintiff, while a passenger
upon one of the defendant's cars,
was wrongfully assaulted by the
conductor and ejected from the
cars. In this action brought to
recover damages therefor, the
jury rendered a verdict in his
favor for six cents: Held, that
the action was for an assault, and
that the plaintiff was entitled,
under subdivision 3 of section
3228 of the Code of Civil Pro-
cedure, to costs not exceeding the
amount of his recovery, and that
he could not be charged with the
payment of the defendant's costs.
(Feeney agt. Brooklyn City R. R.
Co., 36 Hun, 197.)
34. Where an action in the supreme
court has been tried in the first
judicial district, an application
for an extra allowance of costs
must be made in that district,
although the justice before whom
the action was tried resides in an-
other district. (Bear agt. Ameri-
can Rapid Telegraph Co. , 36 Hun,
400.)
35. Allowance by a surrogate for
an additional day occupied on a
trial allowable on a trial before
a referee not for an adjourn-
VOL. II
73
578
HOWARD'S PRACTICE REPORTS.
Digest.
merit Code of Civil Procedure,
sec. 2561. (See Matter of Clark,
38 Hun, 301.)
36. Of an action brought by the
guardian and the infant cestui
que trust for the construction of
a will direction for the pay-
ment of costs therein. (See Wead
agt. Cantwell, 36 Hun, 528.)
37. When a party does not waive
his right to appeal from an order,
by accepting costs thereby award-
ed to him. (See Mutter of Water
Commissioners of Amsterdam, 36
Hun, 534.)
88. A proceeding under the General
Railroad Act (sec. 28, chap. 140,
Laics of 1850) by one railroad cor-
poration to secure a crossing over
the track of another railroad is a
special proceeding (Code of Civ.
Pro. , sees. 3333, 3334), and the costs
therein are, as a general rule, in
the discretion of the court (Sec.
3240; RAPALLO and MILLER, JJ.,
dissenting). (In re C. and II. H.
E. R. Co., 98 JV. T., 336.)
39. Where there is no question as to
damages, and the corporation
owning the road sought to be
crossed opposes the application
with a view to prevent the cross-
ing, it is within the proper exer-
cise of this discretion for the court
to impose the costs upon the con-
testing company (RAPALLO and
MILLER, JJ., dissenting). (Id.)
40. Where, in an action brought by
taxpayers to have a contract made
by a municipal corporation, by
which it agreed to pay a sum
specified for the performance of
certain work, declared invalid, the
plaintiff was defeated and judg-
ment was rendered in favor of the
contractor with the corporation,
adjudging the contract to be valid,
and that it had been performed by
the contractor: HM, that "the
value of the subject-matter in-
volved" (Code of Civil Pro., sec.
3253) was, for the purposes of
computing an extra allowance, the
contract price for the work, not
simply the profits made thereon.
(Mingay agt. Holly Mfg. Co., 99
N. T., 270.)
COUNTER-CLAIM.
1. As a distinction exists between
a defense and a counter-claim,
when the defense is intended as a
counter-claim it should be explicitly
stated in the answer, so as to advise
the opposite party, and in the
absence of such an allegation,
especially when the party defines
and characterizes his answer as a
defense, and it is uncertain whether
a counter-claim is intended, such
party is not in a position to insist
that he has actually set up a counter-
claim, and the answer should be
construed and considered a defense.
(Ward agt. Comegys et al., ante,
429.) ,
2. A counter-claim must contain the
substance necessary to sustain an
action on behalf of the defendant
against the plaintiff if the plaintiff
had not sued the defendant. (Id.}
COURTS.
1. Courts must determine what is a
legal and proper expense and
charge to be paid by a county
treasurer in regard to the holding
of such courts. (People ex rel. Cole
agt. Board of Supervisors of Greene
Co., ante, 483.)
2. There are contingent expenses
necessarily incurred in the holding
of courts for which no express
statute provides, and the board of
supervisors of a county must pro-
vide a fund, to be placed in the
hands of its county treasurer, " to
pay such contingent expenses as
may become payable from time to
time," and a court held in such
county must determine what is a
proper and lawful charge upon
such fund. (Id.)
HOWARD'S PRACTICE REPORTS.
579
Digest.
3. Where the relator, in pursuance
of an order made by the court,
published iu his newspaper the
terms of the various courts ap-
pointed to be held in Greene
county, and the clerk, in pursu-
ance of said order, issued a cer-
tificate for the amount of the bill
for performing the service ordered,
Eayable out of the fund provided
Dr the contingent expenses of
the court:
Held, that the order for its pay-
ment should be obeyed by the
county treasurer, and is enforce-
able against him by mandamus.
(Id.)
4. It is not the prerogative of a board
of supervisors nor of a county
treasurer to adjudge an order of
the court void and incapable of
enforcement. (Id.)
5. Where a bill for publishing the
terms of the court (such publication
having been done under an order
of the court) was presented to the
board of supervisors of the county
of Greene for audit, and on the
rejection of such bill upon the
ground that the same was not a
legal charge against the county,
the relator asked that a mandamus
to compel its audit might issue:
Held, that although the order
made by this court should have
been obeyed by the county treas-
urer, and obedience thereto is
enforceable against him, a man-
damus against the board of super-
visors will not be granted. (Id.)
6. The provisions of the Code of
Civil Procedure relating to pro-
ceedings supplementary to execu-
tion are not applicable to a case in
which the judgment, upon which
the execution was issued, was re-
covered in the municipal court of
the city of Rochester, and the
damages included therein are less
than twenty-five dollars. (Mason
agt. Hackett, 35 Hun, 238.)
7. The supreme court has not
power to order the publication, in
a newspaper, of the appointment
of the terms to be held by that
court, or to direct payment of the
expense of such publication.
(People ex rel. Cole agt. Hill, 36
Hun, 619.) (Reversing S. 0., ante,
483.)
CREDITOR'S ACTION.
1. In a judgment creditor's action
to set aside as fraudulent a volun-
tary assignment made by the
judgment debtors, it appeared
that the execution was returned
by the deputy sheriff unsatisfied
on the day on which the action
was brought, though the process
was not filed by the sheriff until
the following day ; that plaintiffs'
after having discovered that short-
ly before the making of the as
signment, and in contemplation
thereof, the assignors, who were
copartners in trade, had with-
drawn to their own use a con-
siderable part of the moneys of
the firm, signed with other cred-
itors an agreement of compromise,
reserving the right to withdraw
by a certain day ; that two weeks
afterwards plaintiffs obtained an
attachment against defendants for
fraudulent withdrawal by the lat-
ter of moneys from their assets;
that plaintiffs afterwards sought
to remove the assignee, and then
proved their claim and delivered
their proof to the assignee, annex-
ing a statement that they did not
waive their rights under the at-
tachment or recognize the validity
of the assignment, unless it should
be held to be binding upon them:
Held, first, that the return of ex-
ecution was sufficient within the
provisions of the Code and the rule
in equity with respect to the bring-
ing of judgment creditors' actions.
Second. That plaintiffs had not
by their acts acquiesced in or
adopted the assignment so as to
be precluded from suing to im-
peach it.
Third. That the assignment was
void; the assignors, while pro-
fessing to surrender all their prop-
680
HOWARD'S PRACTICE REPORTS.
erty through it, having intention-
ally withheld a considerable part
of their estate from its operation.
(Iselin el al. agt. Henlein et al.,
ante, 211.)
DEED.
1. A livery stable would not be
offensive to a neighborhood within
the meaning of a covenant not to
erect any building for or to carry
on upon certain premises certain
enumerated trades, cow stables or
hog pens, " or any oiher dangerous,
noxious, unwholesome or offensive
establishment, trade or calling, or
business whatsoever.'' The word
"cow" before "stables" limited
the establishments prohibited of
the same class, and the words
" other," &c., do not include sta-
bles where domestic animals are
to be kept. (Flanagan agt. Hoi-
lingsworth, ante, 391.)
2. He who conveys the absolute fee
of real estate to another cannot
retain the right to the purchase-
price when subsequently sold.
There is a distinction between the
occupancy of one's property which
must be temporary, unless 'the title
of the owner is acquired, and one
which is known to be permanent
because the right to maintain it
exists; and he who parts absolutely
with the title to land to another
cannot reserve to himself the right
to its purchase-money where sub-
sequently sold, because such a
reservation would be inconsistent
with the grant. (Dennison agt.
Taylor, ante, 528.)
8. The defendant, who was the owner
in fee of a farm of land through
which a railroad passed, and also
of that part thereof which such
railroad occupied and upon which
it was constructed, which owner-
ship was derived by and through
a warranty deed to him from the
assignor of the plaintiff, recovered
from such railroad or its receiver
the sum of $1,000 as a compensa-
tion for the fee of the land which
the road occupied, and for the de-
preciation in value of the entire
farm by reason of such title being
acquired to the strip occupied by
the railroad:
Held, that the defendant's right
to such damages was perfect
through the deed from the plain-
tiff's assignor, which the reserva-
tion therein contained in favor of
the grantor did not and could not
reserve to such grantor, because
such a reservation would be incon-
sistent with and repugnant to the
deed and the estate in fee which it
conveyed to the defendant; and
as the defendant recovered such
damages for himself and not for
the plaintiff, the latter cannot
maintain this action which rests
upon the theory that the moneys
paid to the defendant therefor
were received to and for the use
of the plaintiff. (Id.)
DEFAULT.
See PRACTICE.
Negley agt. Tlw Counting Boom,
ante, 237.
DEFENSE.
1. As a distinction exists between a
defense and a counter claim, when
the defense is intended as a
counter-claim, it should be explic-
itly stated in the answer, so as to
advise the opposite party, and iu
the absence of such an allegation,
especially when the party defines
and characterizes his answer as
a defense, and it is uncertain
whether a counter-claim is in-
tended, such party is not in a
position to insist that he has actu-
ally set up a counter-claim, and
the answer should be construed
and considered a defense. ( Ward
agt. Comegys et al., ante, 429.)
2. A counter-claim must contain the
substance necessary to sustain an
action on behalf of the defendant
against the plaintiff if the plaintiff
had not sued the defendant. (Id.)
HOWARD'S PRACTICE REPORTS.
581
Digest.
DENIAL.
1. Where it appeared that a certain
lot in Greenwood cemetery was
purchased by the husband of the
plaintiff as a burial lot for herself,
her husband and their family, and
that it had been greatly improved,
not only at his but at her expense,
and their family dead had been
placed in the lot as their final rest-
ing place :
Held, that these facts were suffi-
cient to disable the husband from
afterwards conveying it away to
another person, and thereby devot-
ing it to a distinct and different
purpose. The plaintiff had be-
come so far interested in the
property by its improvement and
the interment of her parents as to
prevent her husband from making
a legal or valid sale of it. (Schroe-
der agt. Wanzor, ante, 13 )
2. The case of Thompson agt. Rickey
(8 Abb. N. G., 1 59 ; opinion by VAN
VOKST, /.) cited with approval,.
(Id.)
3. A denial in an answer "on in-
formation and belief of all the
allegations in the complaint con-
tained not hereinbefore admitted
or denied and not containing the
allegation that the defendant had
not sufficient knowledge or infor-
mation to form a belief as to the
other statements in the complaint,
and for that reason he denied them,
does not put in issue a material
allegation of the complaint, and
all such allegations will be taken
as admitted. (Id.)
DISCOVERY.
1. A county judge having, upon
the application of a creditor,
made an order requiring insolvent
debtors and their general assignee
to appear before him and be ex-
amined, as provided by section
21 of chapter 466 of 1877, the as-
signors and assignee moved to
vacate the order, upon the ground
that some twenty creditors had
commenced actions for the pur-
pose of putting their claims in
judgment and that the deponent
believed that the said creditors
intended to bring an action to set
aside the assignment, and that
this application was made in the
interest of the said creditors and
not for the benefit of the assigned
estate: Held, that the motion to
vacate the order was properly
denied. (Matter of Wilkinson, 36
Hun, 184.)
DIVORCE.
1. The court has no power to punish
a husband as for a contempt for
non-payment of costs and counsel
fee, which he was directed to pay
by the final judgment in an action
for separation. Such costs and
counsel fee should be collected by
execution. (Jacquin agt. Jacquin,
ante, 206.)
2. Condonation of adultery by sub-
sequent cohabitation with knowl-
edge does not bar an after-brought
action for divorce predicated on
such adultery, where the condona-
tion is upon the promise by the
guilty party (the husband) that he
would in all things thereafter treat
his wife kindly and in a proper
manner, and would be in all things
a good and affectionate husband to
her, when such promise has been
violated. (Timerson agt. Timer-
son, ante, 526.)
See INSURANCE (LiFE).
Goldsmith agt. Union Mutual Life
Ins. Co., ante, 32.
DOMICILE.
1. Under section 3343, subdivision
18 of the Code of Civil Procedure,
the location of a federal corpora-
tion is determined by the place of
its principal office. Its domicile
is where its principal office is :
(Rosenbaum agt. Union Pacific Rail-
way Co., ante, 45.)
582
HOWARD'S PRACTICE REPORTS.
Digest.
DOWER.
1. Where provision by a will is made
for a woman in lieu of dower, she
is required by statute to make an
election between the provision and
the dower, and she shall be deemed
to have elected to take such joint-
ure, devise or pecuniary provision,
unless within one year after the
death of her husband she shall
enter on the lands to be assigned
to her for her dower, or commence
proceedings for the recovery or as-
signment thereof. (Aken agt. Kel-
logg and others, ante, 136.)
2. Alleged fraud cannot alter or
change the statute. Fraud may
relieve a person from an agree-
ment, but it cannot extend the
statute for bringing an action or
making an election. If an action-
able fraud has been perpetrated,
damages by way of compensation
may be awarded, but the court
cannot relieve from a statute bar.
(Id.)
3. Where the complaint alleged
fraud, there should also be an aver-
ment that the statement made to
the plaintiff was for the interest or
purpose of influencing her action,
as the fraud is not a statement of
a fact, but the expression of an
opinion. (Id.)
4. Where a wife has received a part
of the income of the estate under
the will, she is in no condition to
repudiate the election which she
made without restoring or offering
to restore its fruits. (Id.)
5. Where a testator devised one-third
of his real property to his widow
for life with remainder to his sons,
also devising the other two-thirds
to the sons:
Ileid, that there was thus a total
disposition of his realty, and any
allowance of dower to the widow
in addition to the devise would
overturn the plain scheme of the
will, and is inconsistent with the
disposition made of the rest of
the estate. In such case the court
infers an intention of the testator
that the provision for the wife
should be in lieu of dower. (Mason
agt. Mason et al, ante, 514.)
6. That the testator has left his
widow a life estate in one-third of
the premises does not prevent the
owners in fee of the two-thirds
from partitioning the property and
realizing their shares. '1 he rights
of the tenant for life may be pro-
tected by provision in the decree.
(Id.)
See WILL.
Cole agt. Cole et al., ante, 516.
EJECTMENT.
See COSTS.
Coon agt. IHefendorf, ante, 889.
ELECTION LAW.
1. Under the general election laws
the return of the results of an elec-
tion to be given to or filed with
the supervisor of the town or ward
in which the election was held,
must be the original return and
not a mere certified copy. (The
People agt. Wise, ante, 92.)
2. Accordingly, where it appeared
on the face of an indictment that
a copy of a return was given to
and filed with the supervisor of a
ward, and that it was mutilated
by him. no offense is shown under
section 94 of the Penal Code, as it
was not filed or deposited with
him "by authority of law." (Id.)
3. To constitute an offense against
a statute for the protection of a
document or paper of any kind, it
must appear to be the kind of
document or paper specified in
the statute. (Id.)
4. Under the act relating to the reg-
istration of voters in the citv and
HOWARD'S PRACTICE REPORTS.
583
Digest.
county of New York, it is the duty
of the inspectors to register every
duly qualified voter who presents
himself within the place of regis-
tration before the hour of nine
o'clock in the evening and de-
mands to be sworn, and the true
construction of the statute is that
the place of registration shall be
closed at that hour, but not that
the inspectors shall refuse after
that hour to register those who
have applied within the time pre-
scribed by law. (The People ex rel.
Cass el al. agt. Hosmer et al., ante,
472.)
EVIDENCE.
1. An agreement of purchase and
sale reduced to writing, &c., is
not at all necessary when an action
is brought to recover an agreed
price for lands actually sold and
conveyed pursuant to an oral
agreement, when the considera-
tion remains unpaid. (McKenna
agt. Bolger, ante, 411.)
2. A party is not precluded from
testifying to extraneous facts,
which tend to show that one who
has testified to such a transac-
tion has testified falsely, or that
it is improbable that his statement
can be true. (Id.)
3. It is not the intention of the Code
(sec. 829) to prevent a party to a
suit from testifying to any extrin-
sic fact that tends to contradict a
witness who swears to transac-
tions or communications had be-
tween such party and a deceased
person, even where he cannot di-
rectly testify that no such conver-
sation or transaction was ever had.
(Id.)
4. It was not the intention to pre-
vent the contradiction of a living
witness, but to prevent a living
party to a transaction or commu-
nication from testifying to it him-
self when death has closed the
mouth of the other party. (Id.)
5. So when a living witness swears
to a contract made by a defendant
with a deceased party at a speci-
fied time or place, there is nothing
in the Code to prevent the defend-
ant from testifying that at the
time named he was in Europe or
at some distant place, rendering it
impossible that the witness speaks
the truth. (Id)
6. Where husband and wife board
at a hotel the husband is presump-
tively liable for the bill, but it is
competent for the hotel-keeper to
show that the husband was impe-
cunious, and that credit was given
to the wife so as to justify the de-
tention of her property by virtue
of the hotel-keeper's lien. (Bir-
ney agt. Wheaton, ante, 519.)
See INDIAN LEASES.
Baker agt. Johns, ante, 464.
7. In this action, brought to recover
the value of services rendered by
the plaintiff to the defendant's in-
testate prior to February 7, 1882,
the defense of payment was plead-
ed. Upon the trial the defendant
produced a receipt executed by
the plaintiff by which she ac-
knowledged the receipt of fifty
dollars from the intestate in full
of all demands, of whatsoever
nature or kind, " up to date Feb-
ruary 11, 1882," and proved that
she had delivered it to the de-
ceased. The plaintiff was then
allowed, against the defendant's
objection and exception, to an-
swer the following question :
" Please state what, if anything,
has been done to that receipt since
you signed it and delivered it to
the intestate ? " She answered,
" In full of all demands, of what-
soever nature or kind, up to date,
February 11, 1882, has been added
since. That was added after he
took it from my hands ; those
were not on when I signed it:"
Held, that the evidence was inad-
missible as relating to a personal
transaction between the witness
584
HOWARD'S PRACTICE REPORTS.
Digest.
and the deceased. (Boughton agt.
Bogardus, '65 Hun, 198.)
8. After the plaintiff had, under the
objection and exception of the de-
fendant, read various entries from
her account book showing pay-
ments by the deceased to her to
apply in part payment for the
services rendered by her, she was
asked, and against the defendant's
objection and exception, allowed
to answer the following ques-
tion: "That is all he has ever paid
you except ihe fifty dollars you
gave him a icceipt for?" Held,
that the evidence was inadmis-
sible, under section 829 of the
Code of Civil Procedure, as it
tended to contradict the claim of
the defendant that a larger amount
had been paid to her by the de-
ceased. (Id.)
9 In an action of partition brought
by a daughter and a grand-
daughter of the deceased owner
against his son and widow, the
latter interposed no answer, while
the son alleged that land had
been conveyed by the deceased to
the granddaughter's father, as an
advancement, and that the same
should be set off against the share
to be allotted to her. Upon the
trial the son sought to prove by
the widow who joined in the deed
to the deceased son, that it was
given without consideration, as an
advancement: Held, that it was
error to reject the evidence as in-
admissible under section 829 of
the Code of Civil Procedure.
(Moore agt. Oviatt, 35 Hun, 216.)
10 The words "interested in the
event," as used in the said section,
are to be limited in their applica-
tion to the particular issue or
question as to which the witness
is to be examined. (Id. )
11. Upon the trial of this action a
son of the intestate entitled to
share in his estate was called by
the plaintiff. After he had stated
his age, occupation and residence,
the defendant's counsel objected
to the competency of the witness
to testify under section 829 of the
Code of Civil Procedure. The
objection was overruled and the
witness allowed to testify. Parts
of his testimony related to per-
sonal transactions and communi-
cations with the deceased, and
part did not: Held, that the de-
fendant's objection was too gen-
eral to enable him to raise any
question upon appeal. (Riggs agt.
American Home Mis. Society, '65
Hun, 656.)
12. He should have renewed his
objection when the objectionable
testimony was given, or subse-
quently moved to have it stricken
out. (Id.)
13. Where, in an action to recover
damages sustained by the plaintiff
by being bitten by a dog belong-
ing to the defendant, the facts
that the plaintiff was bitten, and
that the defendant knew that the
dog had previously bitten another
person, have been established,
witnesses called by the defendant
cannot be allowed to testify that
when they had seen the dog they
had seen nothing malicious in his
conduct nor any attempt made by
him to bite any one. (Caldwell
agt. Snook, 35 Hun, 73.)
14. Deed prior oral agreements
are merged in it an agreement
affecting the title to land must be
in writing. (See De Witt agt. Van
Schoyk, 35 Hun, 103.)
15. Trial for murdei in the first de-
gree defense of an alibi it is
error to charge that it is a suspi-
cious defense what evidence may
be admitted to sustain the defense.
(See People agt. Kelly, 35 Hun, 295.)
16. Examination of a party before
trial when not refused because
it might tend to show the party to
be guilty of a criminal offense
Code of Civil Procedure, sec. 870.
(See Davies agt. Fish, 35 Hun, 430.)
HOWARD'S PRACTICE REPORTS.
585
Digest.
17. Slander privileged communi-
cation what is when actual
malice must be proved an un-
sustained justification is not evi-
dence of malice. (See Decker agt.
Gaylord, 35 Hun, 584.)
18. When the title of a purchaser
will not be affected by declara-
tions or admissions made by his
grantor, while owning the land
as to the right to draw water from
a spring upon the land of another.
(See Root agt. Wadhams, 35 Hun,l)
19. < 'ommercial custom when ad-
missible to show the effect of a
particular form of check. (See
Sims agt. U. S. Trust Company, 35
Hun, 533.)
20. Appraisals of damages for land
taken for a railroad reversed be-
cause of the reception of evidence
of benefit to adjoining land when
the error is not cured by state-
ments in the report showing that
it was not affected by it. (See
Matter of N. Y., W. S. and R R.
Co , 35 Hun, 260.)
21. Obstruction of a navigable
stream by the defendant the
burden of proving the right to
obstruct it rests upon the defend-
ant. (See Doxsey agt Long Island
R. R. Co., 35 Hun, 362.)
22. What facts do not justify the
presumption of death. (See Jen-
kins agt. Young, 35 Hun, 569.)
23. General exception to evidence
when it is unavailing. (See Uertz
agt. Singer Mfg. Co., 35 Hun, \ 16.)
24. To show what effect the publi-
cation of a libel had upon those
who read it. (See Libel, 35 Hun.)
25. In an action to recover the value
of personal services, where the
complaint alleges that an agreed
price was to be paid therefor, and
that they were worth that price,
and the issue is what was the
agreed price, evidence of the
VOL. II 74
value of the services is compe-
tent, as bearing upon the prob-
able truth of the claims of the
respective parties. (Cornish agt.
Graff, 3U Hun, 160.)
26. Proceedings to review erro-
neous assessments 1880, chap.
26!) the earning capacity of real
estate is a test of its value review
of a decision of the special term
on appeal how objections to the
reception of evidence should be
stated erroneous admission of
evidence when the decision will
not be reversed therefor. (See
People ex rel. Railroad agt. Keator,
36 Hun, 592.)
27. What inadmissible as involving
a personal transaction between a
party and a deceased person
Code of Civil Procedure, sec. 829.
(See Oliver agt. Freligh, 36 Hun,
633.)
28. When expert testimony as to
the injury caused to the market
value of a horse by its having run
away is inadmissible how the
injury should be proved. (See
Van Wagoner agt. New York Ce-
ment Co., 36 Hun, 552.)
29. Malpractice by an attorney
what constitutes it what evi-
dence is admissible to establish
it. (See Carter agt. Talcott, 36
Hun, 393.)
30. Representations by a director
of a company to induce a pur-
chase of its bonds upon what
statements the jury may find him
to be liable in damages, if such
statements are false. (See Drake
agt. Grant, 36 Hun, 464.)
31. Action to set aside a fraudulent
conveyance the burden of prov-
ing fraud rests on the plaintiff.
(See Remington Paper Co. agt.
0' Dougherty, 36 Hun, 79. ">
32. Bond of indemnity to a sheriff
what is evidence of the exer-
cise by the sheriff of his judg-
586
HOWARD'S PRACTICE REPORTS.
Digest.
ment in making a levy. (See
O'Donohue agt. Simmons, 36 Hun,
331.)
33. Sale of an interest in a partner-
ship business what is included in
it evidence of prior agreements
is not admissible to contradict a
written one nor can the subse-
quent conduct of the parties be
shown. (See Albright agt. Voor-
hies, 36 Hun, 437.)
34. Power of the legislature to
make tax deeds conclusive evi-
dence of the regularity of the
proceedings. (See Chamberlain
agt. laylor, 36 Hun, 24.)
35. Obstructions' to light, air and
access to land, by an elevated
railroad measure of damages
opinion of a real estate broker as
to such damages. (See Hine agt.
if. Y. Elevated R, R. Co., 36 Hun,
293.)
36. Negligence burden of proof
in an action against a common
carrier when it may be inferred
from the accident itself. (See
Murphy agt. Coney Island and B.
R. R. Co., SGHun, 199.)
37. Civil damage act action by a
father for an injury to his son
what proof .of an injury to the
father's means of support must
be given. (See Stevens agt. Ctieney,
36 Hun, 1.)
38. Testimony of a witness as to
the genuineness of a signature
right of a party to cross-examine
him as to the difference between
the signature in question and a
genuine signature 1880, chap.
