M*; CIVIL ; PROCEDURE REPORTS. CONTAINING CASES UNDER THE CODE OF CIVIL PKOCEDURE AND THE GENERAL CIVIL PRACTICE OF THE STATE OF 'NEW YORK. REPORTED WITH NOTES BY HENRY II. BRO,WNE OF THE NEW YORK BAR. WITH A REFERENCE TO THE SECTIONS OF THE CODE OF CIVIL PRO- CEDURE CONSTRUED OR CITED IN THE OPINIONS CONTAINED IN" THE FOLLOWING REPORTS, ISSUED DURING THE PERIOD COV- ERED BY THIS VOLUME I NEW YORK REPORTS, VOLS. 95 AND 96 ; HUN'S REPORTS, VOLS. 32 AND 33; AB- BOTT'S NEW CASKS, VOL. 14 ; HOWARD'S PR. VOL. 67 ; N. Y. SUPERIOR COURT REPORTS, VOL. 50 ; DEMAKKST'S SURROGATE REPORTS, VOL. 2 ; AND N. Y. CIVIL PROCEDURE REPORTS, VOL. 6. YOLUME YI. NEW YORK: S. S. PELOUBET, IiA.W PUBLISHER AND BOOKSELLER, 80 NASSAU STREET. 1885. 5334- COPTBIOHT B B. PELOUBKT, CONTENTS. V 8eetioti8 of the > Code of Civil Procedure, f Page : 8, 11, 14 In re JONES. ......... ........... ------ ...... ...... ... 250 Contempts punishable civilly; form of Warrant. ,- 14 STEPHENSON v. HANSON ........................ 43 Where surety to undertaking guilty of contempt; punishment. 55 GEARON . BANK FOR SAVINGS ................... 307 Party to action when -not liable for false arrest directed by his attorney. ; 341 BEENAN v. N. ., W. S. & B. R. R. Co .......... 348 County courts; jurisdiction of, of actions against domestic corporations. 382 KNAPP v. SIMON. .. ............................ 1 Statute of limitations; application of, to broker's contract. 388 ESTATE OF STAO, deceased . ..................... 88 Surrogate's court ; limitations to proceedings for accounting. '388, 396 ESTATE OF COLLINS, deceased ............. ........ 85 Same subject. 401 ENGLE v. FISCHER ............................. 307 Limitations of Actions; coming into state; con- cealment in state. 419 SWEET v. SANDERSON BROTHERS STEEL Co ........ 69 Complaint; effect of service of, after service of summons and before appearance of defendant. 421 COLE 0. McGAKVEY ............................ 305 Special appearance; discontinuing action after. 422 -SWEET v. SANDERSON BROTHERS STEEL Co ........ 69 Complaint; service of; time to answer. 424 PHELPS v. PHEEFS .......................... ... 117 Appearance; what amounts to. 435, 436, 437 SMITH v. FOGARTY ............................ 306 Substituted service of summons; affidavit; time to answer. -640Q10 IT CONTENTS. Sections of the I Code of Civil Procedure, f Fag 438, 489 SYRACUSE SAVINGS BANK v. BURTON 216 Summons ; service by publication on infant; questioning regularity. 439 PHELPS . PHEJ.PS 117 Service by publication; certificate to affidavit taken without the state. 447 KEELER v. MCNEIRNEY 363 Parlies to action to foreclose mortgage. 449 VIADEKO v. MORTON 2t58 Auctioneer's bond; action on, by whom- brought. 450 LAUDE v. SMITH 5-1 Parties to action- against married woman for slander. 450 MUSER v>. LEWIS 135 Liability of husband for wife's torts. 454 VIADEKO v. MORTON , 238 Parties to action; when all the obligors in bond not necessary. 472 COLE v. McGAKVEY 305 Guardian ad litem; acknowledgment of consent to be. 479 SWEET v. SANDERSON BROTHERS STEEL Co 69 Complaint; when to be served. 481 SPRAGTJE v. PARSONS 26 Pleading in action on undertaking on attachment. 484 DE SILVER v. HOLDBN 121 Joinder of causes of action for false representa- tion and conversion. ; 488, 499 HEENAN v. N. Y., W. S. & B. R. R. Co 848 Jurisdiction; objection to want of, how raised, 600 HENDERSON v. SCOTT 39 Pleadings; former recovery when to be pleaded. 500 LIDGERWOOD M'F'G Co. v. BAIKD 54 Pleadings; denial in answer ou information and belief. 600, 501 BARNES v. G'ILMORE 286 Counterclaim; when sufficient. 623, 529 FRIST c. CLIMM 80 When verification of answer may be omitted. 524 LiDGERwoon MVo Co. v. BAIRD 54 Denials in answer may be on information and belief. 628 PHKLPS v. FHELPS 117 Verification of pleading; defective. CONTENTS. T Sections cf tbe i Code of Civil Procedure, f Page 629 FRIST- v. OLIMM 30 Verification of answer; omitting. 531 SNIPFKN v. PECK 188 Stay of proceedings In order for bill of particulars does not extend time to answer; vacating. 031 ORPEN GERMANIA . DEFENDER 161 Bill of particulars; when required in action for money misappropriated by officer of society or .through his neglige uce. 831 HATES e. DAVIDSON. 330 Bill of particulars; when ordered iu action by assignee against sheriff 'for conversion. , 521 FEELY v. MANHATTAN R'Y Co 414 Bill of particulars; when re Code of Civil Procedore. f Ptga Attachment; whea will not lie; judgment or statutory liability not contract. , 635 et seq. MCBLAINE v. SPEELMAN 401 Attacliment; questioning validity of in collateral action. 636 SMITH v. FOGARTY 366 Attachment; when affidavit on which, granted insufficient. 636 Ross V. WIGS 263 Attachment; vacation of, when prima facie case made out. 636 Itoss v. Wigg (note) 268 Same sul)ject. 640 SP-RAGUK . PARSONS 26 Attachment; action for damages resulting from, void or irregular. 648, 649 ANTHONY v. WOOD 164 Attachment; levying on promissory note, etc.; prior fraudulent transfer. 682: MCBLAINE V. SPEELMAN 401 Attachment; when validity cannot be questioned in collateral action. 71ft Ross v. WIG&. 263 When-one of two provisional remedies granted at the same time vacated: J719 Ross v. Wiffff- (note) 268 Same subject. 723 PEOPLE ex reL HEKKIMEU AND MOHATTK R. R. Co. v. ASSESSORS OP THE TOWN OF HERKIMEB. 297 Certioruri; amendment of; 755-757 DOCK . SOUTH BROOKLYN SAW MILL Co 144 Revival and continuance of action in cnse of death of plaintiff; assignee-of executor; counter- claim. 769 U. S. TRUST Co, v. N. Y., W. S. &-B. R. R. Co . . 90 Receiver of corporal Jen; motion for appoiutme-nt of, where made. 769 PHCENIX FOUNDRY AND MACHINE Co.- v. NORTH RIVER CONST. Co 10ft Motion to vacate injunction order where made. 776 APSLEY v. WOOD 178 Renewal of motion ; what amounts to new proof on. 781,783 SNIFFEN zi. PECK.- 183 CONTENTS, vii Sections of the \ e. f Ckxleof Civil Procedure. ) Pag Stay of proceedings ; not extension of time to answer. 803 et seq. MEHESY v. KAHN 33 Order for inspection of books when granted. 811 MeGEAM 1>. MACKELLAR 169 Undertakings ; guarantee ofj by corporation; justification. 811 Earle v. Earle (note) 171 Same subject. 812 STEPHENSON v. HANSON 43 Undertaking on order of arrest; effect' of appeal from judgment in action in which it was given on liability under. 87 APSLET . WOOD 178 When report of referee to take proof on mo- tion should stand;, 838, 829 WILSON v. MUNOZ. 71 Evidence in action against admintrator ; what proof of interebt necessary to exclude witness. 828, 829 ESTATE of LE BARON 62 Evidence; to exclude testimony, in surrogate's court on ground of interest must be objected to by executor, administrator or survivor ; objec- tion by creditor insufficient. 829 TAYLOR v. MELDROM 235 Evidence of personal transaction between party and deceased person through whom both parties claim. 837 DAVENPORT GLUCOSE Co. . TAOSSIO 152 Examination of party before trial ; questions tendi ing to criminate witness. 844 Ross v. WIGG 263 Affidavit taken without state; who authorized to take ; form of certificate to. 844 Ross v. Wigg (note) 268 Same subject. 844 PHELPS v. PHELPS 117 Certificate to affidavit taken without the State. 854-857 In re JONES 250 Contempt of witness in not answering proper in- terrogatories, how punished. 867-869 PBUDEN . TALLMAN 860 Supplementary proceedings; mode of compelling production of books on examination in. viii CONTENTS. Sections of the ) Code of Civil Procedure, f 867-869 Holmes, Booth efe Hayden v. Steitz (note) . ^. 862 Same subject. 870 DAVENPORT GLUCOSE Co. v. TAUSSIG 152 Examinatiuii before trial; in action to recover chattels, sale of which was procured by fraud; of assignee for benefit of creditors. 970-972 LEARNED v. TILLOTSON 425 Verdict of jury on specific questions of fact in ac- tion triable by court; power of court to disregard. 977 HABERSTICH v. FISCHER 82 Notice of trial: what amounts to waiver of. 993 GOETTLING V. BlEHLER ... 324 Findings; effect of failure to make, because deemed unnecessary. 997 In re N. Y., WEST SHORE AND BUFFALO R. R. Co TO ACQUIRE LANDS OF JUDSON 302 Appeal; report of commissioners in proceedings to acquire land for railroad, how corrected. 1003 LEARNED v. TILLOTSON 425 Verdict of jury on specific questions of fact; effect of. 1013 ADAMS v. CITY OF UTICA 294 Compulsory reference; when ordered in action by attorney for services ; proof of value of such ser- vices. 1019 LITTLE v. LYNCH. 418 Referee's report; what is sufficient delivery of. 1023 GOETTLING V. BlEHLER 824 Findings; how disposed of by court before which action tried. 1206 LAUDE v. SMITH 51 Husband not proper party to action against wife for slander. 1207 JENKS v. VAN BHUNT. . 158 Power to amend complaint on appeal. 1216 SMITH t. FOGARTY 366 Proof on entry of judgment on substituted service. 1260 WooDKOito v. RASBACK 3J5 WOODFOKD v. CHAPMAN 315 Satisfaction of judgment by attorney; cannot be on partial payment thereof. 1869 KAUFMAN v. LINDNER 14i Bankruptcy; discharging judgment of record i wbrc debtor discharged in. CONTENTS, ix Sections of the > Code of Civil Procedure, f Pago 1316 DE SILVER v. HOLDEN 121 Appeal from final judgment overruling demurrei brings up order for review. 1326 McGEAN v. MACKELLAR 163 Corporate guarantee of .undertaking on appeal. 1326 .-Earle -v. Earle. (note) 171 Same subject. i 1326 et seq. HURD . HANNIBAL & ST. JOSEPH R. R. o 686 Same subject ; form of undertaking; justification. 1328, 1329, ) GOODWIN v. BTJ.SZT, ...'. 226 1335 .) Undertaking on appeal; when sureties on defect- ive, liable. 1337 LEARNED v. TILLOTSON 425 Appeal; reviewing facts on, in- court of appeals. 1342 LIPPINCOTT v. WESTRAY 74 What brought, up for review by appeal frojn order .denying application for resettlement of order. .,1352 WHITE v. RINTOUL .- . . . 25-9 Undertaking on appeal; form of, when guaran- teed by corporation. 1366 ANSONIA BRASS AND COPPER Co. v. CONNER 173 Time of sheriff to return execution extended by rStay of proceedings. i 1421-1425 HAYES v. .DAVIDSON 327 Substitution of indemnitors.for, in action against, ..for wrongfully lakiug, etc., personal property ; liability of indemnitors; waiver of objection. 1498 KEELER v. MCNEIRNRY .363 Foreclosure of mortgage; -questions which cannot be tried Jn action.for. 1498 KENT v. POPHAM 336 Same subject. Proper parties to action .for fore- closure. 4515, 1531 HENDERSON v. SCOTT 89 Ejectment; damages on recovery of real property in; ouster. .1632 KENT . POPHAM 386 Foreclosure; effect of sale in, on title of persons claiming adversely to mortgagor and mortgagee. 1695, 1699 IRR v. SCHROEDER 253 Effect of error in replevin on judgment in jus- tice's court. -1809, 1810 PHOSNIX FOUNDRY AND MACHINE Co. . NORTH .RIVJKE CONST. Co. . ..; 1Q8 CONTENTS. Sections of the I e. f Code of Civil procedure. ( Page Receiver; power of Supreme Court to appoint, of insolvent foreign corporation. 1809,1810 WOERISHOFFER v. NOUTH RIVER CONSTRUCTION Co. 118 Same subject ; notice to attorney general. 18SL6 TL S. TRUST Co. v. N. Y., \V. S. &. B. R. R-Co. . 90- Appointment of receiver of domestic corporation; where made. 1810 In re E. M. BOYNTON SA.W AND FILE Co 349 Voluntary dissolution of corporation; appoint- ment of receiver; when may be made. 1819 ESTATE OP COLLINS, deceased 85 Limitations to proceeding ti compel executor to account. 1902, 1903 THOMAS v. UTICA & BLACK R. ti. R. Co. 353' Action for causing death ; measure of damages. 1904 BOTD '. N. Y. C. & EL R. R. R. Co. i 223 What is " recovery" in action for causing death. 1948 et seq, REIS v. RHODE 406 Religious corporation; determi nation of title of rival claimants to trusteeship of, cannot be made in equitable action brought by one claimant. 1991, 1992 PEOPLE ex rel. HERKIMER AND M^TTAWK R. R. Co. v. ASSESSORS OF THE TOWN OP HERKIMER. ... . . 297 Certiorari; effect of omission of seal. 2015 et seq., } PEOPLE ex rel. HOYLE v. OSBORNE 299 2019 f Habeas Corpus to secure custody of child; by whom issued. 2129 PEOPLE ex rel. HERKIMER AND MOHAWK R. R. Co, t>. ASSESSORS OF THE TOWN OP HERKIMER 297 Certiorari; assessors of town to be designated io, by individual names. 2285 In re JONES 250' Contempt; punishment for. 2419 et seq.. In re E. M. BOYNT'ON SAW AND FILH Co 342 Voluntary dissolution of corporation; contents of report of referee, or decision of court on. 2482 et seq. PRUDEN v. TALLMAN 360- Production of books; supplementary proceedings. 2432, et seq. Holmes, Sooth & Ilayden v. Stietz (note) 363 Same subject. 2433 LIPPINCOTT . WESTRAY 74 Supplementary proceedings ; order appointing receiver, by whom made. 2435, 2436 SELIGXAR v. WAJLLACH. . 283 CONTENTS. xi Sections of the ) e. f Code of Civil Procedure. ( Page> Supplementary proceedings; extent of examina- tion in, when debtor has made assignment for benefit of creditors. 2444 Holmes, Booth & Hayden . Stiets (note). 362 ' Supplementary proceedings; production of buoks. 2464 STROHN v. EPSTEIN 36 Supplementary proceedings; receiver; nofc'oe of application for. 24M DE VIVIER v. SMITH 394 ' Supplementary proceedings; appointment of re- ceiver. NOTE ON APPOINTMENT OF RECEIVER IN SUPPLE- MENTARY PROCEEDINGS. 306 2481 subd. 6 ESTATE OF*SINGEK, deceased 389 Accounting of executor, trustee and guardian; opening decree. 2481 subd. 7 In re JONES . : 250 Power of surrogate to punish for contempt. 2481 suM. 6 ) ESTATE OF TILDEN, deceased 15 * 2527 f Surrogate's court; power of surrogate and of sup- reme court to open, vacate and set aside account- ing of executors; effect of irregular service of citations ; appointment of guardian ad litem. 2611 ESTATE OF BOGERT, deceased 138 Probate of will; proof on. 2615 In re POWERS, deceased 3:26 Probate of will; when aliens should be cited to attend. 2618, 2623 ESTATE OF BOGEUT, deceased 128 Will ; when properly admitted to probate agninst testimony of subscribing witness. 2723 ESTATE OF COLLINS, deceased 85 - Proceedings for accounting of executor; limita- tions. 2723 ESTATE OF STAGG, deceased 88 Same subject. 2743 ESTATE OF YORK, deceased 245 Jurisdiction of surrogate to determine rights of legatees. 2750 ESTATE OF LE BARON, deceased 62 Surrogate's court; sale of property to pay debts. IRR v. SCHROEDER 258 J Justice of the peace ; provisional remedies in-, courts of . xn CONTENTS. Sections of the ) Code of Civil Procedure, f Page 2894-2904 STKKN v. Moss , 184 Arrest in N. Y. District Court. 2901,2902, } IRR v. SCIIKOEDER ...253 2916,2917, f Justice/of the peace; provisional remedies in 2920, 2925, ) courts of. ,,2933 J 2966 LIVIXGSTOX. v. ifoRRissEY 28 Justice's court; depositions taken on adjourn ing case. 3002 In re JONES 259 Contempt; contents of warrant of commitment. 3016 ALLEN e.. SWAN , 56 Justice's court; when offer to reduce verdict may be rnnde; power of justice to alter rccoid. 804G, 3048 ANDREWS . 'SNYDER. 83$ Appeal from justice's court; mode of service of notice of appeal. 8063 IRU v. SCQROEDER 253 Justice of tl>e peace; effect of error in costs .on judgment. , 8070 ALLEN v. SWAN .- 56 Justice's court; appeal; right to costs. . 8174 OAKES . HARWAY 357 City court of New York ; counter-claims in action in, brought by executor. ~8191 WALSH v. SCHULZ , 420 City court of New York : appeals from discretion- ary orders of; 'relation Of court of common pleas to. 8191 WILLMORB . FLACK 191 Appeal from N. Y. city court to N. Y. court of common pleas; no jurisdiction where. new trial ordered unless consent to" final judgment on such appeal is given. 8209-3211 STERN v. Moss 184 Arrest in 'N. Y. district courts. . 8247 REMINGTON PAPER Co . O'DOUGHERTY ,,79 Obligation cieatvd by statute not contract. 8251 WOODFOHD v. RASBACK 315 WOODFORD v. CHAPMAN 3-15 Fees of referee appointed to take proof OB motion. . 3253 RUTTY v. PERSON ,. JJ5 Allowance; wjiat is sufficient monetary basis for. .8253 BOBD v. N. Y. C. \& H. li. R. R. Co 224 CONTENTS. xrii Sections of the Code of Civil Procedure. ) P. The City of TJtica. . Allen o. Swan Andrews -. Snyder : An son ia Brass & Copper Co. v. Conner 173 Anthony v. Wood 164 . Apsley v. Wood . Assessors of Town of Herki- mer, People ex rel. Her- .-,- kinaer & Mohawk R. R. Co. v . . 29? B Baird, Lidgerwood M'f'g Co. o. 54 . Bank for Savings, Gearonc.. 207 Barnes v. Gilmore 286 . Bieliler, Goettling v 324 Bogert, Estate of 128 f. Bord t>. N. Y. C. & H. R. R. R. Co.' Boynton Saw & File C,o., In re Bunzl, Goodwin v Pago Page Conner, Ansonia Brass & Cop- per Co. v 173 66 Cornwell v. Dickel 416 Curley, Fitzsimmons ,15(j Chapman, Woodford v 315 City of Utica, Adams e 294 D Glucose Co. t. Taus.sig 152 Davidson, Hayes v 330 Davidson, Hayes v 377 De Silver v. Holden 121 Deveuder, Orden Germania v. 161 De Vivier o. Smith 394 Dickel, Corn well v 416 Dock v. South, Bkl'n Saw Mill ,Co 144 f,. Manhattan R. R. Co. 414 Fischer, Engle v 307 Cliram, Frist v 30 Fischer, Haberstich 82 Cole v. McGarvey 395 Fitzsimmons v. Curley 156 Collins, Estate of SDiFlack, Willmore v 191 [xiv] TABLE OF CASES KEPORTED. Page Fogarty, Smith v ............ 366 Frist v. Climm .............. 30 Gilmore, Barnes v ........... -286 Goettling . Biehler ......... 324 Goodwin , Bunzl ........... 226 H Haberstieb t>; -Fischer ........ '82 -Hannibal & St.- Jo k , R.;R. Co., Hurd v ................. 386 -Hanson, Stephen-son v ---- ... 48 Harway, Oakes v ............ 357 Hayes , Davidson .......... 330 Hayes . Davidson .......... ,377 ---Heenan t>. N. Y., -"WVS..-&. B. R. R. Co .............. 348 .Henderson v.- Scott .......... 39 Holder, De Silver v .......... 121 ^ffolmes, Sooth & .Mayden v. Stiets (note) ............. 362 -Hurd v. Hannibal & St. -Jo. R. R. Co.. .8 Irr v. Schroeder 253 Jenks v. Van Bnmt 155 Jones, In re 250 Kahn,' Mehesy v Kaufman v. Lindner 148 Keeler v. McNeirney 86 Kent v. Popham 336 Knapp v. Simon 1 Kreis, Straus v. 77 Krom v. Kursheedt 371 -Kursheedt, Krom v 371 Page Laude v. Smith . , 51 Learned c. Tillotson 225 Le Baron, Estate of 62 Lewis, Muser v 135 L4dgerwood M'f ?g- Co. . Baird ^4 Lindner, .Kaufman v 148 Lippincott v. Westray -74 Little v. Lynch 418 Livingston v. Morrissey S8 Lynch, Little v 418 M McBlaine v. Speelrnan 401 McGarvey, Cole v 305 McGean v. MacKellar 169 McNeirney, Keeler -S8 Moss, Stern v 184 Munoz, Wilson v r71 Muser v. Lewis. . , . 135 N, Y. C. & H. R. R. R. Co., Boyd v 323 N. Y., W. S. & B. R. R. Co., In re., to acquire land of Judson 80S N. Y., W. S. &B. R. R. Co., Heenan v 348 N. Y., W. S, & B. R. R. Co., U. S. Trust Co. 90 North River Construction Co., Phoenix Foundry & Ma- chine Co. v 106 North River Construction Co., Woerishoff er v 113 XVI TABLE OF CASES REPORTED. o Page Qakes v. Harway 857 O'Dougherty, Remington Pa- per Co. v 79 Orden Gcrmania, Devender v. 161 Osborne, People ax rd, Hoyle v. 299 Parsons. Sprague-0. ...... ,. . 26 Peck, Sni Sen . Nunan 92 N. Y. 152 140 Bcvan r>. Cooper 72 N. Y. 317 248 Bidleson c. Whytel 3 Burr. (Eng. K. B.) 1545 . 81 Bigler t>. Pitikaey . .80 N. Y. 636 326 Bills. Nat. Park Bank 89 N. Y. 343 18 Birdsall v. Patterson 51 N. Y. 43 436 BlaiscteU . Raymond. 3 Abb. Pr. 144, affd. 6 Id. 148. . 31 Bootle t>. Blundeil .19 Ves. Jr. (Eng. Chy.) 494. . 436 Brazill c. Isham 1 E. D. Smith 437; affd 12 N.Y. 9 41 Brinckerhoff v, Bostwick 88 N. Y. 52 95 Brotherton v. Downey 21 Hun, 436 fi5 Browner. Volkening .64 N. Y. 77 365 Buckley v. Gutta Percha & Rubber Co 3 N. Y. Civ, Pro. 432 517 C. Carr c. Van Hoesen 26 Hun, 316 406 Castle v. Lewis 78 N. Y. 131 4 167 Chained. Wilson 1 Bosw. 673 376 Chamberlain 0, Rochester S. P. V. Co. 7 Hun, 557 >. 346 Champlin v. Stoddard 17 N. Y. Weekly Dig. 76 361 Chapman v. O'Brien 39 K Y. Super. Ct. 244 381 Church v. Gristgan 34 Wise. 328 412 Clapp c. Bromagham 9 Cow. 530 43 Clapper o. Fitzpatrick 3 How. Pr. 314; S. C., 1 Code R. 69 31 Clarke. Clark 11 Abb. N. C. 333 38 Clark . Ford .1 Abb. Ct. App. Dec. 359 90 Cleveland v. Barrows. . j 59 Barb. 374 124 Clock v. Chadeayne 10 Hun, 97 90 Cobbfl. Knapp 71 N. Y. 348 8 Colet). Jessup ID N. Y. 96 314 Cole v. Terpenning 25 Hun, 482 87 Coleman v. Burr 93 N. Y. 17 140 Coles v. Hannigan 8 Daly, 43... 185, 187 Colic t>. Tifft 4 N.Y. 119 436 Collins v. Catnpfield 9 How. Pr. 519 370 xx TABLE OF CASES CITED. Gates. Where Reported. Page Cited. Collins. Ryan 32 Bar!). 647 370 Concklin. Taylor 09 N. Y. 221 320, 324 Considerant v. Brisbane 22 N. Y. 389 14 Cornelius . Burton. 12 N. Y. Weekly Dig. 216.420 424 Corning v. Smith 6 N. Y. 82 341 Cottreil, In re.... 5 N. Y. Civ. Pro. 340 133 Coulter v. Murray 15 Abb. N. 8. 129 411 Cowing v. Altman '79 N. Y. 107 11 Cox t>. N. " C. R. R. Co 63 N. Y. 414 321 Cudler v. Curry. 44 How. Pr. 349 . 244 Currier . N. Y., W. S. & B. R. R. Co Unreportcd 105 Cutler . Wright. 22 N; Y; 472 277 D. Darraw v. Lee 16 Abb. Pr. 215 % 394 Davidsbu'-g v. Knickerboeker Life Ins. Co 90 K Y. 526 353 Day . Bach 87 N. Y. 56 2T Decker v. Matthews 12 N. Y. 813 124 Dickinson v. Mitchell 19 Abb. Pr. 286 290 Draper v. Crofts -.- 1"5 Mees. & Wels. (Eng. Excr.) 166, 443- Duncan. Guest-.. ,.-. .-2"K Y. Civ. Pro. 275. 272 s E. Eagtin n. Lynch 3 N. Y. Civ. Pro. 236 50 Eagle Fire Ins. Co. v. Lent 6 Paige, 680 341 Eagle Iron Works, In re 8 Paige, 385 340 Earle v. Earle ON. Y. Civ. Pro. 171 note 171 Ellison v. Bernstein GO How. Pr. 145 369 Emigrant Ind. Suv. Bank v. Gold- man 75 N. Y. 127... 340, 365 Erie R. R. Co. v. Ramsey 45 N. Y. 637 110 Ewing v. Thompson 43 Pa. St. 372 412 F. Fairlie v. Denton 3 Carr & P. (Eng. N. P.) 103. 443 Fatl>erstone v. Cooke L. R. 16 Eq. 298. 412 Felt t>. Tiffany 11 Hun, 63 290 Fcnno v. Wcston 31 Vt. 345 441 Field v. Van Cott 5 Daly, 308 240 Fiester. Shepard 92 N. Y. 251 249 Fitzgerald T. Quanii 1 N. Y. Civ. Pro. 273 52, 143 TABLE OF CASES CITED. xxi Cases. Where Reported. Page Cited. Fitzsimons . Harrington 1 N. Y. Civ. Pro. 360 52 Florence v. Hopkins 4G N. Y. 182 43 Foot v. Harris 2 Abb. Pr. 454 370 Ford v. Babcock 2 Sand. 518 314 Fowler v. Bailey. 3 Mass. 201 .' 314 Fowler 0. Hunt 10 Johns. 464 314 Fraenznick v. Miller 1 Dem. -130 246, 247 Fraser, Matter of 92 N. Y. 239 64 Fredericks v. Taylor 14 Abb. Pr. N. S. 77 31 Rtench M'fg Co., Matter of 12 Hun, 448 .' 346 Fritz e. Pultz 2N. Y. Civ. Pro. 142 255, 257 Frost. Koon 30 N. Y. 428 341, 366 G. Gasherie v. Apple 14 Ab. Pr. 64 282 Gaskill v: Skene ^14 Adol. & E., N. S. (Bng. Q. B.) 664 441 Geib 0. Topping .83 N. Y. 46 420, 422, 424 Gemp 0. Pratt .-7 Daly, -1-97 351 Gillard v. Smart 6 Cow. 385 321 Goodricli v. Russell 42 N. Y. 85 ... . 329 Gordon 0. Hartman .... 89 N.. Y.. 221 202 Gould v. Mortimer ..26 How. Pr. 167; S. C., 16 Abb. Pr. 448 94 Gram 0. Prussia, &c. Society 36 N. Y. .161 411 Griffiths v. Hardenbiirg 41 N. Y. 464 381 Griswold, Matter of ,, .13 Barb. 412 406 Guilleaume n. Rawe .48 N. Y. Siipr. Ct. -179 210, 213 H. Halle. Hall .81 K Y. 180 329 Hall v. U. S. Reflector Co , . .31 Hun, 609 97 Hallenbeck . Domiell 94 N. Y. 342 99 Hammond v. Earle .58 -How. Pr. 437 27 Hampson v. Hampson 3 Ves. & Bea. (Bug. Chy.) 41. ,436 Harris 0. Durkee 5 N". Y. Civ. Pro. 376 280 Hart v. Harvey , 32 Barb. 55 410 Hawes v. Oakland 104 U. S. 450 05 Hem 0. Davidson 5 N. Y. Civ. Pro. 391 383 Hendricks v. Decker 35 Barb. 298 41 Henry . Salina Bunk 1 N. Y. 83; S. C., 3 Den. 593; 1 How. App. Cas. 173 31 Herring v. Hoppock 3 Duer. 20; aff'd 15 N. Y. 400. 381 Heasburg . R-iley .3 N. Y. Civ; Pro. 1C5 382 xxii TABLE' OF CASES CITELX Cases. Where Reported. Page Cited. Hill v. Pratt ................ ____ 29 Vt. 119 ................... 443 Hockley, In re ................. 24 N. Y. 74 ................. 31 Hoffman v. Lachinan ............ 1 N. Y. Civ. Pro. 278, note ... 53 Holbrook v. Baker. ..... , ____ ... 16 Huu, 176 ................. 352, Holcomb v. Holcomb. . . ^ . ...... 2 Barb. 20 .............. : . . . 365 House v. Agate ................. 3 Redf. 307 ................. 8G Howell v. Mills. ......... -. ...... 53 N. Y. 331 ......... . ...... 127. I. Ingersoll*. Mangam.. ; ......... 84 N. Y. 623 ................ 220 J. Jackson v. Guman .............. 2 Cow. 552. ................. 279 Jackson v. Livingston. ____ . ..... 8 Johns. 149 ................. 279 James . Cowing ................ 82 N. Y. 449. . .............. 325 Janinski . Heidelberg ...... .. ..21 Hun, 439 ................. 52 Joliuson v. Florence ............ 32 How. Pr. 230 ............. 187 Johnson v. Jones ................ 23 N. J. Eq, 216 ............. 411 Joucs . Derby ................ 1 Abb. Pr. 458. . ............. 370 Kamp 9. Kam-p ................. 59 N. Y. 212 ................ 97 Keen v. Priest .................. 1 Foster & Fin. (Eag. N. P.) 314. 440 Kellettfl. Rathbun . ............ 4 Paige, 102 .............. 19, 392 Kerr . Mount .................. 28 N. Y. 659 ............... 27 Kerr t. Trego .................. 47 Pa. St. 292 . .......... 409, 412 Knapp v. Roche ............... 18 Weekly Dig. 324 .......... 143 Kowiug . Manley .............. 49 N. Y. 192 ................ 52v L. Landers 9. & I. R, R. Co. ....... 53 N. Y. 450., ........... 351, 352 Lathrop *. Clapp ............... 40 N. Y. 33 ................ 2:53 Lawrance e. Farley ............. 73 N. Y. 187 ............ 127, 128 Lawrence v. Foxwell ............ 4 N. Y. Civ. Pro. 351 ........ 78 Levy, Matter of ................ 2 N. Y. Civ. Pro. 108 ........ 376 Lewis v. Smith ..... ........ .... 9 N. Y. 502 ................. :'.0r> Little*. Blunt ................ 33 Mass. 359 ... ............ 314 Livermore v. Rhodes ........... 27 How Pr. 506 .............. 282 LoUdell . Lobdcll ............ 36 N. Y. 327 ............... 85 Loder 9. Hatfiuld ............... 71 N. Y. 02...^ ............ 90 Lorillnrd 9 Clyde. ............. 86 N. Y. 384 ................ 275 Lulirs . Eimers .............. 85 N. Y. 171 ................ 829 Lutheran Ev. Ch. , Gwt2an ..... 24 Wise. 328 ................ 409 Lynch*. Clark ................. 1 Band. Ch. 604 _____ .......... 82.8 TABLE OF CASES CITED. xxiii M. Cases. Where Reported. Page Cited. MoCartee . Camel 1 Barb. Ch. 455 . ! 89 McConn v. N. Y. C. & H. R. R. Co 50 N. Y. 176 SI McEleere . Little 8 Daly, 1G7 127 McGoldrick v. Willits 52 N. Y. 013 12 McKyring v. Bull 16 N. Y. 297 41 McLnchlin v. Brett 2 N. Y. Civ. Pro. 194 .... 148 McMahon . Rauher . .47 N. Y. 67 203 McNcary o. Chase 30 Hun, 491 256, 257 Mahony v. Penman 4 Duer, 603 120 Mnlcomb . O'Reilly 89 N. Y. 156 382 Manning v. Gould 90 N. Y. 476 230 Marie v. Garrison 83 N. Y. 28 125 Marshall v. Knox 16 Wall. (U. S.) 551 176 Marshall v. Meeeh 51 N. Y. 140 320 Marshall v. Mott 13 Johns. 423 270 Marter. In re 8 N. B. R. 188 176 Martin v. Windsor Hotel Co 70 N. Y. 101 296 Mason v. Marsh 35 Barb. 68 S3 May hew v. Robinson 10 How. Pr. 162 352 Mayor v. Conovcr 5 Abb. Pr. 171 411 Mechanics' & Traders' Bank . llealy 14 N. Y. Week. Dig. 1 20 234 Mequire v. Corwine 3 MacArtluir (D. C.) 81 443 Merceina. People 25 Wend. 64 300 Merchants' Bank of Canada?). Gris- wol.l 72 N. Y. 474 276 Miriam v. Harsen 4 Edw. Ch. 70 ; afTd 2 Barb.Ch. 232 279 Merrill v. Vegelius 28 Hun, 420 296 Micklesw. Rochester City B'k... 11 Paige, 118 410 Milne v. Lcislur 7 Hurl. & N. (Eng. Excr.) 786. 439 Moloney v. Dows 2 Hilt. 247 31 Morris v. . Whelan 11 Abb. N. C. 64; S. C., 64 How. Pr. 109 411 Mott, v. Connally 50 Barb. 516 411 Muser . Miller SKY. Civ. Pro. 388 52 N. N. Y. & E. R. R. Co. v. Corey. .5 How. Pr. 177 303 Nichols v. Michael 23 N. Y. 264 231 North Bap. Church v. Parker 86 Barb. 171 410 Northrup .Foot 14 Wend. 249 276 xxiv TABLE OF CASES CITED. o. Cases. Where Reported. Page Cited. Olcott v. MacLean 73 N. Y. 223 352 Open Board of Brokers, In re 8 N. Y. Monthly Law. Bui. 57. 346 Ormes r>. Dauchy 82 N. Y. 443 275 Orr e. McEwen 16 Hun, 625 371 O'Sheac. Kohn 33 Hun, 114 78 P. Paine v. McCarthy 1 Hun, 78 70 Palmer v. Foley 44 How. Pr. 308; aff'd 4 J. & S. 14 ; S. C., 45 How. Pr. 110 411 Patterson, In re 1 Benedict (U. S. Circ.) 307. .. 151 Paulding v. Hudson Man. Co 2 E. D. Smith, 38 352 Payne. Grant 23 Hun, 134 265 People t>. A. & S. R. R. Co 57 N. Y. 161 410 People v. Conkling 5 Hun, 452 410 People v. Cooper 1 Duer, 709 301 People -0. Cowls 59 How. Pr. 287 301 People v. Fredericks 48 Barb. 173; aff'd 48 N. Y. 70. 350 People ex rel. Ainslee v. Hewlett. 13 Hun, 138; aff'd 76 N. Y. 574 292, 293 People v. Humphreys 24 Barb. 591 301 People ex rel. Woolf v. Jacobs. . .66 N. Y. 8 252 People v. Kelly 24 How. Pr. 369 31 People*. Lockwood 3 Hun, 304 443 Peoples Matier 2 Abb. N. S. 289 410 People v. Mercein 8 Paige, 47 300 People t>. Norton 9 N. Y. 178 243 People t>. Pendleton 64 N. Y. 622 112 People ex rel. H. R. R. R. Co. . Pierce .* 31 Barb. 138 350 People v. Sturtevant 9 N. Y. 263 112 People ex rel. Ward v. Ward 59 How. Pr. 174 301 People v. Wilcox ... 22 Barb. 178, 194, 195 300 Perkins v. Kendall 3 N. Y. Civ. Pro. 240 38 Perry v. Se ward 6 Abb. Pr. 327 112 Phelpsc. Phelps 6 N. Y. Civ. Pro. 117; aff'd 32 Hun, 642 286 Pliipps v. Carman 23 Hun, 150; aff'd 84 N. Y. 650 419, 420, 421, 423 Phoenix Foundry & Machine Co. v. North Kiver Construction Co. 6 N. Y. Civ. Pro. 106.103, 106, 346 Pbitt v. Townsend 3 Abb. Pr. 9 190 Toillm . Lawrence 77 N. Y. 207 66, 314 TABLE OF CASES CITED. xxv Caste. Where Reported. Page Cited. Pomeroy v. Ainsworth 22 Barb. 118, 130 276 Pond v. H. R. R. Co 17 How. Pr. 543 350 Post. Doremus 60 N. Y. 376 228, 229 Potter v. Tallman 35 Barb. 182 276 Poucher v. Blauchard 8 N. Y. 263 212 Pratt v. Elkins.. .* 80 N. Y. 198 73 Pratt MTg Co. v. Jordan Iron, &c. Co 5 N. Y. Civ. Pro. 372 55 Purdy v. Hayt 92 K Y. 446 249 Pyrolusite Muuganese Co. In re.. 3 N. Y. Civ. Pro. 270 347 R. Randall t>. Wilkins 4 Denio, 577 314 Reims v. Astor Fire Ins. Co ,59 N. Y. US Ill Reunie v. Bean 24 Hun, 126 405 Ridley v. Gade 9 Bing. (Bug. N. P.) 349 440 Riogs*. Craig 89 N. Y. 479 248 Rinchey t>. Strieker 28 N. Y. 45 166 Robertson v. Bullions 11 N. Y. 243 411 Robinson v. Fitchburg & W. R. R. Co 7 Gray (Mass.) 92 443 Rochester and Genesee Valley R. R. Co. v. Beckwith 10 How. Pr. 168 303 Rockford, &c. v. Boody 56 N. Y. 456, 460 272 Roe v. Day 7 Carr. & P. (Eng. N. P.) 698. 441 Rogers v. Adriance 22 How. Pr. 97 148 Romaine v. Cornwell 11 Abb. N. S. 430 190 Ross, Matter of 87 N. Y. 514 435 Rowe v. Smith 45 N. Y. 233 139 Ruger v. Belden 27 Hun, 405 296 Rumsey v. Lake 55 How. Pr. 339 53 Ryan. Hardy 26 Hun, 176 271 S. Schell v. Erie Railway Co 51 Barb. 368 110 Schenck v. Fancher 14 How. Pr. 95 306 Schwartz. Oppold 74 N. Y. 307 127 Scovill . New 12 How. Pr. 319 31 Seacord v. Morgan 3 Keyes, 636 231 Severn v. National Bank of Troy. 18 Hun, 228. 65 Seymour v. Minturn 17 Johns. 170 9 Sherwood v. S. & W. R. R. Co . . 15 Barb. 652 350 Smith v. Boyd 18 N. Y. Weekly Dig. 461 405 xxvi TABLE OF CASES CITED. Cases. Where Reported. 1'age Cited. Smith r. Eeal 46 L. T. Rep. N. S. 7TO 214 Smith v. Mason 14 Wall. (U. S.) 419 176 Smith*. White 7 Hill, 520 306 Southwick t>. First Nat'l Bank... 84 N. Y. 420 11 Stiickhouse v. Freuch 1-Bing. 365 50 Stewart v. Emerson 8 Benedict (U. S. Circ.) 462. . 150 Stoddard *. Key 62 How. Pr. 137- 271 Story v. Dayton . . 22 Hun, 450 391 Sullivan T. Fraser 4 llobt. 620 352 Supervisors Kensselaer Co. v. Bates. 17 N. Y. 245 243 Sweet t>. Tuttle 14 N. Y. 465 352 T. Talcott v. Harris 93 N. Y. 567 443 Tappan v. Gray 3 Edw. Cli. 4-32; rev'd 9 Paige, 1 .. 507.; aff'd 7 Hill, 259 411 Thomas v. Reab 6 Wend. 503 21-6 Thompson v. Kitchum 8 Term R. 189 277 Thormlike t>. City of Boston 1 Mete. (Mass.) 242 440 Thornton v. Thornton 66 How. Pr. 119. 42&, 421 Thurber v. Blanck 50 N. Y. 80 167 Tilcien, In re 6 N. Y. Civ. Pro. 15. 392 Tillottson e. Wolcott 48 N. Y. 188 395 Titus 0. Relyea ,... .16 How. Pr. 371 119 Towusend . Hendricks 40 'How. Pr. 143 128 Tracy v. Stearns 12 N. Y. Weekly Dig. 533 296 Trebing v. Vetter 12 Abb. N. C. 302, note 52 Ti oup v. Smith 20 Johns. 32 315 Tucker 77. Ladd 4 Cow. 47 .. 270 Tucker v. McDermott 2 Redf. 312 392 V. Vermilyea v. Palmer 52 N. Y. 471 . . 435,436,438 Verplanck, Matter of 91 N. Y. 439 247, 249 W. Wallace v. Castle 68 N. Y. 870.' 876 Walsh 0. Steam 12 N. Y. Week. Dig. 424 112 Walters t>. Shepherd 14 Hun, 22:5 419, 422 Waring v. Chamberlain 14 Week. Dig. 464 296 Waring v. U. S. Tel. Co 4 Daly, 233 443 Warner . Kronkhite 13 Benedict (U. S. C. C.)52.. 151 Warren v. Paff., . .4 Bradf. 260. . . 90 TABLE OF OASES CITED. xxvii Cases. Where Reported. Page Cited. Watt . Starke 101 U. S. 247 436 Weetjeu v. Vibbard 5 Hun, 265 95 Wehle v. Butler 61 N. T. 245 27 Wehle v. Havilaud 42 How. Pr. 399 ; S, C., 4 Daly, 550 . 27 Welsh v. Cochran 63 N. Y. 182 213 Welsh v. Hill 2 Johns. 373 270 Wertheim v. Continental Railway Co 3 N. Y. Civ. Pro. 371 363 West Side Bank v. Pugsley 47 N. Y. 368 3U5-. Western T. & C. Co. v. Kilder- house 87 N. Y. 430 275 Wheeler v. Dixon 14 How. Pr. 151 31 Wheeler's Case 50 N. Y. 667 218 Wheelock 9. Lee 74 N. Y. 497 352 Whitehouse, Inre 4. Benedict (U. S. C. C.)63... 151 Whitney v. N.Y. & Atlantic R. R. Co SKY. Civ. Pro, 118. 101 Wilcox t>. Wilcox 14 N. Y. 575 300 Wilkinson v. North River Con- struction Co 66 How. Pr. 423 103, 109, 112 Williams . Kiernan 25 Hun, 358... 244 Williams v. Preston .47 L'. T. Rep. N. S. 265 214 Williams v. Waddell 5 N. Y^ Civ. Pro. 191 286 Woerishoffer . North River Con- struction Co 6 N. Y. Civ. Pro. 113*. 103 Wood . Erie R. R. Co 72 N. Y. 176, 200 276 Wyman v. Mitchell , 1 Cow. 316 81 Y. Yates v. Lansing , 9 Johns. 416 50 Yates . North 44 N. Y. 271 368 Young v. Rummell 2 Hill, 478 41 Z. Zimmerman v. Erhardt. . . . 83 N. Y. 74 . . . 271 STATUTES, ETC., CITED. SECTIONS OF THE CODE OF CIVIL PROCEDURE CITED. Section Page Section Page 8 ... . 252 568 . 269 11 ... . 252 610 . . 112 190 . . 126 635 . . 81 241 . . 298 636 . . 271 841 ... . 351 636, subd. 2 . . .270 388 . . 86 648 . . 168 396 . . . 86 649 . . 167, 168 401 . .313 683 . . 269 424 . . . 120 719 . . 271, 273 437 .. . * 370 723 . . 298 438 . . . 218, 221 730 . . 269 439 . . 119, 219 769 . 96, 103, 108, 111, 112 449 . . 244 811 . . 170 450 . 52, 53, 142 828 . .64 454 . . 240 829 . 64, 237, 238 478 . . . 71 837 31 484, subd. 6 . 124 844 119, 270, 271, 277, 488 . . 352 378, 279, 284, 286 498 . . 352 854-857 . . 252 500 . 41, 290 867-869 . 362 501 . . 290 868 . . 362, 363 507 . . 352 869 ., . 363 523 . 81, 32 972 . . 437, 438 524 . 55 977 . 83 529 . 81, 82, 33 1003 . . 437. 438 649 . . 151, 186 1019 . . 419, 420, 422, 423 549, subd. 4 77, 78, 186 1023 . . 825 550 . 186, 271 . 52 550, subd. 2 . . 270 1207 . 160 609 ... . 49 . 371 [xxviii] STATUTES, ETC., CITED. XXIX Section 1225 . 1260 Page . 438 . 321 Section 2464 . 2481 . 2481, subd, 6 2481, subd. 7 2615 . Page 37, 395 . 391 . 17 . 252 . 328 1268 . 1304 . . 149 . 187 1326 . 171 1337 . 1352 . 1:599 . 435 . 262 187 2620 . 2723 . 2743 . . 133 . 86 . 246 1421 . 380, 381 2750 . 63 1424 . 1632 . 1695, subd. 6 1699 . . 380 . 365 . 254 . 254 2876 . 2894 . 2901 . 2902 . . 255 . 186 . 256 . 256 1784 . . . 99 2904 . . 186 1785- . 99 2916 . 2917 . . .256 . 256 1788 . 99 1793 . 1806 . 1810 . 1819 . 1902 . 1903 . 99 . 110 98, 99,. 115 87 . 223, 354 355 2fl20 . 2925 . . 254 . 256 2933 . 3002 . 3015 . 3018 . 3048, subd. 2 3049 * . 3174' . 3191 . 3209 . . 256 . 252 . 60 . . . % 187 ." 336 . .336 . 360 . 126, 128 . 186 1904 . 1932 . 1934 .223, 224 38 38 1948-1956 . 1984 . . 410 . 410 . 298 1992 . . 298 3211 . 3247 . 3251 . 3253 . . :)256 . 3268 . 3269 . "'778 . 186 . 80 . 324 . 223, 224, 225 . 223 . 157, 375, 376 . 157 2019 . 2129 . 2140 . 2285 . 2426 . . . 301 . . 298 . . 2-.18 50, 251, 252 . 347 2429 . 2435 99, 345 O*>o 2436 . 233 3347, subd .6 . . .391 3347, subd. 11 . . .391 Chap. 15, Tit. 4, Art. 1 ( 1871, 1879) .... 38 Chap. 18 ( 2472, 2860) . 891 Chap. 19, Tit. 2, Art. 3 ( 2894, 2904) . . . .186 2441 . 2444 . 2446 . . . 395 . 362, 363 . 395 2447 . . . 395 2460 . . . 234 2461 . . . 38 STATUTES, ETC., CITEt). SECTIONS OF THE CODE OF PROCEDURE CITED. 1-20 240 149 41 179 . 16 273 .419, 420, 422 SESSION LAWS CITED. 'Laws of 1829, chap. 222. 278 " 1839, " 205. 278 " 1845, " 109 278 " 1845, " 115 4 . . . . . . . 329 '" 1847, " 170. 278 " 1847, " 280 16 300 " 1847, ' 280 16, subd. 21 301 " 1848, " 195. 278, 284, 285 1849, "347 271, 275, 276 " 1850, " 270 278 " 1853, " 138. 241 " 1854, " 200. 284 " 1857, " 346 10 . i 186 " 1857, " 346 16, subd. 3 185 " 1858, " 259 278 " 1860, "90. 19 " 1860, " 90 2 140, 141 " 1860, " 90 7 53, 141 " 1800, " 90 8 . . . ... . .141 " 1860, " 348. 404, 4-... * 1860, " 348 1, 2, 5, 6, 28 404 " 1802,' 172. 180 ' 1862, " 172 3 53 " 1863, " 248 278 " 1867, " 557 119, 284, 285 " 1869, " 133. 119 1870, " 208. ... . 278, 279, 284 * 1874, " 261. 329 " 1874, " 545. . . . . . . .202 " 1875, "38 329 " 1875, " ISO 278, 283 STATUTES, ETC., CITED. rxxi Laws of 1877, chap. 417. ..... .283, 301 " 1877, " 417 1, subd.-3 (6) 119 " 1877, " 417 1, subd. 4 (43) 119 41 1877, " 466. . 404 " 1877, " 4G6 1, 2 404 " 1879, " 542 151 " 1880, "245. ....... 53 " 1881, " 486. . . ... . .262 " 1881, " 486- 1 170, 171 " 1881, " 488 2 171 " 1881, " 486 3 171, 172, 173 " 1883, " 14 1 31 il 1883, " 281. 270, 275, 276 " 1883, " 378 97,99,115,116 " 1883, " 378 1 . . . .96, 100, 101, 104 " 1883, " 378 3 103 " 1883, " 378 5 102 " 1883, " 378 7 93 " 1883, " 378 8 101 " 1883, "- 410 1386. 187 NEW YORK REVISED STATUTES CITED. 1 R. S. 757. 1 R. S. 824. 1 R. S. 861. 1 R. S. 935. 1 R. S. 946. 2 R. S. 95 71 FIRST EDITION. . 2832 R. S. 148 12 . . . 300 . 208 2 R. S. 174. ... 81 . 2932 R. S. 362 24 . . . 321 . . 298 2 R. S. 396 2o . . 119, 283 . 298 2 R. S. 932. . . .298 247 THIKD EDITION. 8 R. S. 253. 275 SIXTH EDITION. 8 R. S. 102 76. 8 R. S. 104 8 R. S. 199 102 18 247 865 xxxii STATUTES, ETC., CITED. SEVENTH EDITION. 8 R. S. 2170 329 3 R. 8. 2230 . . .283 3 R. S. 2215 . . .304 8 R. S. 2224 . 278, 283, 281 3 R. S. 2551 16 . . .303 GENERAL RULES OF PRACTICE CITED. Rule 25 (1877, 1880, 1883) 269 Rule 37 (1877, 1880, 1883) 191 CONSTITUTION OF THE STATE OF NEW YORK CITED. Art. 1, 6 81 Art. 6, 15 851 U. S. REVISED STATUTES CITED. 5024. . .176 5117 150 I TEXT-BOOKS, ETC., CITED. 2 BUckstone's Commentaries, 201 328 8 Blackstoue's Commentaries, 159 81 Commissioner's Note to Code of Civil Procedure, 817 (now 844) 277, 278 Commissioner's Note to Code of Civil Procedure, 1906 . . 53 Daniel's Chancery Practice, 1146 436 Dayton's Surrogate's Practice (3 Ed.) 506, 507 . . 19, 22, 393 STATUTES, ETC., CITED. xxxiii Dayton's Surrogate's Practice (3 Ed.) 543 . . . ~ . . 22 1 Duer's Practice, 106, 312, 313 270 1 Greenleaf on Evidence, 186 176 2 High on Injunctions, 315 .... 409 Keiley on Assignments, 118-121 ...... 405 2 Kent's Commentaries, 53 828 Lieber's Hermeneutics (3 Ed.) 285 note ..... 813 McAdam on Landlord & Tenant, 422 293 2 Parsons on Contracts, 582 276 1 Phillips on Evidence, 524 (marg. p.) 176 2 Phillips on Evidence, Cowen, Hill & Edwards' Notes, 929 . 31 Revisers' Note to Code of Civil Procedure, 817 (now 844) 277, 278 Revisors ; Note to Code of Civil Procedure, 1906 53 Story on Conflict of Laws, 282 276 Story's Equity Jurisprudence, 891 ...... lift Taylor on Evidence, 585. . . . . . . . 439 Throop's Code, note to 844 277 Throop's Code, note to 2464 ....... 895 Wait on Fraudulent Conveyances, 86 t . ^ . . 167 Wood on Landlord & Tenant, 372 . . . 293 mvi STATUTES, ETC., CITED. SECTIONS OF CODE OF CIVIL PROCEDURE CONSTRUED OB CITED, IN THE OPINIONS CONTAINED IN THE FOLLOWING REPORTS, ISSUED DURING THE PERIOD COVERED BY THIS YOLUME : New York Reports, Vols. 95, 06; Hnn's Reports, Vols. 32, 33 ; Abbott's New Cases, Vol. 14 ; How- ard's Prac. Reports, Vol. 67; N. Y. Superior Court Reports, Vol. 50 ; Deinarest's Reports, Vol. 2 ; JN. Y. Civil Pro. Reports, Vol. 6. 2 Eisner . Avery 2 Dem. 466. 8 In re Jones 6 N. Y. Civ. Pro. 250. 11 In re Jones. , C N. Y. Civ. Pro. 250. 14 Stephenson v. Hanson 6 N. Y. Civ. Pro. 43. 14 In re Jones 6 N. Y. Civ. Pro. 250. 17 Chatfield v. Hewlitt .". . , 2.Dem. 191. 33 Brooks v. Mexican Constr. Co 50 Super. 285. 55 Gearon v. Bank for Savings 6 N. Y. Civ. Pro. 207. 66 Smith v. Baum 67 How. Pr. 267. 66 Eisner. Avery 2 Dem. 466. 147 Roach e. Odell. '. . . . . 33 Him, 330. 263 Brooks v. Mexican Nat'l. Constr. Co 50 Super. 287. 267 Brooks v. Mexican Nat'l. Constr. Co 50 Super. 287. 341 Heenan v. N. Y., W. S. & B. R. R. Co. 6 N. Y. Civ. Pro. 348. 375 Howell . Leavitt 95 N. Y. 617. 380 People ex rel. Townshend v. Cady 50 Super. 402. 382 Knapp . Simon 6 N. Y. Civ. Pro. 1. 386 Kydd v. Dalrymple 2 Dem. 630. 888 Estate of Stagg 6 N. Y. Civ. Pro. 88. 388 Estate of Collins 6 N. Y. Civ. Pro. 85. 388 Higgins v. Higgins 14 Abb. N. C. 22. 388 Syms v. The Mayor, &c 50 Super. 294. 395 Cotter v. Quinlan 2 Dem. 29. 395 Kydd v. Dalyrmple 2 Dem. 630. 396 Estate of Collins 6 N. Y. Civ. Pro. 85. 401 Engle v. Fischer 6 N. Y. Civ. Pro. 307. 403 Cotter v. Quinlan 2 Dem. 29. 406 Mead v. Jenkins 95 N. Y. 81. 416 People ex rel. Field 0. Nat 1 ! Pacific R. R. Co 50 Super 458 419 Sweet t>. Sanderson Bros. Steel Co. . . 6 N. Y. Civ. Pro. 6. "STATUTES, ETO.j CITED. xxxvli C61e v. McGarvey ..................... G N. Y. Civ. Pro. 305. 422 Sweet . Pheips ..... ........... . _____ . 6 N. Y. Civ. Pro. 117. 435 Smith . Fogarty .............. ... . . . 6 N. Y. Civ. Pro. 3GG. <436 Smiths Fogarty , ................... ' '6 N. Y. Civ, Pro. 366. -437 Smith . Fogarty .................... 6 N. Y. Civ. Pro. 366. ' 438 Syracuse Savings Batvk v. Burton ...... ; 6 N. Y. Civ. Pro. 216. "438 Place . Riley ....................... 32 Hun, 17. 439 Phe-ips . Phelps ................. , . . N. Y. Civ. Pro. 1 17. 439 Syracuse-Savings Ba"k v. Burton ....... V 6 N. Y.'Civ. Pro. 216. - 447 Keeier . McNctrney ................. 6 K Y. Civ. Pro. 363. 448 Spies . Roberts ................. . ____ 5D Super. 305. 449 Viadero v. Morton ......... ......... 6 N. Y. i v. Pi-o. 238. 450 Laade v. Smith ....... ......... ....... t5 N. Y. Civ, Pro. 51. 450 Muser . -Lewis ............... . ..... . ' 6 N. Y. Ci v. Pro. 135, 450 Mapes v. Brown .................... 14 Abb. N. C. 94. 450 Fitzgerald v. ,Quann ..... . ............. S3 Hun, 652. 452 Tilden v. Dows ....................... 2 Dem. 489^ '454 ViaxJero . Morton ........... ......... 6 N. Y. Civ." Pro. 238, 468-477 Matter of Watson ................ 2Dem.642. . - 472 Cole v. McGarvey .................... 6 N. Y. Civ. Pro. 305. 479 Sweet v. Sandersoa Bros. Steel Co ...... 6 N. Y. Civ. Pro. 69. 481 Sprague v. Parsons _____ .............. <> N. Y. Civ. Pro. 26. 434 De Silver v. Holden .................. 6 N. Y. Civ. Pro. 121. -484 Teal . Oity of Syracuse ............... 82 Hun, 332. '488 Heenaa . N. Y. W. S. & B. R. R. Co. . 6 N. Y. Civ. Pro. 348. 488 Taylor v. Metropolitan El. R/R. Co. ... 50 Super. 340. - 490 Berney . 'Drexell ..................... 32 Hun, 419. 498 Taylor v. Metropolitan El. R. R. Co ____ 50 Super. 340. 499 Hec-nan . N. Y., W. S. & B. R. R. Co. . 6 N; Y. Civ. Pro. 348. - 499 Taylor ... Metropolitan 'El. R. R. Co ____ 50 Super. 340. 500 Henderson v. Scott .................... 6 N. Y. Civ. Pro. 39. 500 Lidgerwootl MTg Co. . Baird ........ 6 N. Y. Civ. Pro. 54. 500 Barnes. . Gilmore .................... 6 N. Y. Civ. Pro. 286. 500 Potter v. Frail ........................ 67 How. Pr. 445. 500 Spies v. Roberts ........ ... ......... 50 Super. 305. 500 .Hoffman v. N. Y., &c. R. R. Co. ....... 50 Super. 405. -SK)0 Thierry-. Crawford .................. "33 Him, 366. 501 Barnes 0. Gilmore .................... "6 N. Y. Civ. Pro. 286. S03 Herbert ./Day ....................... 33 Hun, 461. 519 Spies v. Roberts ...................... 5t) Super. 305. 522 Spies v. Roberts, ..................... 50 Super. 305. 523-526 Moorehouse" v. Hutchinson. . . ...... 2 Dem. 429. 523 Frist v. Climm ........... . ...... ____ 6 N. Y. Civ. Pro. 30. ;<623 Anderson -p. Doty ..................... 33 Huu, 238. xxxviii STATUTES, ETC., CITED. 524 Lidgerwood MTg Co. v. B. DC vender 6 N.Y. Civ. Pro. 161. 531 Sniffen t>. Peck 6 N. Y. Civ. Pro. 188. 531 Hayes v. Davidson- 6 N. Y. Civ. Pro. 380. 531 Fcely v. Manhattan li. Co ft N. Y. Civ. Pro. 414. 539 Knapp 0. Simon ft N. Y. Civ. Pro. 1. 539 Davis v. Bowe 50 Super. 301. 539 Spies v. Roberts _ 50 Super. 303. 540 Ennpp v. Simon.. 6 N. Y. Civ. Pro. 1. 540 Davis v. Bowe Super. 301. 540 Spies v. Roberts 50 Super. 305. 541 Kmipp v. bmion 6 N. Y. Civ. Pro. 1. 541 Davis v. Bowe 50 Super. 305. 540 Straus T. Kreis ft N. Y. Civ. Pro. 77. 549 Stern v. Moss ft N. Y. Civ. Pro. ] 84. 549 Ryle v. Brown T>0 Super. 175. 549, subd. 1. Kaufman . Lindner G-N. Y. Civ. Pio. 148. 550 Stern v. Moss N. Y. Civ. Pro. 1 84. 550 Ross v. Wigg 6N. Y. Civ. Pro. 203, 208. 500, subd. 1. Lippman . Shapiro 50 Super. 870. 559 O'Sliea c. Kohn 33 Hun, 114. 02 ct scq. Phoenix Foundry, &c. Co. v. North River Construction Co 6 N. Y. Civ. Pro. 106. 603 ct seq. Reis v. Rhode 6 N. Y. Civ. Pro. 406. 635 Remington Paper Co. v. O'Dougherty. . . 6 N. Y. Civ. Pro. 7!). 635 et seq. McBlane v. Speelman 6 N. Y. Civ. Pro. 402. 6-0 Ross v . Wigg 6 X. Y. Ci v. Pro. 263, 208. 636 Smith r>. Fogarty 6 N. Y. Civ. Pr<>. 306. 036 McKiiilay v. Fowler 07 How. Pr. 388. 630 Smith v. Arnold 83 Hun, 484. 640 Spraguc v. Parsons 6 N. Y. Civ. Pro. 26. 648 Anthony r. Wood 6 N. Y. Civ. Pro. 164. 649, 650. ' Anthony . Wood. ..6 N. Y. Civ. Pro. 164; 90 N.Y. 180. 6-"> Davidson . Chatham Nat'l Hank 32 linn, 138. 675 Davidson . Chatham Nat'l Bank 32 Hun, 138. 682 McBlane v. Speelman 6 N. Y. Civ. Pro 401. 719 Ross D. Wigg 6 N. Y. Civ. Pro. 263, 268. 723 Peoples rel. FIerkimer& Mohawk R. R. t. Assessors of Herkimer ft N. Y. Civ. Pro. 297. 723 Mapcs v. Brown 14 Abb. N. C. 94. 723 Spies . Roberts . 50 Super. 305. 724 Gade t. Gade 14 Abb. N. C. 511. 787 Mup 9. Brown 14 Abb. N. C. 84. STATUTES, ETC.. CITED. xxxix 738 Garrison 0. Garrison 67 Ho w. Pr. 271. 755 Dock v. South Brooklyn Saw Mill Co. . 6 N . Y. Civ. Pro. 144. .756 Dock v. South Brooklyn Saw Mill Co. . . G N. Y. Civ. Pro. 144. .756 Tildeii v. Dows 2 Dem. 489. .757 Dock v. South Brooklyn' Saw Mill Co. . . a N. Y. Civ. Pro. 144. ,768 People v. City Bank 9G N". Y. 32. 769 Pheenix Foundry & Machine Co. . North River Construction Co 6 N. Y, Civ. Pro. 106. 79 U. S. Trust Co.-c. N. Y., \V. 8. .& B. . . . R'y Co 6 X. Y. Civ. Pio. 90. 376 Apsley v. Wood 6 N. Y. Civ. Pro. 178. .7.79 Scotield v. Adriauce 2 Dem. 486. 781 Sniffen v. Peck/. 6 N. Y, Civ. Pro. 188. .783 Sniffen v. Peck ; . . 6 N. Y. Civ. Pro. 18'8. 783 G;ide v. Gade .4.4 Abb. N. C. 511. .788 Matter of Carhart 2 Dem. G27. 791 McArthur v. Coramerciiil Fire Ins. Co... 67 How. Pr. 510. >793 Me Arthur . CommerciaLFire.Ius. Co... 67 LIovv. PC. olO. 803, et seq. Mehusy v. Kahu 6 N. Y. Civ. Pro. 33. "611 McGean v. MacKellar 6 N. Y. Civ. I ro. 163. #11 Eiirlcc. Eurle 6 N. Y. Civ. Pee. 171. 12 Stepheuson v. Hanson C N. Y. Civ. Pro. i3. 812 Hurd v. Hannibal ,& St. Jo.,R. R 33 Hun, 109; S. C., 6 Civ. Pro. 386. 323 Carroll v.. Beimel ~i)5 N. Y. 2o2. -27 Apsley v. Wood 6 N. Y. Civ. Pro. 178. 828 Wilson . Muiiuz 6 N. Y. Civ. Pro. 71. 828 Estate of Le Barou 6 N. Y. Civ. Pro. 2. 823 Nejuman o. Third Ave. R. R Co 50 Super. 415. 829 Wilson . Munoz 6 N. Y.Civ. Pro. 71. ^829 Estate.of Le Baron <3 N. Y. Civ. Pro. 6*. -829 Taylor . Meldrjum ' 6 N. Y. Ci v. PIQ. 235. .829 Stephens*. Cornell -32 Hun, 414. 829 Sanford v. Ellitl.orph 95 N. Y. 48. .^829 Holcomb . Holcuiut) 95 N. Y. 310. 829 Lane v. Lane 95 N. Y. 494. 829 Will of Smith 95 N. Y. 517. 29 Poucher . Scott , 33 Hun, 223. 829 Price e. Pr.ice 33 Hun, 69. 829 Kelly c. Burroughs 33 Hun, 34S. 829 Gillies . Kreuder 33 Huo, 314. 837 Davenport Glucose Co. . Taussig 6 N. Y. Civ. Pro. 152. 844 Phelps v. Phelps 6 N. Y. Civ. Pro. 117. 844 Ross v. Wigg 6 N. Y. Civ. Pro. 263, 268. :867 .Pmden, . .Tttllwttu . . . ,6 N...Y. Civ., Pro.. 3CO. xl STATUSES, ETCv, CITEI*.. 867 Holmes v. Stieta 6K Y. Civ. Pro. 3651. 868 Pruden . Tallrnan &N. Y. Civ. Pro. 360, 868 Holmes t>. Stielz. 6 N. Y. Civ, Pro. 362. 869 Pruden . -Tallman , 6 K. Y. Civ. Pro. 360.- 869 Holmes. Stietz., -.. 6 N. Y. Civ. Pro. 362. 870, 6t seq. Davenport Glucose Co.'V. Taussig 6 N. Y. Civ. Pro. 152.- 870 Duncan . Jones .32 Hun, 12. 872. Cadmus . Oakley , 2 Dem, 298. 885k Reynolds . Ptirkes ..... 2. Dem. 399. 887 Cadmus v. Oakley 2 Dem. 98. 880. Cadmus . Oakley.. Js.DU:ui. 298,- 910 Hedges v. Williams 33 Hun, 546, 956- People, fl. D'Argcncow 95 N. Y. 624. . 957. People v. D'Argencour 95 N. Y. 624. 958 Reopie v. D'Argeuoour 95 N. Y. 624. 968 Cornell v. Cornell. 96 - N. Y. 108. 971), 971, 972 Luarued v. Tillotsou 6 K Y. Civ. Pro, 425* . 971. Ciirroli v. Dt-iaiiil 93 N. Y. 252. 977 Habcrsticli v. Fischer. 6 N. Y. Civ. Pro. 82~. 9J32 Goriuun *. Soutli Boston Irou.CTo 32JIuu, 7L 982 Acker v. Leland 96 K, Y. 383, 983 Gorman v. South Boston Iron Co 32 Hun,. 71. 984 Gorman v. South Boston Iron Co.* 33. Hun, ,71. 887 Gorman v. Soutli Boston IIHNI Co. 32 Hun, 71. 987 Acker . Leland 96 N. Y. 383.. i)3 Goettling .*. Biehtcr ftjf. Y. Oiv.Pro. 324.. 997 la. re N. Y., W. S; <& B. R. R. Co. to.-ac, qiire lands of Judsoa. 6 N. Y. Civ. Pro. 302w 898 Matter of Jackson 32 HI'HV ^0-. 999 Emmerich . Httffurnan* 33 Hun, 54. 1003 Carroll v.-Deimel 93 N. Y. 2f*2. 100;J Lewued *. Tillotson &N. Y, Civ. Pro. 425.. t013 Adaius v. City of Ulica 6N. Y. Civ.. Pro. 294. 1019 Little v. Lynch. 6JS. Y. Civ. Pi j. 418*, 1023 Goettling v. Biehlcr 6 K. Y. Civ. Pro. 3^4. 1023 Diekel . Yatcs * 3. Dem. 229. 1023 HKrris . Van Wart 96 N. Y. 642. 1206 Laude*. Smith 6.N. Y. Civ. Pro. 51^ 1207 Jenks v. Van Brunt ". 6 N. Y. Civ. Pro. 158,- 1207 Spies t>.. Roberts 50 Super. 301. 1216 Smith*. Fogarty 6-N. Y. Civ. Pro. JMA. 1260 VYo/)dforcl v. Rasbaek 6 N. Y. Civ. Pro. 31. ~ii 1266 Wood ford v. Chapman 6 N. Y. Civ. Pro. 315,. 1268 Kaufman v. Lindner 6 N. Y. Civ. Pro. 148., 12.70 liLjouuicld v. Ketcham,.,. . 95 K Y-6i7. S-TATOTES r ETC., GITEDr 1390 Marshall . McGee 83 Hun, 354. 1301 Reese v. Smith 95 N. Y 645, 1312 Hills v. Peoples Savings Bank. 9&-N. Y* 675. - 1316 De Silver.*. Holden 6 N. Y. Civ, Pro. 121; 1316 Reese v. Smith ,. 95 NVY. 645. 1318 Palmer v. Vernon 67 How. Pr. 18. 1336 McGeaa v. MacKellar ...... 6 N. Y. Civ. Pro. 169; . 1326 Earle v. Earle 6 N. Y. Civ. Pro. 171. - 1326, et sej,.,Hurd v. Hannibal & "St. Joseph R. R. Co 6 N. Y, Civ. Pro. 386. . 1828 Goodwin . Biinzl 6 N. Y. Civ. Pro. 226. ^ 13-29 Goodwin v Bunzl.'. 6 N. Y. Civ. Pro. 228. 1334 Kurd v. Hannibal & St. Joseph R: R. Co. 6 N. Y. Civ. Pro. 386. 1335 Goodwin v. Bunzl. 6 N. Y, Civ. Pro. 226. - 1337 ' Learned v. TULotson 6 N. Y. Civ. Pro. 425, 1342 Lippjncott v. Westray 6 N. Y. Civ. Pro. 74. . 1352 Whites. Rintoul ,. 6 N. Y. Civ. Pro. 259, > 1357 Harris v. Supervisor Niagara Co 33 Hun, 279. 1366 Ansonia Brass, &c. Co, v. Conner 6 N. Y.Cm Pro. 173 1370 Place v. Riley 32 Hun, 17. 1421-1425 Hayes v. Davidson. 6 N. Y. Civ. Pro. 377. . 1421-1425 Hein v. Davidson, . 96 N.-Y. 175 ; 5 Civ. Pro. 391. 1498 Kent v. Popliam.. 6 N. Y,.Civ. Pro. 336..> 1498 Keeler v. McNeirney 6 N. Y. Civ. Pro. 363. 1615 Henderson v. Scott 6 N. Y. Civ. Pro. 39 1525 Cacietou v f Tlie Mayor, &&. 50 Super. 182. 1531 Henderson v. Scott 6 N. Y. Civ. Pro. 39,^ 1539 Mapes a. Brown 14 Abb. N. C. 94. 1632 Kent v. Popliam 6 N. Y. Civ. Pro. 336, . 1695 Err ..Schroeder 6 N. Y. Civ. Pro. 253. , 1695 American Tool Co. v. Smith, , 32 Hun, 121. 1699 Err v. Schroeder 6 N. Y, Civ. Pro. 253, . 1708 People ex rel. Field v. Nat'l Pacifie^R. R. Co 50 Super. 45& 1772, 1773 Ryer v. Ryer 33 Hun, 116. 1780 Toronto Trust Co. v. Chicago B. & Q, R. R 32 Hun, 190. 1780 Brooks v. Mexican Constr. Co 50 Super. 287.- 1782 Langdon v. Fogg 14 Abb. N. C. "436. 1809 Phoenix Foundry, &c. Co. ; North River Construction Co 6*N. Y. Civ. Pro. 106. 1809 "Woerishoffer v. North River Construc- tion Co 6 N. Y. Civ. Pro. 118.. 1809 Hewlett v. West Shore, &c. R. R. 14 Abb N. C. 328. ... xlii STATUTES, ETC., CITED. 1816 Pheenix Foundry, &c. Co. . North River Construction Co 6 N. . Civ. Pro. 106. 1810 U. S. Trust Co. . N. Y., W. S. & B. R'y Co 6 JT. Y. Civ. Pro. 90. 1810 Woerishoffer -8. Noi'th River Construc- tion Co -6 N. T. Civ. Pro. 113. 1810 In re Boynton Saw & File Co. 6 N. Y. Civ. Pro. 342. 1819 Estate of -Collins. 6 N. Y. Civ. Pro. 85. .1825 Joel v. Ritterman 2 Dein. 242. 1825-1827 Peyser v. Wendt 5 Dem. 221. J826 Peters v. Carr .. 2 Dein. 22. 1826 Sippel v. Macklin 2 Dem. 219. 4833 Smith v. Collamer ... .. 2 Dem. 147. 1835, 1838 Miller . Miller 67 How. Pr. 135. 1835, 1838 Wilkinson v. Littlewood 67 How. Pr. 474. 1865 Colligau v. McKcrnan 2 .Dem. 421. 1902 Thomas v. Utiea.& Black River R. R. Co. 6 N. Y. Civ. Pro. 353. i!903 Thomas . -Silica & Black River R. R. Co. 6 N. Y. Civ. Pro. 353. 1904 Boyd v. N. Y. C.^fc H. R. R. R. Co. . . . 6 N. Y.iv. Pro. 222. 1919 Duncan v. Jones . . 32 Hun, 12. '1932 Garrison.. Garrison 67 How. Pr. 271. 1948, et seq. Reis . Rhode 6 N. Y. Civ. -Pro. 406. 4953 People ex rel. Deaue c. Supervisors of Greene 14 Abb. N. C. 81. *1991 People ex ,rel. Herkimcr & Mohawk B. R. e. Assessors of Herkimer 6 N. Y. Civ. Pro. 297. 1992 People ex rd. Herkimer fc Mohawk R. R. v. Assessors of Herkimcr 6 N. Y. Civ. Pro. 297. 5015, et *eq. People ex rel. Hoyle . Osborne. 6 N. .Y. Civ. Pro. .299. :2015 In re Larson 96 N. Y. 381. 2019 People ex.rel. Hoyle. . Osborne 6 N. Y. Civ. Pro. 299. .2058 In. re Larson 96 N. Y. 381. 5120-2122 People ex rel. Nortli Tarrytowa . Cobb 14 Abb. NxC. 493. 2129 People ex rel. Herkimer & Mohawk B. R. Co. v. Assessors of Herktmer. . 6 N. Y. Civ. Pro. 297. 2141 People ex rel. Emuiett v. . Campbell 56 Super. 91. V 2269 Naylor v. Naylor 32 HUD, 228. I 2272 Naylor . Naylor 82 Hun t 228. 2284 Brett. . Brett 33 Hun, 547. 2285 Stephenson v. Hanson 6 N. Y. Civ. Pro. 43. 2286 Ryer . Ryer 83 Hun, 116. 2366 McNulty v. Sol ley 95 N. Y. 242. 2419, el seq. In re E. M. Boynton Saw & File ,Co. A N. Y. Civ. Pro. 342. STATUTES, ETC., CITED; "xlii: 2432, et seq. Pruden .' Tallman 6 N. Y. Civ. Pro. 360. 2432, et seq. Holmes v. Stktz 6 N. Y. Civ. Pro. 362. 2433 Lippincott v. Wcstray 6 N. Y. Civ. Pro. 74. 2435 Seligman v. Wallach 6 N. Y. Civ. Pro. 232. 2436 Scligraan v. Wallach $N. Y. Civ. Pro. 232. 2444 Holmes v. Stietz 6 -N. Y. Civ. Pro. 362. 24(54 Strohn v. Epstein* 6 N. Y. Civ. Pro. 36-. 2464 De Vivier v. Smith. 6 N. Y. Civ. Pro. 394. 2472 Matter of Lynch 67 How. Pr. 436i 2472, subds. 3" and- 6. Jones v. Hooper* 2 Dem. 14. 2476 Evans v. Schoon maker 2 Dem. 249, 2476, subd. 3. White v. Nelson 2 Dem. 265. 2481 Matterof Lynch 67 How. Pr. 436. 2481, sitbds. 5, 1 1. Wolfe v. Lynch 2 Dem. 640. 2481, subd. 6, Estate of Tilden 6 N. Y. Civ. Pro. 15. 2481, subd. &. Estate of Singer 6 N. Y. Civ. Pro. 380. 2481, subd. 6. Grossman . Crossman 2 Dem. 69. 2481, subd. 11. Hoes v. Halsey 2 Dem. 577. 2484 People ex rel. Oakley . Petty 32 Hun, 4'43. 2485 People ex rel. Oakley v. Petty 32 Hun, 44$. 2486 Matter of Chauncey 32 Hun, 429. 2509, subd. 2 Mauran v. Hawley 2 Dcin. 396. 2514, subds. 3 r 11. Creamer v. Waller 2 Dem. 351. 2517 Fountain v. Carter 2 Dem. 313. 2520 Mauran . Hawley 2 Dem. 396. 2520 Matter of Carhart 2 Dem. 627. 2527 Estate of Tilden 6 N. Y. Civ. Pro. 15. 2527 Matter of Watson 2 Dem. 642. 2530 Matter of Watson 2 Dem. 642. 2533 Thompson v.. Mott 2 Dem. 154. 2534 Moorhouse v. Hutchinson ' 2 Dem. 429. 2537 Matter of Moody 2 Dem. 624. 2545 Matter of Will of Smith 95 N. Y. 517. 2545 Dickol v. Yates 2 Dem. 229. 2545 Waldo v. Waldo 32 Hun, 251. 2545 Matter of Chauncey 32 Hun, 429. 2554 Joel v. Ritterman 2 Dem. 242. 2554 Bingham v. Burlingamc. 33 Hun, 211. 2."57 Beekman v. Beekman 2 Dem. 635. 2558 Matter of Budlong 33 Hun, 235. 2587 Freeman v. Coit 96 N. Y. 63. 2593 Cutlibert v. Jacobson 2 Dem. 134. 2597 Bick v. Murphy 2 Dem. 251. 2597 Stevens v. Stevens 2 Dem. 469. 2000 Shook v. Goddard 2 Dem. 201. STATUTES, ETC., CITED. S600 Bick-p. Murpby 3 Dem. 951. 2000 Murray v. Vanderpoel 2 Dem. 811. 2600 Maze v. Brown 2 'Dem. 217. 2000 Bunnell . Rrtnrtey. . 2 Dem. 327. 2600 Scofit^d P. Adrianee 8 Dem. 480. 2000 Matter of Larz 33-Huu. 018. 2(51 1 Estate of Bogcrt . . . 6 N. Y. -CI v. Pro. 138. CGI 4 Grossman t. Cros?man 2 Detn. 69. 2(>14 Crossman v. Grossman ...... 95 N. Y. 145. 2615 In rt! Powers N. Y.- Civ. Pro. 326. 2015 Dyer v. Emng 2 -Dem. 100. 26 17 Dyer v. Erving * -2 Dem. 160. 20 1 7 "" Hammersley v. Lockman 2 Dem. : 524. 201 8 Estate of Bogert 6 N. Y. Civ. Pro. 128. 2018 Matter of Hoyt - 67 How. Pr. 57. 2G18 Conselyea *. Walker 2 Dem. 117. 2018 Hoyt . Jackson 2 Dem/443. 2018-2620 -Graber v. Haaz '2 -Dem. -216. 2020 Holla e. Wright 2 Dem. 482. 2621 Oolligan v. McKernan '2->Dem. 421. 2623 Estate of Bogert 6 N. Y. Civ. Pro. 138. 2624 Tirs v. Tiers 2 Dem. 209. 2643 Matter of Allen 2 Dom. 203. 2047, et seq. Matter of Will of Gouraud 05 N. Y. 256. 2047 Crossman v. "Crossman 2 Dem. 69. 2647 Hoyt . Jackson 2 Dem. 443. 2848 Fountain v. Carter 2 Dem. 313. 2061 Moorhonse v. Hutchinson -3 Dem. 429. 2068 Matter-of Chase -82 Hun, 318. . 2672 Kruse v. Fricke 2 Dem. 264. 2083 Berdell . SchcH 2 Dem. 292. 2685 Atkinson v. Striker 2 Dem. 3C1. 2085, imbd. 2. Hood T. Hood 2 Dem. 5-S3. .2085, subd. 5. Grubb v. Hamilton 2 Dem. 444. 2686 Moorhouse v. Hutcliinson 2 Dem. 429. :.-2095 TTendrickou v. Ladd 2 Dem. 402. 2699 Entns v. Sc-hoonmaker 2 Dem. 249. 2706 Mead e. Sommcrs 2 Dem. 206. 5706 Mauran v. H;rwley 2 Dem. 396. 2706 Renk v. Herrman Lodge 2 Dem. 409. 2708 Mauran v. Huwley 2 Dem. 396. 2715 Creamer v. Waller 2 Dem. 351. 2717, subd. 2. Atkinson . Striker 2 Dem. 201. . 2717-2719 Peyser v. Wendt 2 Dem. 221. .2718 Cuthbert e.-Jacobsoa. . . 3 Dem. 134. STATUTES, ETC., CITED. 3723 Estate of Collins . 6 N. Y. Civ. Pro, 85. .2723 Estate of Stagg 6 N. Y. Civ.,Pro. 88. 2723, subd. 1. Peters v. Carr 2 Dem. .22. 2724 Cuthbert v. Jacobson 2 -Dem. 134. 2726 Schkgel . Winckel 2 Dem. 232. 2727 Schlegel v. Winckel 2 Dem. 232. 3729 . Schlegel 0. Winckel 2 Dem. 232. 2735 Cuthbert . Jacobson ; 2 Dem. 134. 3736 Slosson o. Naylor 2 Dem. 267. 2736 Waters v. Faber 2 Dem. ,290. 2739 Snyder v. Srvyder 96 N. Y. 88; 5 Civ. Pro. 267. 2743 Estate of York 6 N. Y. Civ. Pro. 245. 2743 Gibbons v. Sheppard 2-J)em. . 247. 2743 Tilden v. Dows 2 Dem. 489. 2746 Matter of Moedy 2 Dem. 624. 2750 Estate of Le Baron , -6 N. Y, Civ. Pro, 62. 2793, subd. 5. Smith v. Meakin . . . ^ 2 Dem. 129. 3811 Slosson v. Naylor. . . 2 Dem. 257. 2812, 2813 Gladding v. Follett 2 Dem. 58. 2832 Ledwith v. Union Trust Co 2 Dem. 439. -2838 Griffin v. Sarsfield 2 Dem. ,4. 2842 Ledwith v. Union Trust Co 2 Dem. 439. - 2845 Ledwith v. Union Trust; Co 2 Dem. 439. 2846, 2847 Welch v. Gallagher 2 Dem. 40. ; 2847-2850 Smith v. Lusk 2 Dem. 595. 2851 Griffin v. Sarsfield.. 2 Dem. 4. 2876 Irr . Schroeder 6 N. Y. Civ. Pro. 253. , 2894-2904 Stern . Moss 6 N. Y. Civ. Pro. 182. :-2901 Irr v. Schroeder 6 N. Y. Civ. Pro. 253. ,2902 Irr v. Schroeder 6 N. Y. Civ. Pro. 253. .5916 Irr t>. Schroeder >-6 N. Y. Civ. Pro. 253. 2917 Irr v. Schroeder 6 N. Y: Civ. Pro. 253. ..2920 Irr V.- Schroeder 6 N. Y. Civ. Pro. 253. 2925 Irr v. Schroeder - 6 N. Y. Civ. Pro. 253. .2933 Irr v. Sch-roeder '. . 6 N. Y. Civ. Pro. 253. 2966 Livingston v. Morrissey 6 N. Y. Civ. Pro. 28. -3016 Allen v. Swan , 6 N. Y. Civ. Pro. 56. 3044 Commissioners of Jamaica v. Allen. .... 32 Hun, 61. -3044, 3045 People v. Norton 33 Hun, 277. ,3046 Andrews v. Snyder 6 N. Y. Civ. Pro. 333. 3048 Andrews v. Snyder 6 N. Y. Civ. Pro. 333. 3049 Zabriskie v. Wilder 14 Abb. N. C. 325. ^063 Irr v. Schroeder 6 N. Y. Civ. Pro. 253. 3070 Allen v. Swan . . . 6 N. Y. Civ. Pro. 56. .3174 Oakes o. Harway 6 N. Y. Civ. Pro. 357. xlvi STATUTES, ETC., CITED". 8191 Walsh t>. Schulz 6 N. Y. Civ. Pro. 120. 3191 Willmore v. Flack 6. N Y. Oiv. Pro. 191. 8209, 3210, 3211 Stern .-Moss 6 N. Y. Civ. Pro. 182. 3245 Dressell v. City of Kingston 32 Hun, 526. 3246 Miller . Miller 32 Hun, 481* 3246 MeGovern v. McGovern :. . 50 Super. 395. 3247 Remington Paper Co. v. O'Dougherty. . . 6 N. Y. Civ. Pro. 79. 3247 Slauson v. Watkins 95 N. Y. 369. 3251 Woodford v. Rasback 6 N. Y. Civ, Pro. 315. 8251 Woodford v. Chapman 6 N. Y. Civ. Pro. 315. 3251, subd, 3 Studwell . Baxter 33 Hun, 331. 3253 Rutty v. Person 6 N. Y. Civ. Pro. 25. 3253 Boyd . N. Y. C. & H. R. R. R. Co 6 N. Y. Civ. Pro. 224. 3268 Fitzsimmons . Curley 6 N. Y. Civ. Pro. 156. 3268 Krom v. Kursheedt 6N. Y. Civ. Pro. 371. 3269 Fitzsimmons v. Curley 6 N. Y. Civ. Pro. 156. 3271 MoGovern v. McGovern. 50 Super. 393. 3278 Krom t>. Kursheedt 6 N. Y. Civ. Pro. 371. 3297 Race t>. Gilbert 82 Hun, 360. 3334 People v. City Bank 96 N. Y. 32. 3343, subd. 2 Mauran . Hawley. 2 Dem. 396. Ch. 18, tit. 3, art. 5 Jones . Hammersley 2 Dem. 286. Ch. 18, tit. 3 r art. 7 Hendrickson v. Ladd 2 Dem. 403. Ch. 18, tit. 5 Hendrickson c. Ladd, 2 Dem. 402. Ch. 18, tit. 5 Wolfe Lynch 2 Dem. 610. Ch. 18, tit. 6 Gladding v. Follett 2 Dem. 58. , CIVIL PROCEDURE REPORTS. KNAPP, APPELLANT, v. SIMON, IMPLEADED, ETC., RESPOND .UNI. COURT OF APPEALS, 1884. 382, 539-541. Broker, Effect of concealment by, of the name of his principal. Rights and liabilities of. Pleading. When court of appeals will consider a case upon the cause of action disclosed by the evidence rather than on that set up in the pleadings. Duty of court to give party benefit of cause of action established by the evi- dence notwithstanding insufficiency of pleadings. Statute of limitations. Application of, to brokers contract. An agent who purchases property without disclosing the name of his principal to the vendor, at the time of the purchase, renders himself personally liable to the vendor for the purchase price, [', 4 ] and this is the only consequence of the omission. [ S J The vendor, upon dis- covering the name of the principal in the transaction, may also hoM him responsible for the price of the property bought, provided he has not meanwhile in good faith paid such priee to the agent, and the vendor may pursue either the agent or principal or both, until lie recovers the contract price. [ 8 , 4 J When a broker purchases or sells property without disclosing to the respective principals in the transaction the name of -the party for whom he acts, he becomes personally liable for the purchase price VOL. VI. 1 CIVIL PROCEDURE REPORTS. Knapp v. Simon. and is entitled to collect it from the vendee, [*J who can relieve himself from liability to the broker by showing that lie has paid the contract price to the original vendor or that he has been re- leased for a good and valuable consideration by the broker."[*j A cause of action having once accrued to the broker, and becoming vested in him, can be discharged only by payment or release. ["] "Where a complaint did not, in terms, set forth all of the facts neces- sary to support a cause of action sustained by evidence admitted on the trial without objection, and no question w;is at any time raised as to the sufficiency of the complaint to sustain the cause of action proved, Held, that the court of appeals, on appeal, would consider the case upon the cause of action disclosed by the evidence and dis- regard any objections to the sufficiency of the pleadings not made in the court below ;[ 8 J that it was the duty of the court below in the absence of any objection to the sufficiency of the complaint to give the plaintiff the benefit of any cause of action established by the evidence and a refusal by it to direct the jury to find in accordance with the case made by such evidence would be error.f'J Where a broker purchased wheat for a certain firm without disclosing his principal, and subsequently, upon being sued by the vendor, paid the balance of the purchase price then unpaid, and thereafter brought an action to recover the same from his principals, HehL, that it was error for the court to charge the jury in such action that if " the plaintiff acted as principal and made a sale of this wheat to the defendants, the plaintiff cannot recover," and the judgment should therefore be reversed ;[ M J that the plaintiff's liability could not be affected by the character in which the plaintiff acted in making the purchase of the wheat, [ I0 ] and it was entirely immate- rial that for certain purposes he might be regarded by certain par- ties as a principal in the transaction ;["] that so far as the defendants were concerned he was a person who had incurred a liability for their benefit and from which it was their duty to relieve him;[ 12 ] also Held, that the defendants were undoubtedly entitled to invoke the beneflt of the statute of limitations as a .bar to any cause of action he might have against them and this bar would enure to them in regard to any liability growing out of the original trans- action irrespective of the character in which the plaintiff acted at the time;[' 2 J that the statute of limitation wonld have been equally a bar to any action brought by him with respect to the original transaction whether he claimed as vendor of the wheat or as a broker entitled to enforce the contract of sale as the trustee of an exprcM trust. ["] (Decided June 10, 1884.) CIVIL PROCEDURE REPORTS. Kuapp c. Simon. Appeal by plaintiff from a judgment and order of the general term of the N. Y. superior court, affirming a judgment of the trial term of the same court in favor of the defendant. This action was brought by the plaintiff to recover $6498.36, the value of certain wheat alleged to have been purchased of one Carlos Cobb for defendants by plaintiff as their broker, and for which Cobb had re- covered a certain judgment against plaintiff, on the ground that he had failed to disclose to Cobb, the defendants as his principals, and the costs of defend- ing the action in which the judgment was recovered. The complaint alleges that the defendants were, during October, 1868, copartners in business, under the firm name of C. A. Steen & Co. ; that the plaintiff was a broker in grains ; that on October 23, 1868. the de- fendants -requested the plaintiff, as their broker, to purchase of Carlos Cobb ^,026^ bushels of wheat for , the sum (with towage) of $5,054.95 ; that the plaintiff, as broker, did buy the wheat, which was delivered to defendants ; that the principal and interest of this sum on October 28, 1868, amounted to $5425.40, on which day defendants paid $1,688.32, leaving unpaid $3,737.08, which defendants never paid ; that said Cobb sued the plaintiff for the unpaid balance in the N. Y. superior court, and on April 21, 1876, recovered a judgment against him for the sum of $5,554.39, which was affirmed by the general term January 8, 1877, with $106.50 costs, which last judgment was on appeal to the court of appeals affirmed December 22, 1877, with $145.34 costs (see 42 N. T. Super. Ct. [10 /. & &] 91 ; 71 N. T. 348), that said Cobb died pending the appeal, and Emmeline F. Cobb, his administratrix, was sub- stituted as plaintiff in his place, and he was compelled to and did pay her the sum of $6,498.36, the amount of the several judgments, no part of which has been CIVIL PROCEDURE REPORTS. Knapp v. Simon. repaid him ; that said judgments were recovered against him, although the defendants in this action were the principals in the transaction, and the plain till a mere broker, under allegations and proof that plaint- iff failed to disclose his principals. Among other defenses set up by the defendant were allegations that the claim in suit had been released, and that it was barred by the Statute of Limitations. On u first trial the defendant had a* judgment in his favor, which the court of appeals, on appeal, reversed (86 N. Y. 311). On the second trial the defendant, was again suc- cessful and the general term affirmed the judgment entered by him. From the judgment and order of affirmance entered on the decision of the general term this appeal was taken. Further facts appear in the opinion. D. M. Porter, for appellant.- The assumption and agreement to pay the debt of the plaintiff to Cobb at the time of the settlement between plaintiff and defendants .... would m:ike it a matter of indifference what the original transaction was, because, as between the plaintiff and defendants, he, plaintiff, became and was the surety and defend- ants the principals, although as to Cobb the plaintiff still remained a principal because Cobb was not a party to this agreement. Slauson v. Wat kins, 8(3 N. Y. f)97 ; Comstock v. Drohan, 71 Id. 9 : S. C., 8 Hun, 373 The law implies a request if the surety is compelled to pay. Neass 75. Mercer. 15 Barb. 318 ; Bradshaw r. Beard, 12 C. B. N. S. 344; Doty r. Wilson, 14 Johns. 378; Van Santen v. Standard Oil Co., 81 IV. Y. 171 ; Exall v. Partridge, 8 T. 11. 308; Bailey v. Bussing, 28 Conn. 455 ; Norton v. Coons, 3 Denio, 130 ; S. C., (5 J\'. Y. 33. ... "In order to prevent injustice, the law CIVIL PROCEDURE REPORTS, Knapp v. Simon. will imply a promise to indemnify in favor of a surety if none is expressed." Holmes v. Weed, 19 Barb. 128 ; Aspinwall v. Sacclii, 57 N. Y. 331 (335, 336). . . . The suit is for money paid to the defendant's use under an agreement to relieve the plaintiff from all liability ; in other words the plaintiff paid the defendants a con- sideration to become principals to Cobb, as between the plaintiff and the defendants. And they did so by force of their assumption and agreement to pay the debt for which plaintiff was liable. Williams . Shelly, 37 N. Y. 375 ; Waddington v.. Vredenburgh, 2 Johns. Gas. 327; Morgan .0. Smith, 70 N. Y. 537; Holmes ?>. Weed, 19 Barl>. 128 (13.:). The plaintiff and defend- ants (because of plaintiff's failure to disclose to Cobb, who were his principals), were both liable to Cobb, Nason v. Cockrof t, 3 Duer, 366 ; Coleman v Bank of Elrnira, 53 N. Y. 388 (394) ; Cobb v. Knapp, 71 Id. 348 ; Story on Agency, 266, 267 ; Meeker v. Claghorti, 44 N. Y. 349. . . . ' A factor or other mercantile agent who contracts in his own name on behalf of his prin- cipal is a trustee of an express trust, and is the proper party to bring an action upon the contract." Grin- nel :v. Schmidt, 2 Sandf. 705, 706 ; Ladd v. Arkell, 37 N. Y. Super. Ct. (5 /. & 8.) 35 (40) ; Rowland v. Phalen, 1 Bosw. 43 ; Considerant v. Brisbane, 22 JV. Y. 289 ; Davis v. Reynolds, 48 How. Pr. R. 210 ; aff'd, 5 Hun, 651 ; Morgan v. Reid, 7 Abb. Pr. 215 ; Brown v. Cherry, 56 Barb. 685. . . . By the terms of the settlement, even if Knapp had sold the grain as principal lie became surety when they promised to pay his liability to the third party from whom he bought. Savage v. Putnam, 32 N. Y. Sol ; Morss v. Gleason, 64 Id. 204 ; Colgrove v. Tallman, 67 Id. 95. . . . The charge of the court that: " If in this transaction the plaintiff acted as principal and made a sale of this wheat to the defendants the plaintiff cannot recover in the pr-esent action," which is excepted to, was erroneous. Because CIVIL PROCEDURE REPORTS. Knapp v. Simon. (1) there, is no evidence that he acted as principal ; but the evidence is uncontradicted that he acted as broker ; (2) at the time of the alleged settlement the plaintiff took fifty cents on the dollar of an indebtedness of $84,000, upon the consideration that Cobb's claim should be settled by the defendants ; and even if he had been principal, he, upon such agreement, as between the parties to this action, became surety. Savage v. Putnam, 32 N. T. 501 ; Morss v. Gleason 64 Id. 204 ; Colgrove v. Tallman, 67 Id. 95. The case was tried without reference to the pleadings, and the question cannot be raised upon appeal that the plaintiff did not sue for money paid to the defendant's use, the evi- dence clearly establishing that he did sue for money paid as surety to the defendant's use. Cowing v. Alt- man, 79 A\ Y. 167; McKechnie . Ward, 58 Id. 541, (542) ; McGoldrick o. Willits, 52 Id. 612 ; Drake v. Kim- ball, 5 Sandf. 237. The complaint that plaintiff paid as surety, was good, under the common law count for money paid to the defendant's 'use. . . . Cliitty s Precedents on Pleading (3d Ed.) 33 ; Dullcn & Leases' 1 Precedents, p. 34; Chilli/ s Treatise on Pleadings (16th Am. Ed.), 33. " An instruction which assumes the existence of facts of which there is no evidence is mis- leading and erroneous." Jones v. Randolph, 14 Otto (V. S.) 108. And there being no evidence from which such a presumption could be drawn it was error to submit the question to the jury. Algurv. Gardner, 54 JY. Y. 360. "The submission by the judge to the jury of an hypothesis wholly unwarranted by the evidence, is error for which a new trial will be awarded." Storey v. Brennaii, 16 N. Y. 524; Harris r,. Wilson, 1 Wend. 611; Losee v. Buchanan. 61 Barb. 86 (09) ; Gale r. Wells, 12 Barb. 84 (94). General evidence has no weight where the facts are proved showing precisely what, was done. Steel v. Benham, 84 J\\ Y. 634, 64o ; Miller v. Long Island R. R. Co.," 71 Id. 380. il Where CIVIL PROCEDURE REPORTS. Knapp v. Simon. in submitting a cause to a jury the judge instructed them that they may rind a verdict for the defendant upon either of two distinct grounds, and the charge upon one of the questions is erroneous in point of law, a verdict for the defendant will be set aside, as for aught appealing it may be based on untenable grounds." Say re 'v. Townsend, 15 Wend. 647; Rog- ers v. Murray, 3 Sosw. 857 ; Weber?;. Kingsland, 8 Id. 415 (416) ; Green v. Hudson Riv. R. R. Co., 32 Barb. 25. A. J. Vanderpoel and H. W. BooJtstaver (Vander- poel, Green & Onming^ .-attorneys), for respondent. The court properly directed a verdict for the de^ fendant Simon. The plaintiff and defendant, by mov- ing the court to direct a verdict each in his favor, con- ceded that there was no question of fact to be con- sidered by the jury, and that the case presented only questions of law to be determined by the court. Win- chell -o. Hicks, 18 N. Y. 565 ; O'Neill w. James, 43 Id. 84 ; First Nat'l Bank, etc. v. Dana, 79 Id. 108 Plaintiff's right to recover in this action does not de- pend on the recovery of judgment in Cobb against Knapp, but upon the terms and conditions of the pur- chase and sale of the wheat made by Knapp on October 23, 1868. No new terms were made after that time. Cobb recovered of Knapp, because in making the pur- chase of him he failed to state the fact that he was acting as a broker merely, and chose to deal with Cobb as principal. His position as principal was iixed by the agreement of October 23, 1868. Cobb v. Knapp, 42 W. J. Super. Gt. (10 /. cfc &)01 ; rev'd 71 N. Y. 348. RUGKH, Ch. J. Tn 1888 the plaintiff, being a grain broker, purchased of one Carlos Cobb, for and at the request of the defendants, the firm of C. A. Steen & Co., a quantity of wheat, for cash on delivery. The plaintiff did not disclose the names of his principals CIVIL PROCEDURE. REPORTS. Knapp o. Simon. upon making such purchase. The grain was delivered -and has never been pnid for by the defendants. The effect of a purchase of property by an agent ['] who does not disclose the name of his principal to the vendor at the time of such purchase, is to render the agent personally liable to the vendor for the pur- chase price. The agent is under no legal or moral obligation [*] to make such disclosure, and the only consequence of an omission is to create a liability which he might escape by informing the vendor of the circum- stance of his agency and the name of his principal. The vendor may, however, upon discovering the name of the principal in the transaction, also hold him responsible for the price of the property bought, pro- vided he has not in the meanwhile in good faith [*] paid such price to the agent. He may therefore pursue either the agent or the principal, or both, until he recovers the contract price. Cobb v. Knapp, 71 N. Y. 348. It appears in evidence in this case that Cobb did, in 1868, bring an action against the principals for the price of such wheat, but was induced soon after to dis- continue it. The debt to Cobb not having been paid, in 1873, he brought an action therefor against the plaintiff, which resulted in his obtaining a judgment for the balance of the price of the wheat remaining unpaid. Knapp was there held liable upon the ground p] that by reason of the non-disclosure of the name of his principal he became personally liable for the purchase price of the property bought, and it was further held that he was not discharged from such liabil- ity by reason of the action brought by Cobb against the defendants for the same cause of action. Cobb v. Knapp (supra}. The judgment thus recovered, the CIVIL PROCEDURE REPORTS. 9 Knapp v. Simon. plaintiff was compelled to pay, and he now seeks to recover back the money paid by him. When a broker purchases or sells property without disclosing to the respective jirincipals in the transac- tion the name of the party for whom he acts, he be- comes, on the one side, liable personally for the [ 6 ] purchase price of the property bought, and, on the other, is entitled to collect such price from the. principal at whose instance a purchase was made. The vendee in such a case can relieve himself ['] from liability to the broker only by showing pay- ment of the contract price by him to the original vendor or a release for a good or valuable consideration from the broker. A cause of action having once accrued to the ['] broker, and becoming vested in him, can be dis- charged only by payment or release. Seymour v. Minturn, 17 Johns. 170. The evidence shows that about the time of this pur- chase, the plaintiff brought an action against the de- fendants to recover upon a general balance of account, which included the purchase price for the wheat in question. That suit never proceeded to judgment, but was settled by the parties, the claim now made being expressly excepted from the operation of such settle- ment, the defendants then agreeing, as part considera- tion therefor, to pay and discharge the liability to Cobb. That action, therefore, did not change the original relations of the parties, except as they were affected by the express agreement of the defendants to assume and pay the Cobb claim, and it left the defendants still liable to the plaintiff in some form of action for the payment of the price of the wheat. As already stated, Cobb, about the same time, hav- ing discovered the names of the principals for whom ^ke plaintiff acted in the purchase of the wheat, sued 10 CIVIL PROCEDURE REPORTS. T ~t Knapp v. Simon. them to recover its price. This action never proceeded to judgment, but was procured to be discontinued by an arrangement made between Ulrich Simon, one of the defendants, and Cobb, whereby Cobb agreed to discontinue it and release Simon individually from the claim, upon payment by him of one-third of the price of such wheat. This agreement was performed by Simon, and he paid to Cobb the amount agreed upon, and received from him a release of his individual lia- bility in accordance with tbe provisions of the joint debtors' act. It is claimed by the defendant, Simon, that the plaintiff was present at the time of this agree- ment, knew its terms and conditions, and assented thereto. This fact, although controverted by the plaint- iff herein, must, in the consideration of the case, un- der the findings of the jury, be assumed by us to be true. It is claimed by the defendant, Simon, that this fact in some way operates as a discharge of him from his liability to the plaintiff. There was practically no conflict in the evidence, and it cannot be successfully disputed that an agree- ment was made upon the settlement of the former action between the present parties, whereby the defend- ants were to assume the payment of the debt owing to Cobb, and were to relieve the plain tiif from his lia- bility therefor. This agreement was made upon a valid consideration, viz., the discontinuance of the action and the release by the plaintiff to the defend- ants of a valid claim for a large amount, and it rendered the defendants liable to the plaintiff for any damages which he might incur by reason of their breach of the agreement. It would seem, therefore, that the plaintiff has held two causes of action against the defendants, viz., one upon the original contract for the purchase price of the wheat, and secondly, that arising out of a breach CIVIL PROCEDURE REPORTS. '11 i4 | Knapp v. Simon. of defendants' undertaking to shield him from liability to Cobb on account of such purchase. If the first cause of action was not merged in the agreement out of which the second arose, it would probably now be barred by the Statute of Limitations, without regard to the character in which the plaintiff acted in making the purchase, whether as principal or broker. It would seem therefore, when the case was sub- mitted, that the evidence disclosed a good cause of action in favor of the plaintiff, by reason of the failure of the defendants to relieve the plaintiff from his lia- bility to Cobb, and entitled him to recover in this action upon the proof that he had been compelled to pay Cobb for the balance due on the purchase price of the wheat, unless Simon was discharged by reason of the circumstances attending the release given to him by Cobb. It is true that the complaint in the case does not in terms set forth all of the facts necessary to support the second cause of action above referred to, but on the trial the evidence supporting it was admitted with- out objection, and no question was at any time raised as to the sufficiency of the complaint to sustain the cause of action proved. Under the circumstances, this court on appeal will consider the case upon the cause of action disclosed by the evidence, and disregard any objections to the sufficiency of the pleadings which were not made [*] in the court below (Southwick v. First Nat'l Bank, 84 J\ r . Z. 420; Cowing v. Altraan, 79 Id. 167). It was also the duty of the court below, in the ab- sence of objections to the sufficiency of the complaint, to give the plaintiff the benefit of any cause of ['] action established by the evidence,* and a refusal * See Code of Civil Procedure, 539-541. 12 CIVIL PROCEDURE REPORTS. Knapp v. biraon. by it to direct the jury to find in accordance wirli the case made by such evidence would be error (Mc- Goldrick v. Willits, 52 N. Y. 612.) Upon a former appeal in this case, reported in 86 JV. Y. 311, this court reversed a judgment in favor of the defendants, upon the ground that the court on the trial erred in assuming as matter of law, that the pres- ence of Knappat the settlement of the" action brought by Cobb against the defendants, and his assent to the release then given by Cobb to the defendant Simon, operated as a discharge of Simon from his liability to the plaintiff. It was held upon the evidence as it there appeared, that the fact of such assent was a controverted fact, and the court erred in taking the question from the jury against the objection of the plaintiff. The case does hot assume to decide what would be the effect of an assent by the plaintiff to the execution of the re- lease, in case such assent was established by the evi- dence. It seems to have been retried upon the theory that that question had been decided by this court upon the former appeal, and no question seems to have been made on the retrial as to the legal effect of such an assent. Inasmuch as the question was not raised upon the trial below, and has not been 'argued here, we do not now feel called to express an opinion upon the point. Aside from an exception to the admission of evidence, but one question is presenled upon this appeal for our consideration, and that arises over the exception taken ^ by the plaintiff to a portion of the charge. ;, The court, by its instructions, left to the jury but two questions for their consideration, and those, as stated in the language of the court, were as follows : 1st. "If in this transaction the plaintiff acted as prin- cipal and made a sale of this -wheat to the defendants, the plaintiff cannot recover in the present action. If CIVIL PROCEDURE REPORTS. 13 Knapp v. Simon. on the other hand, he simply acted as broker in the transaction, then you have a further question to con- sider, and that is in respect to this release." 2d. "If the plaintiff was present or acquiesced in the agree- ment by which Mr. Simon was released, then the de- fendant is not liable." No exception was taken by the plaintiff to the latter portion of the charge, but with respect to the first proposition stated, an exception was properly taken. We do not see how the defendants' liability can be affected by the character in which the [ 10 ] plaintiff acted in making the purchase of the wheat. He was, upon the evidence in the case entitled to recover the amount he had been compelled to pay Cobb, unless the circumstances attending the rejease of Simon by Cobb operated as a discharge of Simon's liability to him. The defendants were always primarily liable for the purchase price of the wheat as between them and the plaintiff. The facts, in respect to the character in which Knapp acted, in the transaction in question, are prac- tically undisputed. The defendants, knowing that he was a broker, applied to him to purchase the wheat for them as a broker. They paid him commissions as a broker, and knew and dealt with him in no other character. It is entirely immaterial that for certain purposes he may be regarded by certain parties ["] as a principal in the transaction. He was, so far as the defendants are concerned, a person who had incurred a liability for their benefit, and from which it was their duty to relieve him. They were undoubt- edly entitled to invoke the benefit of the Statute of Limitations as a bar to any cause of action which [ 1S ] he might have against them, and this bar would enure to them in regard to any liability growing out of the original transaction, irrespective of the char- acter in which the plaintiff acted at that time. 14 .CIVIL PROCEDURE REPORTS. Knnpp c. Simon. If lie acted as a broker in the transaction, but con- tracted in his own name, assuming the responsibilities of a principal, his rights and liabilities would be the same, and no other, than those which would have attended the transaction, if his real character had been entirely undisclosed. The Statute of Limitations would have been '["] equally a bar to any action brought by him with respect to the original transaction, whether he had claimed as the vendor of the wheat or as a broker en- titled to enforce the contract of sale as the trustee of an express trust. Considerant v. Brisbane, 22 N. Y. 389. We think, therefore, when the court instructed ["] the, jury that the plaintiff's right to recover in this action depended upon the fact as to whether he acted as a principal or as a broker in respect to the purchase of the wheat, the charge was erroneous. Having arrived at the conclusion that the judgment should be reversed for this reason, we deem it unneces- sary to discuss the other questions in the case. The judgment should be reversed and a new trial ordered, with costs to abide the event. All concur. CIVIL PROCEDURE REPORTS. 15 Estate of Tildeu. ESTATE OF WILLIAM TILDEN, DECEASED. SUPREME COURT, - FIRST DEPARTMENT, GENERAL - TERM, JANUARY, 1884. 2481, subd. 6, 2527. 'Poirer of surrogate and. of supreme court to open, 'Vacate or set asida accounting of executors. Irregular service of citation:-^~Appointment, vf guardian ad litem in surrogate's court. -Effect of agreement between heirs on liability of executor. Tha surrogate has authority to open, vacate or set aside a decree mnde on the final accounting of executors, and on appeal from an order denying a motion for such relief, the general term of the supreme court has the same power and must review the determination of the surrogate, as if' an original application was made to it.[ ! ] Prior to the passage of the law conferring upon surrogates the author- ity to appoint special guardians on the accounting of executors, &c., they possessed inherent authority to appoint guardians ad litem to look after and protect the interest of next of kin not appearing who wqre under the age of 21 years, and the fact that no statute existed requiring the exercise of this authority, did not justify the omission to make such an appointment. [ 8 ] Where citations to attend the accounting of executors were served upon an infant interested in the estate and his testamentary guard- ian, who were absent from the country, irregularly for want of time, and they did not appear, and the infant was not represented on the accounting and no guardian ad litem was appointed for him, Held, that so far as it affected the interests of the petitioner, the hearing, which resulted in the decree following the first accounting i was clearly irregular and permitted the applicant to disaffirm its authority and apply for its reconsideration after he attained the age of 21 years. [ 2 ,. 