36. (See Winnie agt. Tousley, 36
Hun, 190.)
EXCEPTIONS.
1. At the close of the testimony in
this case the counsel for the de-
fendant submitted to the court an
unnecessary and unreasonable
number of requests to charge.
The court not having embodied
all these requests in its charge, the
counsel for the defendant said:
"I desire to call your honor's at-
tention to certain propositions
embodied in the written requests
to charge which I have sub-
mitted " the court here said: " I
decline to charge further than I
have already," to which the de-
fendant excepted : Held, that the
exception was well taken ; that the
counsel was entitled to distin-
guish and point out the specific
propositions he desired to have
charged. (De Boxt agt. Albert
Palmer Co., 35 Hun, 386.)
2. Whereupon trial exceptions are,
without objection, ordered to be
heard at first instance at General
Term, the party succeeding at
General Term may not object to a
review of its decision here, on the
ground that the case was not one
proper to be so heard. ( Wyckoff"
agt. De Graaf, 98 N. Y., 134.)
3. This court, on appeal in criminal
actions, may not consider objec-
tions to portions of the charge as
to which no exceptions were taken
on the trial. (People agt. Mills, 98
N. Y., 176.)
4. Upon trial before a court or ref-
eree an exception to a general
finding of law, holding that one
party is entitled to recover against
the other, raises the question as to
whether, upon all the facts found,
the successful party was entitled
to judgment. (Heinmingway agt.
Poacher, 98 N. Y., 281.)
5. Where improper evidence has
been received under objection and
exception, which subsequently, on
motion of the party against whom
it was offered, is stricken out, this
is to be deemed an abandonment
of the exception, and such party
mav not have the benefit of it on
appeal. (Price agt. Brown, 98 N.
Y., 388.)
6. Although, on appeal from a
HOWARD'S PRACTICE REPORTS.
587
Digest.
judgment, in an action tried by the
court, no exceptions appear to the
findings of fact, or error in their
determination, but the general
term draws a different legal con-
clusion therefrom than that of the
trial court, this does not authorize
it to render a final judgment in
accordance with its own conclu-
sion. Whenever the character of
the issues framed by the pleading
is such that, upon a new trial, it
will be possible for the respondent
to recover, a new trial should be
ordered. Having succeeded on
the trial, he is not required to
procure the appearance of excep-
tions upon the record, and so the
appellate court cannot determine
that there were no exceptions or
errors. (Thomas agt. N. T. L. Ins.
Co., 99 N. T., 250.)
EXECUTION.
1. This action was brought against
the sureties upon an undertaking
given to indemnify the sheriff
when making a levy under an
execution upon property alleged
to belong to the judgment debtor
named therein. The undertaking
was conditioned that if the
obligors should well and truly
save, keep and bear harmless and
indemnify the said William C.
Conner, and all persons aiding
and assisting him in the premises
from all harm, let, trouble, dam-
age, liability, costs, counsel fees,
expenses, suits, actions, judg-
ments, &c. , that should arise or be
brought against him for or by
reason of the levy, or of any sale
made thereunder of any property
which he should judge belonged
to the judgment debtor, then the
obligation to be void, else to re-
main in full force and virtue.
After the property had been seized
a judgment for the value thereof
was recovered by the true owner
against the sheriff : Held, that as
the defendants had entered into an
absolute agreement to protect the
sheriff against any judgment that
might be recovered, they were
concluded by the judgment which
had been recovered against him.
although they had no notice of
the action. (Conner agt. Reeves,
35 Hun, 507.)
2. That it was not necessary for
the sheriff to show that he had
paid the judgment which had been
so recovered. (Id.)
3. That in the absence of any
charge of collusion or fraud, the
effect of the judgment so recovered
was not impaired by reason of the
fact that it was entered by con-
sent given in open court. (Id.)
4. An execution having been issued
upon a judgment recovered against
a defendant, the sheriff, shortly
before the expiration of the sixty
days within which it was to be re-
turned, commenced to advertise
for sale certain real property
alleged to belong to the defendant.
After the expiration of the sixty
days, and prior to the day of sale,
the sheriff made a return in which
he stated that he had collected
nothing under the execution, and
had not found any personal prop-
erty out of which the execution
could be made, but that he had
levied upon certain real estate and
advertised the same for sale.
Upon this return the plaintiff pro-
cured, an order for the examina-
tion of the defendant in proceed-
ings supplemetary to execution:
Held, that the return was not such
as to justify the granting of the
order. (Marx agt. Spaulding, 35
Hun, 478.)
5. That the question as to whether
or not the sheriff should not have
made the return in the form re-
quired by law, should not be de-
cided upon affidavits presented
upon the application for the order.
(Id.)
6. This action was brought to re-
cover damages for the conversion
of certain wheat which had been
588
HOWARD'S PRACTICE REPORTS.
Digest.
sold under an execution issued
upon a judgment recovered by
the defendant against the plaintiff.
The wheat was raised upon a
farm occupied by the plaintiff,
and which had been devised by
his father to his son Abram, to be
held in trust for and during the
natural life of the plaintiff, for
his benefit or that of his family.
The will provided that if the said
Abram and another son. Guy,
should think it would be for the
best good of the plaintiff or his
family, they might allow the
plaintiff to occupy the farm with-
out rent, but the term was not to
be for more than a year at a
time. The trustee and Guy
were authorized to lease the farm
to other persons, or to sell and
invest the proceeds, and appro-
priate the interest or income of
the estate to and for the benefit
of the said William or his family:
Held, that even if the trust were
assumed to be valid, yet, as the
wheat was in part the product of
the plaintiff's own skill and labor,
it could not be held entitled to
the exemption accorded to the
trust estate. (Snlsbury agt Par-
ions, 36 Hun, 12.)
7. That if the trust were invalid,
the wheat was not exempt from
execution, under section 13^0 of
the Code of Civil Procedure, as
necessary " flour and vegetables,
actually provided for family use,"
as "wheat" is not "flour" with
in the meaning of that section.
(Id.)
8. That it was not exempt under
the $2oO clause of section 1391 of
the Code of C'ivil Procedure, as
that related only to necessary
household furniture, working tools
and teams, professional instru-
ments, furniture and library. (Id.)
Q. It seem* that the trust was in-
valid, and that the title to the
farm was vested in the plaintiff.
(Id.)
10. Where an execution issued
against the person of a judgment
debtor is defective, in that it fails
to specify by name the county
to which an execution against
property has been issued and re-
turned unsatisfied, the defect
may be cured by an amendment
to the execution, to be ordered by
the court under section 7'<i3 of the
Code of Civil Procedure: Quaere,
as to whether it is sufficient to
recite in the execution against the
person " that an execution against
the property of the judgment
debtor has been duly issued to the
sheriff of the county where the
said judgment debtor resides, and
returned unsatisfied. ( Walter agt.
Isaacs, 36 Hun, 233.)
11. Upon vacating an execution
against the person for irregulari-
ties therein, the court may com-
pel the defendant to stipulate that
he will not sue for the arrest, or
for false imprisonment under the
execution. (Id.)
12. The plaintiff, having been ap-
pointed a receiver of the property
of one Rowell in supplementary
proceedings instituted upon a
judgment recovered against him,
brought this action to recover
from the defendant bank the
amount of a deposit held by it
for the said Rowell. The deposit
consisted of pension money re-
ceived by Rowell and deposited
with the bank, partly in cash and
partly in a check or draft of the
pension agent, under an agree
ment that interest should be al-
lowed thereon: Held, that the
fund was exempt from execution
under section 131)3 of the Code of
Civil Procedure. (Stockitell agt.
Nat. Sank of Malone, 30 Hun,
583.)
13. Section 4 of chapter 96 of 1857,
authorizing the recorder of the
city of Oswego to "exercise any
power or authority in any pro-
ceedings supplementary to execu-
tion in the county of Oswego,
HO WARD'S PRACTICE REPORTS.
Digest.
which the county judge or a jus-
tice of the supreme court can ex-
ercise therein, whether such sup-
plementary proceedings be in an
action in said recorder's court or
in any other court," was not re-
pealed by the adoption of the
Code of Civil Procedure, either
expressly or by implication, and
the recorder of that city still has
power to entertain such proceed-
ings and to appoint therein a re-
ceiver of the property of the
judgment debtor. (Boss agt. Wigg,
36 Hun, 107.)
14. When a stay of execution on a
foreign judgment, given by the
foreign state, is operative upon
proceedings on the judgment in
this state. (See Nazro agt. McOal-
mont Oil Co., 36 Hun, 296.)
15. The death of the plaintiff after
its issue does not suspend its oper-
ation errors in the form of a
constable's bond when the sure-
ties cannot avail themselves of
them as a defense. (See Jones
agt. Newman, 86 Hun, 684.)
16. In an action wherein an attach-
ment had been issued, upon the
ground that defendant, a resident
of the state, had departed there-
from with intent to defraud his
creditors, or to avoid the service of
a summons, the execution directed
the sheriff to collect the judgment
out of the attached personal prop-
erty, and if that was insufficient,
out of the real estate attached :
Held, that, so far as the real es-
tate was concerned, the execution
was void, and a sale under it con-
veyed no title ; that the provision
of the (ode of Civil Procedure
(sec. 1370, subd. 2) prescribing the
form of execution in such case, is
peremptory, and the attached real
estate could not be resorted to un-
til the remedy against the debtor's
personal property, both attached
and unattached, had been ex-
hausted. (Place agt. Riley, 98 N.
Y., 1.)
17. It seems that where the attach-
ment, judgment and execution are
rtgula r , a bona fide purchaser on
sale acquires a good title, although
after a conveyance to him the de-
fendant is allowed to come in and
defend as authorized by the Code
(sec. 445) and succeeds in his de-
fense. (Id.)
18. Under a void process, however,
no title can be acquired, and a
bona fide purchaser, as against the
owner of the property, stands in
no better position than one pur-
chasing with full knowledge of
the invalidity. (I'd.)
19. Although an execution is regular
on its face, if it be in fact unau-
thorized and void the sheriff may
refuse to execute it, and proof of
its invalidity establishes a good
defense in an action against him
for such refusal. (Reid agt. Steg-
man, 99 N. 7., 646.)
EXECUTORS AND ADMINIS-
TRATORS.
1. Where there are two or more per-
sons equally entitled under section
2643 of the Code, to receive letters
of administration, with will an-
nexed, the surrogate will appoint
that person who ceterisparibus has
the largest interest under the will.
(In the Estate of Charles Morgan,
deceased, ante, 194.)
2. Section 84, title 2, chapter 6, part
2, Revised Statutes, which declares
that joint "administration" may,
with the consent of persons enti-
tled, be granted to themselves and
to other persons not entitled, ap-
plies to cases of administration
with the will annexed. (Id.)
3. Full commissions should be al-
lowed executors or trustees on
receiving and paying out the in-
come, notwithstanding the trustee
has received full commissions on
a former accounting for receiving
590
HOWARD'S PRACTICE REPORTS.
Digest.
and investing the principal. (Mat-
ter of Goodrich, ante, 29 i.)
4. The surrogate cannot justly per-
mit an executor or trustee to resign
his trust against the wishes of the
legatees or cestuis que trustent,
unless sufficient reasons are shown
to exist for allowing such resigna-
tion. (In the Extate of John Baier,
deceased, ante, 328.)
5. Where a will presents upon its
face questions of complication,
uncertainty and difficulty, an
executor may institute and main-
tain an action for the purpose of
obtaining a judicial construction
thereof, and for direction to him
as to the manner in which he
should discharge his duties in
executing the will as such execu-
tor. (Bigart agt. Jones, ante, 401.)
6. In an action of ejectment, brought
by one of the heirs-at-law of one
Jenkins, who died intestate in
1863, it appeared that the defend-
ants claimed under a sale of the
intestate's real estate made pur-
suant to an order of a surrogate in
1871. In the petition for the order
directing the sale, which was made
by the administrator, the name of
the plaintiff in the present action
was not mentioned, nor was any
notice of the proceedings given to
him: Held, that the failure to
mention the name of the plaintiff
in the petition, or to give him
notice of the proceedings, invali-
dated the sale. (Jenkins agt.
Young, 35 Ifun, 5G9.)
7. That the said omissions were not
such omissions or defects as were
embraced within the intent of sec-
tion 2 of chapter 82 of 1850, pro-
viding that no such sale "shall be
invalidated, nor in any wise im-
peached, for any omission or de-
fect in any petition of any execu-
tor or administrator," etc. (Id.)
8. That the plaintiff's right to main-
tain the action was not taken away
by section 1 of chapter 92, of 1872,
amending section 3 of chapter 82
of 1850, which provides that no
such sale "shall be invalidated,
nor in any wise impeached,
* * * after a lapse of five years
from the time of such sale, where
the notice of such sale has been
published for six weeks succes-
sively before the day of such sale,
although such publication may
not have been for the full period
of forty-two days." (Id.)
9. That this act was not intended to
operate as a general limitation of
tho time within which such an
action as the present one might bo
brought, but only to bar after five
years actions brought to invalidate
a sale because of the defect in
publication, particularly referred
to in the act. (Id.)
10. In an affidavit used in March,
1871, to show the service of a
citation to show cause why an
administrator of Jenkins' estate
should not be appointed, it was
stated that "it was reported that
the said Charles Jenkins (the
plaintiff) was dead, by his friends,
and that his last place" of residence
could not be ascertained:" Held,
that this did not justify the surro-
gate in presuming that he was
dead, in the proceedings instituted
before the surrogate for the sale
of real estate. (Id.)
FEES.
1. The act (chapter 279 of the Laws
of 1884), is not sufficient to au-
thorize the board of estimate and
apportionment to fix the fees, per-
centages and allowances of tho
present sheriff, during his term of
office, at the rates set^orth in their
resolution of December 29, 1884,
for services thereafter to be rend-
ered. (Davidson agt. The Mayor,
&c., of New York, ante, 182.)
2. The act construed as not author-
izing any interference with the fees
of the then incumbent of the sher-
HOWARD'S PRACTICE REPORTS.
591
Digest.
iff's office, but the fixing of com-
peasation authorized deemed to
apply to his successors in office.
(Id.)
8. In an action for divorce on the
ground of alleged cruelty, brought
by a wife against her husband,
even where the wife prevails, the
defendant, the husband, will be
compelled to take up the report
and pay the referee's fees. (Early
agt. Early, ante, 239.)
FINDINGS OF LAW AND FACT.
1. Where, in an equity action,
questions of fraud are submitted
to and passed upon by a jury
which have no relevancy to the
issues presented by the pleadings,
and are not involved in the judg-
ment, they are not conclusive upon
the parties in a subsequent action.
(Lorttlard agt. Clyde, 9;) N. Y., 1U6.)
2. It seems that where the findings
of a trial court are apparently in-
consistent, it is the duty of the
appellate court, if possible, to re-
concile them and give effect to the
real meaning and intent of the
court in making them. (Health
Department agt. Pardon, 99 JV". Y. ,
237.)
GENERAL TERM.
1. Although on appeal from a judg-
ment, in an action tried by the
court, no exceptions appear to the
findings of fact, or error in their
determination, but the general
term draws a different legal con-
clusion therefrom than that of the
trial court, this does not authorize
it to render a final judgment in
accordance with its own conclu-
sion. Whenever the character of
the issues framed by the pleading
is such that, upon a new trial, it
will be possible for the respondent
to recover, a new trial should be
ordered. Having succeeded on
the trial, he is not required to pro-
cure the appearance of exceptions
upon the record, and so the appel-
late court cannot determine that
there were no exceptions or errors.
(Thomas agt. JV. Y. Life Ins. Co.,
99 N. 7., 250.)
2. When an order of general term
reversing a judgment of convic-
tion in a criminal action, omits to
show that the court exercised its
discretion and refused a new trial
upon the facts and granted it only
for error of law, it is not review-
able here. (People agt. Poucher,
99 JX. Y., 610.)
GUARDIAN.
1. In a controversy over probate a
special guardian of an infant in-
terested in the estate should not be
appointed upon the nomination of
the proponent; nor should any
person be appointed such guardian
who is associated in business with
the proponent's attorney or coun-
sel. (Mailer of Henry, ante, 250.)
2. Rule 10 of the surrogate's court
must be strictly enforced, unless
perhaps when it is clearly appar-
ent that the interests of the in-
fant will be best subserved by the
establishment of the disputed
paper as a will. In case a special
guardian has been inadvertently
appointed in disregard of Rule 10
he should be superseded. (Id. )
3. One who is a lawful incumbent
of the office of guardian, either
by appointment of the surrogate
or by virtue of a 'testamentary
provision, can successfully resist
in this court an application for
his removal until such facts and
circumstances have been estab-
lished as furnish statutory war-
rant for his suppression. (Matter
of King, ante, o07.)
4. If, within the meaning of subdi-
vision 2 of section 2817 of the
Code of Civil Procedure, a guard-
ian has been guilty of "miscon-
duct in the execution of her
592
HOWARD'S PRACTICE REPORTS.
Digest.
trust," and has thereby become
"unfit" t be continued in her
office, she must be removed;
otherwise the surrogate is power-
less to displace her. (Id.)
HUSBAND AND WIFE.
1. Business partnerships between
husband and wife are not author-
ized. (Jacquin agt. Jacquin, ante.
51.)
2. Therefore a husband cannot
claim under a business copartner-
ship with his wife, the right to a
dissolution of the same and the
appointment of a' receiver. (Id.)
3. This is adverse to Zimmerman agt.
Erhard and Dodge (59 How., 11) ;
and Graff et al. agt. Kinney (1 How.
\N. S.], 59) ; see, also, Fairlee agt.
Bloomingdale (67 How., 292). (Id.)
4. In a suit to recover for moneys
advanced to the wife of the de-
fendant, where evidence was
given tending to show that some
portion of such advances was
made for the purpose of procur-
ing necessaries of food and
clothing, it was a question of fact
for the jury to determine whether
or not such advances were made
because of the wife's necessities,
and under such circumstances
that the same should be charge-
able to the husband. ( Wells agt.
Laclienmeyer, ante, 232.)
IMPRISONED DEBTOR.
1. Where the petitioner was arrested
for convening to his own use
moneys and securities belonging
to the plaintiff, while acting in a
fiduciary capacity, and was im-
prisoned in default of bail, and on
his application for a discharge his
examination showed that in viola-
tion of his trust he had used the
money and property for his own
benefit:
Held, that he was entitled to his
discharge, because it did not ap-
pear that he had disposed or made
over any part of his own property,
with a view to the future benefit
of himself or his family, or with
intent to injure or defraud any of
his creditors. (Matter of Caamano,
ante, 240.)
INDIAN LEASES.
1. By the act of congress, approved
February 15, 1875, it was provided
that the then existing Indian leases
should be valid and binding for the
term of five years thereafter, unless
by the terms thereof they expired
before that time. The same act
gave the holder of such leases the
right to a renewal thereof in case
he was the owner of " improve-
ments erected upon" the land
leased. (Baker agt. Johns, ante,
404.)
2. George Jemison, a Seneca Indian,
residing on the reservation, made
to the plaintiff a lease of certain
premises (of which those in ques-
tion are a part) for the term of
twelve years, and on the 16th day
of June, 1875, the same Jeniisou
executed and delivered to the de-
fendant Johns a lease of the land
in question, and the defendant
Net/, is his tenant, and in posses-
sion. Under the act of congress
the defendant Johns made appli-
cation to the council of the Seneca
nation on the 25th December, 1879,
for renewal of his lease which was
granted and lease made of that
date, and on 20th day of January,
1880, the plaintiff made a like ap-
plication for renewal of her lease,
which was granted by the coun-
cilors, and lease made of date of
May 8, 1880, which included the
land in lease to defendant. In
action of ejectment by plain-
tiff, to recover the land held by
defendant:
Held, first, that plaintiff had made
improvements on the land covered
by her lease, and within the mean-
HOWARD'S PRACTICE REPORTS.
593
Digest.
ing of the act of congress was the
owner of them, and therefore en-
titled to a renewal of her lease.
Second. That the leases to the
plaintiff and defendant Johns were
in the strict legal sense invalid
prior to the act of congress of 1875,
and that they had no legal rights
in respect to the leased premises,
except that afforded by possession,
but that act confirmed and made
leases then outstanding valid, and
established rights under them as
effectually as of the time of their
execution as if they had been made
by persons competent to vest the
rights they purported to give. In
that view the plaintiff became the
lessee of the entire premises cov-
ered by her lease by the force of
the act from the time it was made,
and that to the defendant Johns
was ineffectual to vest in him any
right to the land embraced in it.
Third. That the plaintiff was
entitled to renewal of her lease
entire, and the continued posses-
sion of the premises covered by it,
and the defendant Johns had in
fact no existing lease, and no right
to any renewal in respect to the
premises in question, unless the
plaintiff had relinquished them to
him in such sense that he might
be treated as in possession as her
lessee or assignee.
Fourth. That the provision in
the act of congress for renewal
of leases to persons who own im-
provements, has reference to those
only who at the time the applica-
tion is made, lawfully claim under
a lease, or under some one who has
taken a lease which is then valid,
and does not include one who
has unlawfully as against such
leaseholder (entitled to renewal),
entered and made improve-
ments upon some portion of the
premises.
Fifth That it is conclusively es-
tablished by adjudication that the
defendant Johns derived no right
to possession of the premises from
the plaintiff, and he had no posi-
tion which enabled or permitted
him as against the plaintiff to ap-
ply for or take the renewal lease
VOL. II 75
under which he claims, but the
right was exclusively in the plain-
tiff to have a renewal lease cover-
ing the entire premises embraced
within that first taken by her.
Sixth. That as it was the cus-
tom, and had been for years, of
the council of the Seneca nation
to assemble for the transaction of
its business, and the action of the
council when so assembled was
governed by rules and by-laws,
and a formal record of the pro-
ceedings was kept in a book by the
clerk, a copy of such record certi-
fied by him is competent evidence.
(Id.)
INDICTMENT.
1. The provisions of the Code of
( riminal Procedure relating to
indictments should be construed
with the common-law principles
of pleading, and where no provi-
sion is made by the ( ode, the
common-law rule should prevail.
(The People agt. Wise, ante, 92.)
2 The Code has not changed the
common-law rule that an indict-
ment must show on its face a
criminal offense. (Id.)
3. Under the general election laws
the return of the results of an elec-
tion to be given to or filed with
the supervisor of the town or ward
in which the election was held,
must be the original return and
not a mere certified cop} r . (Id.)
4. Accordingly, where it appeared
on the face of an indictment that
a copy of a return was given to
and filed with the supervisor of a
ward, and that it was mutilated
by him, no offense is shown under
section 94 of the Penal Code, as it
was not filed or deposited with
him " by authority of law." (Id.)
5. To constitute an offense against
a statute for the protection of a
document or paper of any kind, it
must appear to be the kind of
document or paper specified in the
statute. (Id. )
594
HOWARD'S PRACTICE REPORTS.
Digest.
6. Section 649 of the Penal Code
covers only cases of a messenger
appointed by authority of law, or
any person who interferes with
such messenger. (Id.)
7. Repugnancy (there being two
inconsistent allegations in one
pleading) is a fatal objection to an
indictment since, as before the 5
Code of (. riminal Procedure. (Id.)
8. Cases stated as to how and when ,
the words and figures of a docu-
ment or paper should be set forth
in an indictment. (Id.)
INJUNCTION.
1. The court may restrain, by in-
junction, summary proceedings,
if the justice goes beyond his ju-
risdiction, either in taking cog-
nizance of the proceedings or
while he is acting in it, and if it
appear that the justice who
granted the warrant, the enforce-
ment of which is sought to be re-
strained, was without jurisdiction,
the injunction should be con-
tinued. \Kiernan agt. Iteming,
ante, 89.)
2. A person who has been a hired
workman of another, a mere em-
ploye for a time, afterwards en-
gaging in the same business of his
former employer and occupying a
store in the same city, has no right
to use the name of such former
employer upon his cards, signs,
&c., by saying "late with," &c.,
and such use will be restrained by
injunction. ( Van Wyck agt.
Horowitz, ante, 279.)
See MINOR CHILDREN.
Armitage agt. Hoyle et al., ante,
438.
3. Agreement not to carry on busi-
ness within a certain territory
when it will be sustained a vio-
lation of it may be restrained by
an injunction, though a specific
amount is to be paid by the terms
of the agreement for its breach.
(See Diamond Match Co. agt. Roeber,
35 Hun, 421.)
Assessment when the enforce-
ment thereof will not be enjoined.
(See Morse agt. City of Buffalo, 35
Hun, 613.)
. To restrain interference with a
highway. (See De Witt agt. Van
tichoyk, 35 Hun, 103.)
INSURANCE (LIFE).
In an action by a husband to re-
form life insurance policies taken
out in favor of his wife, from
whom he has since been divorced,
on the ground of mistake:
Held, that to justify a reforma-
tion the mistake must have been
mutual. The divorce from his
wife cannot authorize or enable
the court to change the condi-
tions and tenns of the policies,
unless, through a mutual mis-
take, the intention of both parties
have failed of expression. A mis-
take on one side is not enough.
(Goldsmith agt. Union Mutual Life
Ins. Co., ante, 32.)
2. As the husband accepted these
policies at the lime they were
issued, and has had them in his
possession for many years with-
out objection, they are presumed
in law to express his intentions.
If for any reason he believed
them to be wrong, he should have
declined to pay the premiums
upon them year after year. Such
voluntary payments are an adop-
tion of the terms of the policies
as issued. (Id.)
3. As to the effect of the decree of
divorce upon the rights of the
divorced wife under the policies,
quaere. (Id.)
4. In an action upon a policy of
life insurance where the contract
was based upon a written appli-
cation made by the insured and
HOWARD'S PRACTICE REPORTS.