4 j Where an infant legatee was charged in the accounts of the executors with " one foxirth of the general expenses abroad, &c., and for house expenses, &c.," of his mother, with whom he resided, and the amount so paid for his support, education and use during min- ority, averaged about $7,705 per year, and it appeared that the ( guardians appointed to represent him on the accounting were of no Bervice to the rights and interests of their wa.rd and apparently 16 CIVIL PROCEDURE REPORTS. Estate of Tilden. made no effort to investigate the propriety of any of the charges made against him, and that after he attained his majority and re- ceived information of the actual state .of the accounts he applied with reasonable diligence to open the accountings and for liberty to contest them,- Held, that his application should be gran ted ;[ 5 , ', ', 8 ] that answers to the complaints and objections of the petitioner should not be specially considered on the application, for that could not satisfactorily be doue on ex parte allegations or affidavits made in support of or to resist such a proceed iug,[ 9 J that the law has pre- scribed a different mode of investigation by allowing the party whose interests are affected by the charges, upon evidence taken in the usual way, to contest their legality, and piopriety and that as the applicant was supplied with no adequate opportunity for doing s-> during minority, the privilege should still be . accorded him. [ 9 J Where a will gives the executors liberty to pay over the rents, income and profits of an infant's share in the estate directly to his mother, who was his testamentary guardian, for his support, education and comfort, and they did not do so, but merely allowed charges made by her against the infant, taking her receipts practically as their authority therefor, Held, that the receipts would have no such force or weight as to preclude the infant from contesting such charges. [ 10 ] Executors are not relieved from liability in their management and disposition of the personal estate of their testator by any agree- ment between the devisees, fixing and determining the rights of each and releasing several from claims for over-jdvunces by the executors, or by any thing done thereunder. ["] (Decided March 7, 1884.) Appeal from an order of the surrogate of New York county, denying petition of Beverly B. Tilden, that the decrees made upon four several accountings of the executors of William Tilden deceased be opened and for a rehearing thereof so far as they affect his rights. The facts appear from the opinion. i William J. Macfarlane, for appellant. Charles E. Tracy (D. II. Olmstead, attorney), for respondents. DANIELS, J. The testator, William Tilden, died on the 26th day of June, 18G9, leaving a large real and CIVIL PROCEDURE REPORTS. 17 Estate of Tildcn. ^personal estate to be disposed of according to his will and codicils. They were admitted to probate by the- surrogate of the county oi' New York on or about the 19th of July, 1869, and letters testamentary were issued to four persons named in the will as executors. Another person -was added as executor early in the year 170, and a change was afterwards made in that year by substituting one other person in place of one of the original executors who had died, and a similar change was made as to another in 1877. At the time o the decease of the testator the petitioner was near the age of eleven years, he having attained his majority on or about the 10th of December, 1880. During his- minority, four accountings were held by the executors- of the estate. The first in February, 1872, the second in the summer of 1874, the third in the spring of 1877 and the fourth in the spring of 1880. The petitioner claimed, in support of his applica- cation, that improper charges had been made and allowed against him on each of these accountings. He also claimed that the executors had failed to en- force the guarantee of William Tilden Elodgett of sec- ond mortgages received by them in partial settlement of a large indebtedness in favor of the estate against him. If he was probably right in the complaint* made by him, ample authority was given by subdivi- sion 6 of section 2481 of the Code of Civil Procedure, tojhe surrogate to open, vacate or set aside the decree., so far as that might be necessary for the further exami- nation of the items to which the application was ['] directed, and upon appeal from the determination of the surrogate, the general term of the supreme court has the same power as the surrogate ; and his determination must be reviewed as if an original appli- cation was made to that term. Under this authority the entire controversy presented by the petition and the answer to it, is to be considered upon the appeal VOL. VI. 2 18 CIVIL PROCEDURE REPORTS. Estate of Tilden. in the same manner in which the surrogate himself had the authority to consider it. In partial support of the allegations made, it was alleged and shown that no special guardian, or guardian ad litem, was ap- pointed by the surrogate, to take cl targe of the inter- ests of the petitioner on the first accounting. Hi* mother had been appointed by the testator's will his testamentary guardian, but they were in Germany [*] when the citation was issued on the application of the executors, and it was served probably irregularly, at least, for want of time (3 R. S. 6th ed. 102, 70), upon himself and his mother in that country. Neither she nor any other party in any form appeared for him on the accounting to investi- gate or protect his interests. On the second account- ing it is recited in the decree that a special guardian for this purpose was appointed by the surrogate, and a similar statement is contained in the decree on the third accounting, and on the fourth a guardian was appointed on the petition of the appellant himself. But it is alleged in his behalf that neither of these per- sons undertook or made any special investion of his interests. And as to the guardians on the second and third of the accountings, there seems to be good reason to believe that these charges of inattention made by him are well founded. Upon the fourth accounting the guardian has sworn that he did inform himself of all the facts bearing on the interest of the infant, for the period included in such accounting, from every source which seemed to him to be available. But that he resisted any of the charges made against his ward in the accounts has not been stated by him. Neither does the case made in his behalf, or in behalf of the executors, show that any special investigation took place at any time before the surrogate relative to the charges now complained of as improperly allowed to CIVIL PROCEDURE REPORTS. ':'-. 19 Estate of Tildcn. the executors. It has been urged, as chapter 156 of the laws of 1874 specially conferred upon surrogates the authority to appoint special guardians on the ac- countings of executors, &c., that he had no power lo| make such appointment at the time of the first ac- ' counting of the executors. But in this position the executors do not appear to be sustained by authority. For before the enactment of this statute, it was prac- tically held that the surrogate possessed the in- [ 3 ] herent authority arising out of the necessities .of the situation, and the object to be attained by means of an accounting, to appoint a guardian ad I item to look after and protect the interest of the next of kin not appearing, who should be under the age of twenty-one years (Kellett v. Rathbun, 4 Paige, 102). The fact that no statute existed requiring the exercise of this authority did. not therefore justify the omission to make such an appointment. The hearing, so far as it affected the interests of the petitioner, which [ 4 ] resulted in the decree following the first account- ing, was clearly irregular, and permitted the appli- cant to disaffirm its authority and apply for its recon- sideration after he attained the age of twenty-one years. Dayton on Surrogates, 3d ed. 506-7. The first accounting extended over a period of two years and about four months, andi, 1 ; included a general charge amounting to the sum of $13,880.58, for one- fourth of the general expenses abroad, &c., and for [ 6 ] house expenses, &c., to date, which was the 1st of October, 1871. This was a large amount for the support, maintenance and education of the petitioner, who was then a boy of about eleven or twelve years of age, and the propriety of its investigation would seem to be suggested by its extent and the statement of it which was given. Other charges of a similar general nature were contained in the account settled on the other accountings, amounting in the aggregate to up- 20 CIVIL PROCEDURE REPORTS.' Estate of Tiklen. wards of $27,000. Neither of those charges seem to have been challenged or resisted by either one of the guar- dians appointed to represent the petitioner on the second, third or fourth accountings, but they were wholly accepted and passed. as they were contained in the executors' accounts. And by means of these and other charges extending to about the 29th of June, 1881, the sum of $84,757.15 was in the aggregate charged to have been advanced for the support, education and use of the petitioner. The amounts appropriated lo this* purpose during the period of his minority was on an average of about $7,705 each year. It may be that these charges were very properly made and lhat the executors discreetly and judiciously exercised tin? authority with which they had been invested by I he testator. But inasmuch as they were in no manner made the subject of contest or investigation on behalf of the petitioner in the accountings which took place, a case was presented in which it would- seem to be proper, after the attainment by him of the age of twenty-one years, to allow him to contest the pro- ['] priety of these charges. In the second and third accountings the appointment of the guardians seem to have been regarded as soentirely unimportant as to have constituted only a formal compliance with what the law had required iii that respect. The guardians were of -no service whatever to the rights and interest of their ward, and apparently ['] made no effort to investigate the propriety of any of the charges against him, although the duty to do so was significantly suggested by the large as well as very general charges against him contained in the accounts. For on December 31, 187:2, he was charged $5,441.88 for his share of the household expenses to date. On May 1, 1873, a like charge of $2,800.90 was made. On December 31 of the same year another ( >f $2,048.40, and oil December 31, 1874, a like charge of CIVIL PROCEDURE REPORTS. Estate of Tildcn. $4,808.24, during most of which period it is stated as a matter of fact that the petitioner was absent from home attending boarding school. The last item in the third accounting was equally as suggestive in the same respect, for instead of charging the petitioner with expenses paid out on his behalf, the joint expenses of himself and another was evidently divided, and in the division the sum of $7,050.60 was charged as his half, and very much the same seems to have been thecourse of proceeding as to the charges in the fourth account- ing. The same propriety, therefore, manifestly exists for favorably considering his application for liberty to contest the items forming the subject of complaint on his part on each of these accountings. As he has applied wifh reasonable diligence for liberty to make such contest after he attained his full age and received information of the actual state of the accounts, the application was entitled to a liberal degree of considera- tion. And the same observation is pertinent to [ 8 ] the alleged failure of the executors to enforce the guarantees of the second mortgages assigned to them by William T. Blodgett. As to some of the charges affected by the complaint of the petitioner, it is alleged that the facts indicating them to be correct were within the knowledge of the executors. This complaint more especially relates to expenditures charging him with one-fourth of the household expenses after the return of the family from Europe, and to at least one item of $2,000 stated to have been paid to his mother for his board when he was away at school, and did not board with her for any portion of the time. The executors have asserted the correctness of these charges on the ground that the household was maintained in part by his mother as a home for the petitioner. They have also insisted that they are entitled to the allowance of the charges sus- tained by these several decrees, far the reason thatths r/f CIVIL PROCEDURE REPORTS. Estate of Tilden. petitioner's mother, as testamentary guardian, made and delivered receipts including these charges to the executors. But whether these grounds shall consti- tute satisfactory answers to the complaints and objec- tions presented in behalf of the petitioner should not now be specially considered, for that cannot be done satisfactorily upon the exparle allegations or affidavits made in support of or to resist such a proceeding. For their adjustment the law has prescribed a different [*] mode of investigation, and that is by allowing the party whose interests are affected by the charges, upon evidence taken in the usual way to contest their legality and propriety, and as the applicant was sup- plied with no adequate opportunity for doing so dur- ing his minority, that privilege under the authorities should still be accorded to him. Dayton on Surro- gates, 3d ed. 506-7, 543. The application has been further resisted under the latter clause of 12th paragraph of the will, by which the executors were at liberty to pay over the rents, in- come and profits of the infant's one-fourth of the estate directly to the widow, to be laid out and expended ["] in her discretion for his support, education and comfort. But this authority was not exercised by the executors. They did not pay these rents, income and profits to her under this clause of the will, but they merely allowed the charges made against the peli- tioner, taking her receipts practically as their author- ity for these charges. And if fh^y did that, as'it h:i.s been alleged they did with good reason to believe that. the charges themselves were to a Inrge degree un- founded and improper, the receipts should have no such force or weight as to preclude the petitioner from still contesting the items to which he has specially objected. He may be unable to maintain the propriety of either of the objections urged in his behalf, but, it is due to himself and also to the executors, who are CIVIL PROCEDURE REPORTS. '23 .'_ Esf.ate of Til I en. men of high character, that an investigation should take place concerning the propriety of these objections. , If they are not well founded, then the executors should not be subjected to the imputations which have been m?ide, but they should be vindicated by the action of the proper authorities. While if they are well founded, the rights of the applicant can in no other manner be ascertained than by making a like investigation. After the petitioner had attained the age of twenty- one years, an agreement was entered into between- himself and his three older brothers for the set- f] tlement of their rights and interests in the testa- tor's real estate,, and its division between them. The two older brothers had received very much larger amounts from the testator's estate than the two broth- ers who were minors at the death of the testator, and the purpose of this agreement was to secure a division of the real estate upon the basis of the rights of the brothers under the will and codicils, arid the proper adjustment of the amounts between themselves, which had been received by the oldest brothers. This agree- ment was carried into effect ; the real estate was divi- ded, and the amounts due from the older brothers to the younger ascertained and adjusted. And because of the making of this agreement and the action of the parties under it, it has been objected that the petition- er was after that disabled from questioning the accu- racy of the accountings to which his complaints have now been directed. But the executors were no_t parties to this agreement. It was made v, holly and exclu- sively by and between the brothers for a determina- tion and settlement of their lights between themselves and it in no manner relieved the executors from liabil- ity in their management and disposition of the per- sonal estate of the testator. If the applicant had valid claims against them which had neither been ad- mitted or allowed, neither this agreement nor any- 24; CIVIL PROCEDURE REPORTS. Estate of Tilden. thing' which took place under it released them from that liability, or precluded him from asserting and en- forcing their existence against the executors. It, was no part of the intention of the agreement entered into to relieve them in any respect from any liability aris- ing out of their management and administration of the personal estate, and all that afterwards took place between the parties to it was simply by way of per- forming its stipulations and carrying them into effect. As the case has been presented a reasonable right has been maintained to the success of the application. It may in the end result in no advantage whatever to the applicant, but if it does not the executors are en- titled to have that known and ascertained for their own proper vindication. But if the charges made shall be sustained then the applicant is equally and as justly entitled to the benefits which may be secured to him in that manrer. Other points than those which have been considered have been presented in favor of the applicant and also of the executors, but in the view which has been taken of those already considered, these do not require to be discussed or determined. For without them there is sufficient in the case to require the order from which the appeal has been taken to be reversed and an order entered directing the four decrees to be so far set aside and vacated as to allow the charges drawn in contro- versy by the applicant to be made the subject of future investigation. The order should be reversed and such an order entered, with the usual costs and disbursements. BUADY, J., concurred. CIVIL PROCEDURE REPORTS. . 25 Rutty v. Person. RUTTY v.. PERSON, ET AL. N. Y. SUPERIOR COURT, SPECIAL TERM, MAT, 1884. 3253. Allowance. What is sufficient monetary basis for. Where, in an action to open accounts, there was nothing to show the amount involved, except the statement of the plaintilFs counsel in opening the case, that if lie succeeded he expected to show that the plaintiff was entitled to from $.10,000 to $00,000, and the defend- ants succeeded in the action -.Held, that an extra allowance should be grunted them. (Decided May 24, 1884.) Motion by defendant for an extra allowance. This was an action to open accounts on the ground of fraud. In his opening address plaintiff's counsel stated that if he succeeded in opening the accounts he expected toshow:that from $50,000 to $60,000 was due plaintiff. There was nothing else to show the amount involved. The action was referred, and the referee reported in favor of defendants. Defendants then moved for an extra allowance. Stephen P. JS'asli (Kobl>e Brothers, attorneys), for the motion. Plaintiff's statement in his opening address affords a sufficient monetary basis for an extra allowance. Eugene H. Pomeroy & John E. Eustis^ opposed. FKEEDMATS", J. Allowance of $500 granted. 26 CIVIL PROCEDURE REPORTS. Sprague v. Parsons. SPRAGUE v. PARSONS, ET AL. N. Y. COMMON PLEAS, SPECIAL TERM, MAY, 1884. 481, 640. Void or irregular attachment. Action for damages for. Pleading. It is not necessary to aver malice or want of probable cause in suing for dam.Mges sustained by the levying of u void or irregular attach- ment, and it cannot be held in the absence of such allegations, that plaintiffs remedy is confined to the undertaking given to procure the attachment. An action may be maintained if the attachment be irregular only, on proof that it has been set aside ; but an allegation that the attach- ment was "illegal, unauthorized and void," being a conclusion of law, is not sufficient to admit proof that the attachment was void. (Decided May 15, 1884.) Demurrer to complaint. Action for damages sustained by the issuing of a void attachment and levy the.-eur.to by the sheriff in an action, in the supreme court, by these defendants as plaintiffs against this plaintiff and others as defend- ants, to charge them with liability for the debt of the McKillop & Sprague Company, of which it was claimed that such defendants were trustees. The com- plaint alleges the-above matters, and that the attach- ment was vacated and set aside in said action, and al- leged damages, etc. Defendant demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action. He urges that there can be no action except for malicious prosecution, and that in the absence of malice an action can only be main- tained on the undertaking given to procure the attach- ment. 'CIVIL PROCEDUEE BEPORTa 27 f" , . . Sprague . Parsons. I . . ._ W. Z. Lamed, for plaintiff. Gilbert R. Hawes, for defendants. J. F. DALY, J. TUe complaint is sufficient. There is no need to aver malice or want of probable cause in suing for damages sustained by the levying of a void or irregular attachment. A process being void, the party who sets it in motion and all who aid him are trespassers. Kerr v. Mount, 28 N. Y, 659 ; Wehle . Butler, 61 Id. 245 ; Day v. Bach, 8? Id. 56; see also in this court, Wehle D. Haviland, 42 How. Pr. 39$ ; S. C., 4 Daly, 550. The action may be maintained if the process be ir- regular only, on proof that it has been set aside. The complaint avers that fact, and is sufficient in such an action. But the rule of damages may be different in such a case from the rule in case of an absolutely void attachment (Day v. Bach, above). The complaint here is not good as a pleading in an action of the latter class. The allegation that the attachment was "illegal, un- authorized and void," is a statement not of fact, but of a conclusion of law (Hammond v. Earle, 58 How. Pr. 437-8). The plaintiff will have to amend if he desires to prove dn the trial that the attachment was void. But as a complaint in an action upon an attach- ment voidable for irregularity, the complaint is good because it avers that the attachment has been vacated. The demurrer is therefore overruled, with costs. Leave to defendant to answer on payment of costs. 28 CIVIL PROCEDURE REPORTS. Livingston v. Morrissey. , LIVINGSTON, RESPONDENT, v. MORRISSEY, APPELLANT. COUNTY COURT, ONONDAGA COUNTY, MARCH, 1884. 2966. Justice's court. Depositions taken on adjourning case. In for apel- lant. The justice before whom the depositions of the plaintiff and her witness were taken, had no right to rule upon questions of evidence. See Hewlett v. A\ r ood, 67 N. Y. 399. The justice erred in considering the de- positions without the same being offered and read in evidence. William P. Gannon, for repondent. NORTH HUP, J. Judgment reversed. 30 CIVIL PROCEDURE REPORTS. Frist v. Climm. FRIST ET AL, v. CLIMM. CITY COURT OF NEW YORK, SPECIAL TERM, JULY. 1884. 523, 529. Verification to answer. When may 1 omitted. Where a complaint set out a sale of goods by plaintiff to defendant induced by the alleged false and fraudulent representation of the defendant and asked judgment for the contract price: Ileld^ that the defendant had a right to serve an unverified answer. Section 529 of the Code, which provides thntti defendant is not er- cused from verifying his answer to a complaint charging him with having confessed or suffered a judgment, or executed a conveyance, assignment or other instrument, or transferred or delivered mono v or personal property with intent to hinder, delny or defraud credi- tors, or with being a party or privy to such a transaction by another person, with like intent toward the creditors of that person; or with any fraud whatever affecting a right or the property of another, is aimed solely at fraudulent transfers and the like, but in other actions in which the defendant is charged with crimes or misdemeanors he may serve his answer unverified. In an action for obtaining goods under false pretenses the defendant need not verify his answer. (Decided July 12, 1884.) Motion that the plaintiff's attorney be compelled to receive an unverified answer served by the defendant. Sufficient facts are stated in the opinion. Henry Welile, for the motion. Otio fforwitz, opposed. McADAM, Ch. J. The complaint, which is verified, after alleging a sale and delivery of certain goods to the defendant, avers that the defendant was guilty of CIVIL PROCEDURE REPORTS. 31 Frist v. Climm. fraud in contracting the liability and then sets out in detail specific misrepresentations to induce the credit given, and these are stated as the acts of fraud com plained of. The defendant served an unverified an- swer, claiming that under section 523 of the Code the verification may be omitted whenever the party " would be privileged from testifying as a witness con- cerning the matters alleged." The rule is that a wit- ness is not required to give any answer which will have a tendency to accuse him of any crime or misdemeanor or to expose him to any penalty or forfeiture ; nor when by answering, a link may be added to the chain of testimony tending to such a result. Code 837 ; 2 Phillips Eo., Cowen, Hill & Edwards' Notes; 929 ; Henry v. Salina Bank, 1 N. Y. 83 ; S. C., 3 Den. 593; 1 How. App. Gas. 173 ; Wheelers. Dixon, 14 How. Pr. 151. The allegations of the complaint in effect charged the defendant with obtaining goods under false pre- tenses, and bring the case directly within the rule stated. Where any part of the pleading is of such a character the verification may be properly omitted. 3 How. Pr. 314 ;* 1 Code JR. 69 ;* 3 Abb. Pr. 144 ;f 6 Id. 148 -4 14 Abb. Pr. N. S. 77 ; 1 N. T. 83 ;|| Consti- tution, Art. 1, sec. 6 ; 12 How. Pr. 319 ;f 2 Hilt. 247 ;** 24 How. Pr. 869 ;ff 24 N. Y. 74. ft Section 529 of the Code, relied on by the plaintiff, is taken from the 2 R. S. 174, and Laics 1883, ch. 14, sec. 1, and does not apply. That section provides that "a defendant is * Clapper v. Fitzpatrick. f Blaisck'll v. Raymond. | Blaisdell v. Raymond, aff'd. Fredericks v. Taylor. || Henry v. Salina Bank. T Scovill v. New. ** Molonoy v. Dows. ft People v. Kelly. \\ In re Ilockley. 32 CIVIL PROCEDURE REPORTS. Frist . dimm. not excused from verifying his answer to n complaint charging him with having confessed or suffered a judg- ment, or executed a, conveyance, assignment or other instrument, or transferred or delivered money, or per- sonal property with intent to hinder, delay or defraud creditors, or being a party or privy to such a transac- tion by another person with, like intent toward the creditors of that person ; or with any fraud whatever affecting a right or the property of another." It is not claimed that any but the latter portion of this section applies to -this case, the preceding merely refering to confessed judgments, fraudulent conveyances, and the like. The words "or any fraud whatever, affecting a right or the property of another, which are claimed by the plaintiff as applicable," probably mean '* a Peering the property of another or some right suscept.t ]e of injury by the fraud." If these words mean anything more, it is difficult to imagine a case of fraud to which section 529 does not apply, and impossible to find one to which section 523 can be made applicable. Every action is founded on the invasion of some right, but that circumstance does not alone necessarily bring the case within the purview of section 529 which is aimed solely at fraudulent transfers and the like, in reference to which the defendant is not excused from answering under oath the charges of fraud made against him in the bill of complaint. But i-u other actions in which the defendant is charged with crimes or misdemeanors he may avail himself of section 523 and serve his an- swer unverified. Effect cannot be given to both sec- tions except by holding that section 523 contains the general rule in regard to such verifications and that section 529 contains the exceptional one applicable only to the cases therein enumerated. How far a wit- ness may be obliged to testify in respect to the excep- tional matters need not be considered as that is not made the test. In all other cases it is. CIVIL PROCEDURE REPORTS. 33 Meliesy 0. Kahn. In the present instance the plaintiffs parted with all their property in the goods at the time of the sale. The action is to recover the contract price. Fraud is alleged as the inducing cause of the sale for the pur- pose of obtaining a judgment in a form in which the defendant may be made liable to arrest. But this does not make the action one affecting "a right of another ? wiihin the meaning of that, term as used in section o29. It follows that the defendant had the right to serve an unverified answer, and that the motions to compel the plaintiff to accept it must be granted. MEHESY, APPELLANT, v. KAHN, ET AL., RESPOND- ENTS. SUPERIOR COURT, GENERAL TERM, MARCH, 1884. 803, et seq. . Order for inspection of looks, etc. Whw granted. The granting of power to serrch throvgh thj books of account to find isolated entries not particularized, to enable plaintiff to frame h.t complaint, rests in the discretion of the court, and it should onit be allowed where the purpose and necessity of such examination an up parent. Accordingly, where in an application for an order to examine defend- ants 1 books to ascertain the names of persons to whom defendant! liutl sold certain merchandise in contravention of their agreement to sell only to plaintiff, in order to enable plaintiff to frame his complaint, the petition alleges that defendants did so sell to other persons: 7/eW, that the application should not be granted; that the knowledge or information which enabled plaintiff to make this distinct and definite statement, was enough to enable plaintiff to frame her complaint. (Decided MiTcal property held in common, by one of two co-tenants to a grantee who claims to own the whole under such deed, is an ouster of the other co-tenant. [ 4 j (Decided A-pril, ItiS-i.) Appeal from a judgment on a verdict rendered at the Oswego county circuit, and from an order denying a motion lor a new trial on the minutes. The opinion states the facts. B. D. cfi G. N. Bwrt, for appellant. J. A. IJalhaway, for respondent. SMITH, P. J. Action for vicsne profits or rental value of real estate, after recovery in ejectment. The complaint alleged that the plaintiff owned in fee, and was entitled to the possession of one undivided seventh of certain lots in' the city of Oswego, described 40 CIVIL PROCEDURE REPORTS. Henderson v. Scott. in the complaint; that the defendant, without the consent of the phiini iff. entered into the possession of the same in April, 18G8, arid has ever since occupied the same, and received the rents and profits thereof, which were of the yearly value of one hundred and fifty dollars, over and above taxes ; and that in 1878, the plaintiff commenced an action in this court against the defendant to recover the possession of said prem- ises, in which issue was joined and tried before a re- feree,and the plaintiff recovered a judgment decreeing that she was the owner and entitled to the possession of said premises, and that she is now in the possession of the same. The defendant, by his- answer, denied the com- plaint ; and pleaded, first, that if the plaintiff is the owner and entitjed to the possession of said premises, she is, and has been, for twenty years, such owner, as tenant in common with the defendant and those .from whom he derives title, his share being six undivided sevenths of said lots ; and secondly, in substance, that the defendant and those under whom he claims have made permanent improvements on said lots with the consent and acquiescence of the plaintiff, exceeding in value the amount of the plaintiff's claim, which they will set off against her claim. Some other defenses were set up, which are not material to the questions involved in this appeal. The plaintiff replied denying the alleged counter- claim, and pleading the former judgment, and also the statute of limitations in bar thereof. At the trial, the plaintiff put in evidence the judg- ment-roll in the former action, which showed that such action was commenced in January 1878, and that the plaintiff in her complaint therein alleged, among other things, that the defendant wrongfully occupied, the premises about fifteen years, and during that time, without the plaintiff's consent, received the rents and CIVIL PROCEDURE REPORTS. 41 Henderson v. Scott. profits thereof, which were of the yearly value of fifty dollars, and that in her complaint she demanded judg- ment for the possession of the premises, and also for five hundred dollars damages lor the withholding of the same as above stated. The defendant denied the withholding of the possession, and that she haxl re- ceived the rents and profits. The record also showed that the referee found, among other things, that the defendant went into possession of the premises in March, 1868, and had remained in possession ever since, and that the rental value of the premises was $120 per year, over and above taxes ; and that the plaintiff was entitled to recover six cents damages for withholding the premises, and was not entitled to re- cover any portion of the value of the use and occupa- tion of the premises, because not claimed in the com- plaint. Judgment was entered accordingly. The defendant's counsel contended at the trial, and now claims, that whether or not the referee erred in holding that the plaintiff was not entitled, under her complaint, to recover for the value of the use and occu- pation, the judgment is a bar to her claim to recover therefor in this action. That position cannot be taken by the defendant, for the reason that he has not pleaded the judgment in bar. The defense of a former recovery may have been admissible, in an action ['] like the present one, under the general issue, prior to the Code (Young o. Rummrl], 2 Hill, 478 ; Beebe v. Elliott, 4 Barb. 457) ; but since the Code it must be specially pleaded (Old Code, 149 ; New Code, 500; McKyring v. Bull. 1C N. Y. 297, 307 ; Brazill . Isham, 1 E. D. Smith, 4^7 ; S. C., affd, 12 N. Y. 9 ; Hendricks v. Pecker, '35 Barb. 298). In Brazil v. Isham, the fact of the award of arbitrators, which was claimed by the defendant to be a bar to the action, was set up in the complaint, as is the former judg- ment here, but it not having been pleaded as a bar, it 42 CIVIL PROCEDURE REPORTS. Henderson v. Scott. was held that the defendant could not insist upon it as such. The defendant having been sworn as a witness in his own behalf, his counsel put. to him t he following ques- tion : "Have you, since you have been in the posses- sion of these premises, made any improvements on the property ?" The appeal-book states that the question having been objected to by the plaintiff's counsel, the trial judge said : " That question can be raised when they fix the time, of course it must be what improve- ments he has made prior to 1878. For the present, I will sustain the objection." The defendant's counsel excepted to the decision, but it does not appear that he modified the question, or renewed it in any form. The referee found in the former suit that on the2d of Feb- ruary, 1878, the plaintiff demanded of the defendant one undivided seventh of the premises, and the de- fendant refused to give her possession of any part, denied her right to* any portion, and claimed to own the whole. The defendant was not entitled, in [ 2 ] any view of the case, to recover for improvements made by him after he was expressly notified of the plaintiff's claim, and claimed to hold in exclusion of it, and as the question was not limited to improve- [ s ] ments made before that time, it was properly ex- cluded upon the ground stated by the court. The only other question is, whether an ouster was shown. The defendant proved that Owen Henderson, who originally owned five undivided sevenths of the premises, as a tenant in common with the plaintiff, in 3803 conveyed the entire premises to one Levaque, who mortgaged them to one Atkinson, and on a fore- closure of the mortgage they were conveyed to one Cummings, and that in March, 1808, Cnmmings, with others, conveyed them by warranty deed to the de- fendant. The court held that the conveyance of the whale by the co-tenant Owen Henderson, to a grantee CIVIL PROCEDURE REPORTS. 43 Stephenson . Hanson. who claimed to own the whole, under his deed, [ 4 J was an ouster of the plaintiff ; and so are the au- thorities (Clapp v. Bromagham, 9 Cow. 530 ; Flor- ence v. Hopkins, 46 N. Y. 182). And this point was adjudged against the defendant in the former ac- tion, the referee having found that in March, 1868, the defendant went into possession of the said premises, claiming to own the whole thereof under title derived from the said Owen Henderson, and that by goinginto possession after taking such deed and claiming to own the whole, and expressly denying the plaintiff's right to any portion, and on demand refusing to yield pos- session of any portion, he had subjected himself to an action by the plaintiff to recover one undivided seventh of said premises. The considerations above expressed cover most all the questions raised by the appellant's counsel. The judgment arid order should be affirmed. HAEDIN and BARKER, JJ., concurred. STEPHENSON v. HANSON ; IN EE APPLICATION OF WILLIAM J. HANSON. CITY COUET OF NEW YOEK, SPECIAL TEEM, JUNE, 1884. 14, 812. Contempt. When surety to undertaking guilty of. Punishment. Effect of appeal from judgment in action in which undertaking was given. A surety to an undertaking who falsely swears that he is worth double the penalty of the undertaking is guilty of perjury, which is a contempt of court, [ 2 ] and may be punished therefor -by a fine 44 CIVIL PROCEDURE REPORTS. Stephens' >n o. Hanson. sufficient to indemnify the defendant for the loss and injury he ha3 sustained thereby, and by imprisoning him for six months and until the tine is paid.[ 3 ] In Mich case, whore the undertaking was given on procuring an order of arrest, the sureties* liability becomes fixed upon the date of the final vacating of the order of arrest, and the fact that an appeal lias been takeu from the judgment in the original action by the plaintiff therein is therefore immaterial. [ 5 ] Tlie power to punish for contempt is a brunch of the common law, adopted and sanctioned by the constitution of this state. [ 4 J Instance of a case in which a surety on an undertaking was guilty of perjury. ['. S J (Decided July 28, 1884.) Motion to punish surety for contempt in swearing falsely as to his pecuniary responsibility. John Kolter was a surety upon an undertaking, on which an oilier of arrest was gianted, in a certain ac- tion in which this applicant was the defendant, and one Stephenson the plaintiff ; the order of arrest there- in was vacated. Judgment was subsequently recovered by Hanson against the surety Kolter, for the sum of 8*281.05, damages and costs, sustained by reason of his arrest. In that action the defendant was examined as to his property, upon ihe return of execution wholly un- satisfied, and upon the facts disclosed this motion is made. Further facts are stated in the opinion. William B. Tullis, for the motion. J. C. J. Langbein, opposed. HYATT, J. It is conceded that on June 9, 1883, the surety Kolter signed an undertaking, in the usual form, as surety upon an order of arrest in ['] the action of Stephenson v. Hanson ; Hanson al- CIVIL PROCEDURE REPORTS. 45 Stepiienson v. Hanson. leges that he also justified, by swearing that he was worth $500 over and above all his debts and liabilities; the surety deposes, upon his examination as a judg- ment debtor in the action of Hanson v. Kolter, that although he signed and executed the instrument " he did not go before any notary upon that bond, and did not swear to the affidavit therein ; that he signed his name and went away without reading the docu- ment"; but, even if this statement is true, heat the same time deposed, that in the same action " he signed a second undertaking, marked filed July 20, 1883 ; that he signed the affidavit of justification therein, in the office of a lawyer and notary public, without reading or having it read to him, and supposes that he must have sworn to that affidavit before the notary public ; that he has been watchman and housekeeper since May 1884, and prior to that time was a repairer of billiard tables ; that he is married and supports a family ; that he is not and was not prior to June 6, 1884 (date of the order for his examination as a judg- ment debtor), worth anything or possessed of any prop- erty, real or personal, or of any nature whatsoever, except household furniture exempt from execution ; that he has no money except $C.OOin the bank, and has had no , other money in the bank for over a year last past." Pie further deposes positively, "I have been in no better position pecuniarily, during more than a year last past, except, that, I acquired in the Spring of 1883 a contingent interest in two second-hand billiard tables, with another, paying 860 apiece, share and share alike, as part owner ; in October ]883, I was paid 875 for my interest ; we advertised them for sale and was not offered any price for them, but think we could sell them for about $175 apiece ; I desire to state nothing to my foregoing testimony." The examination was subscribed and sworn to 46 CIVIL PROCEDURE REPORTS. Steplienson v. Hanson. (after having been read to him) by the said judgment debtor June 9, 1884. Upon the 17th of June, 1884, his examination was continued. He then deposed as follows : "Upon my former examination I was not represented by counsel, as I am now ; I reside at 111 Fifth Avenue, New York City ; I am watchman and housekeeper at that place for August Belmont ; I have been with him as watch- man fourteen years ; when I was examined before, I thought that reference was only made to my property in this city, when asked about my property ; I own three lots of ground in Cook county, Illinois, near Chicago ; I got them from Thomas Back, to whom I loaned $100 ; I produce the deed he gave me ; he has never paid any part of the loan ; the date of the loan was February 23, 1878 ; he was to return it March 23, 1878 ; I have paid taxes ever since ; it is free and clear of incumbrances ; in the year 1878 those lots were worth $1,300, and they have increased in value since; I have seen Mr. Back since, he said he had no money, could not pay me, and was sorry, that I could keep the lots, that his wife was dead and he never could pay me ; the billiard tables are worth $2.50 apiece ; I did not read the undertakings when I signed them, they were not explained to me and I did not know what they were; when I signed the undertak- ings, I considered myself worth double the amount therein mentioned, and do so now." Upon his cross-examination he testified : "I knew I was signing undertakings, naturally enough I knew when T signed them, I must be worth some hundreds of dollars ; I was born in New York City; went to primary school, also night school ; I can ivad ; 1 have taken no proceedings to perfect title under the deed, I don't know where the grantor is, have not seen him for a year last past : I paid taxes all along, the yearly taxes are two dollars and some cents, never saw the CIVIL PROCEDURE REPORTS. 