595
Digest.
presented to the company in
which the applicant made repre-
sentations as to the state of his
health at that time and previous
thereto. In reply to an interroga-
tory, the insured stated that he
had never heen insane. Another
question in the application was :
" Have they (parents, brothers or
sisters) died of, or been afflicted
with insanity, epilepsy * * *
or other hereditary disease?" to
which he answered no. The
policy contained an express con-
dition and agreement that all the
answers, statements ynd represen-
tations should constitute a part
of the contract and were war-
ranted by the insured to be true in
all respects, and if they Avere not,
then the contract to be absolutely
null and void. One of the de-
fenses interposed by the company
was that a sister of the insured
was, and had been at the time the
application was made and the
policy issued, insane, and evidence
was given to prove the truth of
the answer:
Held, that if it was a fact that
the sister was, or had been, at
time of the application, insane,
and the same was of a temporary
character only produced by physi-
cal causes at that time existing, it
would not constitute a breach of
any condition of the policy and
thereby render it void. That to
bring the case within the limits of
the contract in this respect, so as
to constitute a defense and defeat
a recovery, it must be made to
appear that the insanity which
afflicted the sister of the insured,
was constitutional and hereditary
in its nature and character.
( Westover agt. The ^tna Life In-
surance Co., ante, 163.)
JUDGMENT.
1. The filing of a justice's transcript
in the county clerk's office, makes
the judgment of the justice a judg-
ment or the county court for all
purposes. (Spencer agt. Wait, ante,
117.)
2. The statute of limitations appli-
cable to such a judgment, is the
statute applicable to judgments
rendered in courts of record. (Id.)
See PRACTICE.
Negley agt. The Counting Boom
Company, ante, 237.
3. On September 8, '879, upon the
application of one Holmes, against
whom a judgment had been dock-
eted on August ninth of that year,
his default was set aside and he
was allowed to defend the action,
the judgment to stand as security
for any judgment the plaintiff
might thereafter obtain in the
action. Before the trial Holmes
died, and the plaintiff, his execu
trix, was substituted in his place,
and thereafter a judgment was
rendered against her, from which
she appealed and procured an
order providing that the docket of
each of the said judgments be
marked suspended upon appeal.
After the docket of the second
judgment the plaintiff contracted
to sell certain lands inherited from
Holmes to the defendant in the
present action; and after the ap-
peal and the making of the order
suspending the lien of the judg-
ments, she tendered a deed there-
of to the defendant pursuant to
the contract, and upon his refusal
to accept it on account of the said
liens she brought this action to
recover damages for his said re-
fusal: Held, that the effect of the
order setting aside the default and
directing that the judgment al-
ready recovered should stand as
security for any judgment the
plaintiff might thereafter recover
was to create a lien upon the land,
which justified the defendant in
refusing to accept the deed.
(Holmes agt. Bush, 35 Hun, 637.)
4. That the said lieu was not affect-
ed by the order made under sec-
tion 1250 of the Code of Civil Pro-
596
HOWARD'S PRACTICE REPORTS.
Digest.
cedure marking the judgments as
suspended on appeal. (Id. )
5. Quare, as to bow the said lien
should be enforced, whether by a
sale of the land under process to
be issued by the court or by a suit
in equity. (Id)
6. Foreign judgment service of a
summons upon a non-resident in a
foreign State, void. (See Shepard
agt. Wright, 35 Hun, 444.)
7. But one judgment should be
entered where the plaintiff's re-
covery is so small as to give costs
to the defendant the recovery
cannot be assigned so as to pre-
vent the setting off of the lesser
against the greater amount. (See
Warden agt. Frost, 35 Hun, 141.)
8. Cannot be entered until all the
issues are disposed of. (See Rob-
inson agt Hail, 35 Hun, 214.)
9. Remedy for irregular entry of.
(Id.)
JUDGMENT DEBTOR.
1. A judgment debtor is not entitled
to a discharge from imprisonment
under execution, where he has
knowingly and intentionally ex-
pended upon himself and family
for the necessaries and luxuries of
life the money which he obtained
by fraud from his creditors:
Held, also, that an investment
by the debtor in real property in
his wife's name, of other moneys
subsequently acquired, is in fraud
of the creditor, and will defeat a
discharge on the ground that the
proceedings are not just and fair.
(Matter of Loicell, ante, 285.)
2. A pretended indebtedness to the
wife for borrowed money, where
no account thereof has been kept,
is no consideration for such invest-
ment as against creditors. (Id.)
JUDICIAL SALE.
1. Defective service upon an in-
fant when a judgment entered
upon it may be made binding upon
the infant by a subsequent judg-
ment when a purchaser will be
compelled to accept a title. (See
Rice agt. Barrett, 35 Hun, 366.)
JURISDICTIOiN\
1. Where a judgment was recovered
and entered in the city court of
New York and execution issued
thereon for more than $2,000, and
the excess was remitted and the
judgment and execution was
amended nutic pro tune. On mo-
tion by a subsequent execution
creditor to vacate the judgment
and execution for want of juris-
diction and other alleged defects
and irregularities:
Held, that the jurisdiction of
this court extends to any action
wherein the complaint demands
judgment for a sum of money
only, whatever may be the amount
claimed. The amount claimed
does not affect the jurisdiction of
this court. If jurisdiction vests
at the commencement of the
action, it cannot be ousted by any
subsequent act, although entry of
judgment for the excess of its ju-
risdiction may have been an ir-
regularity which the defendant
might have objected to, a third
party cannot. (Roof agt. Meyer,
ante, 20.)
2. There being no want of jurisdic-
tion, if there are any defects or
irregularities in the judgment, or
proceedings or execution, they
can be taken advantage of only
by the defendant. (Id.)
3. A paper purporting to be the will
of a resident of New .Jersey, who
died in that state leaving personal
property in the county of New
York, was propounded in that
county for probate. Such paper
was not subscribed by its maker,
HOWARD'S PRACTICE REPORTS.
597
Digest.
but her name appeared in her own
handwriting in its opening sen-
tence, which began: " If I, Cecilia
L. Booth, should die," &c. (In
the Estate of Cecilia L. Sooth, ante,
110.)
4. The instrument from first to last
was written by the decedent
while two persons were in attend-
ance at her request for the pur-
pose of. attesting it. They duly
subscribed their names is wit-
nesses, and she acknowledged in
their joint presence that the paper
so authenticated was her will, at
the same time displaying it so that
they saw her name as written
upon its face :
Held, that the surrogate of this
county had jurisdiction in the
premises. (Id )
5. The courts of this state have no
jurisdiction for trespass to lands
without the state. (Dodge agt.
Colby, ante, 475.)
6. Of courts, over infants for whom
no guardian ad litem is appointed.
(See Sims agt. N. T. College of
Dentistry, 35 Hun, 344.)
7. Of county judge in proceedings
for town bonding when the peti-
tion is sufficient. (See Town of
Solon agt Williamsburgh Savings
Bank, 35 Hun, 1.)
8. An order in supplementary pro-
ceedings directed the judgment
debtor to deliver to the sheriff a
sum of money, which had been
paid to him as wages after the in-
stitution of the supplementary
proceedings. The defendant was
a resident of Pennsylvania, and it
appeared that the money was in
that state : Held, that the order
was erroneous; that the court had
no power to compel the debtor to
go out of this state to obtain the
money and bring it here. (Bu-
chanan agt. Hunt, 98 N. Y.,
560.)
9. It seems the most the court had
power to do was to require the
debtor to transfer his title to the
money to a receiver. (Id.)
10. A surrogate, on settlement of
the accounts of an executor or
administrator, who has made ad-
vances for the support and main-
tenance of a minor entitled to a
share in the estate, has jurisdic-
tion to determine, upon equitable
principles, a claim for such ad-
vances; and an allowance is proper
where the expenditure for which
reimbursement is so sought is
such as would have been author-
ized by the court had application
been made in advance. (Hyland
agt. Baxter, 98 N. T., 610.)
JURY.
1 . The action of a jury in getting
books of the law and consulting
them while engaged in their de-
liberations in regard to a verdict,
although irregular, is not sufficient
to warrant a new trial. (The
People agt. Seeley, ante, 105.)
2. Where there are three counts in
an indictment the omission of the
jury to render a verdict upon the
second and third counts is not
such an irregularity as should
lead to a new trial, for the omis-
sion to find one way or the other
is equivalent to an acquittal on
those counts, and a judgment as
to them is a bar to further prose-
cution. (Id.)
3. If a trial proceeds, and a verdict
be rendered without a jury being
sworn, such a verdict is not ir-
regular and void, when neither
party asked that the oath should
be administered. (Jenkins agt.
City of Hudson, ante, 244.)
4. That which the law requires to
be done for the protection of a
party, may be waived, and the
failure to object is a wahvr. Nor
59S
HOWARD'S PRACTICE REPORTS.
Digest.
can failure to object be excused
by alleged ignorance. (Id.)
See NEGLIGENCE.
Foster agt. The New York Cen-
tral and Hudson River Railroad
Co., ante, 416.
5. Policy of insurance construc-
tion of a clause prohibiting repairs
or alterations without consent of
the company when the question
as to whether the clause has been
violated should be left to the jury.
(See Mack agt: Rochester German
Ins. Co., 35 Hun, 75.)
6. Trial for murder in the first de-
gree when the question of pre-
meditation and deliberation must
be left to the jury errors in the
charge when not cured by a
subsequent modification thereof.
(See People agt. Kelly, 35 Hun, 295.)
A passenger can only be put off a
train at a usual stopping place or
near a dwelling-house when the
question whether or not a dwell-
ing-house is "near," within the
meaning of the statute, should be
submitted to the jury 18-30, chap.
140, sec. 35. (See Loomis agt.
Jewett, 35 Hun, 313.)
JUSTICE OF THE PEACE.
1. In this action, which was com-
menced in a justice's court by the
service of a summons and a veri-
fied complaint, as provided by
chapter 414 of 1881, a demurrer
interposed by the defendant was
overruled with leave to him to
answer The defendant having
failed to answer, judgment was
entered for the plaintiff for
the full amount claimed in the
complaint, without any proof
thereof being furnished: Held,
that this was error; that the act
of 1881 only authorizes the entry of
a judgment without proof, when
the defendant fails to answer or
demur. When he does either,
section 2891 of the Code of Civil
Procedure becomes applicable and
prevents the plaintiff from re-
covering without proving his case.
(Oulman agt. Schmidt, 35 Hun, 345.)
2. When a new trial may be had in
a county court on appeal from a
justice's judgment Code of Civil
Procedure, sec. 3068. (See Rey-
nolds agt. iSwick, 35 Hun, 278.)
3. In this action, brought in a jus-
tice's court to recover the sum of
twenty-five dollars, alleged to be
due to the plaintiff fiom the de-
fendant bank, being a balance of
deposits made by him with it, the
defenses were, a general denial, a
settlement and payment. Upon
the trial the plaintiff testified to
having made deposits amounting
to $0.128.50, and to having drawn
and received back checks amount-
ing to $5,351.01 ; but admitted
that he had drawn checks, which
had been returned to him, for all
the money he had deposited ex-
cept twenty-five dollars, which
amount had been paid by the de-
fendant upon a check, which the
plaintiff claimed he had not
drawn. Upon the defendant's
motion, the justice dismissed the
complaint upon the ground that
the sum total of the accounts of
both parties exceeded the sum of
$400: Held, that this was error.
(Brisbane agt. Bank of Batavia, 36
Hun, 17.)
LACHES.
See SPECIFIC PERFORMANCE.
Johnson and another agt. Dun-
can, ante, 366.
LEGACIES.
1. The primary fund for payment
of legacies is personal estate and
realty, cannot be charged with the
burden unless by express direc-
tion or clear intent drawn- from
the will, aided by outside circum-
stances, if any there be. (Reyher
agt. Reyher and otJiers, ante, 74.)
HOWARD'S PRACTICE REPORTS.
599
Digest.
2. The will of R., after directing the
payment of his debts, directed his
executors to pay to his father,
mother, brother and sister, certain
sums of money, and then directed
that all the rest, residue and re-
mainder of his estate, both real
and personal, be equally divided
between his daughter and widow,
who was appointed executrix,
giving her full power to sell and
convert all the estate into money.
The personal property was insuf-
ficient to pay the legacies in full :
Held, that the legacies were
chargeable upon the real estate.
(Id.)
See WILL.
Matter of Karr, ante, 405.
LIMITATIONS OF ACTIONS.
1. This action was brought by the
plaintiff to recover damages for an
alleged breach of an agreement,
whereby the defendant contracted
to carry him safely from Herkimer
to Mohawk. The plaintiff claimed
that by reason of the unfitness of
the car used, and of the dangerous
proximity of telegraph poles to
the tracks, he was struck and in-
jured by one of the said poles
while in the car: Held, lhat the
action was to "recover damages
for a personal injury, resulting
from negligence," and was gov-
erned by the three years' limita-
tion prescribed by subdivision 5
of section 383 of the Code of Civil
Procedure. ( Webber agt. Herkimer
and Mohawk Street R. R. Co., 35
Hun, 44.)
2. Right of a supervisor to sue to
recover damages for injuries sus-
tained by a town an action
against railroad commissioners,
for the wrongful issue of bonds,
accrues when the bonds are issued
it is barred in six years. (See
Mtchell agt. Strough, 36 Hun,
83.)
MANDAMUS.
1. A writ of mandamus is the appro-
priate remedy by which the com-
mon council may be required to
consider the estimate and vote the
amount thought necessary to carry
out the law. (The People ex rel.
Alfred P. Wright agt. The Com-
mon Council of the City of Buffalo,
ante, 61.)
2. A citizen and a taxpayer has the
power and right to apply for the
writ. (Id.)
3. It is only when the application
for the writ is made to secure
some personal or private redress
that the applicant must be shown
to be interested in obtaining it
before the writ can be directed to
issue. Where the act omitted to
be performed affects the public
interests generally, and all citizens
are equally concerned in securing
its performance, and that has
been enjoined by a law of the
state, it is sufficient, to support
the application, that the applicant
is a citizen and entitled to insist
upon the execution of the laws of
the state (Id.)
4. When a law for repaying a street
has been duly passed, proposals
to do the work invited, bids re-
ceived, and by resolution of the
contracting board of a city the
contract let to the lowest bidder,
the proposer has a right to have
the proper contract written out in
accordance with his bid so ac-
cepted, and the board has no right
to rescind the resolution awarding
the contract. A mandamus will
issue to compel the execution of
the proper contract by the city.
(The People ex rel. Holier agt. rhe
Board of Contract and Apportion-
ment of the City of Albany, ante,
423.)
See COURTS.
PeopU ex rel. Cole agt. Board of
Supervisors of Greene County,
ante, 483.
600
HOWARD'S PRACTICE REPORTS.
Digest.
MANUFACTURING CORPO-
RATIONS.
See ABATEMENT AND REVIVOR.
Bonnell agt. Griswold, ante, 451.
MARRIED WOMEN.
1. Where husband and wife board
at a hotel the husband is pre-
sumptively liable for the bill, but
it is competent for the hotel-
keeper to show that the husband
was impecunious, and that credit
was given to the wife so as to
justify the detention of her prop-
erty by virtue of the hotel-keep-
er's lien. (Birney agt. Wheaton,
ante, 519.)
MINOR CHILDREN.
1. By the Revised Statutes, as
amended by chapter 32 of Laws of
1871, a father may by deed or last
will duly executed, 'dispose of the
custody and tuition of any child
under the age of twenty-one years
and unmarried during its mi-
nority. (Armitage agt. Hoyle et
al. , ante, 488.)
2. Where a father has by deed duly
executed, disposed of the custody
and tuition of a minor child, and
the person to whom such dispo-
sition has been made has accepted
the same; an action will lie to
enforce the rights of such person,
and an injunction will be granted
restraining the interference of not
only the father, but of all persons
acting under him and by his pro-
curement, with the rights of such
person to such custody and tuition
under said deed. (Id. )
3. The injunction in such actions
run not only against a party, bat
also against his attorneys, coun-
selors, agents, &c. (Id.)
MOTIONS AND ORDERS.
1. The supreme court cannot obtain
jurisdiction to make an order in
an action pending in a justice's
court, by a mere notice of motion.
(Matter of Martin, ante, 26. )
2. A party to an action pending in
justices' court, cannot make a
motion in the supreme court to
control the procedure in such
action. (Id )
See PIIACTICE.
The National Bank of Port Jerms
agt. Hansee, ante, 200.)
3. Service of notice of, is not
equivalent to an appearance. (See
Valentine agt. Myers' Sanit&ry
Depot, 8ij Hun, 20 1 .)
4. It seems that when an order has
been made in an action substitut-
ing another as plaintiff on the
ground of the death of the original
plaintiff, it is not requisite to prove
upon the trial the death or the
right of the person substituted ;
these facts are necessarily deter-
mined in making the order. (Gib-
son agt, Nat. Park Bk.. 98 N. 7.,
81.)
5. An order vacating a surrogate's
decree settling the account of an
executor is a final order; its allow-
ance is within the discretion of
the court below in cases where the
court has jurisdiction ; if the court
has no jurisdiction it is reviewable
here. (In re Ittden, 98 N. Y.,
434.)
6. An order in supplementary pro-
ceedings directed the judgment
debtor to deliver to the sheriff a
sum of money, which had been
paid to nim as wages after the in-
stitution of the supplementary
proceedings. The defendant was
a resident of Pennsylvania, and it
appeared that the money was in
that State : Held, that the order
was erroneous; that the court had
no power to compel the debtor to
go out of this state to obtain the
money and bring it here. (Bn-
clmnan agt. Hunt, 98 N. Y.,
5GO.)
HOWARDS PRACTICE REPORTS.
601
Digest.
7. When an order of general term,
reversing a judgment of convic-
tion in a criminal action, omits to
show that the court exercised its
discretion and refused a new trial
upon the facts and granted it only
for error of law, it is not, review-
able here. (People agt. Poacher,
99 N. F, 610.)
MORTGAGE.
1. There is no general rule of law
or equity which permits the owi.er
of a junior mortgage to single out
one of several parcels covered by
his and an older mortgage and
redeem that one parcel. His only
right is to redeem the whole The
foreclosure of the older mortgages
though not valid to cut off the
younger is valid as a transfer of
the rights of the older mortgagee
to the purchaser or purchasers at
that sale, and from them to their
assignees. As the junior mort-
gagee or his assignee could not
redeem a single lot out of the
several mortgaged, from the older
mortgagee, neither can he re-
deem a single lot from one who
is the assignee of the older mort-
gagee, because such assignee suc-
ceeds to all the rights of the older
mortgagee. (Dick agt. Livingston,
ante, 10.)
2. If a part of premises covered by
a prior mortgage can be redeemed
by a junior mortgagee, all the
parties who purchased at the
prior mortgage sale, or their
grantees, and the prior mortgagees
should be parties. In such case
it is always a question what
amount shall be paid, and the
owner of every parcel covered by
the prior mortgage and the plain-
tiff in .the foreclosure suit should
be before the court. (Id.)
Set ATTORNEY AND CLIENT.
Crane agt. Evans, ante, 310.
MUNICIPAL CORPORATION.
1. A municipal corporation has no
right, by the grading of streets
VOL. II 7G
and the construction of sewers, to
gather the surface water and
sewage from a considerable terri-
tory, and through a sewer dis-
charge them upon the premises of
an individual. (Van Rensselaer
agt. City of Albany, ante, 42.)
2. The casting upon the premises of
such individual of the tilth from
such sewers is a nuisance, and the
municipality is liable therefor and
can be called upon to abate it.
(Id.)
3. There can be no dedication of
land while the owners are con-
tinually declaring a contrary in-
tent, nor can a right to continue
a nuisance be established by user
because no user will legalize a
nuisance. (Id.)
4. A municipal corporation, in ad-
dition to the powers specifically
granted by its charter, has full
power to act in reference to all
matters in which it has an interest,
except so far as restrained by con-
stitutional limitations.
Accordingly, where an action quo
warranty is brought by the people
to test the title of a municipal offi-
cer, and the complaint is dis-
missed on the merits:
Held, that the expenses neces-
sarily incurred by defendant in
establishing his right to the office,
are expenses necessarily incurred
in the discharge of his duty, and
that the city has full right and
power to pay the same.
Also, held, that it is entirely im-
material what attorneys perform-
ed the services, assuming they
wore proper and necessary.
(McCredie agt. The Gity of Buffalo,
ante, 336.)
MUTUAL UEXEFIT ASSOCIA-
TION.
1. When the by-laws of a mutual
benefit association provided that,
" If any member shall neglect to
pay his annual dues or assess-
602
HOWARD'S PRACTICE REPORTS.
Digest.
ments to the general secretary or
to the secretary of the local board,
within thirty days from tlie date of
a notice to pay the same by the gen-
eral secretary, he shall forfeit all
claims on the society, until rein-
stated, as provided in the next
section:"
Held, that the forfeiture is only
incurred by the failure for "thirty
days " to pay on a notice given
" by the general secretary. " (Payn
agt. The Mutual Belief Society of
Rochester, ante, 220.)
2. A notice given by the local sec-
retary cannot be deemed one " by
the general secretary;" nor are
cards issued in the name of the
general secretary, to which his
signature is appended in print,
and which the local secretary has
filled up and addressed, in any
sense a notice "by the general
secretary. " (Id.)
3. A notice to do an act, which is
required to be given by a particu-
lar person named contemplates the
personal action and judgment of
the person authorized to give such
notice, and involves the exercise
of power and discretion to be ex-
ercised by the individual himself
which he cannot delegate to
another. (Id.)
4. Where on the death of a member
application was made to the proper
officer for the necessary blanks to
furnish proof of death, which
were refused on the ground that
such member did not pay a certain
assessment and the officer did not
consider he was a member:
Held, that this was a waiver of
proof and notice of death. (Id.)
NEGLIGENCE.
1. The pilot and the deck hand were
not fellow-servants. (Briggs agt.
Tlie Titan, ante, 22.)
2. When a tow hides a light on a
tug, the tug is liable. (Id.)
3. The " Hills " is liable also for ex-
cess in speed and for not having a
look-out. (Id.)
4. Both parlies being to blame,
neither may claim to be excused
by the others and the decree of
the district court giving $3,000
damages, one-half against the
"Hills" and one-half against
"The Titan" to the libelant,
Briggs, is affirmed. (Id.)
5. An infant, if sui juris, after h
sees the approach of a car in time
to avoid it, cannot voluntarily as
sume the risk attending an effort
to cross a railroad track and re-
cover for an injury arising from
the failure of his experiment.
(Motel agt. Sixth Avenue Railroad
Company, ante, 30.)
6. Plaintiff arriving at the passen-
ger depot of the defendants' rail-
road, which has two modes of
ingress and egress one by Steu-
ben street, which is on a level
with the depot, the other by
Maiden lane, which has a stone
stairway maintained and kept by
the defendant took the stone
stairway to Maiden lane, and while
passing such stairway slipped and
fell injuring himself, for which
injury he brought an action
against the railroad. At close of
plaintiff's case, and also when the
testimony was complete, defend-
ant moved to nonsuit plaintiff on
the grounds that negligence of
defendants in removing snow and
ice from the steps had not been
shown, and that the absence of
contributory negligence by plain-
tiff did not affirmatively appear,
but, on the contrary, the undis-
puted evidence showed that he
was guilty of contributory negli-
gence. The motion was denied
and both questions were submit-
ted to the jury as questions of fact
to be determined by them upon a
motion for a new trial:
Held, first. That while the de-
fendant showed by its employes
that it had been diligent in re-
HOWARD'S PRACTICE REPORTS.
60*
Digest.
moving all snow and ice, yet on
the other hand, there was evi-
dence on the part of the plaintiff
that the snow and ice had been
upon the steps for several days.
What was the truth in that par-
ticular was a question of fact;
and whether or not, if the jury
believed the witnesses of the
plaintiff rather than those of the
defendant, the defendant has been
guilty of negligence in failing to
remove such snow and ice was
also a question of fact. These
were proper questions to be sub-
mitted to the jury.
Second. When a person who is
walking on a dangerous and slip-
pery place, persists in doing so
without using, as he might readily
and easily do, the safeguards
there placed for his protection
and support (i. e.) when, as in this
case, the person injured knew he
was walking upon slippery steps
upon which he was liable to fall
and knowing that he could pro-
tect himself by grasping a rail
placed there for that purpose, yet
proceeds with full knowledge of
his peril and of his neglect of a
means of safety; these conceded
facts demonstrate that the person
injured was clearly guilty of con-
tributory negligence and should
have been nonsuited. (Foster
agt. The New York Central and
Hudson River Railroad Co., ante,
416.)
NEW TRIAL.
1. Upon an appeal from a judgment
for $158 recovered by the plain-
tiff, the general term ordered a
new trial unless the plaintiff
would stipulate to reduce the
damages to sixty-one dollars and
twenty-five cents. The plaintiff
gave the stipulation, and the judg-
ment as modified was affirmed.
Thereupon the defendant, with-
out delay, but after more than
four years had elapsed from the
time of the entry of the original
judgment, moved for a new trial
upon the ground of newly dis-
covered evidence: Held, that an
order denying the motion should
be affirmed, without examining as
to whether or not the application
was a meritorious one. (Fisher
agt. Uorwin, 35 llun, 253.)
2. In an action of replevin brought
in a justice's court the complaint
alleged that the property was of
the value of $150, and the answer
admitted it to be of the value of
$180. The justice rendered a
judgment that the plaintiff retain
the property and recover eight
dollars and forty-eight cents costs,
but he failed to fix the value of
the property. Upon an appeal
taken by the defendant to the
county court: Held, that he was
entitled to a new trial, under sec-
tion 3068 of the Lode of Civil
Procedure; that in the absence of
any finding by the justice as to
the value of the property it might
be determined by the pleadings.
(Reynolds agt. Swick, 35 Hun, 278.)
3. A new trial will not be granted
on account of newly discovered
evidence if it is cumulative, nor
unless it is clear that, if produced,
it would change the result.
(Geneva, Ithaca and Sayre R. R.
Co. agt. Sage, 35 Han, 95.)
4. Appeal from an order of a
county court denying a new trial
when the county court may
grant or refuse a new trial, in its
discretion its decision is not re-
viewable at general term. (See
Myers agt. Riley, 3(5 Han, 29.)
NEW YORK (CITY OF).
1. By the act of 1884, chapter 248,
the teachers in the colored schools,
when said act was passed, were
continued as such teachers in the
ward schools and primaries until
removed in the manner provided
by law. (The People ex rel. Ray
agt. Davenport, ante, 17.)
2. The words " removed in the man-
604
HOWARD'S PRACTICE REPORTS.
Digest.
OFFER OF JUDGMENT.
1. Whore defendants were sued as
partners upon a partnership in-
debtedness, and one appeared and
defended the action, the other
defendant not being served with
process and not appearing, the one
appearing served an offer to allow
judgment to be taken " ayain.it
hint, " for sixtv-five dollars and
ner provided by law," mean the
manner provided by the statutes
relating to such removals. Those
statutes provide for a removal by
the board of trustees, and by the
board of education, and a license
of a teacher may also be revoked
for any cause affecting the mo-
rality or competency of such
teacher. (Id.)
3. The act of 18S4 does not war-
rant the dropping of a teacher
under a provision of a by-law of
the board of education. The clear
intention of the legislature was
to continue the teachers in the
colored schools until they were
removed for some misconduct.
(Id.)
4. To an action brought for a viola-
tion of a corporation ordinance, I
the defense set up a resolution, j
passed by the common council on j
September 18, 1884, providing that
the corporation attorney, before
the commencement of any action
for the violation of any of the
ordinances of the city, shall give ;
notice in writing ten days be-
fore instituting suit, to every I
delinquent:
Held, that the common council
had no power to pass such ordi- ;
nance. (The Mayor agt. Heuft, \
ante, 149.)
NUISANCE.
See DEED.
Flanagan agt. Hollingsw&rth, ante,
891.
fifty-four cents, with interest and
costs. The plaintiff recovered a
judgment against the defendants
"jointly" tor seventy-two dollars
and ninety-one cents, but this in-
cluded interest, so that the judg-
ment "in amount," is not more
favorable than the offer:
Held, that a joint judgment could
not have been entered upon the
offer, and, therefore, the recovery
is more favorable, as it is enforce-
able against the joint property of
both defendants, as well as the
property of the defendants served,
and the plaintiff is entiiled to
tax his costs. (Banner/nan agt.
Quackenbufih et al., ante, 82.)
. Upon a motion by an attaching
creditor to set aside a judgment
and execution, which judgment
had been entered upon plaintiff's
acceptance of an offer made .by
defendants, because the accept-
ance did not have annexed thereto
any affidavit to the effect that the
plaintiff's attorneys were duly au-
thorized to accept said offer, as
required by section 740 of the
Code of Civil Procedure:
Held, that the court has power
to allow an amendment mine pro
tune, annexing the proper affida-
vit; and where it appears that the
omissions to annex the proper affi-
davit to the acceptance was an
inadvertence of the attorney, and
that the authority to accept actu-
ally existed, the amendment should
be granted. (Stark agt. Stark and
anotJier, ante, 360.)
OFFICE AND OFFICER.
1. A person who takes proceedings,
under the Revised Statutes, to
compel the delivery by another to
him of the books and papers of an
office, should at least show a
prima facie title to the office, and
this would be properly proved by
the official canvass showing claim-
ant to have received the greatest
number of votes. (Matter of
Case agt. Campbell, ante, 85.)
HOWARD'S PRACTICE REPORTS.
605
Digest.
2. Such proceedings to compel the
delivery of books, &c., are not to
be used to try the title to an office ;
and when the result of an election
is declared by the official canvass-
ers, a county judge has no power,
upon such an application, to take
evidence and determine the result
of an election. (Id.)
3. It is only in a clear case, or in one
free from reasonable doubt, that
the authority conferred upon the
court by the Revised Statutes to
compel the delivery of books and
papers in the possession of one
officer to the custody of another
will be exercised. The remedy is
only given where the case is so
clear that the conduct of the
party, in refusing to deliver, could
be called willful or obstinate, and
not in a case in which a person in
good fuith holds possession of an
office supposing himself to be the
lawful incumbent, and with that
possession the custody of books
and papers essential to the proper
discharge of its duties. (Bridg-
man agt. Hall, ante, 173.)
4. Do the provisions of the Revised
Statutes under which this pro-
ceeding is instituted apply to the
office chamberlain or treasurer
of a municipal corporation created
by special charter which each
of the parties to this proceeding
claim to be entitled to. Qucere.
OFFSET.
1. Where a broker has possession of
goods to be sold, and sells them in
his own name, he is a factor, and
any offset existing against the lat-
ter may be set up to a claim made
by the true owner of the property
to recover the contract-price, pro-
vided the vendee purchased in
good faith and without notice of
the true facts. (Biinnerman agt.
Quackenbush et al., ante, 293.)
PARTIES.
1. If a part of the premises covered
by a prior mortgage can be re-
deemed by a junior mortgagee, all
the parties who purchased at the
prior mortgage sale, or their
grantees, and the prior mortgagees
should be parties. In such a case
it is always a question what
amount shall be paid, and the
owner of every parcel covered by
the prior mortgage and the plain-
tiff in the foreclosure suit should
be before the court. (Dick agt.
Livingston, ante, 10.)
See ACTION.
Farnum agt. Barnutn, ante, 396.
2. One patron of a cheese factory
may sue alone to recover damages
occasioned to him by the negli-
gence of its salesman. (See Soule
agt. Mogg, 35 Hun, ? ( J.)
3. Survival of action for slander
brought by partners when the
action does not abate by reason of
the death of one of the partners.
(See Shale agt. Schantz, 35 Hun,
022.)
4. An action against persons as ex-
ecutors cannot be changed to one
against them as individuals (See
Van Cvttagt. Prenticejfa Hun, 317.)
5. Corporation right of one obtain-
ing a transfer of its stock, for the
purpose of suing it, to maintain
the suit. (See Ervin agt. Oregon
By. and Nav. Co., 35 Hun, 544.)
6. Failure to appoint a guardian for
an infant plaintiff does not deprive
the court of jurisdiction of the
action. (See Sims agt. JV. Y. Col-
lege of Dentistry, 35 ilnn, 344.)
7. Order of substitution Code of
Civil Procedure, sec. 757 an
assignee may be substituted as
plaintiff although a counter-claim
has been pleaded. (See Schlichter
agt. S. Brooklyn Saw Mill Co., 35
Hun, 339.)
06
HOWARD'S PRACTICE REPORTS.
Digest.
8. Five persons conveyed to two
trustees their rights and interests
in certain inventions or improve-
ments, in order to enable the
trustees to dispose of them to the
best advantage. The proceeds
arising upon any sale were to be
divided among the parties, in pro-
portion to the value of their re-
spective inventions, and in case
of dispute the proportion was to
be settled by arbitration. (Bear
agt. Am. Rapid Telegraph Co., 36
Hun, 400.)
9. This action was brought by the
plaintiff, one of the parties to the
agreement, to have the trustees
removed for neglect of duty and
breach of faith in returning to a
corporation, which had purchased
the said inventions, the certificates
of its stock which it had agreed
to give in payment therefor: Held,
that the action could not be main-
tained without making all the
parties to the agreement parties to
the action. (Id.)
10. That the fact that the complaint
alleged that the action was
brought by the plaintiff not only
in his own behalf, but also in be-
half of his co-beneficiaries in the
trust, did not cure the omission.
(Id.)
11. That although the defect of
parties appeared upon the face of
the complaint, the right to object
was not, in this case, waived by
the failure of the defendants to
raise the objection by demurrer.
(Id.)
12. When a failure to make a proper
party a defendant is waived by a
failure to raise the objection by
demurrer. (See Strauss agt. Trades-
men* Nat. Bank, 36 Hun, 451.)
13. Examination of a person having
property belonging to the estate
of H deceased person all the ex-
ecutors or administrators should
be parties to the proceeding
Code of Civil Procedure, sec.
270fi. (See Matter of Slingerland,
36 Hun, 575.)
14. To an action to enforce the
liability created by section 22 of
chapter 611 of 1875, all the di-
rectors of the corporation who are
liable must be made parties. (See
McClave agt. Thompson, 36 Hun,
365.)
15. Action for the judicial construc-
tion of a will when it should not
be brought by a legatee, devisee
or cestui que trust when the
guardian of an infant should not
be joined as a plaintiff in such
action. (See Wead agt. Cantwell,
36 Hun, 528.)
PARTNERSHIP.
1. Business partnerships between
husband and wife are not author-
ized. (Jacquin agt. Jacquin, ante.
51.)
2. Therefore a husband cannot claim
under a business copartnership
with his wife, the right to a disso-
lution of the same and the appoint-
ment of a receiver. (Id.)
3. This is adverse to Zimmerman agt.
Erluirt and Dodge (59 How., 1 1 ),
and Graff el al. agt. Kinney (I How.
[N. S.], 59); see, also, Fairlee agt.
Bloomingdale (67 How., 292). (Id.)
PENAL CODE.
1. Section 9 1 The pro visions of the
Code of Criminal Procedure re-
lating to indictments should be
construed with the common-law
principles of pleading, and where
no provision is made by the
Code the common-law rule should
prevail.
The Code has not changed the
common-law rule that an indict-
ment must show on its face a
criminal offense
Under the general election laws
the return of the results of an elec-
HOWARD'S PRACTICE REPORTS.
607
Digest.
tion to be given to or filed with
the supervisor of the town or ward
in which the election was held,
must be the original return and
not a mere certified copy.
Accordingly, where it appeared
on the face of an indictment that
a copy of a return was given to
and filed with the supervisor of a
ward, and that it was mutilated
by him, no offense is shown under
this section of the Penal Code, as
it was not filed or deposited with
him " by authority of law." (The
People agt. Wise, ante, 92.)
2. Section 282 It is not necessary,
to constitute the crime of abduc-
tion, as defined by subdivision 1 of
this section of the Penal Code, that
the accused should in any case use
any force or practice any fraud
or deception, and it is sufficient
within the statute if the female is
induced by his request, advice or
persuasion, to go from the place
where the accused met and ap-
proached such female with the
request and solicitation for her to
accompany him, or meet him at
some other place indicated by the
accused, with the intent and pur-
pose there to accomplish the act
of her defilement.
The offense may be accom-
plished without an actual manual
capture of the female, nor is it
necessary that she should be taken
against her will, nor is it necessary
that the girl should be taken from
her parents or other custodian of
her person ( Tlie People agt. Seeley,
ante, 105.)
3. Section 649 This section of the
Penal Code covers only cases of a
messenger appointed by authority
of law, or any person who inter-
feres with such messenger. (The
People agt. Wise, ante, 92.)
PLACE OF TRIAL.
1. Under the provisions of the act
of 1875 (sees. 1, 2, 3, chap. 4'5,
Laws of 1875), as amended (chap.
359, Laws of 1876; chap. 153, Laws
of 1879), imposing a penalty upon
the agent of a foreign insurance
company who effects or procures
an insurance against fire upon
property within the limits of a city
or incorporated village without
having first given a bond to the
treasurer of the fire department of
the municipality, conditioned for
the payment to such treasurer of a
percentage on premiums received
the cause of action so given arises
in the municipality; it is imma-
terial where the contract of insur-
ance was actually signed. (Ithaca
F. Dept. agt. Beecher, 99 N. T.,
429)
2. Under the provision, therefore,
of the Code of Civil Procedure
(sec. 983), requiring that an action
to recover a statutory penalty shall
be in the county " where the cause
of action, or some part thereof,
arose," an action to recover such a
penalty is triable in the county
wherein the city or village i3
located. (Id.)
PLEADING.
1. A verification of a pleading made
by the secretary of a domestic cor-
poration in the usual form, as re-
quired by the Code, when a plead-
ing is verified by the party, is a
sufficient verification. (American
Insulator Co. agt. Bankers and
Merchants' Telegraph Co., ante, 120.)
2. It is only agents or attorneys that
are required, when verifying
pleadings, to set forth the grounds
of their belief as to all matters not
stated upon their knowledge, and
the reason why the verification is
not made by the party. A corpo-
ration cannot take an oath, and
the statute points out the way in
which it must verify a pleading.
Such verification is the verifica-
tion of the corporation and a
verification by the party. (Id.)
3. Although the failure of a plain-
608
HOWARD'S PRACTICE REPORTS.
Digest.
tiff to pray for the precise relief
to which he is entitled is not a
ground for demurrer, yet the
character and nature of the relief
demanded may properly be con-
sidered by the court, when pass-
ing upon a demurrer interposed
to the complaint upon the ground
(hat it does not state facts suffi- ;
cient to constitute a cause of ac- ]
tion. (Swart agt. tfoughton, 35
Hun, 281.)
4. Where all of the allegations of
the complaint are made for the
purpose of procuring equitable
relief, and that relief alone is
asked for. the complaint cannot
be sustained as a complaint in an
action for legal redress, where no
legal redress is asked for and
where no answer has been served.
(Id.)
5. The complaint in this action
after stating, among other things,
that the plaintiff was one of the
children of one Schermerhorn,
who had died intestate, seized in
fee of a certain piece of real
estate, alleged that the county
treasurer of Monroe county ex-
ecuted, under his hand and offi-
cial seal, as treasurer of the
county, for the people of the
state of New York, a deed or
conveyance of the said premises
to the supervisors of that county,
and that the supervisors of that
county subsequently conveyed the
same to one of the defendants;
that these deeds were recorded in
the office of the clerk of the said
county, and that the defendant
was in possession of the premises
thereunder; that the deed to the
supervisors is by an act of the
legislature made presumptive evi-
dence of the regularity of the
proceedings; that the proceedings
are regular upon their face, and
that the defects claimed by the
plaintiff to exist can only be made
to appear by extrinsic evidence
and will not necessarily appear in
any proceedings at law by the
said defendant to defend or en-
force his rights under the con-
veyance. (Id.)
The complaint then alleged in
general terms that the assessment,
levy and sale were illegal and
void, and that the acts required
by the charter to be done prior to
the assessment and conveyance
had not been done, and that the
deeds above mentioned were a
cloud upon the title of the
plaintiff and the other heirs-at-
law of said Schermerhoi n, and
asked that such deeds be adjudged
inoperative and void and gener-
ally for other relief: Held, that
as the complaint itself showed a
prima facie title in the defendant,
and as no specific facts establish-
ing the invalidity of this title
were alleged, but mere conclu-
sions of law, the complaint did
not state facts sufficient to consti-
tute a cause of action and that a
demurrer thereto should be sus-
tained. (Id.)
7. The summons in this action was
served upon the defendant in the
state of Virginia. An answer,
verified by himself, was served by
R. L. Harrison, who subscribed it
as "attorney for defendant." The
first defense in the answer al-
leged that the defendant was not
at the time of the commencement
of the action or the service of the
answer a resident of the state of
.New York, and that he had no
property therein, and had not
been served with a summons
therein: Held, that as the facts
showing that the court had no
jurisdiction over the defendant
did not appear from the face of
the complaint the defendant prop-
erly set them up in his answer,
and that the service of such an-
swer so subscribed by his attor-
ney could not be regarded as a
general appearance rendering him
amenable to the jurisdiction of
the_court. (Hamburger agt. Baker,
35 Hun, 455 )
8 The answer contained other
HOWARD'S PRACTICE REPORTS.
600
Digest.
separate defenses to the action:
Held, that the old rule prevent-
ing a defendant from joining a
plea in abatement with one in
bar was no longer in force, and
that the addition of the other de-
fenses to the first did not prevent
the defendant from insisting upon
the latter. (Id)
9. In this action, brought by the
plaintiff, a charitable corporation,
to recover damages for a libel al-
leged to have been published by
the defendants, the complaint
alleged, among other things, that
by reason of the publication per-
sons, who otherwise would have
done so, had ceased and refused
to contribute or make donations
to it. Two of these persons were
named in the complaint, and
others were referred to as John
Doe and Richard Roe and others
whose names were unknown to
the plaintiff: Held, that it was
proper for the court to grant an
order requiring the plaintiff to
furnish a bill of particulars stating
the names of the persons who, by
reason of the matters alleged in
the complaint, had ceased or re-
fused to make contributions to or
for the benefit of the plaintiff.
(N. Y. Infant Asylum agt. Roose-
velt, 3o Hun, 501.)
10. The complaint in this action
alleged, among other things, that
on the 2<ith day of September,
1883, the plaintiff was the owner
and entitled to the immediate pos-
session of certain leaf tobacco;
that on that day the defendant
wrongfully took, carried away
and sold the same. The present
defendants, the indemnitors of
the sheriff, the original defend-
ant, having been, upon their own
application, substituted as de-
fendants in his place, served an
answer containing a general de-
nial and an allegation that at the
time named Klinger Brothers
were the owners of the tobacco.
Upon the trial the plaintiff proved
that she had purchased the prop-
erty at a sale upon executions
issued upon judgments recovered
by herself and a daughter against
Klinger Brothers, and that there-
after the sheriff seized and sold
the property under attachments
issued against Klinger Brothers.
The defendants offered to prove
that the judgments under which
the plaintiff claimed were fraud-
ulent, and entered for the purpose
of defrauding the creditors of
Klinger Brothers, and also that
the levy and sale upon the execu-
tions were irregular: Held, that
the court properly excluded the
evidence as inadmissible under
the answer. (Klinger agt. Bondy,
36 Hun, 001.)
11. That as Klinger Brothers made
no objection, the plaintiff's title
was good as against all the world,
except as against such creditors
of Klinger Hrothers as were es-
pecially injured by the sale, who,
if they desired to avail themselves
of their rights, must allege the
facts they desired to prove in their
answer, as they could not prove
them under a general denial.
That as the plaintiff's proof
showed that she had both the
title to and the possession of the
tobacco, the defendants could not
defend by proving title in Klinger
Brothers, nor could they raise any
objection which Klinger Brothers
could waive, without alleging and
proving facts which gave them
the right to stand in Klinger
Brothers' shoes and assail the
plaintiff's title. (Id.)
12. The complaint in this action
alleged that the plaintiff was the
wife of one Amos Ford ; that the
defendant, at the time therein
mentioned, kept a place in Og-
densburg at which intoxicating
liquors were sold; that on August
twentieth, while the defendant
was in possession of said prem-
ises, the plaintiff's husband be-
came intoxicated; "that said in-
toxication was caused in whole or
in part by intoxicating liquors
VOL. II
77
610
HOWARD'S PRACTICE REPORTS.
Digest.
sold or given away by the said
Ames, his agents or servants, at
and upon said place;" that while
so intoxicated, and in consequence
thereof, her husband was drown-
ed, and by reason thereof the
plaintiff was injured in her prop-
erty and means of support, for
which latter she was wholly de-
pendent upon said Amos Ford:
Held, that the complaint suffi-
ciently alleged a sale or giving
away of intoxicating liquors by
the defendant to the husband to
justify the co art in overruling a de-
murrer interposed to the complaint
upon the ground that the facts
stated therein did not constitute
a cause of action. (Ford agt.
Ames, 36 Hun, 571.)
13. In this action, brought by the
plaintiff's intestate to recover a
life estate in land, which she
alleged she had been induced, by
the defendants' fraud,' to convey
to them, no demand for damages
for the detention thereof was
made hi the complaint. After her
death her administrator, alleging
that the action had been pending
for several years, during which
time a large amount of rents and
profits had accrued, procured an
order reviving the action in his
name and allowing him to serve a
supplemental complaint, in which
he sought to recover the damages
resulting from such detention:
Held, that the order was a proper
one and should be affirmed. (De
Lisle agt. Hunt, 36 Hun, 630.)
14. Motion to make a complaint
more definite and to state causes
of action separately within what
time it must be made Code of
Civil Procedure, sec. 516 Gen-
eral Rule No 33 when the right
to make such a motion is waived, I
by procuring an extension of the
time to answer or demur. (Sec \
Brook* agt. HxnchM, 36 linn, 70.) j
15. No reply is necessary when a
claim, on the part of a defendant, ,
is set up simply as a defense and 1
not as a counter-claim when the
General Term has no right to com-
pel the respondent to consent to a
reduction of the amount of his
judgment. (See Cockerill agt.
Loonam, 36 Hun, 353.)
16. A demurrer to an entire plead-
ing, overruled if either of several
causes of action herein is well
pleaded. (See Uaight agt. Brisbiii,
^6 Hun, 579.)
17. Pleadings in a criminal case
how affected by the Code of Crimi-
nal Procedure/secs. 273, 375, 338
form of indictment. (See People
agt. Menken, 36 Hun, 90.)
18. Former adjudication when a
bar when a joint demurrer to a
defense good as against two of
three plaintiffs will not be sus-
tained. (See Hear/ley agt City of
Bingfiamton, 36 Hun, 171.)
19. It is not essential that the com-
plaint in an action for negligence
shall allege absence of contribu-
tory aegligence on the part of
plaintiff ; such an allegation is
substantial!} 1 involved in the aver-
ment that the injury complained
of was occasioned by defendant's
negligence. (Le-i agt. Troy C. Q.
L. Co , 98 A T T., 151.)
30. A party is under no obligation
to state in his pleading: the theory
of law upon which his claim is
based; he is required only to state
the facts, and if sufficient to con-
stitute a cause of action or de-
fense, the pleading is not deiuur-
rable because the legal effect of
the facts is not stated, or even be-
cause the proper form of relief is
not demanded. (Hemming way >.
Poucher, 98 .V. 7., 381.)
21. It is not necessary for defendant
in an action to recover damages
for negligence causing death, to
allege that the wrong was com-
mitted in another state; it is for
the plaintiff to allege and prove
that the cause of action arose
HOWARD'S PRACTICE REPORTS.
611
Digest.
within the jurisdiction. (Debewise
agt. N. Y., L. E. and W. R R.
Co., 98 N. T., 377.)
22. The practice of referring in an
answer to parts of the complaint
which the pleader intends to ad-
mit or deny, as "at" or "be-
tween " certain folios, does not
conform to the spirit of the pro-
vision of the Code of Civil Proced-
ure (sec. 22), which requires plead-
ings to be made out " in words at
length and not abbreviated," and
serves no useful purpose on appeal
where original folios do not ap-
pear in the case. (Caulkins agt.
Bolton, 98 N. T., 5ll.)
PRACTICE.
1. On February 14, 1884, the Na-
tional Bank of Port Jervis, as
plaintiffs, by its attorneys, recov-
ered a judgment against J. C. H.
and J. H. , as defendants. The re-
covery was upon a promissory
note of which .J. C. was maker
and J. accommodation indorser.
An execution was issued to the
sheriff of Sullivan county, and
on April 14, 1>74, J. H. paid full
amount to attorneys of plaintiff,
who then withdrew the execu-
tion. The payment was not to
extinguish the judgment, but it
was to be kept in life and to be as-
signed to wife of said J. H. On
January 24, 1883, such assignment
was made to C. S. H. , wife of J.
H. The judgment-roll was filed
in clerk's office of Orange county.
A transcript was riled in office of
clerk of Ulster county Inly 11,
1883, and judgment thereon en-
tered in such county, the residence
of J. C. , and on same day execu-
tion issued to sheriff of such
county, which was returned un-
satisfied to Orange county clerk's
office July 18, 1883. The execu-
tion was subscribed "A N. C.,
Atty. for Pltff.," and stated in
body thereof the assignment to
C. S. H.ou January 24, 1883. The
direction to sheriff was to collect
execution and judgment out of
property of defendant J. C. II.
Such execution did not issue at
request of plaintiff in the judg-
ment, nor was any leave to issue
obtained or granted by order of
this court. Several orders for ex-
amination of J. C. H. in supple-
mental proceedings have been ob-
tained by assignee of judgment
and are pending before county
judge of Ulster county. On re-
turn day of first order J. C. II.
appeared and claimed that he had
paid the judgment in full to J.
H., producing receipt, dated De-
cember 11, 1880, purporting to ba
signed and executed by said J. II.
J. C. moved at special term to
vacate the order for examination,
and to set aside the execution and
return upon the ground that the
judgment had been paid to .). and
was extinguished by said receipt.
Such motion being resisted by J.
H. and wife it was referred to a
referee, who found that J. II. did
not make nor execute such re-
ceipt, and that no payment had
been made to J. H. or his wife.
The report was confirmed by spe-
cial term and motion to set aside
execution and return with supple-
mental proceedings based thereon
was denied, and $179.02 costs,
&c., upon such motion was di-
rected to be paid by said J. C.
H. to J. H. On appeal to general
term the order of special term
was affirmed, with ten dollars
costs. The order of general term
was granted upon default of J.
C., who by order of special term
was permitted to move at gen-
eral term to open such default on
payment of ten dollars costs. Of
such order J. has not availed him-
self. The costs of the previous
motions of special and general
term, have not been paid, (ihe
National Bank of Port Jervis agt.
Hansee, ante, 200.)
. On motion by J. C. H. to set
aside the execution and return and
the various orders in supplemental
proceedings, upon the grounds
612
HOWARD'S PRACTICE REPORTS.
Digest.
that leave of the court to issue
such execution was not obtained,
and that the payment by .1. to
the attorneys of the plaintiff ex-
tinguished the judgment, and he
avers that when he made the pre-
vious motion he was not aware
of the existence of the grounds
upon which he now moves: Held,
first, that the prior motion is a
bar upon the principle of res adju-
dicata. It is a bar not because the
points now made were made, but
because they might and should
have been made. The moving
party, had he used ordinary dili-
gence, could have ascertained the
facts upon which he now moves,
and this want of diligence would
defeat a motion for leave to re-
new.
Second. The costs imposed upon
the first motion made in this mat-
ter by the party now moving re-
maining unpaid, the court is
powerless to entertain the present
motion, as by the non-payment of
such costs all proceedings on the
part of the party required to pay
them are stayed.
Third. As the orders of the spe-
cial term and general term ad-
judging the judgment unpaid are
unreversed the motion has no
equity to sustain it.