47 Steplicnson v. Hanson. lots, my idea of their value is derived from the con- sideration stated in dimming 1 s deed to Back ; I don^t know whether the lots are improved or not. nor how far they are from Chicago ; I have heard that their Value was more than 81,300." After a careful examination of Kolter's testimony as thus fully set forth, I cannot reconcile its many in- consistencies of statement, and fail to find either ex- cuse or justification for the positive contradiction of. facts, sworn to by the judgment debtor npon his" first examination. Kolter is an intelligent man, has had some school- ing, his occupation calls for the possession of judgment and the exercise of shrewdness, it would naturally surround him by associations tending to increase, rather than diminish, those faculties, and certainly, 'in some degree, to impress him with a sense of respon- sibility for his acts ; he knew what an undertaking 'was and the obligation it imposed, that on each occa- sion he had signed the undertaking, and upon one at least, the affidavit of justification; he claims he did not swear to the first, but supposes he did to the second, before the notary present; yet upon his direct exam- ination, June 17, 1884, he swore " I did not read the undertakings when I signed them, and did not know what I was signing;'' and then upon his cross-exnmin- tion he swore tv that it entered into his mind what he he was worth, at the time he signed, because he then knew he was signing undertakings, nnd that naturally enough he knew when he signed, he must be worth hundreds of dollars." On the first examination it appears, that his occu- pation as night wa tchman and housekeeper commenced. May 1884, and that he had not owned any property within a year except a half interest in two second hand billiard tables, for which he accepted 875, although he thought they could be sold for $175 apiece, notwith- 48 CIVIL PROCEDURE REPORTS. Stcplienson v H;ius>n. standing they had been, advertised and no offer re- ceived i'or them. On his second examination he testified that his' occupation, as formerly sworn to, had existed for I lie pnst fourteen years, and that the said tables were worth $250 apiece. The judgment debtor's explanation, of his contra- dictory statements, made at the two examinations, is insufficient, and under all the circumstances, incivd- ible. I cannot believe that on his first examination he was puzzled, or thought that the examining counsel -referred only to property in the city. When asked as to his real and personal property, he positively stated that he was not worth anything or possessed of real or personal property of any nature whatsoever, except what he expressly claimed was exempt from execution (household furniture); that he had been in no better position (June 9, 1884) for more than a year last past, nor within that time owned or been possessed of any other property except the billiard tables. It is probable that it occurred to the mind of the judgment debtor, that on the 19th of July, 1883, he had executed an undertaking, upon an order of arrest and had sworn to the affidavit of justification, annexed thereto, to the effect that he was worth $500 over and above all his debts and liabilities ; whereupon, at the second exam- ination, he admitted the ownership of three lots of ground in Illinois, conveyed, together with a gold watch, by one Back and wife to secure a loan, from him to them, of $100, February 23, 1878, and that the loan had never been paid ; that he had seen Back a year ago, who told him that he could not pay and that he could keep the lots; he then further testified that he had nerer seen the lots ; that he knew little or nothing about them and had heard that they were worth more than $1,300. The most plausible inference that can be drawn CIVIL PROCEDURE REPORTS. 49 Stephcnson v. Hanson. from that statement, is that when the judgment debtor swore that he had no property, he believed the lots to be without any value ; and in view of their abandon- ment, together with the gold watch, and of the entire absence of proof of any value, I shall consider their value at $100. My judgment therefore, based upon all the facts before me, leads to the conclusion, that when the surety executed the undertaking, he was possessed of five dollars in the Bowery Savings Bank, an interest in two billiard tables of the value of $75, and three lots in Illinois of the value of $100, property amounting in all to $180, and that the affidavit of justification at- tached to the said undertaking, sworn to July 19, 1883, was false. So long as the law of this state provides for arrest in civil proceedings, its requirements should be en- forced \vith literal exactness. The defendant Hanson was entitled to two sufficient sureties, as provided in section 559, Code of Civil Procedure, and he would not have been arrested and held to bail, if Kolter had not acted as surety, and falsely sworn that he was worth the snm in which he justified. It is no slight matter to deprive a person of his liberty, and cause, or aid in causing, his imprisonment without due process of law ;, yet this surety seems to have regarded his performance as a most trivial one, and-frankly testifies, seemingly as an adequate apol- ogy, " that he went on the undertaking as a matter of friendship for Mr. Stephenson arid received not one dollar for it." It is to be regretted that he is not alone in his flimsy view of the law, and that he has so large a following of others who regard the act of becoming a surety, as simply perfunctory, and not one of the nec- essary safeguards against the possible, and too fre- VOL. VI. 4 50 CIVIL PROCEDURE REPORTS. Stcplicnson v. Hanson. quent, abuses and perversions, of the provisional rem- edy of arrest in civil actions. The surety was guilty of perjury, which is ["] a contempt of court (Stackhouse v. French, I Bing. 365). Section 2285, Code of Civil Procedure, empowers the court to punish that offense, by imposing a tine, sufficient to indemnify the defendant for the loss ['] and injury he has sustained, through the surety's misconduct, and by imprisoning him for six months, and until the fine is paid. The power to punish for contempt is a branch of the common law, adopted and sanctioned by the [ 4 ] constitution of this state (Yates v. Lansing, "9 Johns. 416 ; Eagan v. Lynch, 3 N. Y. Civ. Pro. 236). The language of the undertaking fixes the maturity of the surety's obligation, upon the dale of the ['] order (May 6, 1884), finally vacating the 'arrest; the fact that the plaintiff has appealed from the judgment in the original action is therefore not ma- terial. It is urged that the surety did not willfully and knowingly mislead the court, and intentionally swear falsely ; if so, I will extend to him the benefit of the doubt, and will not inilict the punishment of six months' imprisonment, as for a criminal contempt. The power and duty of the court is to redress the wrong of the injured party ; it can make no difference to him, whether the contempt was designedly or neg- ligently committed, his loss is the same in either event. The actual loss occasioned by" the wrongful act of the surety Kolter is the amount of the judgment recovered against him by Hanson, in the action upon the undertaking, to wit: $281.65 with interest, and CIVIL PROCEDURE REPORTS. 51 Lautie . Smith. $50, allowed as reasonable counsel fee for the legal services required in the proceedings. The surety is fined that amount and his commit- ment is directed until the tine is paid. LAUDE v. SMITH, IMPLEADED, ETC. SUPREME COURT, ONEIDA COUNTY, SPECIAL TEEM, JULY, 1883. 450, 1206. Action for slander against married toyman Making husband party to. In an action against a married woman for slander, her husband can- not properly be made a party defendant Sections 450 and 1206 of the Code of Civil Procedure, construed. {Decided July X, 1883.) Demurrer to complaint. The facts are sufficiently stated in the opinion. J. Mathews, for the demurrer. S. J. Barrows, opposed. MERWIN, J. The defendants are husband and wife. The action is to recover damages for slander Uttered by the defendant Louisa Smith, of and con- cerning the plaintiff. It is not alleged to have been uttered in the presence or by the direction of the hus- band Thomas Smith. The only reason for making him a party exists in the allegation that he is the hus- band. The defendant Thomas Smith demurs to the 62 CIVIL PROCEDURE REPORTS. Liuidtt v. Smith. complaint on the ground that it does not state facts sufficient to constitute a cause of action against him, and that he is not a proper party. So that the ques- tion is whether the husband in an action against the wife for her separate personal tort is a proper parry defendant. Judicial opinion on this subject is not har- monious (Fitzgerald v. Quann, 1 iV. Y. Civ. Pro. 213, Fitzsimons v. Harrington, 1 Id. 360 ; Hoffman ?>. Lacli- man, 1 Id. 278, note; Berrien v. Steel, Id. ,079, note ; Trebing v. Vetter, 12 Abb. N. C. 302, note; Muser v. Miller, 3 N. Y. Civ. Pro. 388, 394). I am therefore called upon to form an opinion for myself. Concededly, before the adoption of the Code of Civil Procedure, the husband was a necessary party defendant, riot on theground that in contemplation of law he was guilty of the act, but from the incapacity of the wife to be sued without her husband (Kowing v. Man ley, 49 JV. Y. 192, 1$8). Section 450 of Code of Civil Procedure, when it took effect in 1877, was as follows : " In an action or special proceeding a married woman appears, prose- cutes or defends alone or joined with other parties as if she were single." This apparently was intended to sweep away all distinctions between a feme sole and a feme covert, in respect to suing and being sued, and was broad enough to accomplish the purpose (Jan- inski v. Heidelberg, 21 Hun, 439). By section 1206 of the same Code it was provided that a judgment against n married woman may be rendered and enforced as if she were single, and the revisor remarks that there seems to be no sufficient reason for preserving any longer the remnants of the distinction between actions against married women and actions against other per- sons. In view of the provisions of sections 4o() and 1206 it wojild seem very clear that the reasons of the rule requiring the husband to be a party defendant were entirely gone (63 111. 129 ; 120 Mass. 89). At common law the husband was a necessary party CIVIL PROCEDURE REPORTS. 53 Laude v. Smith. plaintiff in an action brought for personal injuries to the wife. This rule was abrogated by the provisions of section 7, of chap. 90 of the Laws of I860, as amended by section 3 of chap. 172 of 1862 (Mason v. Marsh. 35 Barb. 68 ; Rurnsey v. Lake, 55 How. Pr. 339). These- provisions were repealed by the repealing acts of 1880, chap. 245. So that the rights of married women to bring actions in their own names for personal injuries now rests on section 450 of the Code. (See Revisor's note to section 1906.) I find no other law authorizing it. Still it is said that the addition by amendment in 1879 to section 450 of the words, "It is not necessary or proper to join her husband with her as a party in an action or special proceeding affecting her separate property," call for the construction, now, of the whole section to the effect that in actions not affecting her separate property, the husband must be joined. If that is so then in all actions for personal injuries of the wife, the husband must be a party plaintiff. I do not believe any such result was intended. The repeal by the act of 1880 of the provisions of 1860-2, was not with the idea that married women should be thrown back to such remedies as they had prior to 1860, but upon the theory that section 450 as it stood in 1880, gave them in substance the same rights they had under the law of 1862. True, the reason for the amendment of 1879 is not very apparent. Very likely it was designed to apply to some special case that had somewhere arisen. At most, it was a re-enactment of what then in. fact existed, but in a wider and more comprehensive form. Such re-enactment of a part should not affect the validit} 7 of the remainder, espec- ially when important rights were involved. In my opinion the husband is not a proper party defendant. The demurrer is therefore sustained with leave to the plaintiff to amend, on payment of costs of demurrer. 54 CIVIL PROCEDURE REPORTS. Lidgerwood Manufacturing Co. v. Baird. LIDGERWOOD MANUFACTURING COMPANY v. BAIRD. SUPERIOR COURT OF THE CITY OF NEW YORK SPECIAL TERM, AUGUST, 1884. 500, 524. Pleading Denial in answer on information and belief. Where a defendant has information sufficient to form a belief as to the trutli of an allegation in the complaint, but no personal knowl- edge of the facts, he may deny it on such information and belief. It was not the intention of I lie legislature to compel a party to admit an allegation that he is satisfied is false, but of which he has no personal knowledge, or else commit perjury by an absolute de- nial or an allegation of want of information sufficient to form a belief. Pratt Manufacturing Co. v. Jordan Iron, &c. Co. (5 N. T. Civ. Pro. 872), distinguished; Brotbertou v. Downey (21 Hun, 430), fol- lowed. (Decided August 1, 1884.) Motion to strike out certain allegations of the com- plaint as, irrelevant and redundant. The plaintiff, a domestic corporation, brought this action to recover certain chattels which it alleges the defendant wrongfully detains from it. The defend- ant claims to own the chattels-, having purchased tliem from the one who bought them at the foreclosure of a chattel mortgage thereon made by one Palmer Sessions. The pin in tiff 8 avert bat Mr. Sessions \vas a mere bailee of i he chattels, while the defendant asserts that he was the owner. In his answer the defendant denied several allega- tions of the complaint, among others those alleging ownership in plaintiff and the wrongful detention by defendant, upon information and belief. CIVIL PROCEDURE REPORTS. 55 Lidgerwood Manufacturing Co. v. Buird. James White, for the motion. Cited Heckettfl. Richards, 11 N, Y. Legal Obs. 315 ; Pratt M'fg. Co. v. Jordan Iron, &c. Co., 5 N. Y. do. Pro. 372; Svviuburii v. Stock well, 58 How. ZV. 312 ; Therasson v. McSpedon, 2 Hilt. 1 ; Code Civ y il Proce- dure, 500 ; Code of 18-18, 128 ; Code of 1849, 149. Josepli FeltretcJi (Thomas H. Cook, attorney), opposed. INGHAIIAM, J. The denial in the answer in this case differs from the answer in Pratt M'fg Co. -o. Jordan Iron &.c. Co. (5..ZV. Y. Cio. Pro. 372), and is in form similar to the answer in Brotherton ?\ Downey (21 Hun, 436). The defendant having information sufficient to form a belief as to facts in the 2d paragraph of the complaint but without personal knowledge of such facts, would be guilty of perjury under seel ion 524 of I. lie Code if he either denied the allegation absolutely or alleged he had no knowledge or- information sufficient to form a belief of their truth. The note to section 524 says that one of the objects of this section was to compel the pleader, when the denial, is on information or be- lief, to state such facts in the answer itself. See Mr. Throop's note to section 524. I do not think that it could have been the intention, of the Legislature to compel a party to admit an allegation that he is satis- fied is false, but of which he has no personal knowl- edge, or else commit perjury by an absolute denial or an allegation of want of information sufficient to form a belief. I will therefore follow Brotherton v. Dow- ney (supra}. Motion denied, but without costs. S6 CIVIL PROCEDURE REPORTS. Allen v. Swan. ALLEN, RESPONDENT, v. SWAN, APPELLANT. SUPREME COURT, FOURTH DEPARTMENT, GENERAL TERM, OCTOBER, 1883. 3016, 3070. Justice's court When offer to reduce verdict may le made Effect of such offer made after judgment Potcer of justice to niter ar change record Appeal Right to costs. A justice of the peace upon the receipt of a verdict in an action tried before him should forthwith rentier judgment and enter it in his docket. After lie has done so lie is without jurisdiction or authority to alter or change the record in any respect. After judgment has been rendered and entered in an action in a justice's court an offer by the successful parly to reduce the judg- ment is wholly ineffectual for that purpose and the judgment re- mains as it was entered, notwithstanding an entry by the justice in iiis docket of the fact that t lie offer hud been made. Section 3016 of the Code docs not recognize any such proceeding but merely authorizes the party in whose favor a verdict is rendered to remit a part and take judgment for the residue. "Where in an action in a justice's court judgment was entered in favor of the plaintiff for $34.50 damages, and $18.87 costs, and the plaint- iff thereafter offered to reduce the judgment to $10.21 nnd costs, and the defendant appealed from the judgment and the pl.-dntiff thereupon offered to nllow judgment to be rendered in the Appel- late court in her favor f-r $1S).21, aud $18.47 costs of the court below nnd the defendant served a notice t!*at he accepted so much of the offer as related to damages and rejected so much as related to costs, and a trial was had in the ai-pellate court which resulted in a ver- dict in plaintiff's favor for $19. 21 : Held, that the defendant was entitled to the costs of the appeal. (Decided April, 1834.) Appeal from Onondaga county court denying mo- tion of defendant for retaxafion of costs herein, and that the clerk be directed to tax costs in his favor. CIVIL PROCEDURE REPORTS. 57 Allen v. Swan. This notion was originally tried in a justice's court in the city of Syracuse, before a jury. The complaint was upon an assigned account for work, labor and services, and the plaintiff demanded judgment for $19.21. The answer was a general denial, payment, and a counter-claim for more than $50. The jury in the court below rendered judgment in favor of plaintiff for $34.50, being $15.29 more than was de- manded in the complaint or proved upon the trial, and the justice immediately entered judgment in favor of plaintiff 'for $84.50 damages and $18.87 costs, in all $53.37. The next day, and before any further steps were taken in the action, the plaintiff filed with the justice an offer in writing to remit the excess over the amount for which judgment was demanded in the complaint. The justice refused to modify the formal entry of judgment in his docket, but made a minute of the fact that the offer had. been made in his docket. On December 1, 1882, the appellant duly appealed to the Onondaga county court for a new trial on the merits. On December 4, 1882, the respondent served on appellant an offer under section 3070 of the Code of Civil Procedure, " to allow judgment to be rendered in the county court of Onondaga, in favor of Anna M. Allen and against George E. Swan, for the sum of $19.21 damages, with $18.87 costs of the court below," and the appellant's attorneys thereafter served on the respondent's attorneys an offer accepting the respon- dent's offer of compromise, so far as the same related to the $19.21 damages, but declined the balance which related to the $18.87 costs. The cause in due time came to trial in the .county court, before the court without a jury, a jury having been waived, and the defendant offering no evidence, judgment was rendered in favor of the plaintiff for 58 CIVIL PROCEDURE REPORTS. Allen . Swan. $19.21 damages, being the precise sum to which plaint- ill had already twice offered to reduce her judgment. The clerk against appellant's objection taxed costs of the appeal in favor of the respondent. The appel- lant thereupon moved in the county court for an order setting aside the clerk's taxation oi' costs, and allowing costs to appellant. The county court dejiied this motion and affirmed the order of the clerk. From the order of the county court this appeal is taken. Jay Kline (Gray & Kline, attorneys), for appellant. Section 3016 does not authorize or permit a party to reduce a judgment already recovered, but upoh the rendering of the verdict, to remit any part thereof and take judgment for the residue. Before the Codetheie was a similar statute. . . . 3 R. S. (Banks 1 6th ed.) 418. .... It is fairly held under this last statute that the remision must be made before judgment is entered. 2 Waifs Law and Practice, 688-698. After judgment has been entered it cannot be changed and is conclu- sive. 2 Id. 701-702. /. Page Hunro (Hancock & Munro, attorneys), for respondent. Under section 3016 of the Code of Civil Procedure, the parly in whose favor a verdict or judgment is ren- dered may remit ari} r portion thereof at any time either before or after judgment, until the aggrieved party has served his notice of appeal, and the cause being there- by removed to another court, the jurisdiction of the justice has ended Statutes providing lor com- promises of this character are intended to prevent and suppress needless litigation and should be so construed as to carry out the intention of the law-makers. Wynkoop v. Holbert, 43 Barb: 266. The right to remit a portion of an excessive verdict before judgment in justice's court was settled before CIVIL PROCEDURE REPORTS. Allen v. Swan. the adoption of the new Code. Burger v. Kortright, 4 Johns. 414. . . . If under section 3016 the respondent was entitled to make the offer which sheihas made, after the rendi- tion of judgment, then she was entitled as a matter of right to have the judgment modified upon the justice's docket to correspond therewith. The act of the justice in so modifying the docket would have been not a judi- cial but a ministerial act, and although the actual formal modification was "not made, it will be regarded by the appellate court as having been made. Stephens v. Santee, 49 TV. 7. 35 ; Bradner v. Howard, 75 Id. 417- 419. . . . If section 3016 provided only for the remission of the verdict of a jury, or of some portion thereof, there might be some ground for believing that the remission must be made before judgment. But the section also provides that the remission may be made in the case of " the decision of a justice without a jury." In the latter case the remission can in no case be made till after judgment, because the decision of the justice is the judgment. Bouvier defines the term "'decision" thus: "A judgment given by a competent tribunal." This definition is applicable to our justice's courts, be- cause the statute has never provided for any mode of announcing the decision of a justice of the peace be- fore judgment, or otherwise, than by entering judg- ment upon his decision. . . . In Seaman a. Ward (1 Hilt. 52, 53), the court say : -" There is no such thing as a judgment rendered in the mind of the justice. Judgment is a judicial act, not a mental resolution. It is not enough that the judge concludes to render judgment ; he must declare it. He must declare it by an official act, such as in- dorsing an entry or minute of his decision upon the process returned before him, from which the clerii 60 CIVIL PROCEDURE REPORTS. Allen v. Swan. dockets or registers the judgment, as it has been ren- dered by the justice. . . . After the appeal was taken the respondent duly served tin offer under section 3070 to allow judgment to bo entered in his favor as already stated, for $10.21 damages, and $18.47 costs of the court below. . . . Under the old practice pursuant to section 371 of the Code of Procedure, the rule was always in the offers made upon both sides to separate the damages and costs. Myers v. White, 37 How. Pr. 393 ; 4 WaiCs Pr. 397, ad fin. 413, ad fin. BAKKER, J. Upon the receipt of the verdict it is the duty of the justice forthwith to render judgment arid enter it in his docket-book (Code, 3015). All agree after the performance of this act he is without jurisdiction or authority to alter or change the record in any respect. In my opinion, the offer of the plaintiff to reduce the judgment was wholly ineffective for that purpose, and that it remained as it was entered, a judgment for 34.50 damages and $18.87 costs, notwithstanding the entry made by the justice. Section 3010 does not recognize any such proceedings. It is merely a statutory permission authorizing the party in whose favor the verdict is rendered to remit any portion thereof, and take judgment for the residue. A record of judgment made up and entered according to the rules and practices of the court in which the action is pending cannot be altered or amended by an ex parte motion of either party ; this is a general rule .! applicable to all courts. The offer of the plaintiff to>, reduce the judgment, and the entry made by the jus- tice in his docket is a proceeding unknown to the law. There is no power or authority vested in any court or officer to regulate the practice by which such a re- sult may be reached. To admit the right of the plaint- iff to make and file an offer with a view of altering the CIVIL PROCEDURE REPORTS. 61 Allen v. Swun. record, would be mischievous, misleading, and often result in dispute and contentions between the parties. If the party in whose favor the judgment is entered may authorize the justice to modify the same by re- ducing the amount thereof, he may do it any moment before the notice of appeal is served. This might be done by the party claiming the right, at such time and under such circumstances, as to make it exceedingly difficult for the party feeling aggrieved by the judg- ment to determine whether his interest would be best "served by acquiescing in the judgment as reduced by the offer, or to seek further modification by appeal. In this case it does not appear that the appellant had notice at the time he served notice of his appeal, that the offer had been made and tiled, and that the justice had made an entry in his docket of the fact. If the offer as made and filed with the justice had been brought to the appellant's attention, he could not have determined by an inspection of the same whether or not the attorney 'who signed it in the name of the plaintiff was authorized to make the offer. The in- strument is not acknowledged by the plaintiff, nor is it accompanied with any evidence that the attorney who executed it was authorized to perform the act. In my opinion the appellant was entitled to the costs of appeal in the county court, and that it should be so ordered. Order reversed and costs awarded to appellant, with costs. SMITH, P. J., and HAKDIN, J., concurred. CIVIL PROCEDURE REPORTS. Estate of Le Baron. ESTATE OF CALEB B. LE BARON, DECEASED. SURROGATE'S COURT, KINGS COUNTY, JULY, 1884. 828, 829, 2750. Proof of claim againtt decedent's estate. Evidence by claimant of per- sonal transactions with deceased. Befits not discharged by dis- charge in bankruptcy. Administrator. Subrogation vf claim of, for money paid to redeem real property from tax sale in place of lien of taxes. The fact that claims against a decedent's estate have been presented fo the administrator, and by him admitted to be valid claims against the estate, establishes prima facie their validity, and puts the burden of proving their invalidity upon those who object thereto. [*] 'To exclude evidence under section 829 of the Code of Civil Proce- dure, which provides that "a. person or a party interested in the event . . . shall not be examined in his own behalf or in- terest . . . against the executor, administrator or survivor of deceased person . . . concerning a personal transaction or communication between the witness and the deceased person," etc., the case must be brought strictly within the wording of the statute; it is not enough to be within its spirit. [*, 3 J Accordingly, Uehl, where claims against a decedent's estate, which were ad- mitted by the administrator and not objected by the decedent's survivors, were supported by the testimony of the claimants, that a mere creditor could not take advantage of it. [*, & ] "Where a bankrupt willfully and fraudulently omits the nnmes and claims of certain of his creditors from his schedule of debts, and gives them no notice of tlie application for his discharge, the dis- charge can Im attacked by them after his dece.ise in ft proceeding in the surrogate's court for the settlement of his estate, and so far as the discharge affects such creditors ir. is inoperative. | 8 ] Where an administrator in order to prevent the waste or loss of the real properly of his decedent re-deemed the same from tax-sale and paid the taxes, and it appeared that such real property was the or.ly property of any value left by the deceased, and that his debts exceeded the value of all his property: Held, that while the ' CTYIL PROCEDURE REPORTS. 63 Estate of Le Baron. administrator strictly had nothing to do with the real estate of the decedent, (*] the sum paid -by -him with interest from the date of payment should be al'oAved as a preferred claim against .tlie de- cedent, and he should be submguted to the right the state had against the property for the unpaid taxes. [ )0 , "] Bachelder v. Low (8 Nat" I. BiniK'ei/. Reg. 577) ; [ 6 ] Poillon v. Law- rence (77 N. T. 211), ['J followed. {Decided July 18, 1884.) Application for the sale of decedent's property to pay his debts. The opinion states sufficient facts. Blancliard, Gay & PJielps, for administrator, and for Mary E., Oceana H. and Anna G. Le Baron. George Wilcox, RufiLS L. Scott, Wilson M. Powell, Adrian Van Binder en and A. W. Gleason, for creditors. BERGEN, Surrogate.- This is an application brought under section 2750 of the Code of Civil Procedure, di- recting the sale of real property of a deceased person for the payment of his debts. Upon the return of the citation a number of cre- ditors appeared and presented their claims. The claims of Anna G. Le Baron for 82,405.57; Oceana H. Le Baron for $19.305.50; and Mary E. Le Baron for $23,372.53, and of the administrator for the sum of $926.40 were disputed. It appears by the evidence that the personal prop- erty is insufficient to pay the debts of the decedent, and therefore the creditors are compelled to resort to the real estate of the decedent for the payment of the same. It also clearly appears that the debts of the de- cedent are largely in excess of the value of the real estate, and that in no event could the creditors re- ceive more than a small prorata amount of their claims. 64 CIVIL PROCEDURE REPORTS. Estate of J-o JJtiroii. William A. Jones, who has presented and proved his claim, objects to the claims of the Le Baron family, to wit : Oceana H. Le Baron, Mary E. Le Baron, and Anna G. Le Baron, who are sisters of the decedent. First. Upon the ground of the proof of the in- debtedness is too indefinite. Second. That under section 829 of the Code, all the evidence of these parties concerning conversation's or transactions with Caleb B. Le Baron should be ex- cluded. Third. That the discharge in bankruptcy of Caleb B. Le Baron estops these claimants from establishing their claims. I have carefully reviewed all the testimony taken in these proceedings, and am of the opinion that these claims were sufficiently proved, unless the testimony given by the claimants as to the conversations ami transactions with the decedent should be stricken out. It appears from the account of the administrator on file in this office, and the evidence in these proceed- ings, that the administrator had admitted these claims. The petitioning creditor simply objects to the said claims, but offers no evidence to show that they are not valid. It seems to me that the claims having been pre- sented to the administrator, and by him admitted [ l ] to be valid claims against the estate, establishes prima facie their validity, and puts the burden of proof upon the objector. Matter of Eraser (92 N. Y. 230). Section 828 of the Code declares "that a person shall not be excluded or excused on account of in- terest, except as otherwise specially provided." Nor do I think that it comes within the exception provided in section 829 of the Code, which de- [*] clares, " that a person or a party interested in the event .... shall not be examined in his own be- CIVIL PROCEDURE REPORTS. 65 Estate of Le Baron. half or interest .... against the executor, adminis- trator or survivor of a deceased person .... con- cerning a personal transaction or communication be- tween the witness and the deceased person .... ex- cept when the executor, administrator or survivor .... is examined in his own behalf concerning the same transaction or communication.'' To exclude evidence under this section, the case [*] must be brought strictly within the wording of the statute ; it is not enough to be within its spirit. Severn c. National Bank of Troy (18 Hun, 228) ; Lob- dell ?). Lobdell (36 N. Y. 327). The testimony referred to is not against the ad- [*] ministrator or survivor as the statute says it must be. The administrator admits the claims, and the survivor does not object to the evidence. The objector is merely a creditor of the decedent ; [*J the statute was enacted to protect the representa- tives of deceased persons, and they are the only persons who can take advantage of it. The claimants in this proceeding are the sisters, heirs and survivors of the decedent. They loaned him a large portion of their property and trusted implicitly in his integrity and ability to pay them. In my opinion they have a strong legal and moral claim upon his estate for the payment of the same. The only question remaining to be determined is, does the discharge in bankruptcy of Caleb B. Le Baron in 1868 operate as a discharge of these claimants' debts ? It appears from the evidence that the claim of Anna G. Le Baron arose after the discharge was granted, and therefore is not affected by it, and that the por- tions of the claims of Oceana H. Le Baron and Mary E. Le Baron which arose prior to the granting of the discharge are not barred by it, inasmuch as the pro- ceedings in bankruptcy of Caleb B. Le Baron omitted to mention them as creditors, and that they did not VOL. VI. 5 66 CIVIL PROCEDURE REPORTS. Estate of Lt- Baron. receive any notice of the said proceedings, and flint they had no knowledge that he had been discharged in bankruptcy. I am of the opinion from the evidence that the de- cedent, Caleb B. Le Baron, willfully and fraudulently omitted their names from the schedule of his debts in bankruptcy ; (hat he never caused them to be notified of the said proceedings for his discharge, that he knew he was in debt to these claimants, his sisters, and knew where they resided, as they frequently visited him at his office during and before the time when the proceedings in bankruptcy were in progress. He com- menced in 18o() .paying money on account of his in- debtedness to each of his said sisters, and continued so doing until within a month of his death. By omit- ting their names from the schedules in bankruptcy and keeping them and each of them in entire ignorance of his proceedings therein, he deprived them of the right to resist his discharge or to participate in their share of the dividends of his assets. In the case of Bachelder v. Low (8 Nail. ['] Bank'cy Reg. 571), it was held, that the discharge is to be pleaded in suits upon claims in courts where pending, and those courts must, to some extent, determine the validity and effect of the pleas. Jso other court could consider them and render judgment upon them in those cases. The provision in the same section, that the certificate shall be conclusive evidence of the fact and regularity, seems to relate to the mode of proof of the discharge, and not the effect of it when proved. As now understood the provisions of the bankrupt act do nor prevent plaintiffs from contesting the validity of the discharge, as to them, in this courr, by showing that it was obtained upon proceedings of which they were fraudulently deprived of notice. In the case of Poillon v. Lawrence (77 J\ r . Y. 211), f] it was held, that where a bankrupt applied for a CI\ r iL PROCEDURE REPORTS. 67 Estate of Le Baron. discharge in a name ether than the one in which he contracted the debt, thus depriving the creditor of any notice of the application for his discharge, that it could be attacked in the court in which the creditor sought to establish his claim, and that the discharge would be held inoperative as to the debt of the credi- tor defrauded thereby, by reason of the failure to make him a party to the proceeding, by proper publi- cation or otherwise. I am therefore, led to the conclusion that by reason of the bankrupt having willfully and fraudulently *3 omitted the names and claims of his sisters from his schedule of debts and not having given them any notice of the application for his discharge, that the discharge can be attacked by them in this court, and that so far as the same affects said sisters it is in- operative. In reference to the claim of the administrator for having paid taxes upon property at East New York, Kings County, amounting to $926. 40 on November 20, 1888, it appears from the evidence, that the same had accumulated upon the property now sought to be sold under these proceedings for the years, 1871, 1872, 1873, 1874, 1875 and 1876, and the property was sold by the state comptroller for arrears of taxes of those years, and that the administrator redeemed the same on the 20th day of November 1883, in order that the proper- ty might not be charged with the additional interest of ten per cent. While the administrator, strictly, has nothing to do with the real estate of the decedent, and has ["] no right to apply the personal property in pay- ment of claims against the real estate, still, the only property the decedent left of any value was this real estate in question, and the administrator hav- ing acted in good faith and for the best interest of the estate in redeeming the property from the sale for 68 CIVIL PROCEDURE REPORTS. Estate of Le Baron. the unpaid taxes, which had been levied and confirmed as a lien upon this real estate prior to the death of the decedent, I think that the same should be allowed to the administrator as a preferred claim against the [ I0 ] decedent, with interest thereon from November 20, 1883. For if it had not been redeemed, the taxes would still remain as an existing and h'rst lien upon this property. The administrator having paid them, he should be subrogated to the right the ["] state had against the property for the unpaid taxes. I am of the opinion, ,that- the following claims are entitled to preference in the following order, to wit : 1st. The claims of the administrator for the amount paid by him to the state treasurer, November 20, 1883, to redeem the property in question from the sale of taxes, with interest from that date, $926.40. Interest from November 20, 1883. 2d. Long Island Bank judgment against decedent, $462.16. Interest from June 19, 1876. 3d. Balance due on judgment recovered by C. Van Brunt and others against decedent, $282.07. "Interest from March 4, 1882. [Here followed a list of general claims proved against the estate.] A decree may be entered in accordance with this opinion upon two days' 'notice. CIVIL PROCEDURE REPORTS. 69 Sweet v. Sanderson Brothers Steel Co. SWEET v. SANDERSON BROTHERS STEEL COMPANY. SUPREME COURT, OJSTELDA COUNTY, SPECIAL TERM, APRIL, 1884. 419, 422, 479. Complaint. Effect of wroice tf, after service of summons and before appearance t)f defendant. Where a copy of the complaint in an action was served on the defend- ant two days after the summons wus served and before he had appeared : Held, that the plaintiff acquired no rights thereunder ; that a motion by the defendant to set aside the service was proper, and should be granted, not\vithstaftdiag he had returned the Copy 'complaint to the plaintiff. (Decided April 19, r8S4.) Motion by defendant to set aside the service of a copy of the complaint. This action was commenced April 1, 1884, by the service of the summons on the president of the de- fendant. On April 3. and before the summons had passed from his possession, a copy of the complaint was served on him, on which was endorsed the follow ing notice : '" Lucius Gleason, Esq.. President Sander- son Brothers Steel Company. Sir: A summons in case of William A. Sweet against Sanderson Brothers Steel Com puny was served on you, as its president, April 1, 1884. The complaint herewith served on you is the complaint in that action, dated April 3, 1884," etc. On the following day (April 4) the copy of com- plaint so served was returned to the plaintiff's attor- neys with a notice indorsed thereon that it was re- turned because : 70 CIVIL PROCEDURE REPORTS. Sweet . Sanderson Brothers Steel Co. "1st. The said copy of the complaint was not served with the summons as provided by section 419 Code Civil Procedure. "2d. The defendant has not demanded a copy of the complaint as provided by sections 422 and 479 r although the time in which to do so lias not elapsed. Said copy of the complaint was not served upon the defendant with the summons, nor in pursuance of any demand on the part of the defendant therefor." Thereafter the defendant appeared specially by his attorneys, and made this motion on the grounds stated in the last mentioned notice. Hitchcock, Giffwd & Dolieny, for the motion. Chamberlain & Ayres, opposed. The person served with the complaint was the only one on whom the san.e could have been served, and there was no other way to serve the complaint. The service of the complaint in this action was in all respects regular and valid, and a legal service. Kleecke v. Styles (3 Johns. 240) ; Van Pelt r. Boyer (7 How. Pr. 325) ; Paine v. McCarthy (1 Hun, 78). Motion should be denied further on the ground that there is no complaint to set aside, defendant having returned the sapie as irregular, &c. MKRWIX, J. The case of Pnine #. McCarthy (1 Hun, 78) is as I read it an authority ;ig;iinst the posi- tion of the plaintiff. In that case the complaint was served two days after the summons. Judgment w:ss entered by default after the expiration of twenty d:iys from the service of the summons, but l>efore the expi- ration of twenty days from the service of the complaint. The judgment was held to be regular, no appearance or answer having been put in. This was in effect a hold- ing that the defendant acquired or obtained no rights CIVIL PROCEDURE REPORTS. 71 i i _ _ Wilson . Munoz. on the service of the complaint in that way. If that be so, the plaintiff should not acquire any by such a service. If the plaintiff was not bound by it the de- fendant should not be. According to section 479 of the Code of Civil Procedure the defendant had twenty days in which to serve a notice of appearance, and demand a copy com plaint, which should be served twenty days thereafter. The return by the defendant of the copy complaint served, does not, I think, preclude the defendant from making this motion, it not appearing that .the right of the defendant to so return it, was yielded to on the part of the plaintiff. Motion granted, costs to abide event. WILSON v. MUNOZ, AS ADMINISTRATRIX, ETC. SUPREME COURT, SECOND DEPARTMENT, GENERAL TERM, FEBRUARY, 1884. 828, 829. Evidence. Instance of iridicvs, not incompetent in action against administrator. What evidence of interest necessary. Where in an fiction ngainst an administratrix to have a mortgage gi\en to her decedent declared null and void for want of considera- tion, i he plaintiff's husband \vlio was not a party was offered as a witness, and it appeared that 'he originally owned the mortgaged premises and conveyed them to one " \V. V who executed the mort- gage in question, and thereafter deeded said premises to the plaint- iff : -lid I, that having no interest in the action he was not an incompetenr witness ; also llchl, where it. was alleged in the answer but not proven on the trial that, the consideration for the mortgage was a debt due the deceased from said " \V." that u bare 73 CIVIL PROCEDURE REPORTS.". Wilson v. Muuoz. averment of interest in the answer was not sufficient to establish the fact so as to reject the witness alleged to be interested. (Decided February, 1884.) Appeal from judgment in favor of defendant. This action was brought to cancel and set aside a mortgage upon certain real property belonging to the plaintiff, on the ground that it was given without con- sideration. The plaintiff's husband, Michael K. Wilson, on February 2, 1878, executed a deed of the premises covered by the mortgage, in which the plaintiff joined, to one George Wilson, and he on February G, 1878, conveyed said premises to plain tin*. This deed was not recorded until October 4, 1881, after the death of the defendant's decedent. On October 2; 1879, said George Wilson executed and delivered to the defendant's de- cedent, Jane Clay, a mortgage on the said premises for $8,500, which is the mortgage the plaintiff now seeks to have set aside. The defendant's answer avers that the deed from Michael K. Wilson to George Wilson was upon the understanding that the same was to be held for his (Michael's) benefit and remain under his control, but these allegations were not proven on the trial. The plaintiff sought to prove that the mortgage was given without consideration by the testimony of Michael K. Wilson, but the court excluded his evi- dence of conversations and transactions with the de- fendant's decedent. Judgment was rendered in favor of the defendant and the plaintiff took this appeal. W. B. Haben, for appellant. S. M. Ostrander, for respondent. BARNARD, P. J. When Michael K. Wilson was CIVIL PROCEDURE REPORTS. 73 c Wilson v. Mimoz. offered as a witness by plaintiff, she was presumably the owner of the premises covered by the mortgage she sought to annul. They had belonged to Michael K. Wilson and he had transferred the same to one George Wilson. George Wilson had conveyed the same to the plaintiff who was wife of Michael K. Wilson. The deed to George Wilson had been duly recorded, but his deed to plaint- iff had not been recorded. .George Wilson gave the disputed mortgage to Mrs. Clay, defendant's mother. Plaintiff was Mrs. Clay's sole heir. ' The plaintiff avers that this mortgage was given without any consideration. Michael K. Wilson was a competent witness to prove this fact. He was not a party. The defendant's ancestor did not derive title to the mortgage through the plaintiff or her husband. He had no interest in the action. If he was the agent either of the plaintiff or of Mrs. Clay, he was a compe- tent witness. Pratt v. Elkins, 80 N.'T. 198. The an- swer avers that the consideration was a debt of Michael K. Wilson, due to Mrs. Clay, but this was unproven in this case. A bare averment of interest in the an- swer was not sufficient to establish the fact so as to reject the witness alleged to be interested. The case discloses reasons which might affect the credibility of the witness but none I think to make him incompetent. Judgment reversed and new trial granted, costs to abide event. 74 CIVIL PROCEDURE REPORTS. Lippincott v. Wcstray. LIPPINCOTT, RESPONDENT, v. WESTRAY, APPEI, LANT. SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM, JANUARY, lt>84. .1342, 2433. Order. When properly made by court. Ratdtlement of. What brought tip for review by appeal from order denying resettlement. An appeal from an order denying a resettlement of an order, does not ^ bring up for review the order proposed to he resettled. ['] The only question such an appeal presents is whether or not. the appel- lant was entitled to have had the order lie proposed upon Jiis motion for resettlement entered in place of the one that had already been granted. [', 3 J A motion to set aside an order appointing a receiver in supplementary proceedings in place of one who had resigned is properly made to the court and not to a judge thereof, [ 2 ] and on a resettlement of the order entered on the determination of such motion, an order purporting to be made by a judge of the court should not be sub- stituted for one made by the court. [ s ] "Where it appears upon the papers that a motion was made and heard at the special term, and granted or denied by the special term, (here can be no right to enter the decision as an order of a judge of the court. [ 3 ] In such a case if the court had no right to make the order entered, for want of jurisdiction, or otherwise, the error .should be corrected by an appeal directly from the order and not by a motion to re- settle. [ 4 j (Decided March 7, 1884.) Appeal from order of the special term refusing to resettle an order deriving motion to set aside an order appointing a substituted receiver in proceedings sup- plementary to execution. The opinion states the facts. J. M. Guiteau, for appellant. G. W. Van Slyck, for respondent. CIVIL PROCEDURE REPORTS. 75 Lippincott v. Westray. DAVIS, P. J. On or about, June 17, 1881, applica- tion was made upon a judgment recovered by the plaintiff against the defendant, in this court, to the Honorable GEORGE M. VAN HOESEN, a judge of the court of common pleas of the city and county of New York, for an order supplementary to an execution issued on the judgment above mimed, and such pro- ceedings were thereupon had, that on or about July 1.9, 1881, the said judge appointed one Samuel B. Speyer as receiver, who qualified and entered upon his duties. Subsequently, and in January, 1883, the said receiver resigned, and applied to the court to be re- lieved from his position ; and thereupon on notice to the defendant's attorney, application was made to a special term of this court, held by Mr. Justice BAK- EETT for the appointment of another receiver, and an order was accordingly made appointing James L. Butterley, who duly qualified. Afterwards, and on January 27, 1883. with the permission of this court, said Butterley, as receiver, brought an action in the court of common pleas to set aside certain transfers of property alleged to have. been made by the defendant to his wife in fraud of his creditors. On October 20, 1883, the defendant made a motion at a special term, held also by Mr. Justice BAKHETT, for removal of said Butterley as receiver on the ground of irregularity in his appointment, and on the ground that he was an unsuitable person to have been appointed, because, although an attorney of the court, he was in the em- ploy of the plaintiff's attorney as chief clerk. On the hearing of this motion before the special term, it was denied, and an order denying the same, with costs, was duly entered. The papers do not show that any ap- peal was taken from that order ; but afterwards, and on or about October 31, a motion was made before the same court, held by the same judge, for a resettlement 70 Cn"IL PROCEDURE REPORTS. Lippincott r. Westray. of the order entered on October 23, which motion was denied, and from this order of denial an appeal is taken. Tile appeal from the order denying resettlement ['] does not bring up for review the order proposed to be resettled. The only question such an appeal presents is whether or not the defendant was entitled to have had the order he proposed upon his motion for re- settlement entered in place of the one that had already been granted. The amendment proposed to substitute an order purporting to be made by a judge of the court instead of one made by the court, and that such judge denied the motion of the defendant without prejudice to a motion to be made at special term. The court [*] seems to us to have been entirely right in denying that application ; for the motion to set aside the prior order appointing the substituted receiver was properly made to the court, and not to Mr. Justice BAURETT as a judge of the court. The defendant had no right to claim that an' order of the judge be substi- tuted for that of the court on such a motion. Irrespec- tive of the merits of the original motion, the substi- tuted or amended order was properly refused. We do not see that this appeal brings up any other question than that already considered ; and where ['] it appears upon the papers that a motion is made and heard at the special term, and granted or denied by the special term, there can be no right- to enter the decision as an order of a judge of the court. If the court had no right to make the order entered, [*] for want of jurisdiction, or otherwise, the error! should have been corrected by an appeal directly { from the order entered, and not in the manner taken in this case. The order refusing resettlement should therefore be affirmed. BRADY and DANIELS. JJ., concurred. CIVIL PROCEDURE REPORTS. Straus v. Kreie. STRAUS v. KREIS. CITY COURT OF NEW YORK, SPECIAL TERM, JUNE. 1884. 549. Order of arrest. When complaint or affidavit stating its contents to le presented on application for. An order of arrest in an action on contract on the groend that the defendant was guilty of fraud in contracting the liability can be granted only where a complaint, alleging the fraud, or an affidavit setting forth the allegations of the complaint are presented on the application, nnd the absence of such complaint or affidavit is fatal to the order of arrest. Lawrence v. Foxwell (4 N. Y. Civ. Pro. 351), followed ; O'Shea v. Kohn (uurcported), distinguished. (Decided June, 1884.) Motion to vacate order of arrest. The opinion states sufficient facts. Welile & Jordan, for motion. Jacob SleinJiardt, opposed. HYATT, J. This is a motion to vncate the order of s arrost Herein, 'ipon the ground that there was no com- plaint presented with the motion for the arrest, and that the affidavits did not aver what the allegations of the complaint were. Although there is no proof before the court that there was no complaint, yet it w r as conceded upon the argument that there was none. . Subdivision 4 of section 549, Code of Civil Proce- dure, provides that an order of arrest may issue in an action "on contract, where it is alleged in the com- 78 CIVIL PROCEDURE REPORTS. Stnius e. Kreis. plaint that the defendant was guilty of a fraud in con- tracting the liability." The language of the law is clear and unqualified ; its imperative requirement is, that it must be alleged in the complaint that the defendant was guilty of fraud. This has been directly decided by the general term of the N. Y. superior court, in the case of Lawrence o. Foxwell, 4 -N. Y. C7r. Pro, 851. The provision is an exceptional one, but it is possi- ble that in view of the notorious fact, that the right to an order of arrest was most frequently abused in eases embraced in subdivision 4, of section 549, Code of Civil Procedure, the legislature determined to re- quire this additional safeguard in this class of cases; but whatever may have been the motive, the language is free from doubt and the absence of the complaint or of affidavit's averring the allegations of the complaint, is fatal to the order of arrest. I am not unmindful of the case of O'Shea ??. Kohn, decided at the general term N. Y. supreme court, 1st department, May 29, 1884,* wherein the court affirmed an order denying a motion to vacate an order of ar- rest. The learned justice, writing the opinion of the court says, "the motion was made, because of the al- leged insufficiency of the affidavits on which the order was founded," and after showing the sufficiency of the affidavits he states that " when the complaint shall be served, allegations containing statements of these facts will set forth a cause of action for the fraudulent, purchase of the plaintiff's property, and (he right to damages for its value." Assuming the facts of that case to be similar to those constituting the case at bar, yet it docs nor :ip- pear in the said opinion that the quest ion here at issue * Unix-ported. ' CIVIL PROCEDURE REPORTS. 79 Remington P.-iper Co. z. O'Dougherty. was raised or considered ; the sufficiency of the affida- vits having been there determined, it would seem that the further statement recited in ihe opinion was obiter, and whatever maybe tire natural inference to be drawn therefrom, it cannot bring the decision within the doctrine of stare decisis, as applicable to the case at bar. It follows that the motion will be granted, upon condition, however, that the defendant stipulates not to sue for damages arising out of the order of arrest. THE REMINGTON PAPER COMPANY, APPEL- LANT, v. O' DOUGHERTY, RESPONDENT. SUPREME COURT, FOURTH DEPARTMENT, GENERAL TERM, JANUARY, 1884. 635, 3247. Attachment When will not lie Judgment or statutory liability not contract. In an action brought against one O'D. to recover costs of a former action awarded to the plaintiff's assignor against one J. P. O'D. the plaintiff in such former action, on I ho ground that, such former action was prosecuted by and for the benefit of said O'D. in the name of said J. P. O'D. : Field, that the only ground on which the right to an attachment could rest was that the action was one for the recover}' of damages for a breach of contract expressed or implied; that the defendant had made no contract either will) the plaintiff or its assignor and there was neither an express nor implied promise; and a warrant of attachment would not lie. In such a case, the defendant is only liable for costs under the statute to the same extent that she would be if the judgment was against her personally. The obligation created by a judgment or statute is, in a certain sense, considered as arising from an implied promise, but there is no im- plied contract in such case. 80 CIVIL PROCEDURE REPORTS. Uemington Paper Co. v. O'Dougherty. The class of implied contracts arising from the general implication and intendment that every man lias engaged to perform whut liis duty or justice towards another requires, is, it aeerns, the class of implied contracts only to which the statute authorizing the remedy by nttachmc-nt is intended to apply. (Decided April, 1884.) Appeal from an order of the Jefferson special term vacating a warrant of attachment. The opinion states the facts. Elon R. Brown, for appellant. James A. Ward, for respondent. SMITH, P. J. The papers on which the attach- ment was granted allege that the defendant herein, for her own use and benefit and at her own cost, pros- ecuted an action brought in the name of James P. O' Dougherty as plaintiff against Illustrious Reming- ton and others, as defendants, and that said action re- sulted in a judgment in favor of the defendants and against the plaintiff therein for the sum of $-in9.03 costs. That the said James P. 0' Dougherty never had any interest in said action and was, and is, insolvent, and an execution duly issued on said judgment, against his property, has been returned unsatisfied. Th;it the defendants in that action have assigned said judgment and any claim which they have thereon against the said Anna M. O' Dougherty to the plaintiff herein. It may be conceded that the defendant herein is liable for the costs of the former action, she having prosecuted it in the name of another for her own bene- fit (Code Civil Procedure, 8247). Nevertheless, we do not think the case is one in which a warrant of attachment will lie. The only ground upon which the right to that remedy can rest, is that the action is one for the recovery of damages for breach of contract, CIVIL PROCEDURE REPORTS. 81 Remington Papc-r Co. v. O'Dougherty. express or implied. Code Civil Procedure, 635. But the defendant has made no contract with the plaintiff or its assignors ; she is liable only by the provisions of a statute. There is certainly no express promise ; nor is there an implied one. As was said by ALLEN, J., in McCoun v. N. Y. C. & H. R. R. Co. (50 N. T. 170,180). " An implied promise or contract is but an express promise, proved by circumstantial evidence. It is quite distinct from that fiction by which a statute liability has been deemed sufficient to sustain an action of assnmpsit, upon the ground that a party subjecting himself to the- penalty or other liability imposed by statute has promised to pay it. That feature does not suppose a contract, but simply a promise exparte." At the most, the defendant is only liable for costs under the statute to the same extent that she would be if the judgment were against her personally. It has been held, repeatedly, that a judgment is no contract, nor can it be considered in the light of a contract ; for judicium redditum in invitum. Bidleson v. Whytel, 3 Burr. 1545 ; Wyman v. Mitchell, 1 Cow. 316, 321. In a certain sense, the obligation created by a judg- ment or a statute, is considered as arising from an im- plied promise a promise necessarily implied, as Biaokstone expressed.it, "by the fundamental consti- tution of government, 10 which every man is a con- tracting party." 3 Bl. Com. 150. And upon that ground it was, that under the old form of actions; an action of debt could be maintained upon such an obligation Id. But in such cases there is no implied contract between the parties to the action. Another class of implied contracts arises from the general implication and intendment that every man has engaged to perform what his duty or justice to- ward another requires. Of that class is the implied promise of one who emplo3 r s another to work for him, to pay that other what his work deserves. In cases VOL. VI. 6 82 CIVIL PROCEDURE REPORTS. Haberstich v. Fischer. of the latter class, the law implies a contract between the parties, and to that class of implied contracts, only, in our judgment, is the statute authorizing the remedy by attachment intended to apply. Order appealed from affirmed with ten dollars costs. HARDIN, J., and BARKER, J., concurred. HABERSTICH, APPELLANT, v. FISCHER, RE- SPONDENT. SUPREME COURT, FIRST DEPARTMENT, SPECIAL TERM, APRIL, 1884 : ALSO, GENERAL TERM, MAY, 1884. 977. Notice of trial. What amounts to vainer of. Under ordinary circumstances only the party who has noticed a cause for trial can move it for trial. ['] "Where the plaintiff in an action appeared in court by his attorney, on a day it was on the calendar and answered ready, and subsequently secured postponements of the case, and endeavored to secure another postponement, which was refused, and a jury directed to be im- paneled, and up to this point he made no objection that he had not been served with anotice of trial, Held, that he had waived notice of trial and upon the plaintiff's refusal to proceed the court was clearly justified in directing a dismissal of the complaint ; that the dismissal was regular and the default could only be opened on terms. (Decided, at special term, April 26, 1884; at general term, May 30, 1884.) Motion at New York county special term, to set aside dismissal of complaint. CIVIL PROCEDURE REPORTS. 83 Habcrsticli T. Fischer. The facts are stated in the general term opinion which is reported post, immediately after that of the special term. Henry H. Morange, for motion. W. H. & D. M. Van Colt, opposed. BARRETT, J. There was a waiver of notice of trial. The court acquired jurisdiction by both parties an- swering ready, and one subsequently securing a post- ponement without objection as to the notice of trial. The dismissal was regular, and the default can only be opened upon terms, viz. : the term fee, disbursements of dismissal and costs of this motion. From the order entered on the foregoing decision the plaintiff appealed. Henry H. Morange, for appellant. W. H. & D. M. Van Cott, for respondent. DANIELS, J. The position taken by the counsel for the plaintiff, that the party only who has noticed a cause for trial can move it for that purpose, is under ordinary circumstances a correct statement of the law (Code Civ. Pro. 977). But this case differs in its con- trolling circumstances from those in which this legal proposition has been applied. It was first called for trial on Monday, April 17. when it was announced to be ready by the plaintiff's counsel, except that one of his witnesses was not then able to attend. For that reason the trial was postponed until the following Monday, when the cause was again called, and a per- son representing the plaintiff's counsel, stated him to be unwell. It was then put over until the next day 84 CIVIL PROCEDURE REPORTS. Ilabersticlt v. Fischer. with a peremptory direction that it must then be tried. On that day this excuse was Repeated and in like man- ner the case went over to the following day, with the announcement that in case the counsel's disability con- tinued other counsel must be engaged to try the cause on that day. The plaintiff's counsel was on that day in attendance at the court and applied for a further postponement of the trial. This was opposed by the defendant, who was ready to proceed, and a jury was directed to be impaneled. Up to this point no objec- tion appears to have been made that the cause could not be moved for the want of notice from the defend- ant. But it had been at all times treated as entirely under the control of the court. There was no irregu- larity, therefore, in impaneling the jury, who were in readiness to hear the cause. The plaintiff's counsel was then directed to proceed, but declined to do so, and the complaint was thereupon dismissed. The proceeding seems to have been entirely regular. The cause had been specially set down for the day on which it was moved, and no object ion was taken to the right of the defendant to move it, and acting upon this apparent acquiescence in his right the jury uas drawn. The cause was, then, regularly before them, and as long as the plaintiff's counsel, after that, simply refused to proceed with the trial the court was clearly justified in directing a dismissal of the complaint. It could as well be done then as it could if the plaintiff had endeavored to make out his right to recover by proof and had failed in doing so. The court would not, under such circumstances, be deprived of I he power to dismiss the complaint because the defendant had not served notice of trial. The power was equally as complete over the action as soon as the jury had been impaneled and were in readiness to proceed with the trial. Upon a motion to set aside the dismissal, the court CIVIL PROCEDURE REPORTS. 85 Estate of Collins. ordered that to be done on the payment of the costs and disbursements of the term, together with the costs of the motion. This was as favorable a disposition as the plaintiff could reasonably expect, and the order should therefore be affirmed, with the usual costs and disbursements. DAVIS, P. J., concurred. ESTATE 01? JOHN COLLINS, DECEASED. SURROGATE'S COURT, Kixos COUNTY, JULY, 1884. , 388, 396, 1819, 2723. Statute of limitations. Wlien proceeding for accounting of executor, etc., not barred by. Laches. Where the accounts of an executor or administrator have not been judicially settled, a proceeding by a legatee under the testator's will, to require such executor or administrator to render an account of his proceedings for the purpose of ascertaining the distributive share of such legatee, is not barred by the statute of limitations. Where a testator died February 1C, 18(51, ami letters testamentary were issued April 1, 1801; an inventory tiled July 8, 18til, and a petition for an accounting was filed in 1884 by a devisee, who came of age February 22, 1879, for the purpose of ascertaining her distrib- utive share, and there had not been any settlement of the exec- utor's account, Ildd, that since section 1819 of the Code of Civil Procedure provides that the right to bring an action to recover sucli distributive share is not deemed to accrue until the accounts of the executor or administrator are judicially settled, the proceeding for an accounting was not barred by the statute of limitations, Aho Inld, that the time which had ekapsed since the petitioner became of age, was not sufficient to justify a deuiai of the jxititiou on the ground of laches. {Decided July 28, 1884.) 86 CIVIL PROCEDURE REPORTS Estate of Collins. Petition by Margaret J. Collins, a devisee under the will of John Collins, deceased, for an accounting by his executors. Sufficient facts are stated in the opinion. Man & Parsons, for petitioner. N. B. Hoxie, opposed. BERGEN, Surrogate. This is an application on be- half of Margaret J. Collins, one of the legatees and devisees under the will of John Collins, deceased, requiring the executors under said will to render an account of their proceedings under section 2723 of the Code of Civil Procedure John Collins died February 16, 1861 ; letters testa- mentary, were issued April 1. 1861 ; inventory tiled July 8, 1861 ; Margaret J. Collins was born on Febru- ary 22, 1858. The executors answer that the right of this proceed- ing accrued to the petitioner at the expiration of eighteen months after the issuing of letters testamen- tary, viz., October 1, 1862, and that by sections 388 and 396 of the Code she was barred from commencing it at the time when she tiled the petition in this pro- ceeding. The executors, therefore, claim that the disability of the petitioner ceased on February 22, 1879, the day she becam. Agate, (3 lleclf. 307), it was held " that a petition in the surro- gate's court must be filed within the time in which actions of a similar character are required to be com- CIVIL PROCEDURE REPORTS. 87 Estate of Collins. mericed in courts of common law or equity." The same doctrine was maintained in Cole v. Terpenning (25 Hwn, 482), and other cases therein cited. In Cole v. Terpenning, however, the petition for an accounting was denied upon the ground that it was barred by the statute of limitations, but it will be observed that sec- tion 1819 of the Code was not in force at the time the petition was liied. Section 1819 of the Code provides : '-' If after the expiration of one year from the granting of letters testamentary or letters of administration, an executor or administrator refuses, upon demand, to pay a legacy or distributive share, the person entitled thereto may maintain such an action against him as the case requires. But for the purpose of computing the time within such an action must, be commenced, the cause of action is deemed to accrue when the ex- ecutor's or administrator's account-is judicially settled and not before." There is no doubt that this is a proceeding to ascertain the distributive share of the petitioner in the testator's estate. I am, therefore, of the opinion that the last clause of section 1819 of the Code which fixes the time when the right to an action is deemed to have accrued, namely, when the account of the executor or adminis- trator is judicially settled, and that not having been done in this case, disposes of the question of the sta- tute of limitations. As to the question of la-dies, I think the time which lias elapsed since the disability of the petitioner ceased is not sufficient for me to re- fuse to grant the prayer of the petition. An order may be entered requiring the executors to account. 88 CIVIL PROCEDURE REPORTS. Estate of Stagg. ESTATE OF ANNA STAGG, DECEASED. SURROGATE'S COURT, NEW YORK COUNTY, JANUARY, 1884. 388, 2723. Limitation to proceeding in surrogate's court for accounting. Where on an application by a residuary legatee for an accounting by an executor, it appeared that the testator died in 1861, and letters testamentary were srxm after issued, and that several trusts were created by the will, of which the executor was made trustee, tho income of which was to be applied to the use of certain persons, and upon their death the principal paid*to .others, among whom was the petitioner, and Unit certain power had been granted to the exec- utor by the will which it did not appear had been exercised, Held, that the right of the petitioner to an accounting was not barred by the statute of limitations and that the executor should be required to account notwithstanding his answer declared that "all the legacies which were payable under the provisions of the will have been paid and the whole estate distributed to those entitled thereto according to said will." (Decided January 30, 1884.) Application for an order that an executor file an account of his proceedings. The facts are stated in the opinion. ROLLINS, S. This is a proceeding whereby the residuary legatee of decedent, seeks to obtain nil accounting from the surviving executor. Anna Sfagg died in Ib^Gl, and soon afterward letters testamentary were issued to this respondent as executor, arid to Caroline S. Stagg as executrix. The latrer died in 1876. The responding executor has interposed an an- CIVIL PROCEDURE REPORTS. 89 Estate of Stagg. swer claiming that the petitioner is barred by the stat- ute of limitations from enforcing the claim which he here sets up, and that, even if it.be otherwise, his demand for an accounting after the lapse of so many years is unreasonable, and that the surrogate ought, in his discretion, to discountenance it. The answer also declares that "all the legacies which were pay- able under the provisions of the will have been paid, and the whole estate distributed to those entitled thereto according to said will." It contains no defin- i.te statement as to what legacies have been paid nor as to how the estate has been distributed. Upon examining the record of the will I find that the testatrix created several trusts whereof she niade her executor and executrix trustees, directing that the income of those trusts respectively should be applied to the use of a specified person, and that upon the death of such person, the principal should be paid to another. Some of these provisions are in favor of the petitioner. By one of them she is made sole residuary legatee. By the sixteenth clause of the will the exec- utors are "authorized, directed and fully empowered, whenever they may think it most advantageous and prudent so to do, to sell all or any part of my real estate at public or private sale upon such terms as they may deem proper." It does not appear whether or not this power has been exercised. Upon the disclos- ures of the petition, the answer and the will itself I cannot find that the petitioner's claim is barred by the statute of limitations. The cases cited by the respondent's counsel simply hold that when the time has arrived, that a legatee has a right to demand the payment of his legacy, the sta- tute of limitations begins to run, and that after the period of limitation has expired the legatee can no longer enforce his claim for the legacy or for an ac- counting. See McCartee v. Camel, I Barb. Oil. 455 ; 90 CIVIL PROCEDURE REPORTS. United States Trust Co. v. N. Y., &c. Rw. Co. Clock v. Chadeague, 10 Hun, 97 ; Clarke v. Ford, 1 Abb. Ct. Ap. Dec. 359 ; Loder v. Hattield, 71 N. Y. 92 ; Warren v. Paff, 4 Bradf. 260. In the present case, for aught that appears, the petitioner may not } r et have become entitled to all that is given her under the will. I must therefore direct an accounting, unless within ten days the respondent files an amended answer set- ting up other t'acts'in support of the claim that he is within the protection of the statute of limitations. UNITED STATES TRUST COMPANY OF NEW YOKK . THE NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY, AND ANOTHER. SUPREME COURT, NEW YORK COUNTY, SPECIAL TERM, AUGUST, 1884. 7G9, 1810. Receiver of corporation. In what district motion for appointment of to be made. Action to foreclose mortgage. When party in in- terest not party to action may apply to court for protection of his interest. One not a party to an action who is a party in interest, and who may be injuriously affected l>y an unlawful proceeding in the suit, may apply to the court for that degree of protection which his interests require should be extended to him.[ 2 J Accordingly held, that a per- son holding bonds of a railway company secured by a mortgage, made to a trustee, could intervene in an action to foreclose it, and. although not a party thereto, move to set aside an order appointing receivers on the ground of want of jurisdiction in the judge making it, and for an order appointing a receiver. [', *, 4 , 'J CIVIL PROCEDURE REPORTS. 91 United States Trust Co. v. N. Y., &c. Rw. Co. * In a case where a railway corporation lias given a mortgage to a trus- tee to secure bonds issued by it, the trustee represents the owners and holders of the bonds and must usually be the party in whose name and by whom legal proceedings for their protection and col- lection should be carried on, but when the trustees become a party to an unlawful proceeding, injurious to the rights of the benefi- ciaries the latter are empowered to take such action for their own vindication and protection as the necessities of the case seem to require,[ 3 ] and for this purpose it is not necessary that the trustees should be actuated by any improper motive or controlled by any injurious influence, but it is sufficient that he has identified himself with an unlawful proceeding of which the beneficiaries have a just right to complain. [ 5 , 6 j An order made by a judge having no jurisdiction over the subject contained in it is absolutely inoperative and void, and may be either vacated or disregarded in any other legal proceeding regularly taken in the action in which the order was made.[ n ] Section 769 of the Code of Civil Procedure, which designates the counties in which motions in actions should be made, is modified, and so far as it applies to motions for the appointment of receiv- ers of corporations, superseded by Laws of 1883, chap. 378, 1, which provides where such motions shall be made.[ 10 J Section 1 of chapter 378 of the Laws of 1883, which provides that " every application .... for the appointment of a receiver of a corporation shall be made at a special term of the court held in and for the judicial district in which the principal business office of the corporation was located at the commencement of the action, wherein such receiver is appointed, or in and for a county adjoin- ing such district; and any order nppointiug a receiver otherwise made shall be void,"[ 12 ] includes every application for the appoint- ment of a receiver of a corporation made after its enactment, [ 13 J and applies to an action against a corporation to foreclose a mort- gage. t 14 ] "Whether a receiver is designated a receiver of the property of a cor- poration, or a receiver of a corporation the effect is precisely the same,[ 15 ] and the fact that section 1 of chapter 378 of the Laws of 1883. refers to receivers of corporations, docs not prevent its apply- ing to receivers in actions to foreclose mortgages, because they are designated receivers " of the property of a corporation " in section 1810 of the Code of Civil Procedure, which authorizes their appoint- ment^ 15 ] Where one named as the receiver of the property of a corporation in au order, void because the judge who made it had not jurisdiction, 92 CIVIL PROCEDURE REPORTS. United States Trust Co. v. N. Y., fcc. R\v. Co. entered upon the discharge of the duties of that office, and it Rp|wared that to discontinue or supereedo his employment would be .l no benefit, but would cause disturbance, interruption and cmicMTassment in the management of the affairs and the transaction of the business of the corporation, Ildd, that a subsequent order lawfully made appointing a receiver, should name him as re- ceiver. [">] Weetjen r. Vibbard (5 Hun, 265) ;[] Brinokerhoff v. Bostwick (88 N. T. 52) ;[ 7 ] Jlawesn. Oakland (104 U.S. 4r)0);l 8 | Kamp v. Kamp (59 N. Y. 212), [ n j followed. Whitney v. N. Y. e trustee, even without any sinister motive, may become a party to an unlawful proceeding injurious to the rights of the beneficiaries, the latter are empowered to take such action for their own vindication as the necessities of the case may seem to require. When the trustee has committed itself, as it did in the [*] present instance, to a proceeding alleged to have * 8. C., 16 Alb. Pr. 448. CIVIL PROCEDURE REPORTS. 95 United States Trust Co. v. N. Y., &c. R\v. Co. been unlawful arid unauthorized, and continues to assert its legal validity, there, if it really be unlawful, a case apparently arises which will justify the inter- vention in their own behalf of the persons entitled to the benefit and protection of the trust. For this pur- pose it is not requisite that the trustee should be [ 5 ] actuated by any improper motive or controlled by any injurious influence, but it is sufficient that it has identified itself with an unlawful proceeding of which the beneficiaries have a just right to complain, to entitle them to apply in their* own behalf to the court, for that degree of protection which their legal or equitable interests appear to require. This subject was considered in AVeetjen v. Vibbard (5 Hun, 265), and it was there held that active ['] participation even in a wrong is not required to make a trustee a party to it, but silent connivance will be sufficient for the purpose, when it may be observed to afford the means of rendering the miscon- duct of others successful (Id. 267). When that may be the fact, and the trustee continues to endeavor to maintain it, there a necessity arises for the benefici- aries themselves to apply in their own behalf for the proper redress which may be afforded by the law. This general subject was considered in Brincker- lioff v. Bostwick, (88 N. Y. 52), where it was held [ 7 J that if a corporation itself refused to prosecute, "or if it still remained under the control of the very directors against whom the action should be brought, the stockholders would have a standing in a court of equity to sue in their own names, making the corporation a party defendant" (Id. 56). And [ 8 J the same principle is maintained by Hawes v. Oakland (104 V. S. 450). If, therefore, the order for the appointment of receivers was made without authority in the court to which the application for it was directed, as it 96 CIVIL PROCEDURE REPORT^. "United Status Trust Co. v. N. Y., &c. Rw. Co. [*] resulted from the action of the plaintiff itself, and it still asserts and maintains the regularity of the proceeding, a case seems to be made out by the facts authorizing the owners and holders of the bonds secured by the mortgage and affected by the order to apply to the court for such redress and protection as the circumstances and the law applicable to them re- quire in the case. It has been further objected that if the motion could be regularly made by or pn behalf of these parties, that it should be made within the district in which the action itself is triable, or in an adjoining county, as that is in terms directed by section 769 of the Code of Civil Procedure ; and if the application was controlled by this section the objection would cer- tainly be well founded. But this has been answered by the fact that the principal business office of (he railway company was located, at the time of the com- mencement of the action, in the city of New York, and that under section 1 of chapter 378 of the Laws of 1883, the motion could be regularly made there. If this section is applicable to the case, then the motion has been properly made in the first judicial district, for in the class of cases included in the section it [ 10 ] has modified, and to that extent superseded, (he direction contained in section 709 of the Code. Whether the motion has been regularly brought on in the first judicial district must therefore depend upon what is to be considered the true construction of this section of the act of 1883, and that will more appro- priately be considered after disposing of another point presented by way of answer to the motion. If the order was made by a court having no juris- diction over the subject contained in it, then it is ["] absolutely inoperative and void, and it may be either vacated or disregarded in any other legal proceeding regularly taken in the action. This sub- CIVIL PROCEDURE REPORTS. 97 United States Trust Co. . N. Y., &c. Rw. Co. ject was considered in Karri p v. Kamp (59 N. T. 212), \vliere it was held that when the court is entirely with- out jurisdiction, " the whole proceeding, including the order or judgment, is coram nonjudice and void. One is not bound to appeal from a void order or judgment, but may resist it, and assert its invalidity at all times" (Id: 215 ; Hall v. U. S. Reflector Co., 31 Hun, 609, 611).* . If, therefore, this order was made without jurisdic- tion, and the plaintiff insists, as it does, upon its va- lidit} T , the applicants have the right to apply, as they have, for the appointment of one or more receivers, notwithstanding the making of the order; and as inci- dental toand forming part of the application it may be determined, if that is its character, that the order in controversy is void for want of jurisdiction in the tribunal making it. The point is accordingly presented whether the order must be so regarded, and that, presents for con- sideration the construction which should be given to chapter 378 of the Laws of 1883. If by this act the ap- plication for the appointment of receivers should be made in the judicial district in which the principal business office of the railway company was located at the commencement of the action, or in an adjoining county, then this order was made without jurisdiction and it is void ; for Orange county, where the order was made, is not an adjoining county of the county of New York, in which the principal business office of the railway company has been located. That is the clear effect of the concluding part of section one of this act. This section is exceedingly broad and general" in its terms, as much so, probably, as language was cap- * Reversing S. C., 4 N. T. Civ. Pro. 148. The decision of the general term was affirmed by the court of appeals, without opinion, May 0, 1884. VCL. VI. 7 98 CIVIL PROCEDURE REPORTS. United States Trust Co. m. N. Y., &c. Rw. Co." able of ranking it. It has been enacted in the follow- ing terms : "'Every application 'hereafter made for the ap- ["] pointment of a receiver of a corporation shall be made at a special term of the court held in and for the judicial district in which the principal business office of the corporation was located at the commence- ment of the action wherein such receiver is appointed, or in and for a county adjoining such district; and any order appointing a receiver, otherwise made, shall be void." And it was in express language directed to include every application for the appointment of a re- ["] ceiver of a corporation, made after its enactment. This broad language is to be applied and enforced according to the usual understanding and imporl of the terms made use of, and as they have been sub- jected to no exception whatever, the court cannot add an exception without usurping the province of the le- gislature, over which it has no control. Neither can the construction and effect of the terms be limited or restricted by any supposed policy not indicated in the act itself. What the court is required to do, with this as well as other statutes, is to ascertain from the language employed the intention of the legislature, and, when that is ascertained, to carry it into effect, as it may be expressed or indicated by the law. In this instance the legislature has declared the intention to be to include every application, after the passage of the act, made for the appointment of a receiver of a corporation. And this language is so broad and ["] general as to include an application for the ap- pointment of a receiver in an action for the fore- closure of a mortgage of this description. The power to appoint such a receiver has been expressly given by section 1810 of the Code of Civil Procedure, and with- out that it was within the acknowledged jurisdiction of CfVIL ( PROCEDURE" REPORTS. 