Fourth. The pa3 r ment of J. H.
to the attorneys of the plaintiff
did not extinguish the judgment.
J. H. was the surety and .). C. II.
the principal debtor. Payment
by the former did not extinguish
the debt, and he could have taken
an assignment to himself and
enforced it for his own benefit.
(Id.)
8. Where a judgment by default is
opened on condition that the lien
of the judgment shall stand as se-
curity, the plaintiff, if he finally
succeeds, must enter a new judg-
ment by filing a fresh roll con-
taining all the papers in the case,
the same as if no former roll had
been filed. The order opening the
default in legal effect modifies the
judgment by depriving it of its
ordinary character as a res adjudi-
cata, but leaves it in full force as
a lien or collateral security. If
the plaintiff fails in the action the
security is returned by canceling
the collateral judgment, which
loses its legal vitality and effect
when the action fails. But if the
plaintiff succeeds the security
judgment is not impaired, but may
be enforced, if necessary, by the
plaintiff in aid of the final judg-
ment. (Negley agt. The, Counting
Room Company, ante, 237.)
4. In case of appeal the trial or final
judgment is the one to be ap-
pealed from, and no reference
need be made to the security judg-
ment. (Id.)
5. The court of appeals will enter-
tain a motion to dismiss an appeal
for which there is no foundation,
without waiting until the case is
reached in its regular order on the
calendar. (Stourjhton agt. Lewis,
ante, 331.)
6. A plaintiff is not precluded from
making a motion to dismiss an ap-
peal taken by a defendant, be-
cause he (the plaintiff) has noticed
the case for argument and placed
it upon the calendar. He waives
nothing by so doing. It is still
optional with him to wait until the
case is reached on the calendar, or
to make his motion to dismiss on
the ground that the appeal is un-
authorized. (Id.)
7. Where, in an action to foreclose
a mortgage, a complaint contain-
ing all the requisite allegations
has been served upon defendant,
who afterwards obtained a stipu-
lation from plaintiff's attorney
for further time to answer, agree-
ing not to put in any answer and
not to ask any further extension
of time. On the last day defend-
ant served a demurrer which was,
on motion, overruled and stricken
out, and plaintiff proceeded as if
no demurrer or answer had been
interposed and obtained his judg-
HOWARD'S PRACTICE REPORTS.
613
Digest.
ment by default. The defendant
appealed to the general term,
where it was affirmed, and from
the affirmance defendant appeals
to this court:
Held, that, the demurrer having
been overruled, the judgment
went by default in the same man-
ner as if no demurrer had been
served, and no appeal is allowed
from a judgment entered by de-
fault. The order overruling the
demurrer not having been appeal-
ed from cannot be assailed on an
appeal merely from the judgment.
(Id.)
8. In a proceeding for removal of
an assignee who has miscon-
ducted himself, where there are
three assignors, one of whom has
left the state, notice to one assign-
or is properly notice to all ; though
the better course would be to give
the statutory five clays' notice to
the two within the state, in the
ordinary way and to serve the ab-
sent assignor by depositing a no-
tice- in the post-office, addressed to
him at his last known place of
residence giving double the time.
(Matter of Cohen & Co., ante, 523.)
See ACTION.
Farnam
396.
agt. Barnum, ante,
9. Trial of a specific question by a
jury in an equitable action when
an order granting or refusing a
new trial in, is appealable Code
of Civil Procedure, sec. 1347, sub.
2; sec. 1003. (See Boicen agt.
Becht, 35 Hun, 434.)
10. In justices' court when the
plaintiff cannot recover without
proving his claim 1881, chap.
414 Code of Civil Procedure,
sec. 2891. (See Oulman agt.
Schmidt, 35 Hun. 345.)
11. Agreement that an attorney
shall share in the recovery right
of the attorney to proceed after a
settlement between the parties
without first obtaining leave of
the court. (See Forstman agt.
Shulting, 35 Hun, 504.)
12. Referee's report when set aside
because of bias and prejudice upon
the part of the referee what
will excuse delay in making the
motion. (See Burrows agt. Dick-
inson, 35 Hun, 492.)
13. A motion for a new trial, after
the entry of an interlocutory judg-
ment, may be made at general
term without taking any appeal
from the judgment. (See Moore
agt. Oviatt, 35 Hun, 210.)
14. A final judgment cannot bo
entered until all the issues are
disposed of the remedy of a
party aggrieved by the irregular
entry of a judgment is by motion
at special term and not by appeal.
(See Robinson agt. Hall, 35 Hun,
214.)
15. Libel where there is no am-
biguity, the construction of it is
for the court. (See Kingsbury agt.
Bradstreet Co, 35 Hun, 212.)
16. Receivers of a corporation in
what district, the application for
the appointment must be made
1883, chap. 378 to what receivers
it applies. (See U. 8. Trust Co.
agt. N. T., W. S. and B. R Co.,
35 Hun, 341.)
17 Judicial sale defective service
upon an infant when a judg-
ment entered upon it may be
made binding upon the infant by
a subsequent judgment when
a purchaser will be compelled to
accept a doubtful title. (See Hied
agt. Barrett, 35 Hun, 366.)
18. Costs power of the court to
compel the payment of, on the
settlement of an action for a sepa-
ration. (See Smith agt. Smith, 35
Hun, 378.)
19. When one foreign corporation
can sue another in this state
Code of Civil Procedure, see.
614
HOWARD'S PRACTICE REPORTS.
Digest.
1780. (See Diiquesne Club agt.
Penn Bank of Pittsburg, 35 Hun,
390.)
20. Foreign corporation right of
a non-resident to sue it in this
state Code of Civil Procedure,
sec. 1780. (See Adams agt. Penn
Bank of Pittsburg, 35 Hun,
393.)
21. No new note of issue need be
filed after a supplemental com-
plaint has been served an order
of the court should be reduced to
writing. (See Lovatt agt. Watson,
35 Hun, 553.)
22. Constitution right of one ac-
cused of crime to be confronted
with witnesses meaning of the
requirement United States Con-
stitution, art. 6. and art. 14, sec.
1 bill of rights, sec. 14 Code
of Criminal Procedure, sec. 8,
sub. 3. (See People agt. Williams,
35 Hun, 516 )
23. Power of the court to enter a
judgment in conformity with the
equitable rights of defendants as
between each other. (See John-
son agt. Stone, 35 Hun, 380.)
24. Service of summons by publica-
tion when the order directing
it may be subsequently amended
service of a summons upon an ab-
sent resident in an action of fore-
closure Code of Civil Proced-
ure, sec. 438, sub. 5 right of the
court to resettle findings after
judgment. (See Coffin agt. Lesstei;
36 Hun. 347.)
25. Service of summons by publica-
tion what facts show that person-
al service of the summons cannot
be made. (See G/iase agt. Lawson,
36 Hun, 221.)
20. Service of a summons on a de-
fondant outside of the territorial
jurisdiction of the court effect
of a judgment entered thereon in
another state when binding if
the defendant appears U. S.
Const., art. 4, sec. 1. (See Jones
agt. Jones, 36 Hun, 414.)
27. Surrogate power to open de-
crees Code of Civil Procedure,
sec. 2481, sub. 6 intermediate
accounting by a guardian or trus-
tee no decree can be entered by
the surrogate. (See Matter of Haw-
ley, 36 Hun, 258.)
28. Decree of surrogate on final ac-
counting when it will not be
open to correct an error. (See
Matter of Deyo, 36 Hun, 512.)
29. When a court of equity will set
aside a decree entered in a surro-
gate's court. (See Douglass agt.
Low, 36 Hun, 497.)
30. Proceedings to review erroneous
assessments 1880, chap. 2(59
the earning capacity of real estate
is a test of its value review of a
decision of the special term on
appeal how objections to the
reception of evidence should be
stated erroneous admission of
evidence when the decision will
not be reversed therefor. (See
People ex rel. Railroad agt. Keator,
36 Hun, 592.)
31. Motion to make a complaint
more definite and to state causes
of action separately within
what time it must be made Code
of Civil Procedure, sec. 546
General Rule No. '22 when the
right to make such a motion is
waived, by procuring an exten-
sion of the time to answer or de-
mur. (See Brooks agt. Hancltett,
36 Hun, 70.)
32. Appearance how it must be
made Code of Civil Procedure,
sec. 421. (See Valentine agt. . Myers'
Sanitary Depot, 36 Hun, 201 )
38. Judgment creditor's action
when maintainable after the judg-
ment has ceased to be a lien upon
real estate Code of Civil Pro-
cedure, sec. 1871. (See Scoville
agt. Sfied, 36 Hun, 165.)
HOWARD'S PRACTICE REPORTS.
616
Digest.
34. Supplementary proceedings may
be instituted before the recorder
of the city of Oswego 1837,
chap 96, sec. 4. (See Ross agt.
Wigg, 36 flan, 107.)
35. Additional allowance where
a motion therefor must be made.
(See Bear agt. Am. Rapid Tele-
graph Co., 36 Hun, 400.)
36. Order for the examination of a
corporate party before trial a
defaulting defendant may be ex-
amined Code of Civil Proced-
ure, sec. 873. (See N. T., L. E.
and W. R. R. Co. agt. Carhart, 36
Hun, 288.)
37. Examination of a person having
property belonging to the estate
of a deceased person all the ex-
ecutors or administrators should
be parties to the proceeding
Code of Civil Procedure, sec
2701) an order denying a motion
to dismiss the proceeding is ap-
pealable. (See Mutter of Slinger-
land, 3(5 Hun, 575.)
38. Action for the judicial construc-
tion of a will when it should
not be brought by a legatee, de-
visee or cestui que tru&t when
the guardian of an infant should
not join as a plaintiff in such ac-
tion costs of an action brought
by the guardian and the infant
cestui que iru*t direction for
their payment. (See Wead agt.
Canlwell, 36 Jlun, 528.)
39. Action against a lodge of free
and accepted masons how
brought. (See Cohn agt. Borst, 36
Hun. 563.1
40. What evidence is inadmissible
under a general denial facts
authorizing the defendants to at-
tack the plaintiff's title as fraudu-
lent, must be pleaded. (See Klin-
ger agt. Bondy, 36 Hun, 601.)
41. Application for an order requir-
ing an attorney to pay over money
to his client not granted during
the pendericy of an action by the
client to recover the same money.
(See Matter of Mott, 36 Hun, 569.)
42. Justices' court amount in
volved when an action does not
involve the accounts of the parties,
within section 28i>3 of the Code of
Civil Procedure. (See Brisbane
agt. Bank of Batavia, 36 Uun, 17.)
43. Leave to file a supplemental
complaint when granted revi-
vor of action. (See De Lisle agt.
Hunt, 315 Hun, 620.)
44. Examination of delinquent tax-
payers what facts must be stated
in the affidavit 18iii, chap. Biil,
sec. 1, as amended by chap. 640
of 1881. (See Matter of Conklin,
SGHun, 588)
45. Former adjudication when a
bar when a joint demurrer to a
defense good as against two of
three plaintiffs will not be sus-
tained. (See Meagley agt. City of
Binghamton, 36 Hun, 171.)
46. Mechanics' liens in New York
city both chapter 379 of 1875,
and chapter 486 of 1880 are in
force there. (See Cockerill agt.
Loonam, 36 Hun, 353.)
47. An action must be brought by
the real party in interest Code of
Civil Procedure, sec. 449 in en-
forcing claims in this state a for-
eign creditor must follow the lex-
fori. (See Merchants' Loan and
Tru.it Go. agt. Glair, 36 Hun, 362.)
48. Commissioners to appraise lands
to be taken fora railroad appeal
from their report insolvency of
railroad demand for payment of
the award, necessary when the
report will be set aside because a
son of one of the commissioners 13
taken into the employ of the com-
pany before the hearing. ($ee N.
T., W. 8. and B. R. Co. agt.
Toionaend, 36 Hun, 6::0 )
49. Execution the death of the
616
HOWARD'S PRACTICE REPORTS.
Digest.
plaintiff after its issue does not
suspend its operation errors in
the form of a constable's bond
when the sureties cannot avail
themselves of them as, a defense
when the justice may adjourn a
cause on consent of the attorneys
for the parties, (&ee Jones agt.
Newman, 36 Run, 634.)
50. When errors of fact are not re-
viewable on appeal when the
case should be ordered to be an-
nexed to the judgment-roll right
of the court to further instruct the
jury in the absence of counsel
evidence of actual value admis-
sible as bearing on the probable
truth of conflicting claims as to an
agreed price. (See Cornish agt.
Graff, 36 Nun, 160.)
51. Costs when a party does not
waive his right to appeal from an
order, by accepting costs thereby
awarded to him. (See Matter of
Water Commissioners of Amster-
dam, 36 Hun, 534.)
52. Sureties on an executor's bond
when an action lies against
them before any. order or claim
against the executor has been
made in the surrogate's court
Code of Civil Procedure, sec. 2607.
(See Haight agt. Brisbin, 36 Hun,
57<J.)
53. Peremptory challenge when
the right must be exercised the
time for the exercise of the right
cannot be limited by the court
Code of Criminal Procedure, sees.
36J>, 371. (See People agt. Car-
penter, 36 Hun, 315.)
54. Jurors in a criminal action
when not disqualified by reason
of having formed an opinion
Code of Criminal Procedure, sec.
376 right to renew on appeal
challenges to jurors Code of
Criminal Procedure, sec. 455, sub
2 ; 1873, chap. 427 the burden of
proof rests upon the people a
reasonable doubt as to any ele-
ment of the crime entitles the
prisoner to an acquittal. (See Peo-
ple agt. WUlett, 36 Hun, 500.)
PROCESS.
1. An order for the service of
a summons by publication, in
an action to foreclose a mort-
gage, was made upon the affi-
davit of one Wood, who stated
that he learned from one Tibbs,
at Wappinger's Falls, Dutchess
county, that two of the defend-
ants resided in Philadelphia,
Pennsylvania, and three others at
Danbury, Connecticut, the said
Tibbs being a brother-in-law of
one of the said detendants. Tke
plaintiff's attorney also made an
affidavit, stating that he was in-
formed and believed that the said
defendants were non-residents of
this state, but resided at the places
above-mentioned ; and further
stated " the sources of deponent's
information is the affidavit an-
nexed hereto made by George
Wood, who was employed by de-
ponent to ascertain the residences
of said parties; that said defend-
ants cannot, after due diligence,
be found witnin this state, and
that deponent is informed and be-
lieves that said defendants are
now at the places above stated :"
Held, that the affidavits sufficient-
ly showed tnat the plaintiff had
been and would be unable, with
due diligence, to make personal
service of the summons on these
defendants, and conferred juris-
diction upon the justice to make
the order. (Chase agt. Lawson, 36
Hun, 231.)
2. Where an order directing the ser-
vice of a summons by publica-
tion, although in fact made by a
justice at chambers, has a caption
as though made at a special term,
the court has power to subse-
quently amend the order by strik-
ing out the caption. (Coffin agt.
Lesster, 36 Hun, 347.)
3. In an action to foreclose a mort
HOWARD'S PRACTICE REPORTS.
617
Digest.
gage an order for the service of the
summons upon a resident defend-
ant, who is absent from the state,
might, in March, 1878, have been
made under subdivision 5 of sec-
tion 438 of the Code of Civil Pro-
cedure, without showing, before
such an order could be made, the
facts required to be shown by sub-
divisions 2, 3 or 4 of the said sec-
tion. (Id.)
4. The authority to so serve the
summons upon a resident in such
an action does not violate the
provisions of the constitution.
(Id.)
5. In an action to foreclose a mort-
gage an order directing the sum-
mons to be served by publication
on certain of the defendants
was made upon an affidavit of
one of the plaintiff's attorneys,
which stated, among other things,
that since the commencement of
the action he had made, and
caused to be made, inquiries as to
the residences of the defendants;
that three of them, whose names
he gave, were each non-residents
of the state of New York, and
that each of them resided at Bai-
ley-bag, county Monaghan, Ire-
land; that he was informed and
believed that the summons could
not, after due diligence, be served
on said defendants, or either of
them, and that it was necessary to
serve the summons on them by
due publication thereof. (Wun-
nenberg agt. Gearty, 3<> llun, 243.)
6. The affidavit of one Burke was
also presented, which stated that
he had been directed to serve the
summons on all the defendants;
that he had served a number of
them, but had been unable, with
due diligence, to serve those named
in the affidavit of the plaintiff's at-
torney, and that the said defend-
ants were non-residents of the
state of New > ork and resided in
Ireland: If eld, that the fact that
the plaintiff had been and would
be unable, with due diligence, to
make personal service of the sum-
mons upon those defendants, was
sufficiently established to author-
ize the granting of an order di-
recting its service by publication.
(Id.)
7. Service of a summons on a de-
fendant outside of the territorial
jurisdiction of the court effect
of a judgment entered thereon in
another stale when binding if
the defendant appears United
States Constitution, art -4, sec. I.
(See Jones agt. Jones, 30 Hun, 414.)
PUBLIC ADMINISTRATOR.
1. It is by sections 2706-2714 of the
Code of Civil Procedure, and not
by section 222 of chapter 410 of
the laws of 1882, that the proced-
ure is now regulated by which the
public administrator can cause
inquiry to be instituted into the
alleged withholding or conceal-
ment of property belonging to an
intestate's estate, whereof such
public administrator is in charge
by virtue of letters issued to him
by the surrogate. (In the Estate
of Ellis II. Elias, deceased, ante,
158.)
RAILROADS.
1. Where commissioners were ap-
pointed under chapter 252 of the
Laws of 1884. by the general term
of the supreme court on the ap-
plication of a railroad company
to determine on the use of certain
streets, and they reported against
the application and in favor of
the property owners :
Held,, that as the report was ad-
verse to the company there was
no necessity for its confirmation
by the court. (Matter of the Nas-
sau, Cable Co., ante, 124.)
2. It is made a condition precedent
to a right to construct such rail-
road for the company to either
obtain the consent of the property
owners or a favorable report of
VOL. II
78
618
HOWARD'S PRACTICE REPORTS
Digest.
the commissioners, confirmed by
the court. There is no occasion
for action by the court, except to
confirm a favorable report or to
refuse confirmation. (Id.)
3. The court has power to determ-
ine whether the commissioners
have performed their duties under
the statute, and should it appear
that they had refused to hear the
parties or take any evidence, or
the report was such as to plainly
show fraud or irregularity, the re-
port may be sent back. But an
erroneous ruling in excluding
testimony, or, in admitting imma-
terial, or even incompetent or
hearsay evidence is not sufficient
to warrant sending a case back
for future hearing. (Id.)
4. A railroad company, being de-
sirous of acquiring for railroad
purposes certain land owned by
B., entered into a written agree-
ment with B. by which she agreed,
upon the payment of the full pur-
chase-price, to convey to said com-
pany the premises. \\ ith a view
of ascertaining the value of said
premises and the compensation
which should be paid therefor the
railroad company agreed to insti-
tute proceedings under the general i
railroad laws for the condemna-
tion of lands for railroad pur- j
poses; and it was further provided
in said agreement that in said j
proceedings H. D. and < '. should
be appointed commissioners to
ascertain and determine the com-
pensation to be paid, and the de-
cision of a majority of them should I
be binding upon both parties, it
being also agreed that said com-
missioners should be governed in
estimating the said valuation by
the rules of law applicable to pro-
ceedings under said statute (ex-
cept as they may be modified by
tins agreement), and that all the
rights of appeal given by law
shall be reserved to either party.
An order was obtained by the
railroad company at special term
appointing said persons commis-
sioners. They entered upon their
duties, and after viewing the
premises and hearing proofs made
a report. The railroad company
not being satisfied with the report
and award refused to move for
confirmation, and the owner
moved and obtained an order at
special term confirming the report
and appraisal. On appeal by the
railroad company the appraisal
and report were set aside by the
general term on the ground of
the admission by the commis-
sioners of improper evidence.
The hearing again came on before
the commissioners, who, notwith-
standing the objection of the rail-
road company, received the same
objectionable evidence, the receipt
of which on the first hearing was
the cause of the reversal of their
report, and two of the commis-
sioners, " D." and "C." publicly
stated that they did not consider
themselves bound by the supreme
court decision. After the hearing
had proceeded so far that the
owner had introduced her evi-
dence, the railroad company not
having introduced its evidence,
moved to vacate the order ap-
pointing the commissioners:
Held, firxt, that commissioners
"D." and "C." have been guilty
of misconduct, such as is cause
for their removal.
Second. That the court on this
motion has power to remove
them.
Third. That this is a proper
case to exercise such power not-
withstanding the contract existing
between the parties. (Mutter of
the New York, Lackawanna and
Western Railway Co., ante, 225)
. Where, upon an application to
the general term for the appoint-
ment of commissioners to determ-
ine whether a proposed railroad
should be constructed through
certain streets in New York city,
it appears that such railroad can-
not legally be built by reason of
the refusal of other railroad com-
panies already lawfully occupying
HOWARD'S PRACTICE REPORTS.
619
Digest.
the streets with their tracks to
consent to its construction, such
application should be denied
(DAVis, P. J. , dissenting). (Matter
of the 'ihirty -fourth Street Railroad
Co., ante, 369.)
6. Although in determining the
value of railroad or canal prop-
erty, for the purposes of taxation,
the cost of creating it may be
considered, yet its earning ca-
pacity should be the more con-
trolling consideration or test.
(People ex rel. Pres , etc. , D. and H.
Canal Co. agt. Roosa and others,
ante, 454.)
7. The assessors in estimating the
value of railroad or canal property,
within a town, are not to be gov-
erned solely by its cost, but rather,
though not exclusively, by its
productiveness for railroad or
canal purposes. (People ex rel.
Pres., etc., D. and II. Canal Co.
agt. Keator, ante, 479.)
8. The taxable value of the part of
a canal which lies within a town
in which the tax is laid, is to be
ascertained by valuing, as a part
of a whole a continuous way to
carry freight from one point to
another, and the profits of its use
for that purpose (See ante, 454).
(Id.)
RECEIVER.
1. Corporations attacked by the
state for insolvency can, even
after a receiver is appointed, use
their corporate iunds for their
own protection in the litigation if
their action is taken in good faith
and with a reasonable hope of
success in the controversy. (Mat-
ter of the Attorney General agt.
Atlantic Mutual Life Ins. Co., ante,
146.)
See ASSIGNMENT.
Nelson agt. lenney, ante, 272.
2. In an action brought by a re-
ceiver, appointed in supplement-
ary proceedings, to set aside a
fraudulent a conveyance of real
estate, executed by the judgment
debtor, so as to subject the prop-
erty to levy and sale on execution,
where the receiver simply proves
his appointment, without showing
the proceedings necessary to vest
in him title to the real estate, he
is not entitled to recover the rents
and profits. (Wright agt. Nos-
trand, 98 X. F.,639.)
3. A court having power to, and
which appoints a receiver of the
assets of an insolvent corporation,
may, in aid of that appointment,
forbid any after interference, by
way of levy and seizure by attach
ment or execution, with the prop-
erty in his possession. (Woeris-
hoffer agt, N. R. Con. Co., 99 N.
T., 398.)
REFEREE.
1. The sixty days in which a referee
must make his report do not com-
mence to run until the cause is
submitted. (Morrison agt. Law-
rence, ante, 72.)
2. Where briefs are to be submitted
there is no submission of the cause
until the time to baud in the briefs
is passed. (Id.)
3. The referee has power to enlarge
the time for the submission of
briefs. (Id.)
4. Having his report ready and ten-
dering it on payment of his fees,
within the sixty days, is sufficient.
(See to same effect decision by general
term, first department. Little agt.
Lynch, 1 How. [N. S.], 95). (Id.)
5. In an action for divorce on the
ground of alleged cruelty, brought
by a wife against her husband,
even where the wife prevails, the
defendant, the husband, will be
compelled to take up the report
and pay I he referee's fees. (Karfy
agt. Early, ante, 239.)
HOWARD'S PRACTICE REPORTS
Disrest.
6. While courts should be careful
to see that no improper relations
exist between a referee and one of
the parties to an action, and that
nothing occurs during the progress
of the trial which shall in any-
wise tend to produce a favorable
impression in behalf of one of the
parties to the reference, yet such
scrutiny should not be carried to
the extreme length of holding that
because a referee sustains friendly
relations to the kin of one of the
parties, relations so close as to lead
to his employment as his legal
adviser, and the legal adviser of
his estate, that such relations would
bias his judgment in the action in
which he had been appointed
referee. (Durant agt. O'Brien,
ante, 313.)
7. When the referee had heard the
proofs, and made his report rinding
in favor of the plaintiff, and from
the judgment perfected upon such
report defendant had appealed to
the general term, which general
term had affirmed the judgment,
and the defendant had appealed to
the court of appeals, and while
such appeal was still pending de-
fendant made a motion to set aside
the report of the referee upon the
ground that such referee was
biased in favor of the plaintiff:
Held, that the motion resting
solely and only upon the ground
that the referee was the friend and
legal adviser of the nephew of
the plaintiff such fact of itself
would not warrant the inference of
bias and partiality, and especially
Y*hen it appeared that this was
known to the counsel of the party
moving before the trial of the act-
ion was commenced. (Id.)
REFERENCE.
1. In a proceeding for the revocation
of probate all necessary parties,
including the infant son of the
decedent, were duly served with
citation. (In the Estate of Tunis
Cooper, demised, ante, 38.)
2. No application was made for the
appointment of a special guardian
for such infant and none was ap-
pointed, but all the parties who
appeared, consented to the entry
of an order directing the stenog-
rapher of the surrogate's court to
take testimony as a referee. The
trial proceeded before such ref-
eree, and, at its conclusion the
evidence was submitted to the sur-
rogate, who decided that the
probate should be revoked. The
entry of a decree upon that deci-
sion being opposed by the respond-
ents, and it being contended that
the order of reference was without
authority and that all proceedings
subsequent thereto were void:
Held, that the order of reference
and the proceedings thereunder
should not be vacated upon the
motion of any party who had
consented to its entry and to the
submission of its results to the
surrogate for his determination.