99 United States Trust Co. v. N. Y., &c. Rw. Co. this court, as a court of equity (Hallenbeck v. Donnell, 94 N. Y. 342). But by this section of the Code the receiver has been designated as " a receiver of the property of a corporation," and this phraseology has been relied upon as distinguishing the case of such a receiver from "a receiver of a corporation," as the words have been made use of in the act of 1883. But that these are convertible terms, and have been intentionally used as such and require practically the same construction, appears from other provisions contained in the Code of Civil Procedure. For by sections 1784 and 1785, actions have been provided, first, in favor of judgment creditors for sequestrating the property of a corpora- tion and providing for the distribution thereof, and secondly, for the dissolution of a corporation because of its insolvency, or the suspension of its ordinary and lawful business, or its neglect or refusal for one year to discharge ifs notes or other evidences of debt. And by section 1788 it has been provided that receivers. in" such actions may be appointed, and the judgment in both classes of cases when the actions may proceed s6 far are- practically the same, and must provide for a just and fair distribution of the property of the cor- poration and the proceeds thereof among its fair and honest creditors (Code of Civil Procedure, 1793). Such receivers as these would very clearly be receivers of the corporation itself, although designated "re- ceivers of the property of the corporation " by section 1788, and they are plainly intended to be within that 'part of the act of 1883 which follows its fifth section. A like receivership has also been provided in proceedings for the voluntary dissolution of a corporation, and when appointed the officer has been designated as a receiver of its property (Code, 2429). The language of section 1810 was therefore not selected as being peculiarly appropriate to a receiver 100 CIVIL PROCEDURE REPORTS. United States Trust Co. v. N. Y., &c. Rw. Co. appointed in an action for the foreclosure of a mort- gage, but as properly descriptive of an officer who should be authorized to take charge of the property of the corporation. If it had been intended by these terms to distinguish such a receiver from a receiver appointed in an action for the dissolution of a corpo- ration or a sequestration of its properly under the other provisions of the Code, the same phraseology would not there have been made use of, but language would have been employed which would have distin- guished one class of receivers from the other. That was not done, but the phraseology is identical, which is applicable to all classes of corporate receivers pro- vided for by the Code, and they are in general terms designated to be receivers of the property of the corpo- ration, and as usually understood and construed these terms are the mere equivalent of the language em- ployed in the enactment of section 1 of the act of 1883. For when a receiver may be appointed under the authority of this section he will take, by virtue of his appointment, no more than he could under either of the provisions of the Code of Procedure, or than were in terms declared to be.vested in the receivers by the order in this ac-tion. The object as well as the [ 15 ] authority of the-reeeiver of a corporation or of a * receiver of the property of a corporation are pre- cisely the same, for the corporation can have no more than can be placed in the custody or under the control of the receiver, than its property, effects and fran- chises as they have been included in this order. Whether, therefore, the law designates the receiver te be a receiver of the property of a corporation or a receiver of a corporation, as the language has been used in the net of 1883, the effect is precisely the same, and no tangible-ground exists for distinguishing the language employed in this statute from that made use of in the Code of Civil Procedure, and no exception is CTVIL PROCEDURE REPORTS. 101 United States Trust Co. v. N. Y., &c. Ilw. Co therefore permitted by the act of 1883 from the gen- erality of its provisions, by reason of the circumstance that the receiver in an action of this nature has been designated by the Code as a receiver of the property of the corporation. No restraint or limitation on account of this mere difference of expression can be imposed upon the very comprehensive language of the first section of the act of 1883, but it must be read as it has been expressed by the legislature, to include every application made after its passage for the ap- pointment of a receiver of a corporation or of the prop- erty of a corporation, which, in legal effect as well as popular understanding, would be the same thing. If this receivership should be excluded from sec- tion 1 of the act of 1883, because of this difference of expression, all receivers of corporations should to whom it has been applied in the Code, for all are described and designated in the same language. And that would completely nullify this parr of that act, arid wholly defeat the purpose of the legislature in en- acting it. It would leave nothing whatever for it to operate upon; and that courts are not at liberty to do. It has been urged that the case of Whitney v. N. Y. ["] & Atlantic R. R. Co. (5 N. Y. Civ. Pro. 118), is at variance with this construction, but in that case the effect of seel ion 8 of chapter 378 of the Laws of 1883, was alone before the court for its consideration, and the terms of that section were then deemed to be inap- plicable to a motion for the appointment of a receiver of a corporation in an action for the foreclosure of its mortgage. That construction was deemed proper for the reason that the section itself was framed in such a manner as to include within its langnageonly proceed- ings for the dissolution of a corporation, or the distri- bution of its assets, and as the proceeding in this ac- tion is controlled by section 1 of the act, which con- 102 . CIVIL PROCEDURE REPORTS. United States Trust Co. v. N. Y., &c. Rw. Co. tains no such qualification, but is more general in its language, this decision is inapplicable to the present motion. The sections following section 5 of the act refer in terms to insolvent corporations, but they contain nothing evincing it to be designed by the legislature that the broad language of section 1, and of the others immediately following it, should be subordinated to this restriction. The nature and object of these parts of the act seem to have been intended to be different, for by the provisions contained in the first and the three succeeding sections, all receiverships of corpora- tions have, in express language, been included, while the provisions made by section 6, and those succeed- ing it to the 'eleventh section of the act, have been specially framed to meet the cases of insolvent cor- porations, and to direct what should be the practice in that class of cases. These sections contain no lan- guage or intimation restricting the terms or effect of the preceding sections of the act .to the same class of corporations, the former providing for receivers of all corporations, and the latter regulating the course of practice to be observed in proceedings taken for the dissolution or distribution of the assets of a corpora- tion. Why this distinction has been made is not ex- plained by any language contained in I lie act. but that it was intended by the legislature is evident from the very general language of the earlier sections, which have in no manner been qualified or subordinated to the provisions contained in the later sections of tlie act. As the application for the appointment of a receiver of the railway company is included within section 1 of the act of 1883, and by it was required to be made in the county of New York, or in an ad joining county, and the order in question "was not so made., it is, within the very language of the act, a void order, and CIVIL PROCEDURE REPORTS. 103 United States Trust Co. v. N. Y., &c. R\v. Co. cannot stand in the way, the/efore, of the success of the present application, even though it, may not be in terms proper to formally direct that it should be vacated. It was made without the authority of law, not designedly, of course, but the general language of this section of the act of 1883 was inadvertently over- looked. It is remarkable that such an oversight should have arisen in the proceeding, as it is obvious that the order which was directed and entered con- forms in one of its directions to what has been required by section 3 of this act of 1883. It is probable that this oversight arose out of the fact that the proceeding was not a contested one, but the application made by the plaintiff was acquiesced in by the railway com- pany. But such acquiescence could not confer this authority upon the court, when by this act it had been prohibited from exercising it. The decisions made in Wilkinson v. North River Construction Co.* and Pho3uix Foundry & Machine Co. against the Same f and Woerislioffer against ["] the Same, Jin no manner conflict with the construc- tion here given to the act of 1883, for no different construction of the portions of the act applicable to this proceeding was in any form intimated in either of those decisions. It is also probably needless to add that the case of Attrill v. Rockaway Beach Imp. [ 18 ] Co. (25 Hun, 370), can have no effect upon the de- termination of this application, for that decision depended upon the effect to be given to section 769 of the Code, unqualified and unaffected by the act of 1883, or any similar act. From these considerations, it follows that the ap- plication now made for the appointment of one or * Oneida Sp. T., GO How. Pr. 423 t Hi-ported, l*>sl, p. 100. J Reported 2'0si, p. 113. 104 CIVIL PROCEDURE REPORTS. United States Trust Co. v. N. Y., &c. Rw. Co. more receivers of the railway company has been regu- larly made in the first judicial district, and that the order in form providing for that appointment, made in Orange county, presents no legal obstacle in the way of the exercise of this authority. One of the persons who was designated in the order has not been seriously objected to, and from the known character, standing and position of Judge RUSSELL, it is very certain that no well founded ["] objection to his capacity or qualifications for the office of receiver could be made. He has entered upon the discharge of the duties of that office under this void order, and so far has acquainted him- self with the affairs and business of the railway com- pany, and there seems, therefore, to be good reason justifying his continuance in that position by a lawful appointment, which m:iy be made under the provisions of this act. To discontinue or supersede his employ- ment in this manner would be of no benefit or advan- tage to either of the bondholders or the parties to the action, but it would cause disturbance, interruption and erubarrass?neut in the management of the affairs, and the transaction of the business of the railway company, and ought not to be permitted. As the result of a careful consideration of all that has been said by counsel, and stated in the affidavits brought to the attention of the court, Judge RUSSKI.L should be continued in this office by the order to be made upon this application, and upon the like security as was required in his behalf by Mr. Jus- tice BROWN, who presided in the court in Orange county. As to the other person designated in the order, now considered inoperative, a serious opposi- tion has been made. It is necessary, for the purpose of rendering it successful, that the allegations made against him should be found to be well founded in fact, for no person should be appointed to such a posi- CIVIL PROCEDURE' REPORTS. 105 United States Trust Co. v. N. Y., &c. Rw. Co. tion whose administration may not receive the con- fidence of the parties to be affected by it. What has been alleged against him may be entirely without foundation, as it is said to be by Mr. Justice BARNAIID in Currier v. New York, West Shore & Buffalo Rail- way Co.,* and while the objections made for that reason would form no good ground for his removal, they might well be entitled still to the effect of pre- venting his appointment. That, however, it. is not necessary now to decide, for as to the additional re- ceiver, who is to be the associate of Judge Russell, the consideration of the case will be deferred until the bondholders and the parties can be more fully heard upon this subject. The circumstance of an order having been made by the circuit court of the United States in the district of New Jersey, of a similar import and effect to that made in Orange county, has not been deemed import- ant in this case, for that order proceeded no further than to invest these persons with authority over so much of the railway property as was situated in the state of New Jersey and as it followed the order which has been considered to have been unauthorized, it could add nothing whatever to the validity of that order. The disposition already indicated should be made of this application and it may be proper to add, in conclusion, that in the diversity of the laws enacted to affect the appointment of receiver of corporations and the frequent changes made by the legislature in their provisions any one of the justice's of this court would have been equally as liable to act under a mis- apprehension of the state of the law, as did Mr. Justice BROWN at the time when the proceeding was brought before him ; and, as it was not contested, would have been equally disposed to have acquiesced in the as- * Unreported. 106 CIVIL PROCEDURE REPORTS: Phoenix Foundry-, &c. Co. v. North Kiver Construction Co. sumed regularity of what the parties to the action both consented should be done. Still that will not sustain the proceeding, but an order must be made, as already suggested for the appointment of receivers of this corporation to carry into elfect the provisions of the mortgage as well as the authority which the law has vested in the court over the subject. PHOENIX FOUNDRY & MACHINE Co. v. THE NORTH RIVER CONSTRUCTION COMPANY. SUPREME COURT, ONONDAGA COUNTY, SPECIAL TERM, MARCH, 1884 ; ALSO, FOURTH DEPARTMENT, GEN- ERAL TERM, APRIL, 1884. 602 et seq., 769, 1809, 1810. Motion to vacate order, where made Order stai/iny proceedings When not void Receiver Power of supreme court to appoint, of insol- vent foreign corporation Power to restrain actions and inter- ference with property -when receiver lias l>een appointed Effect of insufficient service of injunction order. A motion to vacate an injunction order granted in an action in the supreme court first judicial district of wnich the court had juris- diction, upon notice, must be made in the judicial district in which the action is triable. *[', ", 16 J An order restraining or staying actions is not void because too broad, and a party may not disregard such an order simply because it is too broad or extensive. ["] In an action by a stockholder of a foreign corporation which was in- solvent, and of which a receiver had been appointed in the state under whose laws it was organized for the appointment of a re- ceiver of its property in this state, the supreme court hns power to appoint a receiver. [ 8 , 10 j Such receiver represents the corporation, its stockholders and its creditors, and the court appointing him * To same effect is Smith v. Danzig, 3 N. Y. Civ. Pro. 137. CIVIL PROCEDURE REPORTS. 107 Phoenix Foundry, &c. Co. v. North River Construction Co. has authority, as an incident to the power of appointment to pre vent any interference with the assets of the corporation by individ- ual creditors or others, in order to preserve the fund for distribu- tion, [ 4 , 10 J which authority may be exercised by an order in the suit in which the receiver is appointed. [ B ] Such an order is made in the exercise of the inherent pou-er of tlie supreme court to pro- tect its receiver and the funds in his h.mds, and is not a creature of the Code. [ 6 ] and is not subject to every provision of the statute or of the rules of court which apply to the injunction orders granted upon the application of a party for the protection of his individ- ual rights. [ 5 ] Accordingly held, that the provisions of the Code and rules, requiring an undertaking to be given on obtaining an injunc- tion order and that the order shall state the grounds in which it is granted do not apply to such an order. [ 8 J The fact that the mode of service of an injunction order was insuffi- cient does not warrant the vacating of the order. [ 9 ] Wilkinson v. Nor;h River Construction Co. (G6 Hoio. Pr. 423) ;[ 2 ] Attorney-general . Guardian Mutual Life Ins. Co. (77 N. Y. 272) ;[ 4 , 10 J Erie R. R. Co. v. Ramsey (45 Id. 637);[ 7 J Reims v. Astor Fire Ins. Co. (59 Id. 148);[ n | Attrill v. Rockaway Beach Imp. Co. (25 Ifaft, 376)L 1S ] followed : Walsh v. Steam (12 N. Y. Weekly Dig. 424) ;[ 13 ] Perry v. Seward (6 Abb. Pr. 327), [ 14 ] dis- tinguished. (Decided at Special Term March, 1884; at General Term, May, 1884.) . Motion by plaintiff at Onoiidaga County special term to vacate an order made in another action in New York county. The defendant is a foreign corporation created by and under the laws of the State of New Jersey but having a place for the transaction of business and a fiscal agency in the city of New York. On January 14, 1884, one Charles F. Woerishoffer, a stockholder of the defendant, brought an action against this de- fendant in this court, in the county of New York, for the benefit of himself and all other stockholders, and of the creditors of the defendant, alleging in his com- plaint the insolvency of the defendant, and that a re- ceiver of its effects had been duly appointed by a 108 CIVIL PROCEDURE REPORTS. Phoenix Foundry, &c. Co. r. Nortli River Conduction Co. court of competent, jurisdiction in New Jersey, and asking for the appointment of a receiver of the prop- erty of the defendant in this state. By an order made at a special term of this court held in New- York County (the h'rst district), January 14, 1884, ap- pointing the New Jersey receiver, Ashbel Green, re- ceiver of all the property and assets of the company in this state. Thereafter, on January 19, 1884, this action was begun to recover on contract for merchan- dise sold to and work done for the defendant, Onon- daga county being named in the summons and complaint as the place of trial. Subsequently the order which the plaintiff herein seeks to have vacated .was granted upon notice ill the aforesaid action brought by VVoerishoffer, by special term of the court in ISievv York county, restraining all persons " from bringing or prosecuting any suits or proceedings against the defendant, The North River Construction Company, or in any manner interfering with the assets of said defendant until the further order of the court." William 8. Andrews (Knapp, Nottingham & An- drews, attorneys), for the motion. G. B. Alexander, opposed. VANX, J. The plaintiff in this action moves at a special term sitting in the fifth judicial district to ['] vacate an order made in another action by a special term eifting in the first district. This is expressly prohibited by section 769 of the Code of Civil Procedure. The learned counsel for the plaintiff has argued with much force that the order in question is void because it was issued without any authority. If it is void this motion is unnecessary ; ['] but after careful deliberation I have held it to be CIVIL PROCEDURE REPORTS. 109 Phoenix Foundry, &c. Co. v. North River Construction Co. valid in the case of Wilkinson v. The North River Con- struction Company,* and for my reasons must refer to the opinion in that case. As this motion cannot be made outside of the judicial district in which the order complained of was made, none of the other questions argued by counsel have been considered. Ten dollars costs. From the order entered on this decision the plaint- iff appealed to the general term. William S. Andrews (Knapp, Nottingham & An- drews, attorneys), for appellant. C. B. Alexander, for respondent. SMITH, P. J. The object of the action brought by the stockholder Woerishoffer, and of that to which it is ancillary, is to wind up the affairs of the insolvent corporation, and make an equitable distribution of its assets among all its creditors. The receiver ap- [*] pointed in those actions represents the corpora- tion, its stockholders, and its creditors, and the court by which he was appointed had authority, as an incident to the power of appointment, to prevent any interference with the assets of the corporation by indi- vidual creditors or others, in order to preserve the fund for distribution (In re Attorney-General v. [*] The Guardian Mutual Life Insurance Company, . 77 N. T. 27*2). Such authority may be exercised by an order [ 6 ] made in the suit in which the receiver is appointed (Id.}. An order of that nature, being for the pro- tection of the fund which the court has in its posses- sion through its receiver, is not subject to every pro- vision of the statute, and of the rules of court which * 66 How. Pr. 423. 110 CIVIL PROCEDURE REPORTS. Phoenix Foundry, &c. Co. t>. North River Construction Cu. apply to the injunction orders granted upon the appli- cation of a party for the protection of his individual rights. It is properly made in the acrion in which the receiver is appointed, and a creditor who attempts to interfere with the fund by unnecessarily subjecting it to the costs of an action to enforce his claim, cannot set np that the order is ineffectual as to him because not made in his own action. If there are controversies to be litigated, or accounts to be adjusted between such creditors and the corporation, all cun be done on the investigation of the claim in the winding-up suit, and the creditor is a party to that suit through his repre- sentative, the receiver. In short, the order is made in the exercise of the ["] inherent power of this court to protect its receiver and the funds in his hand, and is not a creature of the Code (2 Story's Bq. Jur. 891). This power is recognized by section 1806 of the Code in the classes of actions therein referred to, in which, however, the present action is not included, but that section is simply declaratory of the common law as far as it, goes, and does not divest the court of its power in cases not within its provisions. That this court has the power, by an order made ['] in one action, to restrain proceedings in another pending before it, was held in Erie R. R. Co. 15. Ramsey (45 JV. Y. 637), overruling the ca.se of Srhell v. Erie Rw. Co. (51 Barb. 868), cited by (he ap- pellant's counsel. True, the power is !o be exerci>ed in extreme cases only, but here is a case in which its exercise is necessary for the equal protection of all ihe creditors of the insolvent corporation, including the creditor whose action is stayed by it. If these views are correct, it results that none of ['] the objections urged by the appellant's counsel are tenabje. As we have seen already, the order is valid, although not made in the action brought by CIVIL PROCEDURE REPORTS. Ill Phoenix Foundry, &c. Co. v. North River Construction Co. the present plaintiff. And. the provisions requiring an undertaking to be given on obtaining an injunc- tion order, and that the order shall state the grounds on which it is granted, do not apply to an order like the one in hand. If the mode of service was insufficient, it does [ 9 ] not warrant the vacating of the order; whether it would authorize proceedings against the .plaintiff for a contempt in case of disobedience of the order is a question not involved in this appeal. The order should be affirmed, with ten dollars costs and disbursements. HARDIN, J. [Concurring.] In the Woerishoffer action against the .North River Construction Company, the court acquired jurisdiction of the defendant, [ 10 ] and had power to appoint a receiver. The re- ceiver so appointed represents all the creditors, and as ANDREWS, J., says in Attorney-General t>. Guardian Mutual Life Ins. Co., 11 N. .Y. 272, "they are subject to the summary jurisdiction of the court in matters pertaining to the administration of the estate of the insolvent corporation. The court at special term in New York had power to make the order staying proceedings against the insolvent cor- poration." If that stay order was improperly granted, or if reasons exist why it should be vacated or modi- fied quoad (he plaintiff in this action, the reasons should be presented to the court in the district Avherein the stay order was made." If the plaintiff is entitled to such remedy, it "must be sought, by applica- ["] tion to the court in the district in 'which the re- ceiver was appointed, and in the action in which the appointment was made." ANDREWS, J., in Reims v. Astor Fire Ins. Co. (59 N. Y. 148), used the lan- guage just quoted. Besides, it is provided by section 7G9 of the Code of Civil Procedure, viz.: "A motion 112 CIVIL PROCEDURE REPORTS. Phoenix Foundry, &c. Co. . North IJiver Construction Co. upon notice in an action in the supreme court must he made within the judicial district in which the action is triable." The same position we have already stated was asserted by the court in the first department in [ >J ] 1881 in deciding Attrill v. Rockaway Beach Imp. Co., reported in 25 Hun, 378. If the order was irregular, because obtained with- out complying with section 610 of the Code or Rule 13 without reciting the grounds upon which it was granted, the remedy was by motion in the district wherein it was made. Section 769 of the Code was ["] not referred to in Walsh ?>. Stearn (12 N. Y. Week. Dig. 424), and the court incidentally remarked that " the legal effect of the order was to remove an illegal restraint and it had no other effect." We do not regard that authority as applicable here, but if a full examination of that case should present the point in- volved and a holding adverse to the views we have stated, we should be constrained to disregard it, and follow cases we have hereinbefore cited. Perry v. ["] Seward (6 Abb. Pr. 327), is not applicable ; it was decided in 1858, long before the enactment of sec- tion 7(59, and the motion was made in all the actions, and was a motion to consolidate all the actions; and" it was made in the county "in which all the parties resided" and actions "were all triable in Albany county" where the motion was made. If the order restraining or staying actions is too broad, it is not ["] therefor void arid a party may not disregard the order simply because it is too broad or extensive (People e. Pendleton, 64 N. Y. 622 ; People v. Sturte- vant, 9 Id. 263). We think the plaintiff must seek his remedy, ["] if he wishes to assert it, in the lifetime of the order complained of, in the action pending in the first district (Wilkinson v. This Defendant. 66 flow. Pr. CIVIL PROCEDURE REPORTS. 113 Woerishoffer 0. North River Construction Co. 423 ; Attorney General v. North Am. Lifts JDS, Co., 6 Abb. A'. C. 293; S. C., 66 How. Pr. ICO; Attorney General o. Guardian Mut'l Life Ins. Co., 77 N. Y. 272}.* This order should be affirmed, with $10 costs and disbursements. BARKER, J., concurred. WOERISHOFFER . THE NORTH RIVER CON- STRUCTION COMPANY. SUPREME COURT, NEW YORK COUNTY, SPECIAL TERM, JUNE, 1884. 1809, 1810. Receiver. Power of supreme court to entertain action for appointment of^ of foreign corporation. Notice to attorney general.' Injunction, restraining actions, etc. When vacated as to attaching creditors. Under section 1810 of the Code of Civil Procedure, the supreme court has power to entertain an action brought by a stockholder of a cor- poration organized under the laws of New Jersey for the appoint- ment of a receiver of its property in this state on the ground that it was insolvent and that a receiver of its effects had been appointed by a court of competent jurisdiction in New Jersey, and to appoint a receiver of the property of the defendant therein. 1 The provisions of chapter 378 of the Laws of 1883, requiring notice to the attorney general of a motion for a receiver of a corporation, do not apply to llic appointment of an auxiliary receiver of a for- eign corpt ration. [*, 3 j Where after certain creditors of a foreign corporation had levied attachments of its property, an ancillary receiver of it was ap- pointed in this state, Held, that the appointment of a receiver * See People ex rel. Negus v. Dwyer, 2 N. T. Civ. Pro. 379 (387). VOL. VI. 8 114 CIVIL PROCEDURE REPORTS. "Woerishoffer v. North River Construction Co. could not divest them of tho rights they had acquired and that they should be allowed to proceed aud perfect their judgment ;md realize what they could out of the property ; that an order re- straining nil persons from bringing or prosecuting any suit or pro- ceeding against the defendant or interfering with its assets should be vacated as to such creditors. [ 4 ] Phoenix Foundary & Machine Co. T. North River Construction Co. (6-ff. T. Civ. Pro. 106), approved. [ 8 ] (Decided June 23, 1884.) Motion by certain attachment creditors of the de- fendant to dissolve an injunction granted herein. The defendant is a foreign corporation organized by and under the laws of the state of New Jersey. The plaintiff is one of its stockholders and as such brought this action in behalf of himself and all other stockholders and creditors of I he defendant, for the appointment of a receiver of the property of the de- fendant in this state, on the ground that it was insol- vent, and that a receiver of its property and effects had been appointed by a court of competent jurisdiction in New Jersey. July 14, 1884, on notice, an order was made at a spe- cial term of this court in New York county appointing Ashbel Green ancillary receiver of the property of the corporation. Thereafter an order was granted enjoin- ing and restrain ing all persons "from bringing or pros- ecuting any suits or proceedings against the defend- ant .... or in any manner interfering with the assets of the defendant until the further order of the court." That order is ihe one which certain creditors who had attached the property of the defendant before the ap- pointment of the ancillary receiver, now seek to have vacated. < George E. Comstoc7c, F. N. Bangs, F. L. Stctston, John L. Hill and M. A. Knapp, for the motion. CIVIL PROCEDURE REPORTS. 115 "Woerishoffer v. North River Construction Co. JolmE. Parsons, and C. B. Alexander, for plaint- iff, opposed. William M. Eoarts, for the receiver, opposed. Howard Mansfield, for the defendant, opposed. VAN- BRUNT, J. Under section 1810 of the [*] Code, the court evidently had the power to en- tertain this action and to appoint a receiver of the property of the defendant therein. By reason of the injunction granted by the court in New Jersey, the domicil of the corporation, the officers and the agent of the corporation of which that court had jurisdiction were enjoined from interfering with the property of the corporation, and this injunc- tion operated upon such officers personally, no matter where the property of the company was situated. The appointment of a receiver in the state of JS T ew Jersey operated only upon property within that state, and therefore as to the assets of the corporation within this state, there was no officer empowered to hold the same. As to the objection that under chapter 378 of the Laws of 1883 the appointment of the receiver in this action was void because of the want of notice to the attorney general, it does not seem to be well taken. The reason for the enactment of the law must neces- sarily be considered in determining the scope of the act. By this provision requiring notice to the attorney general it was intended to prevent the improvident appointment of receivers by the court upon the motion of parties who were thereby endeavoring to further their own private schemes rather than attempting to preserve the assess of a corporation for its credi- [*] tors. This restraint upon the appointment of a 116 CIVIL PROCEDURE REPORTS. Woerishoffer . Isortli River Construction Co. receiver could not in the slightest degree apply to the appointment of an auxiliary receiver of a foreign corporation. In such a case the necessity for, and the right to a receiver have been adjudicated upon by the courts of the state where the corporation is domi- ciled. Whatever evil would result from the appointment of a receiver has already been inflicted, and the inter- vention of the courts of this state is merely to pre- serve the property of the corporation within this state for equal distribution among the creditors of the cor- poration ; such receiver being, in my judgment, bound to account in this state for all property within this state at the time of his appointment. The appointment of such auxiliary receiver being to preserve the assets of the corporation for distribu- tion among its creditors equally, and not for the pur- pose of allowing such assets to be removed by the re- ceiver to a foreign jurisdiction and compelling the creditors within this state to go to a foreign jurisdic- tion to prove their claims .against assets which they might have reached by action in this state but for .the appointment of the receiver. The injustice which would flow from a different construction of the right of domestic creditors is too manifest to need argu- ["] ment. I am of the opinion, therefore, that the act of 1883 does not apply to auxiliary receivers, as such receivers are neither within the letter nor spirit of the act. The further.-. objection is raised to the continuance of the injunction, that the court had no power to grant the same. . This; question seems to have been [ 4 ] decided by t?he general term, fourth department, in the case of Phoenix Foundry and Machine Co. v. North River Construction Co.,* and I concur in * Ante, p. 106. CIVIL PROCEDURE REPORTS. 117 Phelps 0. Phelps. the views expressed by presiding Justice SMITH in his opinion. As to creditors who have attachments which have been levied upon assets of the corporation prior to the appointment of the ancillary receiver, they should be allowed to proceed and perfect their judgment and realize what they can out of the property levied upon, as the appointment of a receiver could not divest them of rights they acquired. The motion to dissolve the injunction as to the attaching creditors must be granted. PHELPS v. PHELPS. SUPREME COURT, HEKKIMER COUNTY, SPECIAL TERM, NOVEMBER, 1883. 424, 439, 528, 844. Affidavit. Certificate to, taken ^cWlout the state. Effect of failure of, on order for publication. Appearance. -What amounts to. Where the affidavit and complaint on which au order for publication was granted were sworn to without this state and were not certified in the manner iequired to entitle a deed so acknowledged to be recorded in this state, Held, that the papers were to be regarded as unverified,* and that, so regarded, they failed to give the court or officer any jurisdiction of the case, and the order for publication and the proceedings thereunder were without authority and void; that no subsequent laches of the defendant could give jurisdiction. When on a motion by a defendant to set aside the service of a sum- mons by publication and all proceedings thereunder, his attorneys * See Williams v. Waddell, 5 N. Y. Civ. Pro. 191 ; Harris . Dur- kee, 5 Id. 37G; Code Citil Procedure, 528. It seems, that proof of the laws of the state in which the affidavit was taken, empowering the officer taking it to do so, and if his signature may be substituted for the certificate. Vide Williams c. Waddell, supra. 118 CIVIL PROCEDURE REPORTS. Phelps v. Phelps. indorse their names on the motion papers as attorneys for the de- fendant, Held, that this was an. appearance in the action sufficient to give I he court jurisdiction of the case and of the person of the defendant. (Decided Socemler 12, 1883.) Motion by defendant to vacate and set aside an order for the publication of the summons herein and all proceedings thereunder. This is an action for absolute divorce. The sum- mons was served by publication in 1878 and judgment taken on the defendant's failure to appear or answer in January, 1879. The order for publication was granted on a com- plaint verified without the state before a clerk of the supreme court of Maine accompanied by a certificate purporting to be signed by one Appleby, who de- iscribed himself as chief justice of the state of Maine, certifying that the person who took the affidavit was the proper person to make out and certify copies of all rec'ords and proceedings of the supreme judicial court, holden within and for the county of Knox, in the state of Maine, and that, full faith and credit should be given to his acts and attestations. In November, 1883, the defendant made this motion. ' Louis Marshal, for the motion. The verification was a nullity, and the complaint must be treated as' unverified. Ladd v. Terre Haute, &c., R. II. Co., 13 A T . Y. Weekly Di(j. 2<>9 ; Luther r. Brison, 4 1\\ Y. Monthly Law Bui. 91. ... The oh. jec'iions . . . are directed to the jurisdiction of ihe court and are not merely irregularities, and cannot b' amended or overcome by any claim of laches. Kendall -c. Washbnrn, 14 How. Pr. 380; Titus v. lie! yea, 10 Id. 371. CIVIL PROCEDURE REPORTS. 119 Phelps v. P helps. William H. King, opposed. The complaint was properly verified. Code of Civil Procedure, 525, 526, 844. CHURCHILL, J. The order of publication of the summons in this action was made by the county judge of Montgomery county, November 12, 1878, and was made upon a complaint and affidavit purporting to have been verified by the plaintiff in the state of Maine, on August 3, -1878. Prior to that time the law relating to the taking of affidavits in other states to be used in this state as it existed before the Code of Civil Procedure (2 It. 8. 396, 25, and Laws of 1869, chap. 133), had been repealed (chap. 417, Laws of 1877, 1, sub. 3 [6], and subdiv. 4 [43]), leaving in force after September 1, 1877, section 844 of the Code of Civil Procedure, to govern the taking of such affidavits. By that section an affidavit taken in another state to be used in this state, must be taken before an officer authorized by the laws of the foreign slate to take and certify the acknowledgment and proof of deeds to be recorded in that state, and that he was such officer and so authorized (Laws of 1869, chap. 557), must be certified in the manner required to entitle a deed acknowledged before him to be recorded in this state. In the affidavits presented to the county judge there is an entire failure (.so far as the papers show), to comply with these requirements of the Code, and the papers are to be regarded as unverified by the plaintiff; so regarded they fail to give the courts or officer any jurisdiction of the case, and the order of publication, and the proceedings subsequent thereto to judgment are without authority and void. Code, 439. if the affidavit in question failed to give jurisdiction no sub- sequent laches of the defendant could give such juris- diction. Titus v. Relyea, 16 How. Pr. 371. The defendant's attorneys have indorsed their 120 CIVIL PROCEDURE REPORTS. Phelps v. Plielps. names upon the motion papers served by them in this case as attorneys for the defendant, which is an ap- pearance in the action, and is sufficient to give the court jurisdiction of the case and of the person of the defendant. Code Civil Pro. 424 ; Mahoney . Pen- man, 4 Duer, 603 (605).* An order should be entered vacating and setting aside the judgment of divorce heretofore entered in this action, and giving to the defendant 20 days after the entry of the order to be entered herein in which to make and serve a demand of a copy of the com- plaint of -the plaintiff in this action, the proceedings subsequent thereto to be the same as though personal service of the summons had been made upon the defendant. Let an order in accordance with the foregoing be drawn, and filed and entered in Montgomery county, and let the papers used on the motion also be filed in that county.f * Sec on this subject Douglass p. Habcrstro, 8 Abb. N. C. 230; S. C., 58 How. Pr. 276; Couch v. Mullane, 63 Sotc. Pr. 79 ; Krause v. Averill, 4 N. T. Civ. Pro. 410 ; Code 2 ; Hunter v. Powell, 15 Id. 221 ; Cobb v. Dows, 9 Barb. 230 ; Anderson v. Hill, 63 Id. 238). II. The first cause of action does not set forth facts sufficient to constitute a cause of action. It does not appear that plaintiff will ever be called upon to pay her bond or redeem her mortgage. They are not yet CIVIL PROCEDURE REPORTS. 123 De Silver v. Holden. due. Non constat, but the defendant will do his whole duty in that behalf. In a civil action for fraud and deceit, damage is as essential to the action as fraud (Aberdeen v. Blackman, 6 Hill, 324 ; Gilbert . Wimari, 1 Comst. 550 ; Wright . Whiting, 40 Barb. 235). The complaint does not allege that defendant knew his representations to be false when he made them. Non constat, but he honestly believed them to be true (Moore v. Noble, 53 Barb. 425 j Robinson . Flint, 56 Id. 100 ; Van Vliet v. McLean, 23 Hun, 206). Q. Bainbridge Smith, for respondent. I. The causes of action are properly joined, and fall within the provisions of the Code termed ' k For injuries to personal property " (Code do. Pro. 484, subd. 6 ; Cleveland v. Barrows, 59 Barb. 364 ; Lovett v. Pell, 22 Wend. 369). II. The maker of a negotiable promissory note can maintain an action for its conversion (Decker v. Mat- thews, 12 N. T. 313 ; Develin v. Coleman, 50 Id. 531), and the plaintiff is entitled to recover the amount of the note as damages for its conversion without averring or proving that he has paid it to the holder (Id.) III. The plaintiff will have to pay the bond and mortgage. The mortgagee paid the money on it in good faith (Aikin v. Morris, 2 Barb. Qh. 140). SEDGWICK, Ch. J. The judgment appealed from was entered upon an assessment of plaintiff's damages after a demurrer to the complaint had been over- ['] ruled and final judgment ordered for plaintiff. The appeal involves the correctness of the order overruling the demurrer. The demurrer was placed upon two grounds ; iirst, that causes of action were improperly joined ; and second, that the allegations of the first alleged cause of action are not sufficient to constitute a cause of action. 124 CIVIL PROCEDURE REPORTS. De Silver t. Iloidcn. The iirst alleged cause of action was, that by false and fraudulent representations, the defendant had in- duced the plaintiff to sign a bond conditioned for the p.iym. Oppold (74 N. Y. 307). If, therefore, we ascertain the course that would be taken by the court of appeals, if this appeal was before it, we shall have a guide to the decision of the question before us. The case of Lawrence ?>. Farley (73 JV. Y. 187), is conclusive upon the point that the court of appeals will not review the discretion of a court of original jurisdiction. In the case died, a judgment by default was entered against the defendant in 1802. In 1874 a judgment for a deficiency was docketed against the defendant, and more than two years afterward the de- fendant applied for the opening of the judgment, and gave excuses for suffering the default that were satis- factory for the supreme court, which opened the judg- ment and allowed the defendant to interpose an answer. From this order an appeal was taken to the court of appeals, which dismissed the appeal on the ground that the order was discretionary, and that the court of appeals being a tribunal created for the examination of questions of law (save in a few cases specially pro- vided for), ought to refrain from matters of discretion which are likely to involve intricate controversies respecting matters of fact. To the same effect are Howell v. Mills (3 N. Y. 331) ; and Ailing v. Fahy (70 Id. 571). As I have already said, the court of common pleas is, with respect to the marine court, in the position of an appellate tribunal, charged (save a few cases pro- vided for) with the sole duty of reviewing questions of law ; and the same reason that prevents the court of appeals from viewing matters resting in the discretion of other courts, applies with full force to appeals brought into this court from discretionary orders made by the marine court. 128 CIVIL PROCEDURE REPORTS. Estate of IJogert. There is nothing in the amendment to section 3191 that introduces a new rule, for nothing in it requires us to review matters of discretion that the marine court has considered. Again, the order before us was made after judg- ment, and section 3191 does not authorize an appeal to the court from such an order. Lawrence ?