Held, also, that a special guard-
ian should be appointed to repre-
sent the infant, and to ascertain
and report whether it would be
for the best interests of the infant
that the proceedings should stand
as theretofore conducted, and a
decree be entered accordingly, or
that the trial should be commenced
de now. (Id.)
3. That in view of section 3355 of
the Code, sections 90 and 25 11
must be construed as if they
had simultaneously become law,
and that so construed, "a clerk
or other person employed in
the surrogate's office" is compe-
tent to act as referee, in a proceed-
ing pending in the surrogate's
court, provided he is appointed
with the written consent of all the
parties appearing. (Id.)
4. That the stenographer of the sur
rogate's court is not within the
scope of section 90 or of section
2511. (Id.)
See COSTS.
HOWARD'S PRACTICE REPORTS.
621
Digest.
5. This was an application to set
aside the report of a referee upon
the ground that he had become
biased or improperly influenced
against the defendant before the
final decision of the action. It
appeared that the referee, from
time to time as the trial proceeded,
imoortuned the defendant to aid
him in securing an appointment
to an office from the governor,
and believed that the defendant
could by earnestly exerting him-
self secure it for him ; that these
importunities continued to be ad-
dressed or suggested after the
submission of the case and until
near the time of its decision; and
there was reasonable cause to be-
lieve that the prejudice was oc-
casioned by the failure of the de-
fendant to answer the last letter
from the referee, which was writ-
ten shortly before the case was
decided: Held, that the report
should be set aside. (Burrows agt.
Dickinson, 85 Hun 49vJ.)
6. The report was made on May 11,
1880. The motion to set aside
the report was made in Febru-
ary, 1884. It was shown by the
affidavits that the defendant had
intended to appeal from the judg-
ment, and was therefore com-
pelled to have a case made and
settled by the referee; that both
the defendant and his counsel
deemed it injudicious and danger-
ous to institute proceedings to set
aside the report until the case had
been settled, and that this applica-
tion was made as soon as it could
be after such settlement had been
made: Held, that these facts fur-
nished a sufficient excuse for the
delay. (Id.)
7. It is within the power and dis-
cretion of a referee, on trial of an
action, to allow an amendment of
the complaint, which does not af-
fect the issue upon determination
of which plaintiff's ri,ht to relief
depends, or which does not bring
in a new cause of action; and his
decision thereon is not reviewable
here. (Price agt. Brown, 98 N. Y. ,
388.)
8. Where, upon trial before a
referee, questions as to the admis-
sibility of evidence objected to are
without dissent reserved, and the
referee is not thereafter asked to
pass upon them, and no exceptions
are taken, and no application made
to strike out the testimony, no
question is presented of which an
appellate court can take notice.
(In re Yates, 99 N. Y., 94.)
9. To prevent the termination of a
reference by notice, as prescribed
by the Code of Civil Procedure
(sec. 1019), the report must be act-
ually delivered to the attorney of
one of the parties, or filed with the
clerk " within sixty days from the
time the cause was finally sub-
mitted." (Li'tle agt. Lynch, 99
N. Y., 112.)
10. An offer by a referee to deliver
his report to the successful party,
on payment of his fees, within the
time limited, is not equivalent to a
delivery. (Id.)
11. Under the provision of the gen-
eral assignment act (sec. 'Jl, chap.
466, Laics of 1877), authorizing the
county judge, on petition of a
party interested, to order the ex-
amination of witnesses and the
production of books and papers
before him or a referee, the ex-
amination only can be committed
to a referee, who is to take and file
the testimony ; the judge has no au-
thority to direct the referee to
report his opinion on the evidence,
or to examine such witnesses or
compel the production of such
books and papers as the petitioner
may require; the judge himself
must in his order name the wit-
nesses and the books and papers.
The propriety of any examination
sought is to be determined by the
judge and may not be delegated
to a referee. (In re Holbrook, 99-
y. Y., 5:59.)
622
HOWARD'S PRACTICE REPORTS.
Digest.
REMOVAL OP CAUSE.
1. Where the petition for removal
of a cause from the state court to
the United States court is made
by a plaintiff who claims that he
is a resident of New Jersey and
that the defendant is a resident of
New York, before or at the time
of filing such petition, the peti-
tioner must make and file in the
state court an affidavit that he has
reason to believe, and does believe,
that from prejudice or local in-
fluence, he will not be able to
obtain justice in such state court.
(Thatcher et al. agt. Rankin, ante,
459.)
2. Where a petitioner fails to comply
with this requirement he cannot
accomplish the removal of the
action. (Id.)
3. Where the petition and bond have
been "accepted, allowed and ap-
proved " by a justice of the state
court, such acceptance, allowance
and approval imply that said jus-
tice was satisfied, and decided that
the amount in dispute did exceed
the sum of $">00; and if such deci-
sion can be reviewed at all in the
state court, the application, if
made to a judge other than the
one who made such decision, must
be on notice of motion to set aside
such acceptance, allowance and
approval as having been improvi-
dently made. (Id.)
REPLEVIN.
1. Where a sheriff has attached goods
under process against one To-
ledo, and the plaintiff claims title
through the same person, it is en-
tirely irrelevant who owns the
goods if Toledo does not (Sieden-
bach agt. Biley, ante, 143.)
2. A denial of plaintiff's title alone
is not a good defense. (Id.)
3. If the bill of sale to plaintiff was
boiuifide. and was followed by pos-
session, plaintiff is entitled to
recover. (Id.)
4. The-;e are questions for the jury.
(Id.)
5. A failure to give po session only
raises a presumption of fraud
which may be rebutted by proof
that the transaction was fair. (Id.)
6. No need of a demand if the
complaint averred an unlawful
detention. (Id.)
1. To entitle a party to maintain a
replevin he must have had title to
the property or the possession of
it, or at least the right of posses-
sion. (Pakas agt. Racy, ante, 277.)
8. Where the plaintiff's claim to the
right of possession is founded
upon an agreement alleged to have
been made with the defendant,
who is an infant, such alleged
agreement being that if the horse,
&c. , was awarded to her she "would
give it to the plaintiff:
Held, that such agreement, if it
had been made, was voidable, and
the horse having been awarded to
be delivered to her, the plaintiff,
under such an agreement, had no
right to the possession of it. (Id.)
ft. In the replevin suit the verdict of
the jury should fix the value of the
property at the time of the trial,
as required by the statute. This
omission cannot be supplied by
the court by inserting in the judg-
ment a sum of rroney as the value
of the property. (Id.)
REPLY.
1. A plaintiff is not entitled to serve a
reply to an answer where it is ap-
parent that the whole object and
scope of the defense to which it is
sought to reply is to show that
some party other than the plaintiff
should have brought the action.
The remedy, in such case, would
seem to be a motion to strike out.
HOWARD'S PRACTICE REPORTS.
023
Digest.
(Ward agt. Comegys et al,, ante,
429.)
SECURITY FOR COSTS
1. A person who brings an action in
the name of the overseer of the
poor under chapter 028 of the
Laws of 1857, as amended by
chapter 8->0 of the Laws of 1 875,
to recover penalties for a violation
of the excise law cannot be re-
quired to file security for costs
under section 3271 of the Code of
Civil Procedure. (Matter of Mar-
tin, ante, 26.)
2. Section \W!l does not apply (Sharp
agt. Puncher, 29 Hun, 193, criticised
and not followed; Board of Commis-
sioners of Excise agt. McGrath, 27
Hun, 425, followed). (Id.)
3. A deposit as security for costs
must be regarded, for all the pur-
poses of the action, as the property
of the person making the deposit.
But where the action results favor-
ably to the plaintiff, and the litiga-
tion is terminated, the deposit is
not liable to seizure on other judg-
ments if the money, in fact, be-
longs to other persons who made
the deposit subject only to the
contingency stated. (Frazer agt.
Ward, ante, 47.;
4. In an action in the city court of
New York, a plaintiff residing
without the state, but having an
oflice in the city of New York,
where he regularly transacts busi-
ness in person, cannot be required
to give security for costs. ( Wyckoff
agt. Devlin, ante, 33.)
5. Sections 3268 and 3160, Code of
Civil Procedure, construed. (Id.)
SET-OFF.
1. The taxable costs in an action are
not subject to set-off. (Turno agt.
Parks et al., ante, 35.)
2. An attorney has a lien for his
services in a particular case, as a
mechanic would upon the product
of his labor, and equity intervenes
to save it for him, but this lien
would ordinarily be measured by
his taxable costs, but might em-
brace a further fee, and will not
always be limited to such costs if
a special contract had been made
in good faith between the client
and his attorney, but, it seems, it
must refer to his services in the
particular action. (Id.)
3. Where prior to the recovery of
the judgment the plaintiff assigned
to his attorney herein all his in-
terest in the cause of action in
payment for services in the suit
of Parks agt. Turno, and also for
money loaned, and the attorney
held this assignment prior to the
recovery of judgment, and due
notice was given the defendants
Held, that the equity of the
attorney is superior to that of the
plaintiff, and no right of set-off
exists. (Id )
4. Lease a holding over oper-
ates to renew it with all its terms
and covenants when damages
for breach of a lessor's covenant
may be set up in an action by
him for rent. (See Elwood agt.
Forkell, 35 Hun, 202.)
5. Sale by an agent without dis-
closing his principal right of the
vendee to treat the agent as prin-
cipal how far he may set off
against the purchase-price claims
against the agent subsequently
purchased. (See Nichols agt. Mar-
tin, 35 Hun, 168.)
SHERIFF.
1. The act (chapter 279, Law* 0/1884),
is not sufficient to authorize the
board of estimate and apportion-
ment to fix the fees, percentages
and allowances of the present
sheriff, during his term of otlice,
at the rates set forth in their reso-
621
HOWARD'S PRACTICE REPORTS.
Digest.
lution of December 29, 1884. for
services thereafter to be rendered.
(Davidson agt. The Mayor, &c.,of
New York, ante, 182.)
2. The act construed as not author"
izing any interference with the
fees of the then incumbent of the
sheriff's office, but the fixing of
compensation authorized deemed
to apply to his successors in office.
(Id)
S. The provision of section 709 of
the i ode of Civil Proceedure per-
mitting the sheriff to hold prop-
erty taken under an attachment
after the warrant of attachment
has been vacated on the applica-
tion of defendant, until his costs
and expenses have been paid, and
sell it for their payment, is uncon-
stitutional, as being in effect to
allow him to hold and dispose of
the property of one party to pay the
debt exclusively of another (See
Hall agt. United States Reflector
Company, ''() How., 51). (Boweagt.
The United States Reflector Com-
pany and others, ante, 440.)
4. In an action upon a bond of in-
demnity to the sheriff, it was error
to refuse to charge the jury that
if neither the sheriff nor any of
his deputies judged the property
taken under the execution in refer-
ence to which the indemnity ap-
plied was owned by the judgment
debtor, then the defendant was en-
titled to averdict. (O'Donohue et
al. agt. /Simmons, ante, 4(51.)
5. Although an execution is regular
on its face, if it be, in fact, unau-
thorized and void the sheriff may
refuse to execute it; and proof of
its invalidity establishes a good
defense to an action against him
for such refusal. (Reid agt. Steg-
man, 99 N. Y., (546.)
SLANDER OF TITLE.
1. The courts of this state have no
jurisdiction for trespass to lands
without the state. (Dodge agt.
Colby, ante, 475.)
2. To maintain slander of title, it
must be alleged to have been
malicious. (Id.)
3. It is no slander to allege owner-
ship and that plaintiff has no title.
(Id.)
4. Under section 484 of the Code of
Civil Procedure, trespass and
slander of title cannot be joined
in the same complaint. (Id.)
SPECIAL PROCEEDINGS.
1. When the material allegations in
the moving affidavit or verified
petition in a special proceeding are
not denied by some counter affida-
vit, they stand sufficiently proved
for the purposes of the ultimate
order. (In re N. Y., L. & W. R.
R. Co., 99 N. Y., 12.)
2. In proceedings by a railroad
corporation to acquire title to
lands, the petition averred the due
incorporation of the petitioner.
A counter affidavit denied any
knowledge or information suffi-
cient to form a belief as to the
truth of said averment : Held, that
considering this simply as an affi-
davit, it was not a denial of the
averment; that treating it as an
answer there was no such denial
as put the petitioner to proof of
its incorporation, as under the
Code of Civil Procedure (sec. 1776)
a corporation plaintiff is not re-
quired to prove its corporate ex-
istence unless the answer contains
an affirmative allegation that plain-
tiff is not a corporation ; that, there-
fore, conceding the land-owner
might, without a former denial,
disprove the fact, the burden was
upon it of proving the petitioner
was not a corporation. (Id.)
SPECIFIC PERFORMANCE.
1. A purchaser cannot justify his
refusal to perform his contract by
a mere factious objection to the
HOWARD'S PRACTICE REPORTS.
G25
Digest.
title tendered him, nor is it sum
cient for him when the jurisdic-
tion of an equity court is invoked
to compel him to perform his con-
tract merely to raise a doubt as to
the vendor's title. (Johnson and
another agt. Duncan, ante, 366.)
2. Before he can successfully resist
performance of his contract on
the ground of defect of title, there
must be at least a reasonable doubt
as to the vendor's title, such as
affects its value, and would inter-
fere with its sale to a reasonable
purchaser, and thus render the
land unmarketable. (Id.)
3. Inexcusable laches and delays
will debar a party from the relief
which, they being absent, he
might have by the judgment for
specific performance. (Id.)
4. Time, though not ordinarily of
the essence of the contract, may
become so, if by its effluxion a
change of value or other material
change of circumstances has been
produced, but if the delay of the
defendants is unreasonable and
inexcusable, it is enough to relieve
the unwilling party from the con-
tract. (Id.)
5. It seems, that a party to a contract
for the purchase of land has no
equitable lien for the amount paid
on the execution of the contract
where he has lost the right to
enforce such contract by his own
laches. (Id.)
STATUTE OF LIMITATIONS.
1. Before the adoption of the Code
of Civil Procedure, the statute of
limitations of a foreign state con-
stituted no defense to an action
brought here, but section 390 of
the Code of Civil Procedure has
changed the rule to some extent.
(Howe agt. Welch, ante, f)07.)
2. In this case the cause of action
does not come within the excep-
VOL. II 79
t
tions of section 390, for the
reasons: First. The cause of ac-
tion did not originally accrue in
favor of a resident of this state,
but in favor of a resident of the
state of Ohio. Second. Because
before the expiration of the period
of limitation the person in whose
favor the cause of action origin-
ally accrued did not become a resi-
dent of the state of New York as
he lived and died in Ohio; and
because, Third. The cause of ac-
tion was not assigned before the
expiration of the time so limited
to a resident of this state. (Id.)
3. Where it is sought to revive a
debt barred by the statute of limi-
tations by a new promise to pay
" when able " the burden is on the
plaintiff to prove ability to pay.
Failure to establish the condi-
tions upon which the new prom-
ise was made is a failure to revive
a debt barred by the statute of
limitations. (Id.)
See JUDGMENT.
Spencer agt. Wait, ante, 117.
STOCK.
1. Stock purchased on margin by a
stock-broker for a customer, be-
comes the property of the cus-
tomer, as between them the re-
lation of pledger and pledgee is
created and exists, and upon pay-
ment of the amount due the cus-
tomer becomes entitled to the
possession of the stock. (Matter
of Smytli, ante, 431.)
STOCK EXCHANGE.
, Under the rules of the New York
Stock Exchange, when a member
assigns, all securities held by
other members of the exchange
for indebtedness to them of the
member failing, may be sold at
once and without notice, and all
members have a lien upon the
626
HOWARD'S PRACTICE REPORTS.
Digest.
seat in said exchange of any
member indebted to them for the
amount of the indebtedness. (Mat-
ter of Smyth, ante, 431 .)
2. S., of Albany, N. Y., a stock-
broker and member of the New
York Exchange, assigned His
New York correspondents were
H. B. & Co. He bought all stock
and bonds for his customers
through them. They held bonds
belonging to the customers of S.,
and also stock bought on margin.
H. B. & Co. knew no one in their
transactions but S. II. B. & Co.,
immediately after the failure of
S. , sold the stock and bonds of
the customers of S. and applied the
proceeds on their claim against
S.. and the assignee afterwards
selling the seat, paid H. B. & Co.,
the balance due them, retaining
the remainder thereof: Held, that
the owners of the stock and bonds
so sold, had a claim superior to
the general creditors of S , and
were entitled to have their sev
eral interests allowed out of the
moneys in the hands of the as-
signee, arising from the sale of
the seat in said exchange. (Id.)
STREET IMPROVEMENTS.
1. When a law for repaying a street
has been duly passed, proposals to
do the work invited, bids received,
and by resolution of the contract-
ing board of a city the contract let
to the lowest bidder, the proposer
has a right to have the proper con-
tract written out in accordance
with liis bid so accepted, and the
board has no right to rescind the
resolution awarding the contract.
A mandamus will issue to compel
the execution of the proper con-
tract by the city. (People ex rel.
Iloder agt. Board of Contract, &c.,
of the City of Albany, ante, 423.)
2. Lot owners may petition a com-
mon council for a street improve-
ment by attorney, and this al-
although the phrase "or their
duly authorized attorneys,'' is
omitted in the section under
which petition is made, although
the phrase is to be found in the
preceding section. The want of
power of the attorney to sign is
not presumed, but must be proved
by those who attack the petition.
(Id.)
3. Under chapter '252 of the Laws of
1885, the governor of the state may
sign any petition required by law
to be made for the improvement
of streets in cities whenever the
land owned by the state fronts on
the street to be improved. Ijt is
immaterial that the state does not
appear on the tax-rolls of the city.
(Id.)
4. The legislature has power to make
the certificate of the city surveyor
and engineer of a city conclusive
evidence that the required num-
ber of feet are duly represented on
a petition for a. street improve-
ment. (Id.)
SUMMARY PROCEEDINGS.
1. The court may restrain, by in-
junction, summary proceedings.
if the justice goes beyond his ju-
risdiction, either in taking cogni-
zance of the proceedings or while
he is acting in it, and it it appears
that the justice who granted the
warrant, the enforcement of
which is sought to be restrained,
was without jurisdiction, the in-
junction should be continued.
(Kiernan agt. Iteming, ante, 89.)
2. A justice has no power in sum-
mary proceedings to adjourn the
same except for the purpose of
enabling a party to procure his
necessary witnesses. (Id.)
3. Where, upon the return of the
precept, the tenant filed a verified
traverse of the return and moved
to dismiss the proceedings, and
the justice, after hearing the tes-
timony of the parties as to the
HOWARD'S PRACTICE REPORTS.
627
Digest.
service of the precept instead of
rendering his decision upon the
close of the evidence, adjourned
the proceedings for the purpose
of decision :
Held, to operate as a discontinu-
ance of the proceedings. (Id.)
4. A justice, other than the one be-
fore the precept is returnable, has
no jurisdiction to issue the war-
rant. (Id.)
5. In examinations in supplement-
ary proceedings in the city court,
where it appears that the judg-
ment debtor has made a general
assignment for the benefit of his
creditors, the examination need
not be limited to property ac-
quired since the assignment.
(Schneider et al. agt. Altman, ante,
448.)
SUMMONS.
1. "Where there was furnished to
the judge who made the order for
the service of a sximmons by pub-
lication a verified complaint show-
ing a sufficient cause of action
against the defendants to be
served, and positive proof by affi-
davit that they resided in Ireland,
and that the attorneys for the
plaintiff delivered copies of the
summonses to B. with directions
to serve them; proof by the affi-
davit of one of the attorneys for
plaintiff that he was informed and
believes that the summons could
not, after due diligence, be served
on the defendants, supplemented
by the affidavit of B., who was
charged with the duty of making
the service; that he had served
the summons on a number of the
defendants, but that he had been
unable, with due diligence, to
make personal service on the three
defendants named, and he also
proved their non-residence:
Held, that the statutory require-
ments of the Code of Civil Pro-
cedure have been complied with,
and that the affidavits are suffi-
cient. ( Wunnenberg agt. Gerarty,
ante, 131.)
2. The statutes do not require ex-
tieme diligence or extraordinary
exertion. They only require
proper and suitable diligence,
such as the circumstances of the
case require. (Id.)
3. Where, in an action of foreclos-
ure, unknown owners are made
defendants, as authorized by the
Code of Civil Procedure (sees. 438,
451), and are described in the
summons, the addition of the
words "if any," does not invali-
date the process. (Abbott agt.
Curran, 98 N. Y., 665.)
SUPPLEMENTARY PROCEED-
INGS.
1. It is not necessary to state in the
affidavit to obtain order for ex-
amination of a judgment debtor,
in proceedings supplementary to
execution, that the city court of
New * ork is a court of record,
that no previous application for
an order to examine judgment
debtor has been made in the action
or that the judgment was ren-
dered upon the judgment debtor's
appearance or personal service of
the summons upon him. (Sayer
agt. McDonald, ante, 119.)
2. The title to the personal property
of a judgment debtor, residing iu
another county than that in which
the judgment-roll in the action is
filed, is not vested in a receiver in
supplementary proceedings until
the order appointing him has been
filed in the office of the clerk of
the county where the judgment-
roll is filed, and a copy of the
order, certified by that clerk, is
filed with the clerk of the county
where the judgment debtor re-
sides. (Stoats agt. Wemple, anU,
161.)
3. And until then the receiver is not
628
HOWARD'S PRACTICE REPORTS.
Digest.
entitled to an order requiring the
judgment debtor to deliver his
personal property to him. (Id.)
4. Where orders were granted for
the examination of a judgment
debtor on proceedings supple-
mentary to execution, upon affida-
vits in fhe usual form made by one
of the attorneys who recovered the
judgments for the plaintiff. On
motion by the judgment debtor to
vacate such orders upon the
ground that prior to the grant-
ing of the orders the title to the
judgments had passed to a re-
ceiver:
Held, that the judgment debtor
had the right to make such motion.
Held, further, that an attorney
must obtain leave of the court be-
fcre he can institute supplement-
ary proceedings upon a judgment
in favor of his own client after
the title to that judgment has
passed from the client to the re-
ceiver, and especially where the
proceedings are instituted by an
affidavit that says nothing about
the lien of the attorney. (Moore
agt. Taylor and another, ante, 843.)
5. An order in supplementary pro-
ceedings directed the judgment
debtor to deliver to the sheriff a
sum of money, which had been
paid to him as wages after the
institution of the supplementary
proceedings. The defendant was
a resident of Pennsylvania, and it
appeared that the money was in
that state : Held, that the order
was erroneous; that the court had
no power to compel the debtor to
go out of this state to obtain the
money and bring it here. (Bu-
chanan agt. Hunt. 98 3 T . T., 560.)
6. It seems the most the court had
power to do was to require the
debtor to transfer his title to the
money to a receiver. (Id.)
7. In an action brought by a re-
ceiver, appointed in supplement-
ary proceedings, to set aside as
fraudulent a conveyance of real
estate, executed by the judgment
debtor, so as to subject the prop-
erty to levy and sale on execution,
where the receiver simply proves
his appointment, without showing
the proceedings necessary to vest
in Mm title to the real estate, he
is not entitled to recover the rent*
and profits. (Wright agt. Ifbs-
trand, 98 N. Y., 669.)
SURETIES.
1. The sureties on the official bond
of a city marshal are not liable
until after a valid judgment has
been recovered against their prin-
cipal. (In re Mary Brasier, ante,
154.) '
2. In an action upon a bond of in-
demnity to the sheriff, it was
error to refuse to charge the jury
that if neither the sheriff nor any
of his deputies judged the prop-
erty taken under the execution in
reference to which the indemnity
applied was owned by the judg-
ment debtor, then the defendant
was entitled to a verdict. (O'Uono-
hue agt Simmons, ante, 461.)
SURROGATES.
1. The provisions contained in sec-
tion 13 of article <> of the constitu-
tion, to the effect that " no person
shall hold the office of judge or
justice of any court longer than
until and including the last day of
December next after he shall be
seventy years of age," does not
apply to persons holding the office
of surrogate. (The People ex reL
Lent agt. Carr, ante, 501.)
SURROGATE'S COURT.
1. Where a claim against an estate
is presented, in proper form and
duly verified, to the person and at
the place named in the statutory
notice to creditors given by ex-
HOWARD'S PRACTICE REPORTS.
629
ecutors, and after a reasonable
opportunity to examine into its
validity and fairness, the execu-
tors do not offer to refer on the
ground that they doubt its justice,
or do not dispute it, it acquires
the character of a liquidated and
undisputed debt against the es-
tate. (Lambert agt. Craft, 98 N.
F.,343.)
2. Although where application is
made by the creditor, by petition
to the surrogate to direct payment
of such a claim, it is in the power
of the executors under the pro-
visions of the Code of Civil Pro-
cedure (sees. 2717, 2718) to divest
the surrogate. of jurisdiction and
put the claimant to his proof in
another court ; if they fail to do
this, it is only necessary for the
euirogate to be satisfied by proof,
that there is personal property of
the estate applicable to the pay-
ment or satisfaction of the claim,
and which may be applied without
injuriously affecting the rights of
others (sec 2718, sub. 2). (Id.)
3. An oral plea of a general denial
in answer to the petition is in-
effectual for any purpose. (Id.)
4. It seems that in any case as the
jurisdiction of the surrogate to di-
rect payment of a debt is confined
to undisputed claims, the peti-
tioner is neither required to state
the facts which go to make out
his debt, nor if stated, will he be
permitted to establish them. The
presentation of the petition, and
the citation issued thereon (sec.
So Hi), brings in the executor, not
to plead or respond to the petition,
but by a verified written answer
to set forth affirmative facts, if
any exist which show " that it is
doubtful whether the petitioner's
claim is valid and legal," and also
' denying its validity or legality
absolutely or upon information
and belief." The answer must
meet both requirements to require
a dismissal of the petition. (Id.)