>. Farley, 73 N. T. 189 ; Bamberg v. Stern, 76 Id. 555. This last observation is obiter, as is the further one, that the case of Townsend v. Hendrisks (40 How. Pr. 143) would, in my opinion, warrant us in sustaining the appealability of the order, if it were not a discretionary order. I do not discuss the matter, though I have examined it, and formed a decided conclusion upon it. The appeal should be dismissed, with costs. VAN BRUNT, J., concurred. ESTATE OF WILLIAM S. BOGERT, DECEASED. SUPREME COURT, SECOND DEPARTMENT, GENERAL TEKM, MAY, 1884. 2611, 2618, 2623. Will. When admitted to probate against testimony of subscribing witnest. \ Where one of t.hc witnesses to a will testified to its due publication, and the other witness testified that he signed the will, and wroic his residence after his name at the request of the testator, and it appeared that the will and the attestation clause which was in the following words: "Signed, sealed and published by the said testa- ment (sic) to be his testament in the presence of," were in the hand- writing of the testator and that he was a man of more than ordi- nary intelligence and methodical in his habits, Held, that the case was eminently proper for the application of the provision of the CIVIL PROCEDURE REPORTS. 129 Estate of Bogert. Code that when a witness has forgotten the occurrence, or testifies against the execution of the will, the will may nevertheless be established upon proof of the handwriting of the testator and of the subscribing witnesses and also of such other circumstances aa would be sufficient to prove the will upon the trial of an action, and that the proof was sufficient to establish the will on the trial of an action. Estate of Bogert (4 N. T. Civ. Pro. 441), affirmed ; In re Cottrell (5 Id. 340), followed. (Decided September, 1884.) Appeal from decree of surrogate of Kings county admitting to probate the last will 'and testament of William S. Bogert, deceased. Reported below, 4 N. Y. Civ. Pro. 441. The will in question was dated April 12, 1883, and was executed some time subsequent to its date and. about a mouth before the death of the testator, which occurred August 12, 1883. The will and the attestation clause were written, upon a single page of paper, and this was presented, smooth and unfolded by Mr. Bogert to each witness when he signed his name. William II. Gray and Jacob D. Fowler were the subscribing witnesses to the will ; both were examined on the proceedings for probate, and they were the only witnesses produced and examined before the surrogate. Mr. Gray was a wholly disinterested witness. Mr. Fowler was a nephew of the deceased, and one of his next of kin and heirs at law, entitled to share in the estate if the will was broken. The surrogate admitted the will to probate and the contestants took this appeal. Further facts are stated in the opinion. Scooille & Dzwitt, for appellants. Rufus F. (J-riggs and M. J. McKenna, for respond- ent. VOL. VI. 9 130 CIVIL PROCEDURE REPORTS. Estate of Bo^ert. The testimony of an interested witness may be rejected, even though it has not been directly contra- dicted. Elwood v. The Western U. Tel. Co., 45 N. Y. 553; Koehler . Adler, 78 Id. 2S7; Kavariagh T. Wil- son, 70 Id. 177 ; McNulry . Kurd, 86 Id. f>47 ; Lesser v. Wunder, 9 Daly, 70; Newhonse v. Godwin, 17 Barb. 236 Fowler was the witness of the court rather than of the proponent; we were compelled by law to call him ; his credibility was therefore open to attack on our part. "The reason fails (/. e., of not being allowed to discredit your own witness), when, in fact, the party is as in this case compelled by law to call him, no matter how much, he doubts the credibil- ity of the witness." Thornton v. Thornton, 39 VI. 122 ; Alexander . Beadle, 7 Caldwell (Tenn: It.) ; 1 Greenleaf on Evidence, 443 ; 2 Taylor on Evidence, 178 ; Dennett v. Dow, 17 Me. 19 The court be- low has found, as a matter of fact, that the testimony of Fowler as to the non publication of the will in his presence, was unworth}' of credit. As the primary tribunal in these proceedings, it is to have serious allowance made to it on a question of fact found by it. For it has the opportunit}" to personally scrutinize the witnesses and their manner of testifying. Gardiner n. Gardiner, 34 N. Y. 157. And the court cannot reverse the decree of the surrogate, unless it appears to have been erroneously made. The presumption is in favor of its correctness. Roliwagen v. Rollwagen, 3 Ilun, 121. Under the decisions, the testimony of Fowler shows a sufficient acknowledgment by the testator of his signature in Fowler's presence. The will, which ba/ely lills a single page of foolscap, lay on the table open, and right before Fowler, when he was asked by the testator to sign it as a witness. Fowler admits that he saw the testator's name subscribed to it at the time. Baskin v. Baskin, 36 N. Y. 416 ; Conboy v. CIVIL PROCEDURE REPORTS. 131 .Estate of Bogert. Jenkins, I N. Y. Supm. Ct. (T. & C.) 622; Taylor v. Brodhead, 5 Redf. 627 "The fact that the testator was fully apprised of the testamentary character of the instrument, may be considered in aid of proof tending to establish a publi- cation" (Gilberts. Knox, 52 N. Y. 125; Trustees of Auburn Sem. v. Calhoun, 25 Id, 425; Seguine v. Se- guine, 2 Barb. 385). "Probate of a will is to be granted or denied in view of all the facts attending its execu- tion " (Taylor . Brodhead, 5 Redf.^; Tarrant v. Ware, 25 A T . Y, 428 ; Lawrence e. Norton, 45 Barb. 448). ..." The certificate o'f attestation to a will by a de- ceased witness, in connection with the other circum- stances of the case, may warrant a jury in finding the due execution of the will against the evidence of the other subscribing witness, more especially when the witness denying the due execution thereof, had never before been called upon to witness a will, and knew nothing of the formalities required; .... and should the testimony of the latter amount to a positive denial, the relative weight of the conflicting proof would then depend upon the apparent integrity and intelligence of the witness and the circumstances surrounding the particular case" (Orser v. Orser, 24 N. Y. 51). The will in the above case was admitted to probate on presumptions arising from the circumstances at- tending its execution, notwithstanding the positive denial of its due execution by the only surviving sub- scribing witness. The fact that the attestation clause was regular, and that the deceased witness was an ex- pert draughtsman of wills, was held to outweigh the adverse testimony of a witness who was shown to be ignorant of the required formalities. "Under these circumstances there can, I apprehend, be no doubt that a jury would be at liberty to find that the will was duly executed" (Id. 53; Webb v. Dye, 18 West Va. 376*; Rugg v. Rugg, 83 N. 7. 592). 133 CIVIL PROCEDURE REPORTS. Estate of Bogert. DYKMAN, J. This is an appeal from the decree of the surrogate of Kings county admitting to probate the last will and testament of William S. Bogert de- ceased. The controversy has reference to the celebration of the formalities required by statute in the execution of a valid and lawful will. The subscribing witnesses were William EL Gray and Jacob D. Fowler, and they were the only witnesses examined before the surro- gate. There is an attestation clause below the will and both it and the will are in the handwriting of the tes- tator. The attestation clause is as follows : "Signed, sealed and published by the said testament* to be his testament in presence of." Then follows the names and places of residence of the witness. The testimony of William H. Gray shows a perfect, execution of the will and a full compliance with all the statutory re- quirements. He says the testator told him he wanted him to witness a paper which he had before him on a table. It had then been signed by the testator, who then pointed to it and said " That is my will and that is my signature." Then the witness read the attesta- tion clause and put his name under it and the testator requested him to put down his address. The other witness, Fowler, testified that when he signed the paper he noticed the signature of Mr. Bo- gert and Mr. Gray, that Mr. Bogert requested him to sign it and he did so and then he asked him to sign his residence, but that he did not know what the in- strument was. We have therefore a testator who wrote his own will arid who understood the formalities requisite to its due execution, for he complied with them all with the witness Gray. The handwriting of the testator and of'the witness are all genuine and fully authenti- * So in the will. CIVIL PROCEDURE REPORTS. 133 Estate of Bogert. cated and no circumstance of suspicion appears against the will. The witness Fowler is a nephew of the de- ceased and his testimony is quite unsatisfactory. The case therefore seems an eminently proper one for the application of that wise provision ol' the Code of Civil Procedure, that if a subscribing witness has forgotten the occurrence or testifies against the exe- cution of the will, the will mny nevertheless be estab- lished upon proof of the handwriting of the testator and of the subscribing witnesses, and also" of such other circumstances as would be sufficient to prove the will upon tliH! trial of an action (Code 2620). The same principle had been enunciated by the courts of this state before the passage of this law, and it was applied in (lie very extreme and extraordinary case of Cottreli by the court of appeals not yet report- ed.* In that case both of the subscribing witnesses to the will testified that none of the formalities required bylaw were complied with in its execution in their presence, and positively denied that either of them were present at its execution or signed the attestation clause. Yet notwithstanding this testimony the sur- rogate found the will duly executed and admitted it to probate and the court of appeals affirmed the decree. That case isauthority sufficient to uphold this decree, for there the burden cast on the proponents of the will was much greater thitn here. By the section of the Code to which reference has been made, the proof of the handwriting of the testator and the subscribing witnesses seems to be given great prominence and im- portance. In addition to that proof we have here the important fact that the will itself is in the handwrit- ing of the decedent and that he held it several months after its date before he procured its attestation. So that all opportunity for imposition and misapprehen- * Reported, 5 Jf. T. Civ. Pro. 340. 134 CIVIL PROCEDURE REPORTS. Estate of Bogcrt. sion is effectually removed. The will is the offspring of the testator's brain and the proof is that he was a man of more than ordinary intelligence and methodi- cal in his habits. Faultless compliance with the stat- utory requirements is established by one witness, and it is very significant that the failing witness Fowler says that when he was called in by the testator he laid the paper down as he had done with the former wit- ness Gray, requested him to sign it and when he had signed it he requested him to add his residence pre- cisely as he had made the same request to Gray. It requires considerable credulity to believe that he did not at the same time publish his will and avow his signature. He knew itsimportance and necessity, and relied upon Fowler for the last witness to his will, which was to dispose of his property. To give credi- bility to the testimony of this witness would be equiv- alent to a finding that in that solemn moment he pur- posely did a vain thing when all his conduct shows that he intended to execute his last will and testament in view of his approaching dissolution, and this too in 1'ace of the fact that he had drawn with his own hand an attestation clause for the witnesses to sign, recit- ing all the necessary formalities, and that Fowler by signing that, had certified that the requisite formali- sies had been observed. All the presumptions arising from the presence of the attestation clanse and the execution of the will under the supervision of a per- son familiar with the statutory formalities, are to !>e indulged in, in this case and on the whole examination we are led safely to the conclusion that the proof is sufficient to establish this will on the trial of an ac- tion. The decree should be affirmed with costs payable by the appellants. BAUNARD, P. J., and PKATT, J., concurred. CIVIL PROCEDURE REPORTS. 135 Muser v. Lewis. MUSER, ET AL., RESPONDENTS, v. LEWIS, IM- PLEADKD, APPELLANT. N. Y. SUPERIOR COURT, GENERAL TEEM ; MAY, 1884. 450. Torts by wife Husband's liability. It is only as regards torts committed by the \vifo in the management or control of her separate property, that the common law rule as lo the husband's liability is changed by the statutes of this stale. Where the wife receives stolen goods while carrying on a separate business, and becomes thereby liable in conversion, as the wife never acquired a property in the goods, the case does not fall within the above exception. A partial satisfaction of damages by one of several joint tort-feasors, is admissible in mitigation of damages as to another of said tort* i'easors. Fitzgerald v. Quann, 1 N. T. Civ. Pro. 273, disapproved. (Decided Jane 26, 1884.) Appeal by defendant Joseph Lewis from judgment for plaintiffs. A motion was made in behalf of said defendant to dismiss the complaint as to him on the grounds, that there was no evidence in the case connecting him per- sonally, with any of the tortious acts; that the de- fendant Mrs. Lewis, the wife of appellant, had used her separate means and estate in the transactions, and the same were the results of her separate business, and that her husband the appellant had no interest therein, nor connection therewith. The motion was denied and an excep^on taken. Further facts appear in the opinion Dacid Lemntr'M, for appellant. I. The liability of the husband, for the wife's torts, grows merely out of the fact, that by the rules of the J36 CIVIL PROCEDURE REPORTS. Muser v. Lewis. common law, a suit cannot be maintained against a wife alone during coverture, and if the two could not be sued together, the party suffering the injury would be without remedy." 2 Bishop Married Women, 254; to similar effect see Cooley Torts. 11'5 ; Cupel -C. Powell, 17 C. B. N. S. 743; Larkin . Marshall, 4 Excli. R. 805 ; Newton v. Boodle, 9 Q. B. 948; Kow- ing v. Manly, 49 N. Y. 192. The reason of the rule ceasing to exist by the provisions of the Code of Civil Procedure ( 450) the rule itself ig abrogated. II. The husband is not liable for the torts of his wife. Fitzgerald v. Quann, 1 N. Y. Civ. Pro. 273; Trebing v. Yetter, reported in note, 12 Abb. N. C. 302; Muser c. Miller, 3 N. Y. do. Pro. 388; Re Outwin's Trusts, 48 Law Times R. N. S. 410 ; James v. Barrand, 31 Weekly Hep. 786; A bo ul off v. Oppenheimer (Q. B. Die.} 30 Id. 429 ; Re Fish- er's Trusts, 30 Id. 50; Goods of Ayres, 31 Id. 6GO ; Baum v. Mullen, 47 JV. Y. 578; see also Rowe c. Smith, 45 Id. 230 ; Fiske v. Bailey, 61 Id. 150 ; Vanneman v. Powers, 56 Id. 39; Peak v. Lemon, 1 Lans.295; Gillies v. Lent, 2 Abb. 7V. (N. S.) 455; Lansing v. Holdridge, 58 How. 449. Now, in the case under consideration, it appears that the transactions were had by the wife, Mrs. Lewis, without the knowl- edge or participation of her husband, the appellant; she had a separate estate to wit : the moneys invested and subsequently the property acquired through su<;h investment, and the tort was committed in the prose- cution of her separate business, and for her exclusive gain, and thus this action clearly affected her separate property. III. Partial satisfaction by one inures to the bene- fit of other joint tort-feasors in mitigation of damages (Knappv. Roche, 18 Week. Dig. 324 ; Bush v. Prosser, Jl N. Y. 347; Wilmartli 3. Babcoek, 2 .77/77, 194). Satisfaction by one joint tort-feasor has always been CIVIL PROCEDURE REPORTS. 137 Muser v. Lewis. held to be available as a bar. to an action against an- other (Livingston v.. Bishop, 1 Johns. 291 ; Thomas n. Rumsey, 6 Id. 31 ; Bronson v. Fitzlmgh, 1 Hill, 185; Knickerbocker $. Hawes, 8 Cow. Ill ; Brown v. Kin- clielse, 3 Cold. 192; Merchants' Bank v. Curtis, 37 Barb. 317 ; Ruble v. Turner, 2 //. & JV. 38 ; Robertson v. Smith, 18 Johns. 481 ; Pearce v. Pearce, 25 Barb. 243 ; Pouting v. Watson, 32 Eng. L. & E. 116 ; Barrett . Third Avenue R. R. Co., 45 N. Y. 628 ; Woods v. Pangburn, 75 Id. 495). I). M. Porter, for respondents. I. If the wife is the sole offender in the criminal act, the husband must be sued jointly for the damages arising therefrom (Horfon v. Payne, 27 How. 374; Tait v. Culbertson, 57 Barb. 9 ; Wagener v. Bill. 19 Id. 321). The authority to a married woman to carry on a separate business, leaves the other -common law in- abilities in existence (Coleman v. Burr, 93 2V. Y. 17). The common law liability of the husband for the wife's crimes continues in full force (Bertles v. Nunan,92 JV. Y. 152). See also Dimelon v. Rosenfeld (2V. Y. Daily Regis- ter, June 29, 1878, page 1241), Chief Justice SEDG- WICK : "Although! believe the learned counsel has stated correctly the reasons of the husband being joined as a party in an action against his wife for her separate tort, nevertheless in case of judgment against them, he has to make satisfaction by his body or prop- erty. This was true, whether or not the wife has brought to the husband any property, so that prac- tically the plaintiff has the right to resort to the hus- band's property or body for his wife's tort. I am not convinced that this right, has been destroyed by the effect of recent legislation as to married women. If this be right, it may properly be enforced against the husband by joining him as a- party with his wife. Sec- 138 CIVIL PROCEDURE REPORTS. Muser . Lewis. tion 450 does not forbid the joining of any party as defendant with a married woman in a proper case." See also Berrien v. Steel (1 Cio. Pro. 11. 279) ; Fitz- simons v. Harrington (Id. 360) ; Hoffman v. Lachman (Id. 278). Mrs. Lewis was perpetrating a felony and not carrying on any separate business. She was receiving the goods, knowing them to be stolen, consequently her husband is liable for this tort, because she never acquired title to the property- in question. No one can acquire title to goods through the commission of a theft or by receiving stolen goods (Ho If man v.'Carow, 21 Wend. 21 ; 22 Id. 285.; Conlan v. Latting, 3 E. D. 8. 353 ; Brower v. Peabody, 13 N. Y. 121). II. No demand for the goods was necessary. Be- cause they were received from the thief, knowing that they were stolen (Pease T. Smith, 51 N. Y. 477; Glassner v. Whearori, 2 E. D. 8. 352). The goods baa been delivered to Mrs. Miller. After actual con version no demand is necessary (Giassner v. Wheaton, 2 E. D. S. 352 [354] ; Vincent v. Conklin, 1 Id. 203 [212] ; Sharp v. W hippie, 1 Busw. 557). SKDGWICK, Ch. J. The action was substantially for the conversion of plaintiff's personal property. Among the defendants in said action was Fanny Lewis, the appellant's wife. The proof showed that she was guilty of the actual conversion and her hus- band, the appellant, did not participate in it. The claim against him was grounded on the proposition that he was liable in damages for his wife's tort. The testimony showed that a clerk of the plaint- iffs stole from them, through a long time, a great quantity of laces, and from time to time sold them in parcels to the appellant's wife. The verdict was not taken as to whether she knew that they had been stolen. CIVIL PROCEDURE REPORTS. 139 Muscr v. Lewis. In Baum v. Muller (47 N. Y. 579), the court de- clared that the statutes in reference to married women, had not altered the common-law liability of the hus- band for the personal tort of his wife, but that such rule was changed by the statutes of 1800, chapter 90, and 1862, chapter 172, when such torts are committed in the management and control of her separate prop- erty. In Howe c. Smith (45 N. Y. 233), Judge AN- DREWS said, referring to these statutes, that "they leave unaffected, this liability for the strictly personal torts of the wife." Both of these cases were directed to the necessity of joining the husband as defendant with the wife, in a charge of tort done by her. In the first case the tort was obtaining money by false representations of the agent of the wife, in contracting for the sale of her separate property, she receiving the money. The court said that the statutes of 1860 and 1862 provide that " the wife may sue and be sued in all matters having relation to her sole and separate property," and further that the action was clearly for "matters having relation to her sole and separate property." The matters related "to the management and disposi- tion of her property." In the second case the action was for damages to the plaintiff by the escape of the cattle of the defend- ant from land which was her separate property, and their trespassing upon defendant's land. The court said that the action was founded upon the duty of the owner of land to keep domestic animals from straying upon and injuring the premises of others. Such a duty had relation to the property that might be owned solely by a married woman, and that therefore, under the statutes of 1860 and 1862, she might be sued in the same manner as if she were sole. Neither of the cited cases will support the present 140 CIVIL PROCEDURE REPORTS. Muser v. Lewis. recovery, if the tort done by the appellant's wife related to her sole or separate property. On the other hand, if the tort did not relate to the wife's property, the principles stated in the cases make the appellant liable. It the terms of the statutes are not to be enlarged by construction, for the reason that their meaning is clear without it, it would seem to be certain that the title *o the goods always remained in the plaintiffs, and that they never became the property of appel- lant's wife. Therefore the tort did not relate to the wife's separate property. If it be supposed that the wife did gain a property of some kind by the transac- tion, the tort was a separated matter from that which had the appearance of conferring title, and had no essential connection with it, and so the tort was per- sonal to the wife, as distinguished from one relating to her property. A reference to another part of the statutes should be made. Section 2 of the Laws of I860, chapter 90, provides that a married woman may carry on any trade or business, and perform any labor or services on her sole and separate account. Coleman r. Burr (93 N. Y. 17), shows that the generality of the clause as to services should be restrained, so that it does not in- clude services done by the wife, for her husband and the family. The ground of the decision was that the objects which were to be obtained by the statutes, and the jnischiefs which they were intended to remedy, suggested that there should be such a restriction, also considering that the common or former law remains, excepting to the extent it is clearly annulled by a sub- sequent statute (Bertles v. Nu nan, 92 N. Y. lf>2). In like manner, it may be said as to the power of a mar- ried woman to carry on any trade or business, on her own account, that it was not intended to embrace a per- sonal tort that had no real connection with trading or CIVIL PROCEDURE REPORTS. 1 Muser v. Lewis. carrying on a business. In a sense, it is an anomaly, in view of the real independence, personally, of a wife that her husband should be liable for her tort of which he may know nothing, when and where and how it was clone. The hardship is not increased by Ins being liable for a tort, the time of which is within the hours a wife may choose as the time when she says, she is transacting her business, and at the place where her business is done, and it has but a circumstantial, but uo real connection with buying or acquiring. Several parts of the statutes indicate that they did not contemplate a sole liability of the wife for a tort, incidental^ committed by her, when she was carrying on a separate business. The first section of chapter 90, Laws of 1860, pro- vides that the property which any married woman ac- quires by her business carried on, on her separate- ac- count, shall be her separate property. Section 2 is, the earnings Iroin her trade shall be her separate property. Section 8 provides that no bargain or contract entered into by any married woman, in or about the carrying on of any trade or business, shall be binding upon her husband, or render him or his property in any way liable therefor. It will be observed that no reference is made to the' wife's torts. In view of These enact- ments, section 7 states when a married woman may be sued in the same manner as if she were sole. It is not declared that she may be sued in matters having rela- tion to her separate business, but in matters having relation to her sole and separate property. It has been already considered that the tort in question did not rekile ro her property. The ieurned counsel for the appellant presents an argument of weight. It is, that if a married woman may acquire separate property by her own action, as if she were sole, it is not intended that there can be legal power of interference by her husband with any 142 'CIVIL PROCEDURE REPORTS. Muser v. Lewis. steps she may take to acquire that property, and if there be no power of interference there should be no legal responsibility. This seems to be sufficiently an- swered by considering that the sole liability of in a r- ried women is such only as the legislature has seen lit to make, and that, as we have seen, is confined to mat- ters that relate to what is in fact the married woman's sole property. They affect a more recent statute. Section 450 of the Code of Civil Procedure remains to be examined and particularly with reference to the learned opinion in Fitzgerald v. Quann, 1 N. Y. Cio. Pro. 278. The court in that case thought that the last clause of the sec- tion: " It is not necessary or proper to join her husband with her as a party in any action or special proceed- ing affecting her separate property," did not imply thut it was necessary to join him in other cases, be- cause the previous part ol ! the section declared other- wise, and embraced all actions against married women. But to me, it seems that the fust part has no reguhi-" tion for the bringing of actions, or when or as to what a married woman might be sued as if she were single. It only says that when she is sued, whether on a joint or individual claim against her, her husband should not, as by common law he might, appoint an attorney to appear for her and defend, but she appears st.il juris, a'nd defends as if she were not married. If this be correct, it has no bearing upon the implication- of the second part of the section. 1 am of opinion, therefore, that the appellant u:is responsible to the plaintiffs. If lie \vero liable, there is no question in the case a.s to his being made defend- ant jointly with the wife, against whom an individual liability is claimed. She wuuld be [he parry to raise that question, and she has not done so. One other matter demands attention. It appeared by plaintiff's case, that after the receiving of thegoodd CIVIL PROCEDURE REPORTS. 143 Muser v. Lewis. by the appellant's wife, the plaintiffs had recovered certain of the goods, and had also received certain moneys from a Mrs. Miller, in payment of a judgment obtained for the conversion by her (if the goods involved in this action, the appellant's wife having sent the goods to Mrs. Miller. The court refused to charge, as requested by the appellant's counsel, that, the jury should deduct from the value oi' the goods converted the sum paid by Mrs. Miller. This request, I think, should have been granted, under the case of Knapp v. Roche (18 Week. Dig. 324). It was not matter of de- fense, but concerned the plaintiffs' proof as to what damage they had in fac.r suffered. It is not necessary, however, to order a new trial on this ground. The plaintiff's proof was that he had received from Mrs. Miller a sum of money, which, with what the court directed should be deducted for other reasons, amounted to a sum which the defendant's counsel claimed in his requests was the sum to be de- ducted, viz.: $5,200. The requests did nor specifically refer to this sum, but they were based upon the evi- dence as given by the plaintiffs, and there was no doubt as to rhis sum K;ing all that was received by plaintiffs. The court instructed the jury to deduct a parcel of this amount, to wit, $2,224.76, but the rest, that is, $2,975.24, should have been deducted. This may now be deducted from the verdict, as that ascer- tained the value of the goods, without including in- terest. The judgment appealed from should be reversed, unless the plaintiff stipulate that from the amount of the verdict $2,975.24 be deducted, and in case of such stipulation the judgment as so reduced is affirmed, without costs of appeal to either party. INGRAHAM, J., concurred in the result. H4 CIVIL PROCEDURE REPORTS. Dock v. South Biooklvn Saw Mill Co. DOCK v. THE SOUTH BROOKLYN SAW MILL COMPAQ Y, ET AL. SUPREME COURT, KINGS COUNTY, SPECIAL TERM, AUGUST, 1884. 755-757. Revival and continuance of action in case nf death of plaintiff Assignee Counter -claim. "Where in an action against a corporation to foreclose a mortgage for $40,000, a. counter-claim was interposed for $140.000, moneys Al- leged to have been misappropriated by the plaintiff while a trustee of the defendant, and the plaintiff died before the cause was hied, and thereafter one " S." moved to be allowed to continue the action, and to be substituted as plaintiff on proof by affidavit that the plaint- iff left a will, which waa duly admitted to probate in Pennsylvania; that the executrix named therein had duly qualified, and that the executrix was sole legatee under the will, and I hereafter assigned the mortgage to said " S." Held, that the motion should be granted; that the counter-claim did not affect the question as the executrix could assign the bond and mortgage, and the assignee could bring a new suit therefor in which the counter-claim could be used only to the extent of a set off against the mortgage. McLauchlin-c. Brett (2^. T. Civ. Pro. 194), followed. (Decided Augml 2, 1884.) Motion by one Isaac Schlicter that the action be re- vived and continued, and that he be substituted in the place of the plaintiff, now deceased. This action was commenced in March, 1883, for the foreclosure of a mortgage on real property made by the defendant, a domestic corporation, to plaintiff to secure the payment of the sum of $40,000. The answer set up among other defenses, that no consideration had been given for the mortgage, and also a counter-claim for $140,000, moneys alleged to CIVIL PROCEDURE REPORTS. 145 Dock 0. South Brooklyn Suw Mill Co. have been misappropriated by the plaintiff while a trustee of the defendant ; it, aliened that there had been for many years mutual dealings and accounts between plaintiff and defendant wherein upwards of 1,000,000 were involved ; that the plaintiff while a trustee of the defendant had dealt unfairly, an'd that the accounts of such transactions if- properly made, would show an indebtedness to the defendant from, plaintiff of over $140,000 ; it demanded an accounting and judgment for the sum found due. Issue was joined on the counter-claim by the service of a reply in November 1883 setting up the statute of limitations ; denials of allegations contained in the answer and other defenses. In February, 1884, and before the trial of the cause, the plaintiff departed this life. Nothing further was done in the case until August, 1884. The plaintiff always resided prior to and at the time of his decease in the city of Philadelphia, Pa. A notice of motion and affidavits entitled in the action were served on defendants attorney in August 1884. seeking for an order '" directing that the above entitled action be continued by Isaac Schlicter as plaintiff in place of Luther Dock plaintiff deceased, and granting the said Isaac Schlicter leave to amend the complaint herein as he shall be advised." The moving affidavits were made by deceased plaint- iJF-s attorney in the case, by one Rex, the alleged clerk of the orphans' court of the county of Philadelphia, by s:sid Isaac Schlicter the alleged assignee of the mort- gage and cause of action by assignment from one Su- san V. Dock, the alleged executrix and sole legatee ol decedent ; a copy of alleged assignment of said mort- gage signed by said Susan V. Dock individually was also annexed to the motion papers. The moving affidavits were in effect that plaintiff had died ; had left a will ; that it had been proved VOL. VI 10 146 CIVIL PROCEDURE REPORTS. Dock c. South Brooklyn Saw Mill Co. under the laws of Pennsylvania and admitted to pro- bate there ; that since the death of plaintiff, the execu- trix (said Snsan V. Dock), named in said will had qualified in Pennsylvania under its laws, and had exe- cuted an assignment of the cause of action and of the mortgage and bond to Isaac Sell Meter ; said Isaac Schlioter also a resident of Philadelphia deposed that he had bought the same from said executrix. No copy of any will nor official certificate by any officer showing executor's appointment was produced on the motion, nor did it appear that any will of plaintiff had ever been filed in any office for probate within this state. The said moving papers were returned within twen ty four hours to the attorney for the phiintiff and for the applicant Isaac Schlicter who served them with the following objections indorsed thereon. "The within affidavits and papers are herewith respectfully returned upon the ground, first, that, the service of the same is unauthorized by the Jaw and the rules of practice of the court of the state of New York, the said plaintiff having died on or about February 6, 1884 ; on the further ground that the controversy late- Jy existing between one Luther Dock and this defend- ant cannot under the circumstances be brought before the court upon said application of yourself as attorney for the phiintiff and of one Isaac Schlicter, the said Schlicter and yourself as his attorney, being strangers to this matter, and on the ground that you are in no respect qualified or entitled to make or serve said pa- pers in the said suit referred to." Notwithstanding the return of the papers the mo- tion was thereafter annied. Tunis G. Bergen, for the motion. Cited Green v. Martine, 1 N. Y. Cio. Pro. 129 ; Smith v. Zalinski, 94 N. Y. 519 ; Holsman v. St. John, 90 Id. 461 (rev'g 2 N. Y. Civ. Pro. 48). CIVIL PROCEDURE -REPORTS. 147 Dock v. South Brooklyn Saw Mill Co. Manley A. Raymond, opposed. The action by plaintiff's death was stayed as to every person other than plaintiff's executor or ad- ministrator. In Rogers / Adriance (22 How. Pr. 97), if was held, "The doctrine of privity has never been carried so far as to authorize arevivorin a suit brought by a party in interest who dies, and the appointment of an executor no revival, by him, but a transfer of the right and subject of the action, and a revival by the assignee," The affidavits were not legal or proper evidence of any of the facts respecting the will of decedent ; its validity, contents, probate or effect, to make a proper prima facie, case showing legal succes- sion to the alleged assignee and proposed plaintiff. A copy of the will (if any) should first be exemplified and authenticated and produced on the motion as required by sections 2695. 2703, 2705 of the Code. See also 10 How. Pr. 253. The moving papers left it undecided whether the proposed applicant Schlicter had any true legal relation to the case. The applicant Schlicter, even if proper proof of assignment and succession had been adduced, should not be allowed to be substituted as plaintiff in the action because of the issues raised by the counterclaim and reply. The motion if granted would prejudice the defendants in so far as they were actors in the case. " Where a substitution will prejudice any right, or interest, or remedy of the defendant, the court will either refuse to permit it or grant it only such terms as will protect the defendant from injury" (Howard v. Taylor, 11 How. Pr. 380; S. C., 5 Ducr, 604). " Where a defendant interposes a counter-claim in an action and asks for- affirmative relief and issue is joined upon the claim, he becomes an actor in the case and may proceed in it as if he were in fact a plaintiff " (43 How. Pr. 272 ; affirmed in Livermore v. Bainbridge, 148 CIVIL PROCEDURE REPORTS. Kaufman t>. Lindner. 49 N. Y. 129 ; Gleason v. Niven, 2 Duer, 643 ; Potter v. Van Vranken, 36 N. Y. 619). CULLEN, J. The case of McLachlin v. Brett (2 N. Y. Civ. Pro. 194) is on all fours with this case, except in respect to the counterclaims. The appeal to the court of appeals from the decision in that case was dismissed and the case must be considered as overrul- ing the case of Rogers o. Adriance (22 HOLD. Pr. 97). I do not think the counter-claim herein affects f he ques- tion. The executor could assign the bond and mort- gage, and the assignee could certainly bring a new suit therefor in which the counter-claim could be used only to the extent of a set-off against the mortgage. The same can be done in this case. KAUFMAN AND ANOTHER v. LINDNER. CITY COURT OF NEW YORK, SPECIAL TEEM, JUNE, 1884. 549, snbd. 4, 12G8. Bankruptcy. When judgment not discharged of record on account of debtor's discliargc in. Fraud. What amounts to, in con- tracting liability. Necessity cf pleading. Where, on a motion by a judgment debtor to discharge a judgment of, record under section 12G8 of the Code of Civil Procedure, on i\\>: ground that lie had been discharged in bankruptcy, it appeared that, although the action was to recover on contract for goods soid and/delivered, and money loaned, an order of arrest was granted in the action on the ground that the sales and loans were induced by the false and fraudulent representations of the judgment debtor, iind that he had removed and concealed hi 3 properly for the pur- pose of defrauding his creditors, and he did not answer or demur to the cop.iplar.it, Held, thut the debt was not discharged by the CIVIL PROCEDURE REPORTS. 149 Kiiufman v. Lindner. proceed ings in bankruptcy, and the motion should be denied ;[ 4 ] that purchases made with the intent of not paying for them are fraud- ulently contracted, and debts thus contracted are not discharged by a discharge in bankruptcy;!^] that the judgment did not merge the alleged fraud, and the court can, for the purpose of the bank- ruptcy statute, go behind the judgment to see whether the claim upon which it was recovered was created by fraud. [*J Prior to theenaclmentof chapter 542 of the Laws of 187'.), adding sub- division 4 to section 549 of the Code of Civil Procedure, the com- plaint in an action on contract in which the arrest of the defendant was sought on the ground of fraud in contracting the liability, should not contain the allegations of fraud, and the nature of the action and character of the claim in such a case was not determined by the demand of the complaint. [ S J (Decided June, 1884.) Motion to cancel and discharge a judgment of re- cord under section 12(58 of the Code of Civil Proced- ure. The opinion states the facts. HYATT, J. This is a motion by a judgment debtor, claiming to have been discharged in bankruptcy from the debt on which the judgment in this action was recovered, for an order directing the clerk of this court to cancel and discharge the said judgment of record. The motion is made under and pursuant to section. 1208 of the Code of Civil Procedure, and the facts are as follows : The plaintiffs recovered judgment against th defendant May 21, 1874, for $416.23 on a demand for goods sold and delivered and for money loaned by them to the defendant, which became due and payable before April 27, 1S74. On said last mentioned day proceedings in bank- ruptcy were begun against the defendant, in which he is called ''Israel" Lindner, and on May 9, 1S74. he was duly adjudicated a bankrupt. On May 22, 1882, the defendant was discharged in bankruptcy under the name of "Israel" Lindner from the a^^^nts ?f all 150 CIVIL PROCEDURE REPORTS; Kaufman v. Lindner. debts due from him on and before April 27, 1874, not excepted by section 5117 of the Kevised Statutes of the United States. An order of arrest was granted and the defendant arrested thereunder, as appears by the certificate of the sheriff of the service of the order, affidavits and summons; the defendant appeared in the action, but- failed to answer or demur to the complaint. The affidavits, upon which the order of arrest was granted, aver the purchase of goods by the defendant from the plaintiffs upon his representations that he had a valuable stock of jewelry in his store ; that by reason of paying out large sums of money he wasthetv short, but expected soon to pay all he owed plaintiffs ; that he owed very liule to any one else, and that his stock was all paid for except a few hundred dollars ; they further aver that the .plaintiffs believing and relying upon the representations of the defendant, sold and delivered to him a quantity of goods ; that the said representations were false; that the defend- ant was wholly insolvent ; that he did not pay either the plaintiffs or others to whom he was largely in- debted, and that he had removed, concealed or se- creted the said stock from his store for the purpose of defrauding his creditors. Section 5117 supra, provides that "no debt cre- ated by the fraud of the bankrupt shall be discharged by proceed ings in bankruptcy." Chums usually com- prised under this title, are those which have been in- , cur red by any false representations or pretense of ['] the bankrupt. Purchases made with the precon- ceived in ten I of not paying for them, are fraud- ulently contracted, and the debts thus arising are not discharged under this section (Stewart v: Einerson, H Benedict [U. ft. Oirc.} 402). The judgment in this action did not merge the ['] alleged fraud.; the court can, for the purposes of CIVIL PROCEDURE REPORTS. 151 Kauf.nau v. Lindner. the bankruptcy statute, go behind the judgment, to see whether the claim upon which it, was recovered was created by fraud (In re Patterson, 1 Benedict [ U. S. Giro.'} 307 ; In re Whitehouse, 4 Id. 63 ; Warner v. Kronkhite, 13 Id. 52). The dei'endant contends, however, that this action was upon corilruct. because the complaint, which was served after the granting of the order of arrest, was for a sum of money only, for goods sold and delivered and money loaned, /and that the claim upon which the judgment was recovered, was therefore discharged by the operation of the defendant's discharge in bank- ruptcy. The nature of the action and character of the [ 3 ] claim is not to 'be determined in the case at bar, by the demand of the complaint, for the reason thafc prior to the amendment of 1879* (adding subdivision 4 .to section 049, GodcCiv. Pro.), it had been well settled that in this class of cases the complaint should not contain the allegations of fraud. In my judgment the affidavits, upon which the [ 4 ] order of arrest was granted, disclose a claim in- curred by the false representations of the bank- rupt, which was not discharged by the proceedings in bankruptcy. It 1 am right in ray conclusion, it is unnecessary to consider whether the defendant is entitled to the benefit of a discharge granted to him in the name of " Israel " instead of Isidore. The motion is denied, with $10 costs. * Laws 0/1879, chap. 542. 152 CIVIL PROCEDURE REPORTS. Davenport Glucose Co. v. Taussig. DAVENPORT GLUCOSE COMPANY, RESPONDENT, 0. TAUSSIG, ET AL., APPELLANTS. SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM, JANUARY, 1884. 