5. A. surrogate, on settlement of
the accounts of an executor or
administrator, who has made ad-
vances -for the support and main-
tenance of a minor entitled to a
share in the estate, has jurisdic-
tion to determine, upon equitable
principles, a claim for such ad-
vances ; and an allowance is
proper where the expenditure for
which reimbursement is so sought
is such as would have been au-
thorized by the court had applica-
tion been made in advance. (Hy
land agt. Baxter, 98 N. Y , 610.)
6. Where, therefore, in an action
by an administrator to have ad-
vances made by him for the sup-
port of the testator's minor chil-
dren, applied in deduction of the
sums adjudged against him on
settlement of his accounts by the
surrogate on account of the dis-
tributive shares of said minors, it
appeared that in the account pre-
sented by the administrator before
the surrogate the advances were
set out and a credit claimed for
the amount thereof, but the claim
was disallowed : Held, that the
decision of the surrogate thereon
was res adjudicata ; and so, con-
clusive upon the parties in this
action. (Id.)
TAXES AND ASSESSMENTS.
1. The assessors, in estimating the
value of railroad or canal property
within a town, are not to be gov-
erned solely by its cost, but rather,
though not' exclusively, by its pro-
ductiveness for railroad or canal
purposes. (People, ex rel., Presi-
dent, &c., of D & II. Canal Co.
agt. Keator, ante, 471). )
2. The taxable value of the part of a
canal which lies within a town
in which the tax is laid, is to be
ascertained by valuing, as a part
of a whole a continuous way to
carry freight from one point to
another, and the profits i.f iis use
630
HOWARD'S PRACTICE REPORTS.
Digest.
for that purpose (See ante, 454).
(Id.)
TRADE-MARK.*
1. A person who has been a hired
workman of another, a mere em-
ploye for a time, afterwards en-
gaging in the same business of his
former employer and occupying a
store in the same city, has no
right to use the name of such
former employer upon his cards,
signs, &c , by saying " late with,"
&c., and such use will be re-
strained by injunction. (Van
Wyck agt. Horowitz, ante, 279.)
TRIAL.
1. Subdivision 2 of section 1347 of
the Code of Civil Procedure pro-
vides that appeals may be taken
to the general term of the supreme
court from an order granting or
refusing a new trial, " except "that
where specific questions of fact,
arising upon the issues in an action
triable by the court, have been
tried by a jury, pursuant to an
order for that purpose as pre-
scribed in section 971 of this act.
an appeal cannot be taken from an
order granting or refusing a new
trial upon the merits : " Held, that
the prohibition against appealing
from an order '' upon the merits "
was intended to limit and restrict
the consideration of the effect of
the evidence to the jury *nd to the
court before which an application
to set aside the verdict and for a
new trial, might be made under
the provisions of section 1003 of
the said Code. (Bowen agt. Becht,
35 Hun, 434 )
2. That it was not designed to ex-
tend beyond a review of the effect
of the evidence bearing upon the
issue tried. (Id.)
8. That the exception was not in-
tended to prevent the review, by
appeal, of rulings made by the
justice presiding at the trial before
the jury, by which proper evi-
dence was rejected, or improper
evidence received, or unsound
rules applied to the consideration
of the evidence in the submission
of the case to the jury. (Id.)
4. That where such erroneous rul-
ings have been made, and the
verdict in part influenced by them
has been made the basis of the
final recovery, a new trial should
be ordered, despite the provisions
of section 1003 of the said Code,
declaring that "an error in the
admission or exclusion of evi-
dence, or in an}- other ru'.ing or
direction of the judge upon the
trial, may, in the discretion of the
court which reviews it, be disre-
garded if that court is of opinion
That substantial justice does not
require that a new trial should be
granted." (Id.)
5. Where such erroneous rulings
have been made by the justice
presiding at the trial before the
jury of the specific questions re-
ferred to them, and it appears
from the decision of the justice
before whom the issues in the
action were tried at special term,
and from the judgment entered
thereon, that the findings of the
jury upon the questions submitted
to them were considered by him
in arriving at his decision, the
judgment will be reversed. (Id.)
6. To the complaint in this action,
which contained five separate
causes of action, the defendant
demurred, upon the grounds that
there was an improper joinder of
causes of action, that the second
cause of action therein stated did
not state facts sufficient to consti-
tute a cause of action, and that
the third cause of action did not
state facts sufficient to constitute
a cause of action Upon the hear-
ing of the issues raised by the de-
murrer it was decided that the
second cause of action as set
HOWARD'S PRACTICE REPORTS.
631
Digest.
forth in the complaint did not
state facts sufficient to constitute
a cause of action. The defendant
thereupon ente'ed a judgment
dismissing the complaint as to the
second cause of action and for
costs. Upon an appeal taken by
the plaintiff from this judgment:
Held, that as the issues of law
raised by the first and third
f rounds of demurrer bad not been
ecided, no final judgment could
be entered. (Robinson agt. Hall,
35 Hun, 214.)
7. That .the remedy of the plaintiff
was not by appeal, but by a
motion at special term to have
the judgment so irregularly
entered vacated and the remain-
ing issues properly disposed of.
(Id.)
8. That the appeal should be dis-
missed. (Id.)
9. The rule which is to be applied
where a contradiction exists be-
tween the findings of fact and
conclusions of law appearing in
the decision, signed by the judge
or referee, and the findings made
upon special requests therefore
submitted by either of the parties,
considered, and the old rule that
in such cases the special findings
is to control, criticised and
doubted. (Sisson agt. Cumminqx,
35 Hun, -22.)
10. The proper manner of preparing
the findings of fact and conclu-
sions of law which are to be
signed by the judge or referee and
filed as his decision, stated. (Id.)
11. Referee's report when set aside
because of bias and prejudice
upon the part of the referee
what will excuse delay in making
the motion (See Burrows agt.
Dickinson, 35 Hun, 492.)
12. By the court findings of fact
and conclusions of law must be
made and signed a trial of a
contested question of fact by the
court cannot be reviewed unless
such a decision be made. (See
Benjamin agt. Allen, 35 Hun, 115.)
13. Trial for murder in the first de-
gree when the question of pre-
meditation and deliberation must
be left to the jury errors in the
charge when not cured by a
subsequent modification tnereui'
defense of an alibi it is error to
charge that it is a suspicious de-
fense what evidence may be ad-
mitted to sustain the defense.
(See People agt. Kelly, 35 Hun, 295.)
TRUST.
1. The courts recognize a difference
between the intent of a testator to
create a legal direction on his
devisee and the intent solely to
create a moral obligation; the
latter does not create a trust.
(Bowker and others agt. Wells and
otliers, ante, 150.)
2. While a secret trust to apply
devised property to an illegal pur-
pose will render the devisee a
trustee for the heirs-at-law or next
of kin, the trust must be estab-
lished in such a manner that if
legal it would be binding upon
the trustee. (Id.)
3. D. by her will gave the bulk of
her estate to four persons, or such
of them as might survive her and
be of sound mind, absolutely, aa
joint tenants and not as tenants
in common (expressing a wish a*l-
though stating that it was not to
be taken as a legal direction), the
estate so bequeathed and devised
should be applied by these four
gentlemen as they might deem
wise to the promotion in the
United States of sound political
knowledge. In an action to con-
strue the will:
[[eld, that the language of tlio
will, if directed toward a purpose
capable of legal enforcement,
would not have created a trust,
and as there is no promise shown
632
HOWARD'S PRACTICE REPORTS.
Digest.
de hors the will to apply the de-
vised property to such purpose,
the devise is valid and the devisees
take the property absolutely as
their own (0'IIara agt. Dudley, 95
aV. T. , 403, distinguished}. (Id.)
See WILL.
Ward agt. Ward and otters,
ante 345.
TRUSTEES.
See CORPORATION*.
United States Ice and Refrigera-
tor Co., agt. Reed et al., ante
253.
VERIFICATION.
1. A verification of a pleading made
by the secretary of a domestic
corporation in the usual form, as
required by the Code, when a
pleading is verified by the party,
is a sufficient verification. (Amer-
ican Insulator Co. agt. Bankers'
and Merchants' Telegraph Co.,
ante, 120.)
2. It is only agents or attorneys
that are required, when verifying
pleadings, to set forth the grounds
of their belief as to all matters
not stated upon their knowledge,
and the reason why the verifica
tion is not made by the party.
A corporation cannot take an
oath, and the statute points out
the way in which it must verify a
pleading. Such verification is
the verification of the corpora-
tion and a verification by the
party. (Id.)
WILL.
1. The primary fund for payment
of legacies is personal estate and
realty, cannot be charged with the
burden unless by express direction
or clear intent drawn from the
will, aided by outside circum-
stances, if any there be. (Reyher
agt. Reyher and others, ante, 74.)
2. The will of R. , after directing the
payment of his debts, directed his
executors to pay to his father,
mother, brother and sister, certain
sums of money, and then directed
that all the rest, residue and re-
mainder of his estate, both real
and personal, be equally divided
between his daughter and widow,
who was appointed executrix,
giving ber full power to sell and
convert all the estate into money.
The personal property was insuf-
ficient to pay the legacies in full:
Held, that the legacies were
chargeable upon the real estate.
(Id.)
3. It is the duty of the court to as-
certain from the will itself the
intention of the testator, and if
the provisions of the will are legal,
to give effect to them according
to the intention of the testator.
Invalid provisions, as a matter of
course, must fail. (Lee agt. Lee,
ante, 70.)
4. By the will one half of the residu-
ary estate was given to trustees,
who were directed to receive the
income thereof during the life-
time of the testator's son, H. VV.
L., and to pay the same to him so
long as he should live. But upon
his death, leaving a wife him sur-
viving, one-quarter of the income
was to be paid to her so long as
she should remain unmarried. On
liis death, without leaving a
widow, the whole of such share
set apart tor his benefit, or if he
should leave a widow, three-quar-
ters of such share was given abso-
lutely and in fee to his children.
But should his son leave " a
widow," then at her death or re-
marriage the one-quarter of his
share was disposed of in like man-
ner as the rest of the share. H.
W. L was married at the time of
his father's death, and he, as well
as his then wife, are still living:
Held, that it would be prema-
ture, at this time, to pronounce
this portion of the will invalid,
for effect may be given to the tes-
HOWARD'S PRACTICE REPORTS.
633
Digest.
tator's actual disposition of this
one-quarter interest, in the event
that H. W. L. should leave no
widow at his death. (Id.)
5. But as to the one-quarter interest
of the one-half of the residuary
estate continued in the trustees
for the benefit of the widow of
his son S. A. L., in the event that
he should die leaving a widow,
the case is different S. A. L
died after the testator's death,
leaving a widow and several chil-
dren. These facts present the
alternative condition, upon which
the trust was to continue after the
death of the testator's son, and
upon which the gift to the chil-
dren was 7uade, und such trust is
void, and as to this one-quarter
of the one-half of the residuary
estate, the testator in law died
intestate (( 'iting Schetler agt. Smith,
41 N. Y., 328). (Id.)
6. Where the will contained a gift of
$2,000, upon the death of the tes-
tator's wife, to his grandchildren
''in being" at that time, such of
them, however, as were under the
age of twenty-three years to be
paid their shares on arriving at
that age :
Held, that grandchildren born
after the testator's death, but dur-
ing the lifetime of the widow,
take a share of this gift. Grand-
children born after the death of
the widow do not participate in
this legacy. The statute disposes
of the shares of the grandchildren
who died intestate during the life-
time of the widow.
Held, also, that the grandchild
H. F. L , although born after the
death of his father S. A. L , is
embraced within the terms of the
gift to his children "then in be-
ing," and within the provisions of
the statute, and the policy of the
law should share equally with the
brothers and sisters in the share
set to his father. (Id )
7. The after-added provisions of the
will, near its close, bv which it is
sought to continue the trust over
the shares of minors in the re-
siduary estate, is void in so far as
the I'-i.OOO held for the life of
Eliza Howe is concerned. That
portion of the residuary estate has
already been subjected to a trust
for two lives. (Id.)
8. The gift to the testator's grand-
children was made in absolute
terms at the time they were limited
to take effect, and the latter-added
invalid trust may be dropped, and
the principal sum should be paid
to the persons entitled thereto,
when entitled, as though such lat-
ter trust had not been attempted
to be made. (Id.)
9. A paper purporting to be the will
of a resident of New Jersey who
died in that state leaving personal
property in the county of Mew
York, was propounded in that
county for probate. Such paper
was not subscribed by its maker,
but her name appeared in her own
handwriting in its opening sen-
tence, which began: " If I, Cecilia
L Booth, should die," &c. (In
ike Exlate of Cecilia L. Booth, de-
ceased, ante, 110.)
10. The instrument from first to last
was written by the decedent while
two persons were in attendance at
her request for the purpose of
attesting it. They duly subscribed
their names as witnesses, and she
acknowledged in their joint pres-
ence that the paper so authenti-
cated was her will, at the same
time displaying it so that they saw
her name as written upon its face:
Held, fti'xt, that the sufficiency
of the execution of the disputed
paper should be tested by the law
of New Jersey, and not by that of
New York.
Second. That the instrument was
duly executed within the New
Jersey statute of 18">l, which re-
quired that a will should be
" signed by the testator,'' and that
such signature should be made by
him, or the making thereof ac-
VOT, IT
80
684
HOWARD'S PRACTICE REPORTS.
Digest.
knowledged l>y him in the presence
of two witnesses. (Id.)
11 During the pendency of proceed-
ings for the probate of an alleged
will, the contestant, who was one
of the next of kin of the decedent
and was named in the disputed
paper as a legatee, applied for an
order directing the payment of a
sum of money to be charged
against her legacy or her distrib-
utive share accordingly as the
disputed paper might thereafter
be granted or refused probate.
Such paper contained a provision
declaring that any legatee or dev-
isee wlio should contest its
validity should forfeit thereby the
bequest or devise in his favor.
(In the Estate of Frederick 6 rote,
deceased, ante, 140.)
12. The respondents having filed an
answer setting forth the foregoing
facts and alleging that because of
them the legality and validity of
the petitioner's claim was doubt ful.
Held, that under section 2718 of
the Code of Civil Procedure the
application must be dismissed.
(fd.)
13. No express gift to executors is
necessary in order to vest them
with a trust estate. A trust will
be implied when, upon a consid-
eration of the whole will, that
clearly appears to have been tes-
tator's intention, or when the
duties imposed are active and ren-
der the legal title in the executors
convenient and reasonably neces-
sary, although not essential to ac-
complish the purposes of the will,
and when such implication would
not defeat, but would sustain, the
dispositions of the will. ( Ward
agt. Ward and otters, ante, '645. )
14. Testator gave the use and in-
come of all his estate to his widow,
and after her death to his two sons,
share and share alike, remainder
to their heirs, and clothed his
executors with such powers and
duties as clearly showed that he
contemplated their retaining pos-
session of the estate, and the bene-
ficiaries receiving the income from
them:
Held, the estate vested in the
executors in trust for the life of
the widow, and after her death
for the lives of the two sons re-
spectively.
Also, field, there is no illegal sus-
pension of the power of aliena-
ti;.,i (Id.)
15 A gift of income " subject to the
necessary expenses " of living and
the education of two sons :
Held, to create a charge upon
the income in the recipient's
hands which she was bound to
satisfy. (Id.)
16. A desire that "such sums from
time to time as may be necessary
and deemed advisable to be paid
to" persons named "that they
* * * may not want for the
necessaries of life: "
Held, to create charges upon the
income of the estate which the
widow is bound to satisfy, and
which the court will enforce in
the event of her failure to do so
in good faith.
Further, held, the court will not
pronounce in advance the legal
consequences of an event which
has not happened and may never
occur. (Id.)
17. Where a will provided as fol-
lows: "First. After all my lawful
debts are paid and discharged, I
give and bequeath to C. M., who is
now living with me, his heirs and
assigns, all that house, lot, tract
and parcel of land where I now
reside in the town of Almont, Al-
leghany county, N. Y., containing
about forty acres of land." Im-
mediately following this there are
sixteen " items " by which the tes-
tator bequeaths to twenty-two per-
sons specific sums of money; each
clause of the bequest commences:
"I give and devise." The eigh-
HOWARD'S PRACTICE REPORTS.
G3S
Digest.
teenth clause reads: " T give and
devise all the rest, residue and
remainder of my real estate and of
my personal estate, goods and
chattels of every kind whatsoever,
if any there shall be after paying
my debts and the legacies herein-
after named to the several lega-
tees hereinbefore named, to be
divided between them share and
share alike." In a codicil to the
will the testator slightly changed
some of the bequests and at the
end of which was this clause: " I
have by my last will referred to
above, willed that any remainder
or residue of my estate real or
personal which may remain after
paying debts and legacies, be dis-
tributed among the several lega-
tees share and share alike. Now,
therefore, I do by this my writing,
which I hereby declare to be a
codicil to my said will and to be
taken as a part thereof, order and
declare that my will is, that such
distribution be made, not share
and share alike, to the legatees, but
pro rata or in proportion to the
several legacies excepting E. L.
and H. B F. who are not to share
in such distribution." C. M. is
the only devisee, and the real prop-
erty above mentioned is the only
real property devised. The testa-
tor died leaving a small parcel of
land undisposed of in any way
other than by such residuary
clause in the will and codicil:
Held, that the devisee C. M. is
not entitled to any portion of the
residuary estate, and it should be
distributed to the legatees named
in the will, in the proportion
therein named. (Matter of Kan\
ante, 405.)
18. Strictly speaking, real estate
given by will is devised, and per-
sonal estate is bequeathed. The
one receiving real estate is termed
a devisee, and the one taking per-
sonal property a legatee. One act
of giving is a devise, the other a
bequest. The person receiving a
devise or a bequest is a beneficiary.
(Id.)
19. A testator is always presumed
to use the words in which he ex-
presses himself according to their
strict and primary acceptation,
unless from the context of the
will it appears that he has used
them in a different sense, in which
case the sense in which he appears
to have used them will be the
sense in which they are to be con-
strued. (Id.)
20. The ordinary as well as technical
meaning of the word "legacy" is
a gift of property by will other
than real estate ; this is its strict
and primary sense and the one
generally accepted. This is the
meaning thai will be attached to
the word by the court, unless it
clearly appear from the will itself
that the testator has used the
word in a different sense. (Id.)
21. Where a will presents upon its
face questions of complication,
uncertainty and difficulty, au
executor may institute and main-
tain an action for the purpose of
obtaining a judicial construction
thereof, and for direction to him
as to the manner in which he
should discharge his duties in ex-
ecuting the will as such executor.
(Bigart agt. Jones, ante, 491.)
22. It is the policy of the law, in
regard to the construction of wills,
to give effect to every pai t thereof,
to the end that every beneficiary
shall receive the bounty of the tes-
tator, according to his intention,
as fairly gathered from the entire
instrument. (Id. )
23. Where the testator by his will
bequeathed, after the payment of
debts and funeral charges, all of
his personal and real estate, except
a lot which Elizabeth Akin was to
occupy, to his wife, to be used
and enjoyed by her during her
natural life, or until she should
marry. Upon the marriage or
death of his widow his daughter
Cecilia became entitled to the use
and enjoyment during her nnturai
36
HOWARD'S PRACTICE REPORTS.
Digest.
life of the estate, real and per-
sonal:
Held, that Cecilia did not take a
fee under the will, but that her
estate should be regarded merely
as a life estate. It follows that at
the death of Cecilia, if she had
left lawful issue her surviving,
such issue would have been en-
titled absolutely to the estate, real
and personal. As Cecilia died
without leaving such issue the
estate, real and personal vested in
thd persons designated in the sixth
clause of the will, subject to the
payment of the bequest specified
in the will. (Id.)
24. It seems to have been the pur-
pose and intention of the testator
to consolidate into one fund the
real and personal estate at the
death or marriage of his widow,
and to bequeath or devise the same
accordingly, subject to the satis-
faction of the burdens which he
imposed upon his estate for the
benefit of the persons designated
therein, to whom he gave certain
sums by way of legacy. (Id.)
25. Where a will has been so drawn
as to allow blank spaces m the
body thereof of such a nature as
to allow the insertion of disposi-
tions without interlineations, and
Where jthe testatrix does not
subscribe her name in the pres-
ence of both witnesses, and does
not acknowledge her signature to
the witnesses, although she in-
forms the witnesses that it is her
will she wishes them to witness:
Held, that there was no sufficient
signing of the will by the de-
ceased in the presence of the wit-
nesses, nor a sulBeient acknowl-
edgment to them that she had
done so to satisfy the requirement
of the statute, and that the paper
was not entitled to be admitted to
probate. (In ttie Matter of Catha-
rine S/uiffer, dec&ixed, ante, 494.)
26. Where there is no direct ex-
pression of intention that the pro-
vision contained in the will shall
be in lieu of dower, the question
always is whether the will con-
tains any provision inconsistent
with the assertion of a right to
command a third of the land to
be set out by metes and bounds
for dower. The intention of the
testator need not be declared in
express words, it may be implied
if the claim of dower would be
plainly inconsistent with the will.
(Cole agt. Cole et al., ante, 51(i.)
27. Where the will gave all the tes-
tator's real and personal estate to
plaintiff (widow) as executrix and
John M. Corliss and William
Carley as executors in trust for
uses and purposes therein stated,
among which are the following:
" First. To receive and collect the
income thereof, and to pay the
same for my debts, and the incum-
brances upon my estate, after the
payment of such sums as may be
necessary for the support and ed-
ucation of my family and children,
in which matters I desire my ex-
ecutrix and executors to be lib-
eral. Second. To purchase in their
own names as such executrix and
executors a homestead for my
wife and family if I shall not do
so in my lifetime, and in such
homestead all my children shall be
entitled to a home while they re-
main unmarried." The testator
in his lifetime purchased the
homestead and owned it at the
time of his death:
Held, that the intention of the
testator is reasonably clear that
the widow should take all of her
interest in that homestead under
the will. She is given an interest
equal to that of each. child. The
devise must contemplate a home-
stead discharged of dower, other
wise the object of the testator as
expressed might be defeated by
assumption of dower right, and
possible sale of the homestead
under such claim. (Id.)
28. The testator directed that in case
of the remarriage of his wife all
of his estate shall be divided
HOWARD'S PRACTICE REPORTS.
637
Digest.
equally among his four children,
and be paid to them respectively as
they arrive at full age :
Held, that if one-third of the
real estate were to be set apart to
the widow as dower, a division of
all of the estate among such
children could not take place until
the widow's death notwithstand-
ing a remarriage by her. Thus a
provision of the will would be
defeated. (Id.)
See DOWER.
Mason agt. Mason et al. , ante, 514.
See TRUST.
Bowker and others agt. Wells and
others, ante, 150.
WITNESS.
1. Actions against trustee to recover
corporate debts as a penalty for
failure to file annual reports are
"penalties," within the meaning
of section 837 of the Code of Civil
Procedure. In such actions a
party defendant is privileged from
answering any question concern-
ing the facts alleged in the com-
plaint and cannot be compelled to
answer upon an examination be-
fore trial any question which
would support the claim of the
plaintiffs, either against himself
or his co-defendants. (Hughen
agt. Woodward, ante, 127.)
2. By section 834 of the Code of
Civil Procedure, a physician is
prohibited from disclosing any in-
formation which he acquired in
attending a patient in a profes-
sional capacity, and which was
necessary to enable him to act in
that capacity, and the seal of the
law placed upon such disclosures
can be removed only by the ex-
press waiver of the patient him-
self. (Westover agt. The ^Etna
Ins. Co., ante, 184.)
8. Whenever the evidence comes
within the purview of the statute
it is absolutely prohibited and may
be objected to by any one, unless
it be waived by the person for
whose benefit the statute was
enacted. (Id.)
4. An executor or administrator
does not represent a deceased per-
son for the purpose of making
such a waiver. lie represents
him simply in reference to right
of property and not in referenco
to those rights which pertain to
the person and character of the
testator (Reversing S. G., ante, 163).
(Id.)
5. This action was brought by the
receiver of an insolvent firm of
brokers against one of the part-
ners, and against the general as-
signee of the said partner and the
general assignee of the firm, to
enforce an equitable lien upon the
assets in the hands of the assignee
of the defendant partner, for
money wrongfully withdrawn
from the firm by his assignor.
The plaintiff procured an order
for the examination, before trial,
of the defendant partner, upon
an affidavit alleging that the part-
. ner withdrew money from the
firm as profits, when he knew
that no profits had been realized
and that the firm was insolvent,
and that he withdrew the said
funds with the intent to hinder,
delay and defraud the creditors
thereof: Held, that it was error
to set aside the order, upon the
ground that the examination
would tend to establish the com
mission of some criminal offense
by the witness. (Daeies agt. Fish,
3o Hun, 430.)
6. That the wrongful withdrawal of
the moneys from the firm did not
constitute a criminal offense
under the laws of this State. (Id.)
7. That on his examination he would
have the protection afforded to
witnesses examined in open court,
and could shield himself from in-
jury under the rules applicable in
such cases. (Id.)
38
HOWARD'S PRACTICE REPORTS.
Digest.
8. Right of one accused of crime
to be confronted with witnesses
meaning of the requirement
U. S. Constitution, art. 6 and art.
14, sec. 1 bill of rights, sec.
14 Code of Criminal Procedure,
sec. 8, sub. 3. (See People agt.
Williams, 35 Hun, 510.)
9. Contempt the refusal of a wit-
ness to answer questions may be
punished either criminally or
civilly Code of Civil Procedure,
sec. 8, sub 5; sec. 14, sub. 5; sec.
2285 length of the confinement
form of the commitment. (&e,
People ex rel. Jones agt. Datidavn,
35 Hun, 471.)
10. Evidence meaning of the words
" interested in the event " in sec-
tion 829 of the Code of Civil
Procedure. (See Moore agt. Ociatt,
35 Hun, 216.)
11. Opinions of witnesses as to the
peaceable disposition of a dog by
whom the plaintiff has been
bitten. (See Caldwell agt. Snook,
35 Hun, 73.)
12. The provision of the Code of
Civil Procedure (tec. 841)), pro-
hibiting a party to an action from
testifying in his own behalf
against an executor, etc., of a de-
ceased person "concerning a per-
sonal transaction or communica-
tion between the witness and the
deceased person," does not neces-
sarily, and under all circum-
stances, exclude the evidence of a
party so testifying, when it tends
only to negative or affirm the ex-
istence of such a transaction or
communication. (Lewis agt. Mer-
ritt, 98 N. Y. , 206.)
13. Where the party representing
the deceased person has as a wit-
ness in his own behalf given ma-
terial evidence, the adverse party,
although precluded from directly
proving the existence of such a
transaction or communication,
may testify as to extraneous facts
tending to controvert such evi-
dence, although those facts may
incidentally tend to establish the
inference that such a transaction
or communication has or has not
taken place. (Id.)
INDEX
A.
ABATEMENT.
PAGE.
Cause of action to recover penal-
ties under the general manu-
facturing law does not abate
on death of sole plaintiff 451
ABDUCTION.
What constitutes the crime of. . 105
ACTION.
"When one or more parties may
sue or defend for the whole . . 396
Against benevolent society for
benefits, what must be proved, 488
When may be maintained by an
executor for construction of
will 491
ADDITIONAL ALLOWANCE.
Plaintiff not entitled to in action
by a vendor to foreclose a land
contract in which he recovers, 512
ADJOURNMENT.
Power of justice in summary
proceedings to adjourn the
same . . 89
ADMINISTRATORS.
Who entitled to receive letters
of administration with will
annexed. . . 194
AMENDMENT.
PAOS.
Of pleadings when and to what
extent allowed 203
Acceptation of offer of judg-
ment may be amended by
supplying affidavit of attorney
that he was authorized to
accept it 360
ANSWER.
Form of denial in which does
not put in issue material alle-
gations in complaint 13
What is a sufficient verification
by corporation 120
When reply to answer not al-
lowed 438
APPEAL.
When stay of proceedings pend-
ing appeal should not be va-
cated 85
When motion to dismiss appeal
to court of appeals may be
made where case is on the
calendar .... 33 1
ARREST.
When party arrested for con-
verting money received in a
fiduciary capacity entitled to
his discharge under the in-
solvent law 340
Sufficiency of proof to support
order of. ... .531
040
HOWARD'S PRACTICE REPORTS.
Index.
ASSESSMENTS.
PAGE.
How the value of railroad or
canal property is to be determ-
ined 454
ASSIGNEE.
Where there are three assignees,
what is proper notice in pro-
ceedings for removal of 523
ASSIGNMENT.
Acts of assignor which are
fraudulent and render the
assignment void 211
What passes by general assign-
ment 431
Surviving partner no power
without consent and concur-
rence of the representative of
deceased partner to make
assignment for benefit of cred-
itors of the firm with prefer-
ences when court of equity
will take possession of estate
and appoint receiver 272
ATTACHMENT.
Sufficiency of affidavit 52
ATTORNEY AND CLIENT.
Authority of attorney to receive
interest or part of principal
sum on bond and mortgage of
client 310
Responsibility of attorney
the degree of skill and dili-
gence required to be observed
by an attorney and counselor
to entitle him to enforce pay-
ment for his services.. . . 352
ATTORNEY'S LIEN.
PAQK.
To what extent will be enforced, 35
How enforced when action
on undertaking on appeal can-
not be brought by attorney in
his client's name 169
Mode of enforcing it 343
B.
BENEVOLENT SOCIETY.
What must be alleged and
proven in action against be-
nevolent society for benefits, 488
BOND AND MORTGAGE.
Authority of attorney to receive
interest or part of principal
sum on bond and mortgage of
client 310
BOOKS AND PAPERS.
When application (under the
provisions of the Revised
Statutes) by an officer of a
municipal corporation to com-
pel the delivery of books and
papers should be denied 178
BROKERS AND FACTORS.
Distinction between their rights
and liabilities Who are fact-
ors. . . 293
BURDEN OF PROOF.
The burden is on plaintiff to
prove ability to pay, where
it is sought to revive a debt
barred by the statute of limi-
HOWARD'S PRACTICE REPORTS.
641
Index.
tations by a new promise to
pay " when able " 507
c.
CEMETERY LOTS.
When inalienable 13
CHILDREN.
Custody of minors rights of
parents to dispose of 438
CITY COURT OF NEW YORK.
Its jurisdiction 20
CITY MARSHAL.
Liability of sureties not liable
for judgment for costs on
interlocutory order 154
CODE OF CIVIL PROCEDURE.
Sections 66, 44!) attorney's lien,
how enforced when action
on undertaking on appeal can-
not be brought by attorney in
his client's name 109
Section 66 mode of enforcing
attorney's lien 343
Sections 90, 25 1 1 stenographer
of surrogate's court not within
the scope of these sections, so
as to prohibit him from acting
as referee 38
Section 317 not repealed by
the adoption of part 2 of the
Code of Civil Procedure 257
Section 321 under this section,
who liable for costs, in case of
transfer of interest, &c., of
cause of action 1
VOL. II 81
PAGE.
Section 390 when statute of
limitations of a foreign state,
a defense to an action brought
here 507
Section 432 sufficiency of serv-
ice of process upon a foreign
corporation 150
Sections 438, 439 what is a suf-
ficient service by publication
of a summons under these sec-
tions , 131
Section 448 when one or more
parties may sue or defend for
the whole 390
Section 451 when and to what
extent amendment of plead-
ings allowed 293
Section 48-1 under this section
trespass and slander of title
cannot be joined in the same
complaint 475
Section 550 sufficiency of proof
to support order of arrest
under subdivision 2 of this
section 521
Sections 52"), 526 what is
a sufficient verification of
answer by corporation 120
Sections 630, o!69 sufficiency
of affidavit to obtain attach-
ment 52
Section 709 declared uncon-
stitutional 440
Sections 721, 1016, 1166 effect
upon the verdict when the
entire jury is unsworn and no
objection made 244
Section 738 what costs to be
allowed when oiler of judg-
ment for a specific sum, with
interest and costs is made and
after the offer both parties
serve notice of trial after
which the oiler is accepted.. . 289
042
HOWARD'S PRACTICE REPORTS.
Index.
Sections 738, 1278, 1932 offer
of judgment by one of several
partners effect of, as to costs,
82
Section 740 acceptance of
offer of judgment may be
amended by supplying affida-
vit of attorney that he was
authorized to accept it 360
Section 779 what are motion
costs within the meaning of
this section 154
Section 779 when non-pay-
ment of costs stays all pro-
ceedings 200
Section 829 it is not the inten-
tion of this section to prevent
a party to a suit from testify-
ing to any extrinsic fact that
tends to contradict a witness
who swears to transactions or
communications had between
such party and a deceased
person 411
Section 834 when physicians
not allowed to testify per-
sonal representatives cannot
waive prohibition of statute.. 184
Section 834 physicians not to
disclose professional informa-
tion right of executors to
waive provisions of statute.. . 163
Section 837 when defendant
in action against trustee of
corporation to recover corpo-
rate debts as a penalty for
failure to tile annual reports is
excused from testifying 127
Section 1019 what is a suffi-
cient compliance with the pro-
visions of this section as to
delivery of report when the
sixty days begin to run 72
Section 1211 when husband
not punished as for contempt
for non-payment of costs
awarded in action for separa-
tion 206
PAGK.
Sections 1835, 1836, 3246 in
action against executor or ad-
ministrator, when prevailing
party entitled to costs and dis-
bursements 56
Section 1871 what is a suffi-
cient return within this sec-
tion, with respect to judgment
creditors' actions 211
Sections 2239, 2265 power of
justice in summary proceed-
ings as to adjournments 89
Section 2460 examinations in
supplementary proceedings in
the city court, when judg-
ment debtor has made a
general assignment, need not
be limited to property ac-
quired since the assignment.. 448
Sections 2467, 2468 when
under these sections the order
appointing a receiver, must be
filed before the receiver
obtained title 161
Sections 2472, 2817, 2832, 2858
limitation of the surrogates'
authority to remove testa-
mentary guardian 307
Section 2485 sufficiency of
affidavit to obtain order for
the examination of judgment
debtor in supplementary pro-
ceedings 119
Section 2643 who entitled to
receive letters of administra-
tion with will annexed under
this section when strangers
may be appointed co-adminis-
trators 194
Sections 2600, 2814 when sur-
rogate will not permit execu-
tor and trustee to resign his
trust 323
Sections 2700, 2714 procedure
of public administrator, to
cause inquiry to be instituted
as the alleged withholding or
HOWARD'S PRACTICE REPORTS.
643
Index.
concealment of property be-
longing to an intestate's estate
is regulated by these sections, 158
Section 2718 when proceed-
ings for the probate of a will
should be dismissed in accord-
ance with this section 140
Section 3017 effect of filing
transcript of justice's judg-
ment in county clerk's office . 117
Section 3284 costs in actions
of ejectment how and to
whom allowed 389
Section 3247 under the second
subdivision of this section,
who liable for costs in case of
transfer, &c.> of causes of
action 1
Section 3252 plaintiff not en-
titled to additional allowance
provided by this section 512
Sections 3268, 31GO when non-
resident having place of busi-
ness in city not required to
give security for costs 333
Section 3271 this section does
not apply to a person who
prosecutes to recover penal-
ties in the name of the over-
seers of the poor for violation
of the excise act, and he can-
not be required to give secu-
rity for costs 2G
Section 3343 domicile of fed-
eral corporation, by what
determined 4c
COMMISSIONS.
What to be allowed to execu-
tors, administrators and trus-
tees.. 291
COMMISSIONERS.
Appointed to appraise lands for
railroad purposes, when guilty
PAOB.
of miscondxict power of
court to remove on motion
proper case for the exercise
of such power 225
To determine as to street rail-
roads in New York when
application for their appoint-
ment should be denied.. . 3G9
COMPLAINT.
Necessary averments in action
to recover real estate 88
Allegation of fraud, when not a
statement of a fact, but the
expression of an opinion
what other averments nec-
essary 130
Trespass and slander of title can-
not be joined 475
CONDITIONAL SALES
Contract of, must be filed
effect of not filing 319
CONSTITUTIONAL LAW.
The provisions contained in
section 13 of article (> of tlie
Constitution, limiting the age
of a judge or justice to seventy
years, does not apply to surro-
gates
501
CONVEYANCE.
He who conveys the absolute,
fee of real estate to another
cannot retain the right to the
purchase-price when subse-
quently sold
CORNELL UNIVERSITY.
Who entitled to free scholar-
ship under chapter 1151, Laws
of 1872 324
644
HOWARD'S PRACTICE REPORTS.
Index.
CORPORATIONS.
PAGE.
When holders of coupons of
consolidated'corporations may
maintain action upon contract
against new corporations by
reason of its having absorbed
the one which issued the
bonds 35
Domicile of federal corporations
by what determined 45
What is a sufficient verification
of answer by 120
Actions against trustee to re-
cover corporate debts as pen-
alty for failure to file annual
reports are strictly penal,
parly defendant excused from
testifying as a witness 127
When and how far corporations
attacked by the state for insol-
vency, may use their corpor-
ate funds after the appoint-
ment of a receiver 146
When deemed to have acqui-
esced in illegal acts of their
trustees . 253
COSTS.
Who liable for, in case of trans-
fer, &c., of cause of action. . . 1
When in action against execu-
tors and administrators, pre-
vailing party entitled to costs
and disbursements 56
Taxation of offer of judgment
by one of several partners ... 82
When non-payment of, stays all
proceedings 200
Upon the reference of a claim
against a decedent when
recoverable disbursements
recoverable 257
What amount to be allowed on
offer of judgment for a spe-
cific amount with interest and
costs which is accepted when
both parties have served no-
tice of trial. .
289
Non-resident having place of
business in city, not required
to give security for costs in
action in city court 333
In actions of ejectment.
389
COUNTER-CLAIM.
Distinction between defense and
counter-claim 428
COURTS.
Power of court to order publica-
tion of terms duty of county
treasurer as to payment for. . 483
CREDITOR'S ACTION.
What is a sufficient return of ex-
ecution within section 1871 of
the Code of Civil Procedure,
with respect to judgment cred-
itor's actions. . 211
D.
DEED.
Construction of covenant against
nuisances 391
One who parts absolutely with
the title to land to another,
cannot reserve to himself the
right to its purchase-money
when subsequently sold 528
DEFENSE
Distinction between defense and
counter-claim 428
HOWARD'S PRACTICE REPORTS.
645
Index.
DIVORCE.
PAGE.
In action for separation, when
husband not punished as for
contempt for non-payment of
costs awarded in. 206
When condonation of adultery
by subsequent cohabitation
with knowledge, not a bar to
an after-brought action for
divorce for such adultery. . . . 526
DOWER.
When will provides for wife in
lieu of dower, action must be
taken within one year al-
leged fraud cannot alter or
change statute 136
When provision for wife should
be held to be in lieu of dower, 514
When provisions of will must
be regarded as intended in lieu
of dower 516
E.
ELECTION LAW
Registration of voters duties
of board of registration 472
ESTOPPEL.
What does not amount to acqui-
escence in or adoption of an
assignment so as to preclude
a party from suing to impeach
it
211
EVIDENCE.
Admissibility of evidence in
action upon oral contract to
convey land 411
When a copy of a formal record
of the proceedings of the
FAQS
councilors of the Seneca
Nation of Indians certified to
by the clerk are competent
evidence... 464
EXECUTION.
Against the person when dis-
charge will be denied 285
EXECUTORS.
Costs upon a reference of a
claim against a decedent
when recoverable disburse-
ments recoverable 257
What commissions to be allowed, 291
When may maintain action for
construction of will 491
EXECUTORS AND ADMINIS-
TRATORS.
When in actions against the pre-
vailing party entitled to costs
and disbursements 56
EXECUTOR OR TRUSTEE.
When surrogate will not permit
him to resign his trust 323
F.
FEES.
Of sheriff chapter 279, Laws
of 1^84, should be construed
to apply to future appoint-
ments a'ml not to persons in
ofticeat thetimeof its passage, 182
Of referees in divorce suits, who
OQQ
to pay MV
646
HOWARD'S PRACTICE REPORTS.
Index.
FELLOW SERVANT.
PAGE.
Pilot and deck hand, not fellow
servant.. 22
FOREIGN CORPORATION.
Sufficiency of service of process
upon 15G
a.
GIFT.
Of income effect of 345
GUARDIAN.
Limitation of the surrogate's
authority to remove 307
H.
HUSBAND AND WIFE.
Effect of divorce of wife for
adultery upon policy of life
insurance taken out for her
benefit by her husband 32
Business partnership between
them not authorized 51
Liability of husband for wife's
debts 252
1.
IMPRISONED DEBTOR.
When entitled to his discharge, 240
INDIANS.
Leases on Seneca reservation
who entitled to removal of
lease under act of congress.. 464
INDICTMENT.
PACE.
Must show on its face a criminal
offense 92
Repugnancy a fatal objection to
an indictment. . , 92
INJUNCTION.
When summary proceedings
may be restrained by ...... 89
When will be granted to prevent
a party from using another's
name upon his cards, &c., by
saying, " late with," &c 279
Action will lie and injunction
will be granted to prevent in-
terference with the person to
whom custody of children
have been given . . . 438
INNKEEPER'S LIEN.
When the separate personal
effects of a married woman
may be detained by virtue of
innkeeper's lien 519
INSURANCE (LIFE).
Effect of divorce of wife for
adultery, upon a policy taken
out for her benefit by her
husband. . , 32
J.
JUDGMENT DEBTOR.
When discharge from imprison-
ment will be denied mean-
ing of "just and fair" as
used in statute. . . 285
JUDGMENT.
On opening default when judg-
ment allowed to stand as se-
curity effect of the lieu. . . . 237
HOWARD'S PRACTICE REPORTS.
647
Index.
Offer and acceptance of, by
whom subscribed accept-
ance of offer may be amended
by supplying affidavit of
attorney that he was author-
ized to accept it 360
JURISDICTION.
Supreme court cannot obtain
jurisdiction to make an order
in an action pending in a
justice's court by a mere notice
of motion 26
Of city court of New York 20
Of surrogate of New York over
will of resident of New Jersey,
leaving personal property in
New York county 110
Courts of this state no jurisdic-
tion for trespass to lands
without the state 475
JURY.
Irregularities of, for which new
trial will not be granted 105
Effect upon a verdict when the
entire jury is unsworn and no
objection made 244
Questions for.
JUSTICES' COURT.
Party to an action in, cannot
make a motion in the supreme
court to control the procedure
in such action 26
Effect of filing transcript of jus-
tice's judgment in county
clerk's office 117
L.
LACHES.
PAGE.
When will debar a party from
relief, which, they being ab-
sent, he might have in action
for specific performance 866
LEASE.
Of land on Indian reservation
who entitled to renewal under
act of congress.. , . 464
LEGACIES.
When real estate of the testator
chargeable with the payment
of. . .'
LEGACY.
Meaning of the word 405
M.
MANDAMUS.
When citizens and taxpayers
may apply for a writ of, to (
compel common council to
perform a certain duty (51
When will issue to compel exe-
cution of contract for street
improvements 423
AVhen will not be granted
against the board of supervis-
ors of a county 483
MARRIED WOMEN.
When their separate peisonal
effects may be detained by
virtue of innkeeper's lien 519
648
HOWARD'S PRACTICE REPORTS.
Index.
MORTGAGE.
PAGE.
Owner of a junior mortgage not
permitted to single out one of
several parcels covered by his
and an older mortgage and
redeem that one parcel 10
MUNICIPAL CORPORATION.
No right to construct sewers
and discharge them upon the
premises of an individual
remedy therefor 42
Duty as to civil service.
81
Their duties power to indem-
nify officers 336
MUTUAL BENEFIT ASSOCIA-
TION.
When member does not forfeit
his claim for benefit by failure
to pay assessment or failure
to serve proofs of death 220
NEGLIGENCE.
When vessel liable for excess of
speed and for not having a
lookout 22
When tug liable for collision
although its light is hid by a
tow 22
What amounts to contributory
negligence in a child eight
years old 30
NEGLIGENCE.
Questions of fact for jury
when injured party guilty of
contributory negligence 416
NEW YORK (CITY OF).
PAQB.
Teachers in colored schools
how to be removed 17
Common council no power to
pass ordinance which in effect
gives a person the right to
maintain an incumbrance for
any period less than ten days, 149
NON-RESIDENT.
Having place of business in city
not required to give security
for costs in action in city
court. . . . .333
o.
OFFICE AND OFFICER.
Proceedings by officer to compel
the delivery of bocks not to be
used to try title to office 85
When application (under the
provisions of the Revised Stat-
utes) by an officer of a muni-
cipal corporation to compel
the delivery of books and
papers should be denied 173
OFF-SET.
As between brokers and factors, 293
PARTIES.
Who to be made parties where
a part of premises covered by
a prior mortgage are sought
to be redeemed by a junior
mortgagee 10
When one or more parties may
sue or defend for the whole. . 396
HOWARD'S PRACTICE REPORTS.
649
Index.
PARTNERSHIP.
PAGE.
Between husband and wife not
authorized 51*
Surviving partner no power
without consent and concur-
rence of the representative of
deceased partner to make an
assignment for benefit of cred-
itors of the firm without pref-
erences 272
PENAL CODE.
Section 94 when offense not
shown under this section 92
Section 282 what constitutes
the crime of abduction under
this section 105
Section 649 what cases covered
by this section 92
PLEADINGS.
When and to what extent amend-
ment to be allowed 293
PLEDGOR AND PLEDGEE.
When relation exists between
stockbroker and customer ... 431
PRACTICE.
As to motions and orders ..... , 200
On opening defaults when the
judgment is allowed to stand
as security effect of the lieu, 237
In proceedings for removal of
assignee ................... 523
When motion to dismiss appeal
to court of appeals may be
made where case is on the
calendar .................... 331
PARTITION.
FAGS.
That the testator has left his
widow a life estate in one-third
of the premises, does not pre-
vent the owners in fee of the
two-thirds from partitioning
the property and realizing
their shares 514
PUBLIC ADMINISTRATOR.
Procedure by public administra-
tor to cause inquiry to be in-
stituted ;KS to the alleged with-
holding and concealment of
property belonging to an intes
tate's estate 158
R.
RAILROADS.
No necessity for supreme court
to confirm an adverse decision
of commissioners appointed
under chapter 252 of Laws
of 1884, to determine as to
whether a street railroad ought
to be, constructed and operated, 124
When commissioners to appraise
lands for railroad purposes,
guilty of rnisconduct power
of court to remove on motion
proper case for the exercise
of such power 225
Negligence questions of fact
for jury when injured party
guilty of contributory neg-
ligence 416
How the value of its property
is to be determined for the
purpose of assessment 454
Evidence of value for the pur-
pose of taxation 479
RECEIVER.
When and how far corporations
attacked by the state for
VOL. II
82
050
HOWARD'S PRACTICE REPORTS.
Index.
insolvency may use their cor-
porate funds after the appoint-
ment of .a receiver 146
REFE-REE.
When clerk or other person
employed in the surrogate's
office competent to act as
referee 38
Rights of what is a sufficient
compliance with the provi-
sions of secjion 1019 as to
delivery of report when the
sixty days begin to run
power of referee .to enlarge
time for submission of briefs, 72
Fees in divorce suits, who to
pay 239
When report will not be set aside
on the ground that referee
was biased relations from,
which bias will not be inferred, 313
REFERENCE.
When order of reference in
surrogate's court and proceed-
ings-thereunder should not be
vacated upon motion of a
party who had consented
thereto. . 38
REMOVAL OF CAUSES.
To United States courts causes
for removal steps to be taken, 459
REPLEVIN.
The issues capable of being tried
in such an action 143
When it cannot be maintained
erroneous verdict not cured
by judgment verdict of jury
should fix value of property. . 277
REPLY.
PAGE.
Who not allowed to answer. . . . 428
RES ADJUDICATA.
When prior motion a bar upon
the principle of res adjudicata, 203
s.
SCHOOLS.
Teachers in colored schools in
New York city how to be
removed 17
SECURITY FOR COSTS.
t.
Person suing in name of the
overseer of poor for a viola-
tion of excise law cannot be
required to give security for
costs ." 2G
Money deposted in lieu of an
undertaking, as security for
costs, not liable to seizure on
other judgments 47
SET-OFF.
Taxable costs not subject to
effect of prior assignment of
judgment 35
SHERIFF.
Fees of chapter 279, Laws of
1884, should be construed to
apply to future appointments
and not to persons in office at
the time of its passage 182
Liability of sureties on bond of
indemnity to 461
HOWARD'S PRACTICE REPORTS.
651
Index.
SHERIFF'S FEES.
PAGE.
Section 709 of the Code of Civil
Procedure permitting the
sheriff to hold property at-
tached after warrant lias been
vacated on application of de-
fendant until his costs, &c : ,
have been paid, 'declared un-
constitutional 440
SPECIAL GUARDIAN.
Who should not be appointed . . 250
SPECIFIC PERFORMANCE.
When may or may not be
resisted 366
STOCK EXCHANGE.
When relation of pledger and
pledgee exists between stock-
broker and customer 431
STATUTE OF LIMITATIONS.
Of a foreign state, when a de-
fense to an action brought
here.. 507
STREET RAILROADS.
When application for the ap-
pointment of commissioners
should be denied 369
STREET IMPROVEMENTS.
When mandamus will issue to
compel execution of contract
for when governor of state
may sign petition lot owners
may petition by attorney 423
SUMMARY PROCEEDING.
PAGE.
When may be restrained from
injunction 89
SUMMONS.
What is a sufficient service by
publication under the Code
of i ivil Procedure, sections
438, 430 131
SUPPLEMENTARY PROCEED-
INGS.
Sufficiency of affidavit to obtain
order for examination of judg-
ment debtor 119
When title to personal property
vests in receiver appointed in
such proceedings 161
When orders for, will be va-
cated when attorney must
obtain leave of the court be-
fore he can institute 343
Where it appears that judgment
debtor has made a general as-
signment, examinations not-
limited to property acquired
since 448
SURETIES.
On marshal's official bond, when
liable 151
Liability of. on bond of indem-
nity to the sheriff 461
SURROGATE.
Jurisdiction of surrogate of New
York over will of resident of
New Jersey, leaving personal
property in New York county, 1
Limitation of his authority to
remove testamentary guardian, 307
652
HOWARD'S PRACTICE REPORTS.
Index.
TAGE.
When will not permit an execu-
tor or trustee to resign his
trust. 3X3
The limitation of seventy years
of age, does not apply to sur-
rogates 501
T.
TAXATION.
Of railroads or canals evi-
dence of value 470
TITLE.
In action for specific perform-
ance of contract as to real
estate objections to title which
are insufficient 36(5
What must be alleged to main-
tain slander of title 475
TRADE-MARK.
The right of a party to use
another's name upon his cards,
&c., by saying "late with,"
&c 279
TRUST.
Where not raised on face of
will moral obligation does
riot create a trust 150
What necessary to vest in
executors a trust estate
when trust will be implied. .. 345
TRUST FUNDS.
Do not pass to an assignee
rules for tracing them 43]
w.
WILL.
PAGE.
Construction of when real
estate of the testator charge-
able with payment of legacies, 74
Of resident of New Jersey
leaving property in New
York county sufficiency of
execution to be tested by laws
of New Jersey what is a
sufficient execution 110
When opposing probate of a
will not a forfeiture of a
legacy 140
Construction of when trust
not raised on face of will. . . . 150
Construction of what neces-
sary to vest in executors a
trust estate when trust will
be implied when no illegal
suspension of the power of
alienation effect of gift of
income 345
Rules as to construction of
w r ho entitled to distributive
shares of the estate 405
Construction of 491
Insufficient signing and witness-
ing 494
Construction of .. ... 516
WITNESS.
When defendant in action
against trustee of corporation
to recover corporate debts as
a penalty for failure to file
annual report excused from
testifying 127
AUG IH925