837, 870 et seq. Examination of party before trial in action to recover chattels the sale of which was procured ly fraud. Assignee for benefit of creditors. In an action by a vendor against his vendees and their assignee for the benefit of creditors, to recover the possession of certain chattels forming a part of the assigned estate, on the ground that the ven- dees obtained the sale and possession fraudulently, the assignee may be examined as a party before trial, and as many questions may be asked the vendee* which they would be bound to answer if called upon the trial, they may be required to submit to an exami- nation before trial. On such an examination they are not bound to criminate themselves, and may elaim the personal privilege of refusing to answer, and it would be for the judge to determine, as it would be on a trial at circuit, whether the questions are such as they are not bound to answer, but. the fact that such questions may be put, does not seem to be a good re:isou for holding that a party cannot be examined at all in such an action. (Decided May 9, 1884.) Appeal from an order of the special term denying motion to vacate an order for the examination of the defendants before trial. The facts are stated in the opinion. W. C. Heppenheimer, for appellants. The general term of I his court, in the case of Andrews x. Prince (81 Hun, 233), have held that in actions upon fraud, deceit and fraudulent conspiracy, an order for the examination of a party defendant CIVIL PROCEDURE REPORTS. 153 Davenport Glucose Co. t. Taussij,'. before trial will be vacated when the object is to pro- cure testimony to establish the fraud Where on the return day the party moves to vacate on the ground that he could not be compelled to crim- inate himself, the burden is on the plain tiff, the .com- plaint not having been served, to show that there are material matters as to which the defendant could be examined, and or*, his failure to do so the order should be vacated before the defendant is sworn. Corbett v. .De Comeau, 4.4 N. Y. Super. Ct. 306; S. C., 5 Alb. N. Cl 169 ; Levy v. Loeb, 44 N. Y. Super. Ct. 291 ; aff'd, 75 N. Y. 609. On the return of the order for the examination of witnesses before trial where the parties are before the court, a motion may be made to dis- charge it on affidavits, without giving previous notice or serving copies of such affidavits. Barker v. Wilder, 91 Hun, 584; S. 0., 10 N. Y. Weekly Dig. 252. A. P. WMteJiead and RicJiard StacJipoole (Martin & Smith, attorneys), for respondents. The privilege of the witness is personal, and he may waive it. The counsel should be permitted to ask the question, and the judge should advise the witness that he is at liberiy to decline answering. Southard r. Rex ford, 6 Cow. 254 ; People v. Bodine, 1 Denio, 281. The court should determine whether the answer the witness may give can criminate him. People/?. Mather, 4 Wend. 229. In an action for usury, where witness declined to answer on the ground that he would crim- inate himself, held that the court should decide whether the witness should be compelled to answer. See Fellows v. Wilson, 31 Barb. 162. A party cannot object that the answer may tend to criminate the wit- ness. The objection is personal to the witness only. People v. Carroll, & Parker's Cr. 73. The plaintiffs should be allowed to examine the defendants subject to their right to object to such 154 CIVIL PROCEDURE REPORTS. Davenport Glucose Co. t. Taussig. questions, if any, as may tend to criminate or degrade them. The general term of this court, in -January, 1881, sustained an order for the examination of de- fendants before trial in on action to set aside a general assignment of creditors on the ground of fraud. See Tenny v. Mautner, 1 N. Y. Civ. Pro. 64. The plaintiff was allowed to be examined before trial by the defend- ant, whose defense was, that the plaintiff had made false and fraudulent representations in regard to cer- tain goods. Sprague v. Butter worth, 22 Hun, 503. The court holding that the plaintiff could claim his privilege if questions were put to him tending to criminate or degrade him. The justice before whom examination of a party before trial is taken may limit examination. Hutchinson v. Lawrence, 3 N. Y. Civ. Pro. 98. The order should not be set aside, unless the evidence sought relates exclusively to f:;-;ts, which if proved, would show the witness was guilty of a crime. Canada Steamship Co. v. Sinclair, 3 .ZV. Y. Civ. Pro. 284. DAVIS, P. J. This is an appeal from an order of the special term denying motion to vacate an order directing examinalion of defendants before trial. The action is to recover possession of personal property, to wit, 250 barrels of glucose alleged to have been sold by the plaintiffs to the defendants Taussig and Ham- merschlag, who subsequently made a general assign- ment to the defendant Barricklo, for the beneHt*of their creditors. The plaintiff replevied 170 barrels of glu- cose. It is alleged that the sale and possession were fraudulently obtained. It must be conceded that the authorities in this district, on the question of .the right to make an order for the examination of parties in an action where the plaintiff's cause of action is for an alleged fraud, are somewhat in conflict. There is no case, however, we think, that holds in an action to recover possession of CIVIL PROCEDURE REPORTS. 155 Davenport Glucose Co. D. Taussig. personal property, where the objnct is to ascertain from the defendants the quantity of goods that came into their hands, and the time when they received the same, and the time of making the sale or transfer of the same to another party, and the quantity delivered to him, &c., that such matters are not proper subjects for this preliminary examination. In this case, the assignee of the purchasers, Bar- ricklo, who is not sought to be charged with fraud- ulent conduct, received the goods from the defendants. No reason can be imagined why he may not be called and examined as to when and where he received the same, and to what amount ; and to prove whatever might be necessary touching the assignment to him of the goods by the other defendants, and the disposition that may have been made thereof. It can hardly be conceived that his answers to such an examination can be supposed to subject him to a charge of fraud. In respect of the other defendants, it is very ob- vious, as it seems to us, that many questions may be asked which they will be bound to answer if called upon the trial, and if in the course of such an exami- nation as this, questions may be asked which they de- cline to answer, on the ground of their privilege, their rights are precisely the same as they would be upon the trial, if the same questions were put to them there. They are not bound to criminate themselves, and may claim the personal privilege of refusing to answer. On such an examination it would be for the judge to determine, as would be on a trial at circuit, whether the questions are such as they are not bound to answer. But the fact that some such questions may be put does not seem to be a good reason for holding that a party cannot be examined at all in an action of this kind. The cases referred to by the learned counsel for the appellants do not go far enough, we think, to require 156 CIVIL PROCEDURE REPORTS. Fitzsimmons . Ourley. us to hold that they determine this case adversely to the respondents. We see no ground, therefore, for interfering with the order of the court below, and it should be affirmed, with $10 costs and disbursements. DANIELS and HAIGHT, JJ., concurred in the result. FITZS1MMONS, APPELLANT, v. CURLEY, IM- PLEADED, RESPONDENT. N. Y. SUPERIOR COURT, GENERAL TERM, MAY, 1884. 3268, 32C9. Non-residence. Security for costs. In order to require plaintiff to give security for costs, on the ground of non-residence, it miiut nppear cither, that he was, when the action was commenced, a person, residing without the state, or that after the action was commenced, he ceased to be a resident of this state. Where defendant, with knowledge of the facts, proceeds with the trial, it is too late to move for security for costs. (Decided June 16, 1884.) Appeal from an order directing plaintiff to file security for costs as a non-resident. The facts appear in the opinion. Adolphus D. Pape, for the appellant. George H. Starr, for the respondent. PER CURIAM. In order to require the plaintiff to give security for costs, it must appear either, ficst, CIVIL PROCEDURE REPORTS. 157 Fitzsimmons v. Curlcy. that she was. when the action was commenced, a per- son residing without the state (Code, 3268), or, second, that after the commencement of the action the plaint- iff ceased to be a resident of the state ( 3269). There is no evidence that plaintiff was not, at the commencement of this action, a resident of this state. Defendant swears that one Johnson told him that plaintiff was living in the state of California, and had been living there for years. Mr. Bennett says that plaintiff resided in this state up to about a year ago, when, he is informed, she left on a visit to Portland, Oregon, and that she was expected back soon to re- sume her bnsines as domestic. It thus appears posi- tively that she was a resident of New York when the action was commenced. The only evidence that she has ceased to be a resident since the commencement of the action, is the statement of Johnson to defendant; in answer to that, McNeil informed Mr. Bennett that she is expected to return to New York soon and is away on a visit. We do not think that it sufficiently appears that plaintiff is a non-resident. We are also of the opinion that defendant by proceeding with the trial before Judge FREEDMAIST, waived his right to the security So far as appears, he knew all the facts he has stated in his affidavit, prior to commencing the trial, and knowing all those facts he proceeded with the trial and did not make this application until Judge FKEEDMAN had suspended the trial and ordered cer- tain issues to be tried by a jury. It was then too late. Having proceeded with the trial lie had waived his right to require the security (Buckley v, Gutta Percha Co., 3 A r . Y. Ch. Pro. 432). The order should be reversed and motion denied, with 10 costs and disbursements. Before SEDGWICK, Ch. J., and IKGKAHAM, J 158 CIVIL PROCEDURE REPORTS. . Jenks v. Van Brunt. JENKS,- RESPONDENT, v. VAN BRUNT, APPELLANT. SUPREME COURT, FIRST DEPAP.TMENT, GENERAL TERM, MARCH, 1884. 1207. Appeal. When judgment not reversed where its correction depends ^n credibility of witness. K&lucing judgment. Power to amend complaint on a-ppeal. Whore it appeared tlmt a verdict was wrong, if the evidence of the defendant's witnesses had been fully credited, and it was manifest that their testimony was not so credited, and the judge before whom the case was tried, who" was an able. and careful judge', denied a motion for a new trial on the ground that the "verdict \v:is against the weight, of evidence, Held, that it was not the duty of the general term on appeal from his order denying such motion, to make a critical examination of tlic evidence with a view to see whether the decision of the motion was correct. Where a verdict was for a small amount greater than the claim for recovery in the complaint, and it did not appear that the attention of the court below had been called lo the subject cither on tiie trial or on the motion for a new trial, Held, that it was doubtful, whether the general term on appeal could permit the plaintiff to amend his compl'iint so that the judgment would be consistent, with the case made and embraced within the issues; that he judg- ment should bo reduced by deducting the excess, and as reduced,, affirmed. (Deckled May 9, 1884.) Appeal from judgment entered upon verdict, ami from order denying motion for new trial on the min- utes of the judge, mid on the ground that the verdict is against the weight of, evidence. Austin S. Csuliiny, for appellant. Jolin BrooJcs Leaoitt, for respondent. CIVIL PROCEDURE REPORTS. 159 Jeuks . Van Brunt. DAVIS, P. J. This action was tried before an able and careful judge, and the motion for new trial on the ground that the verdict was against the weight of evi- dence was made before, and considered by, him, and denied. On looking through the evidence it is quite appar- ent that the verdict was wrong, if the testimony of the defendant and his witnesses had been fully credited by the jury. But it is manifest that their testimony was not so credited ; and the learned judge before whom the case was tried, having full opportunity to see and hear the witnesses and to determine their rela- tive credibility upon the motion before him, refused to interfere with the verdict. Under such a state of facts we do not think it our duty to attempt a critical examination of the evidence with a view to see whether the decision of the learned judge upon the motion was correctly disposed of, be- cause it is clearly apparent that our conclusion would have to depend upon the question already suggested, whether the testimony on the part of the defendants was or was not entitled to credit, in preference to that on the part of the plaintiff. Under such circumstances, we think it our duty to affirm the order denying the motion for new trial. And as that is substantially the only question upon the general merits of the case in the appeal from the judgment, the same result will necessarily follow. It seems to be apparent that the verdict was for a small amount greater than the claim for recovery in the complaint with interest added thereto. That amount seems to be 839.34. There is nothing in the papers to show that the attention of the court below either at the trial, or upon the motion for new trial was called to this fact or that any suggestion was made on the subject. If the attention of the judge had been called to the fact he would undoubtedly have directed 160 CIVIL PROCEDURE REPORTS. Jc-nks r. Van Brunt. a deduction, or have ordered an amendment of the complaint so that the verdict would not exceed the amount demanded with interest. Section 1207 of the Code of Civil Procedure pro- vides, that where there is no answer the judgment slinll not be more favorable to the plaintiff than that de- manded in the complaint, and where there is an answer the court may permit the plaintiff to take any judg- ment consistent with the case made by the complaint and embraced within the issue. We do not see why, under this section, if the at- tention of the court had been expressly called to the excess at the trial, he could not have permitted the plaintiff to amend his complaint, so that the judgment would be consistent with the case made by it, and em- braced within the issue. This w-as not, however, done, and it is doubtful whether this court possesses the power at this stage of the case to make such an amend- ment. If attention had been called to this discrepancy between the sum demanded'in the complaint and the verdict rendered, there would appear to be such an error as to require this court to reverse the judgment and order a new trial unless the excess should be deducted, without costs of the appeal 'to either party. But where no suggestion is made until the argu- ment of the appeal, we think this court ought to exer- cise its discretion as favorably to the plaintiff as may be done under established rules. We think we ought in this case to direct that the judgment should be reduced by deducting the excess as of the date of the verdict,- and as so reduced, af- firmed with costs. DANIELS and HAIGIIT, JJ., concurred. CIVIL PROCEDURE REPORTS. 161 Orden Germania v. De-vender. ORDEN GERMANIA, RESPONDENT, v. DEVENDER, APPELLANT. N. Y. COMMON PLEAS, GENERAL TERM, MAY, 1884. 531. Sill of particulars. When granted. It appeared from the complaint that plaintiff was a mutual benefit association, duly incorporated; that between certain dates defend- ant was the treasurer of its grand lodge; that moneys were received lor plaintiff during that period, from branch lodges, by the finan- cial secretary; and that it was defendant's duty to collect said mon- eys from said secretary. The complaint then sets forth in various counts, that defendant either wrongfully converted to his own use, $2,000, or by wrongful negle'ct of his office allowed the financial secretary so to do, Held, that plaintiff should furnish a bill of par- ticulars of moneys received iind paid by defendant and also by said financial secretary, showing dates, amounts, names of branch lodges, etc. (Decided Junt 30, 1884.) Appeal by defendant from order of special- term, so far as it: denies the full relief prayed for by him on his motion for a bill of particulars. The plaintiff in its complaint r. lieges that it is a corporation duly organized under the laws of the state of jSevv York; that by virtue of the powers in it vested, it instituted a central grand lodge, central board of linance, &c. ; after stating the duties of the central grand lodge, that it was the duty of the trea- surer elected by the central grand lodge to receive from the financial secretary of the central board of finance all moneys belonging to the plaintiff, and after stating the duties of the various lodges and officers of the grand lodge, the complaint charges that: VOL. Vi. 11 162 CIVIL PROCEDURE REPORTS. ____^^__ -^ ^_^_^________^^____ i Orclen Germayia v. Devonder. At all times between October 12, 1873, and Decem- ber 16, 1881, the defendant was the treasurer of the grand lodge in the state of New York of the plaintiff. On information and belief, that between February 14, 1879, and December 16. 1881, the branch lodges of the plaintiff caused to be paid to the financial secre- tary of the plaintiff, in the grand lodge of the state of New York, plaintiff's moneys, amounting to upwards $68,100.50, belonging to the fund to help the sick. On information and belief, that defendant aban- doned the performance of his duties to the financial secretary of the plaintiff in the grand lodge of the state of New York, and negligently failed to receive and collect from said financial secretary all mone\'s so paid to him by branch lodges of plaintiff, from Febru- ary 14, 1879, to December 16, 1881, by reason of which failure the said financial secretary was enabled to and did wrongfully convert to his own use the sum of $2,000 and over of moneys belonging to the plaintiff. On information and belief, that between the said February 14, 1879, and December 16, 1881, divers large sums of money belonging to the plaintiff, exceeding the sum of $2,000, were paid to and had been received by defendant as treasurer as aforesaid, for and to the use and benefit of plaintiff ; that defendant was re- quested to pay over to plaintiff large sums of money belonging to plaintiff, viz. : $2,000 and over, and has refused to pay over the same. On information and belief, that defendant has wrongfully converted to his own use the sum of $2,000 and over, of moneys in his hands belonging to the plaintiff. G. Levy, for appellant. Kaiifmann & Saunders, for respondent. CIVIL PROCEDURE REPORTS. 163 Onlen Germania v. Dev-ender. J. F. DALY, J. The defendant was entitled -to a bill of particulars which should show what moneys it is claimed were collected by him, and what -sums plaintiff acknowledges to have received from him be- tween February 14, 1879, and December 16, 1881, the periods mentioned in the complaint. The bill of particulars should also specify which of said sums were collected by defendant and which of said sums were received by the financial secretary from whom defendant should have collected them. Plaintiff must prove all these particulars in order to sustain its claim that defendant has converted $2,000, or suffered the financial secretary to convert that sum by neglecting to collect it, and the defendant is enti- tled to know in. advance of the trial, the particulars of the claim thus to be proved. The statement of the complaint on the point is too general. It is no answer to defendant's application for a bill of particulars to say that he is presumed to know what moneys h^ has collected and what moneys he has paid over. There is no presumption that he has informa- tion of moneys which he has collected but has not accounted for, because it is not to be presumed in advance of the trial, that he has been guilty of such a breach of trust and that he therefore must know the particulars of his guilt. He is certainly not presumed to know what a third party, the financial secretary has collected, and failed to account for. The order should provide that plaintiff serve a bill of particulars on defendant's attorney within ten days showing what sums it is claimed were received by the financial secretary of plaintiff between* February 14, 1879, and December 16, 1881, from branch lodges of plaintiff, giving dates, amounts and from what lodges received, also showing what sums it is claimed were received for plaintiff by defendant as its treasurer be- tween the same dates, giving the date and amount of 164 CIVIL PROCEDURE REPORTS. Anthony v. Wood. each receipt, and from whom received. Also showing what sums it is claimed were paid over by the finan- cial secretary to defendant and by defendant to plaintiff between such dates. Defendant should have $10 costs of the motion and $10 costs of this appeal besides disbursements of mo- tion and of appeal. BEACH, J., concurred. ANTHONY, APPELLANT, v. WOOD. BOWE, SHER- IFF, ETC. RESPONDENT. COURT OF APPEALS, 1881. 648, 649. Attachment. Mode of levying on promissory note, etc. Effect of prior fraudulent transfer. Section 649 of the Code of Civil Procedure, which provides that when property sought to be attached is "capable of manual delivery, in- cluding a bond, promissory note or other instrument for the pay- ment of money," the levy is to be made "by hiking the same into the sheriff's actual custody," merely provides for the mode of mak- ing the levy, but in no respect alters the inherent character of the property, and if a bond or note sought to be attached, has been transferred, however fraudulently, no lien by attachment is pos- sible and the possession of the bond or note by the officer under his warrant, accomplishes nothing. [',*,*] Until the sheriff has obtained actual custody of property, "cfipnble of manual delivery including a bond, promissory note, etc. or oilier instrument for the payment of money " sought to be attached, lie has made no levy and can make m>nc;[", T ,] service of a copy of the warrant upon the person having possession of such property, :s not a levy thereupon, and where the sheriff afterwards obtains posses. siou of the property, his possession does not relate back to the time of such service. [*] Thuiber t>. Blauck (50 N. T. 80); Castle v. Lewis (78 Id. 131), fol- CIVIL PROCEDURE REPORTS. 165 Anthony v. Wood. lowed :[>] Bills t. Nat'l Park Bank (89 N. T. 343), overruled ;['] Anthony v. Wood (29 Hun, 239), reversed. [ 8 J (Decided June, 1884.) Appeal by plaintiff from an order granting motion by the sheriff of the city arid county of New York, that he be made a party defendant, also from a judg- ment in his favor. This action was brought to foreclose a mortgage executed by the defendant Wood, to one John P. Brooks, to secure the payment of a certain note, and by said Brooks assigned to the plaintiff.* The respondent Bowe, late sheriff of the city and county of New York, petitioned to be joined as a de- fendant, alleging that the title to the note and mort- gage were in him, by virtue of the proceedings under a' certain attachment issued to him against the property of said Brooks, and that the assignment to the plaintiff was fraudulent, and praying a foreclosure and sale under the mortgage and the payment of the proceeds to him to be held under the attachment. This motion was granted, and upon the trial, judg- ment was given in his favor for the relief he asked for. From the order granting the motion and said judgment this appeal was taken. It appears that in an action in the supreme court, New York county, brought by one Helen L. Hall against said John P. Brooks, an attachment against his property was issued on the ground that he was u -non -resident of the state, and delivered to the respond- ent Bowe, as sheriff of the city and county of New York, for service ; thatat that time the note and mort- gage in question were in the possession of one Clark Brooks, an attorney, and were kept in the safe of an- other attorney, whose office was in the building in which the office of Clark Brooks was ; that on the re- * Reported below. 21) Z/w;i f 2o9. 166 CIVIL PROCEDURE REPORTS. Antltony v* Woodi ceipt of the warrant of attachment, one of Bowe's deputies served a copy thereof, with the usual notice,, and also made special demand for the note and mort- gage upon Clark Brooks, who refused to deliver the same to the officer ; that a few days after the service of the warrant the bond and mortgage were transferred to plaintiff by John P. Brooks, the same remaining, however, in the custody of Clark Brooks, whereupon, proceedings were instituted to compel the delivery of the note and mortgage to the sheriff, which resulted in their delivery to the sheriff (vide Hall u. Brooks, 25 Hun, 671 ; aff'd 2 N. Y. do.. Pro. 198). James L. JBisJiop, for appellant. Malcolm Graliam, for respondent FINCH, J. If one proposition of the respondent is sound it settles in their favor every serious question raised on this appeal. That proposition is, that under the existing provisions of the Code of Civil Procedure a promissory note is made property capable of manual delivery, which may be levied upon so as to effect u lien upon the debt which it represents by taking it into the officer's actual custody, and thsU he may pro- tect and defend that levy and lien by assailing as fraud- ulent a previous assignment or transfer to a third party. Under the earlier provisions of the Code a levy upon property capable of manual delivery, executed by taking it into the actual possession of the officer, invested him with right, in defense of his levy, to assail as fraudulent and void against creditors, a previous assignment or transfer which threatened, by its prior- ity, the security of the lien obtained (Rinchey . Strik- er, 28 JV. Y. 45). But this court also held, as to the levy permitted to be made upon choses in aciiou, that CIVIL PROCEDURE REPORTS. 167 Anthony v. Wood. the attachment reached and became a lien upon only such debts as at the time belonged to the debtor by a legal title, and for the recovery of which he could maintain an action at law, and, as a consequence, where before levy of the attachment he had parted with the legal title, even if with intent to defraud his creditors, there remained in him, for their benefit, only an equity which the attachment could not, reach, and so the sher- iff could not assail the transfer as fraudulent. The doctrine of Thurber v. Blarick (50 JV. Y. 80), went to that extent, and lias been since approved (Castle .V. Lewis, 78 /Y. Y. 131 ; Wait on Fraudulent Convey- ances, 86). These authorities establish that the ['] sheriff in the case before us could not, assail as fraudulent the transfer of the note and its collat- eral, made prior to his asserted lev} 7 , unless their doc- trine is made inapplicable by the change in the provis- ions of the Code ( 649). Where the property sought to be attached is ki capable of manual delivery, includ- ing a bond, promissory note or other instrument for the payment of money," the levy is now to be made " by taking the same into the sheriffs actual custody." This provision changed merely rhe mode of mak- [ 2 J ing the lev} r , but in no respect altered the inherent character of the property sought to be attached. If the note or bond has been transferred, however fraudulently, no lien by attachment is possible, and it is of no consequence that the mode of executing the process has been changed. The note is not turned into a chattel by the new provision. It remains a chose in action, and when the legal title is in theattach- [ 3 ] ment debtor, the debt may be seized by taking the note or bond which is its evidence, but where the legal title has been transferred to a third party and is not in the debtor to be attached, the possession of the note by the oflicers under his warrant accomplishes nothing. On the assumption, therefore, that no levy 168 CIVIL PROCEDURE REPORTS. Anthony v. Wood. was made until after the transfer of the note, the at- tachment gave the officer no right to assail or contest it. [ 4 J But it is claimed that the levy made by taking the note into the officer's custody relates back to the demand made by him upon Clark Brooks, who had the possession of the paper, and which occurred before the note was transferred. The warrant wgg issued May 28, 1881 ; on June 2, the officer called upon Clark Brooks, who was the agent and attorney of the defendant and had the note in his custody locked up in a friend's safe, served upon him a certified copy of the warrant together with a copy of the affidavits, and demanded the note and bond and mortgage and cer- tificate that he held them for the benefit of the defend- ant. Brooks refused. Thereupon he was ordered to submit to an examination, which took place on June 7. The assignment of the note and mortgage was dated the day before, but recorded on the same day. In July a motion to compel Brooks to deliver up the note was denied at special term, but the order was reversed by the general term, which directed him to deliver up the securities to the sheriff. This he did under protest. It was said, in Bills o. Nat. Park Bank (89 N. [*] Y. 343), to have been the law that a debt evidenced by a negotiable security could be attached while in the hands of the attachment debtor by serving the attachment upon the maker of the security; but the effect of sections 648 and 649 of the Code of Civil Pro- cedure was not considered. Section 649 prescribes {"] how the levy shall be made. It must be il by taking the same into the sheriff's actual custody," who must ''thereupon, without delay, deliver to (he person from whose possession the property is taken, if any, a copy of the warrant arid of the affidavits upon which it was granted.." No other mode is prescribed. Nothing else will constitute the levy. Until the CIVIL PROCEDURE REPORTS. 169 McGean v. MacKellcr. ['] officer lias obtained the actual custody, he has made no levy and can make none. He is armed with power to get such custody. He may proceed by action or special proceedings to reach that result ; but until he has reached it he has made no levy and can make none. We have nothing to do with the wisdom of the rule. We can only enforce it as it is plainly written. It follows that neither before nor after the assign- ment did the sheriff acquire any title or lien upon the note or bond and mortgage ; that he had no interest in the foreclosure or right to intervene, and that ["] the judgment and interlocutory order appealed from should each be reversed and judgment of foreclosure ordered in favor of the plaintiff, with-costs. All concur, except RUGER, Ch. J., not voting. MCGEAN v. MACKELLAR. N. Y. SUPERIOR COURT, CHAMBERS, AUGUST, 1884. 811, 1326 ; Laws 1881, ch. 486. Undertakings approval of. Corporate guaranty. Under the provisions of chapter 486, Laws 1881, authorizing certain corporations to guarantee bonds and undertakings in judicial pro- ceedings, &c., the undertaking must be executed by the party in. whose behalf it is offered, and it is not enough that such corpora- tion executes it. Section 811 Code Civ. Pro. does not apply to cases of this kind. Upon justification on the part of the company by its officers, though it may appear that the company is in the condition described by section 3 of the act, it is the duty of the judge in each case, to ex- ercise his discretion as to whether the actual state of the company's 170 CIVIL PROCEDURE REPORTS. McGcan v. MacKcllar. business justifies the approval of the undertaking ; and where it appears that the company has been in the habit of guaranteeing bonds and undertakings, issuing policies of insurance, etc., and the officers are unable to give satisfactory information as to the aggre- gate amount of such risks, approval of the undertaking should be withheld. (Decided August 13, 1884.) Motion for approval of undertaking on appeal. The facts appear in the opinion. JoJin Broolcs Leavitt, for the motion. George M. MacKellar^ opposed. O' GORMAN, J. The plaintiff desiring to appeal to the court of appeals, presents for my approval an undertaking executed by a corporation claiming au- thority under chapter 480, Laws of 1881, to guarantee the fulfillment of the conditions of undertakings on appeal. The counsel for the respondent objects to the undertaking of this corporation, as now offered, on the grounds, First. Because it is not given by the appellant. Second. Because the examination of the secretary of the corporation does not slxow that its liabilities do not exceed its assets. The first of these objections should, in my opinion, be sustained. The appellant himself should execute the undertaking on appeal, and his undenaking may according to the provisions of section 1, chapter 480, Laws of 1881, be accepted by the oflicer, on whom is imposed the duty of approving of such undertakings, "whenever the conditions of such undei taking are guaranteed by the corporation." The provisions of section 811 of the Code of Civil Procedure do not seem to me to apply to cases cf this kind. CIVIL PROCEDURE REPORTS. 171 McGean v. MacKcllar. The second and more important objection is, whether on the evidence before me in this case, and in the exercise of the judicial discretion which in each case it is my duty to exercise, I should approve of the un- dertaking offered, as a sufficient compliance with sec- tion 1326 of the Code of Civil Procedure. By section 1 of the act of 1881 above referred to provision is made for justification on the part of the company, through its officers, as required by law of other sureties. It is provided by section 2 that the guaranty of any such company shall not be accepted whenever its liabilities shall exceed its assets, as ascer- tained in the manner provided in section 3 of the act. The "manner provided " in section 3 is that the out- standing indebtedness shall be charged as liabilities. Following this manner of ascertaining the liabil- ities of the company, and in strict and technical ac- cordance with the terms of said sections 2 and 3, the secretary had stated figures showing a surplus of assets- in the company of $105,122.29. It is in evidence, however, that this company has been in the habit, not only of guaranteeing bonds and undertakings on appeal and the fidelity of the public and private affairs, but has also issued policies of insurance against accidents endangering human life, against breakages of plate glass, against explosions of boilers, &c. ; and how many of such policies have been issued and are now in force, and what is the aggregace amount of risks thus incurred and the amount of liabilities therefor, the secretary in his examination was unable to state, and I am not in- formed. In the case of Earle v. Earle,* decided by the gen- * EARLE, RESPONDENT, v. EARLE, APPELLANT. N. Y. SUPERIOR COURT, GENERAL TERM, JANUARY, 1883. Decided February 5, 18S3. Appeal by plaintiff from order approving undertaking given by 172 CIVIL PROCEDURE REPORTS. McGcnn v. MacKeller. eral term of this court, in which case the questions now before me were considered, the court says, "al- though the company may be in the condition described the defendant on an appeal from the general term to the court of appeals. The undertaking was signed by the defendant. No sureties were given, but the performance of the undertaking was guaranteed by a corporation called the Fidelity ami Casualty Company. Carlisle Norwood, Jr., for appellant. JcJin M. Martin, for respondent. Moore, Loio & Sanford, for the Fidelity and Casualty Co. SEDGWICK, Ch. J. My construction of the act is as follows : If a bond or undertaking is proposed which is to !>e secured by the guar- antee of the company, tlus party oppose.! may require_'' a justification on the part of such company, through its officer*, as required by law of other sureties." If it should appear oil such justification that, "its liabilities exceed its assets, as ascertained in the manner, provided in section 3 of this act," the act forbids the acceptance <>f the guarantee. The alternative is not that the court shall approve absolutely and under all circumstances. As stated in the first section, the court must exercise its judicial discretion to determine whether the financial condition of the company would justify an approval. I do not think that the act implies that the company mu*t possess the qualification required of sureties, although the manner of justification is to be the same as where sureties justify. The nature of the business makes it clear that the legislature knew that such qualifications could not exist. If the legislature intended that, I he company should sliovv such qualifications, it was not necessary to piovide anything further on the subject, and especially to prohibit I he approval of the undertaking if the company's condition did not reach the standard specified by the third section. But although the company may be in the condition described by section 3, it is the duty of the judge to exercise his dis- cretion in each particular case, as to whether the actual state of the company's business justifies an approval of the undertaking. $ It may be that in the present case the court did not exercise tho discretion referred to. If it did not, the general term should make the order, that would be called for by the particular circumstances. In my -opinion, the circumstances called for an approval of the under- taking, which was actually approved below. There should be no costs on the appeal to either party. Order affirmed, without costs. TBUAX and O'GOUMAN, JJ., concurred. CIVIL PROCEDURE REPORTS. 173 Ansonia Brass, &c. Co. v. Conner. in section 3, it is the duty of the judge in each partic- ular case to exercise his discretion as to whether the actual state of the company's business justifies the approval of the undertaking." Following that rule, in the propriety of which I concurred, I find myself in this particular case without sufficient information as to the actual state of the com- pany's business, and therefore unable to approve of their undertaking. THE ANSONIA BRASS AND COPPER Co., AP- PELLANT, v. CONNER, SHERIFF, ETC., RESPONDENT. N. Y. COMMON PLEAS, GENERAL TERM, MARCH, 1884. 1366. Sheriff* time to return execution. Extension by stay of proceedings. Admissions. Evidence. On the more question whether the time in which the sheriff is to return an execution, is extended by an injunction order restraining him from interfering with the property levied on. no substantial harm resulting to the execution creditor therefrom, courts should hold that lie is entitled to the benefit of his obedience to the man- date of the courts, notwithstanding any doubts as to its jurisdic- tion or powers in the premises. ['J Accordingly, held, that an injunction order of the United States court in bankruptcy, staying the sheriff's proceedings, operates to extend the time within which he is bound to return the execution, by as many days as he was under stay. An admission made upon which a new trial is based is admissible in evidence against a party making it, on a new trial of the action. ['] (Decided May 22, 1884.) 174 CIVIL PROCEDURE REPORTS. Ansonia Brass, &c. Co. . Conner. Appeal by plaintiff from judgment of general term of city court affirming judgment of trial term dismiss- ing complaint. Action for failure to return execution against Charles G. Wilson's property after sixty days from the receipt thereof. Defenses, among others, that proceedings of defendant were stayed by injunction issued by the United States district court, as follows* " UNITED STATES DISTRICT COUUT FOR THE SOUTHERN DISTRICT OF NEW YORK. "In the matter of Charles G. Wilson, a bankrupt In bankruptcy. "On reading and filing the annexed affidavit of Charles G. Wilson, who has been declared a bankrupt, it appearing to my satisfaction that said Charles G. Wilson has been adjudicated a bankrupt, a merchant residing and carrying on business in the southern district of New York for more than six months, and that the Ansonia Brass and Copper Company have, by confession, procured a judgment against said bank- rupt, and has execution thereon against, and have levied upon the property of said bankrupt, and thereby are seeking a preference over the other creditors of said bankrupt, and that Le Post Hubbell, Fred. Ilubbell and Dorcas Stiles are seeking to procure a preference, &c. "Now, it is ordered that, said Ansonia Brass and Copper Company, plaintifT in said judgment, and said L" Post Hnbbnll, Fred. Hnbbell and Dorcas A. Stiles, and said William C. Conner, 'sheriff, their servants, agents, attorneys and employees are, and each of them is, hereby restrained and enjoined from interfering in any way with the said properij'of said Charles G. Wil- son, a bankrupt, not exempt by act of Congress ap- proved March 2, 1867, and the acts amending the same, CIVIL PROCEDURE REPORTS. 175 Ausonia Brass, &c. Co. v. Conner. from the operation of said acts, and from any interfer- ence therewith until the further order of this court. "Witness, Honorable Samuel Blatchford, Judge of said Court of the United States, at the United States court-room, in the city of -New York and district afore- said, this 2Hh day of November, 1875. [L. s.] G-EO. F. BETTS, Clerk." And that said order was granted upon affidavit of the bankrupt, the execution debtor, and was not vacat- ed until December 14, 1875 ; that the sale of property levied upon by the sheriff was postponed until said order was vacated, and thereafter, on December 17, the property was sold, &c. Marshall P. Stafford, for appellant. Vanderpoel, Green & Cuming, and Henry T7wmp- son, for respondent. J. F. DALY. J. When this case was last before us on appeal we held that it was prematurely brought ; that the injunction order of the United States district court stayed the sheriffs proceedings, and operated to extend the time in which he was bound to make return of the execution by as many days as he was under stay (Ansonia B. & C. Co. v. Conner, 3 N. Y. Civ. Pro. 88). We so held upon an admission in the case on ap- peal, made upon the trial by plaintiff, that by order of said district court, the sheriff was enjoined and re- strained "from all further proceedings under the said execution until the further order of the court, and that said order remained and was in full force and effect un- til the 14th day of December 1875." On the new trial that admission seems to have been withdrawn, and the order of the district court was put in evidence ; as to which order plaintiff now raises the question whether 176 CIVIL PROCEDURE REPORTS. Ansonia ISrass, &c. Co. V. Conner. its legal effect was to stay the sheriff and his proceed- ings. Why the plaintiff was permitted to withdraw his original admission on which the former decision ['] of this court was based, does not appear, for it was available to defendant upon the new trial (1 Phil- ip's ED. 524 marg. p.; I Green. EG. 186). We are now, however, called upon to determine the effect of the order as read in evidence. The district court had power to make orders enjoin- ing any disposition of the bankrupt's property, in I he form and to the effect of the order proved in this case. (U. S. Bev. Stat. 5024.) This particular order forbade interference with the identical property held by the sheriff. Authorities are cited to show that the court had no power to make such an order except in an action instituted for the express purpose of attacking the judgment (Smith v. Mason, 14TFa#. 419 ; Marshall V. Knox, 16 Id. 551), and that a transferee of the bank- rupt so enjoined would not have been liable for the contempt if he disobeyed such an order (In re Marter, 8 N. B. R. 188). In the case of Ansonia B. and C. Co. v. Babbit (8 Hun, 157), it was held by the supreme court that notwithstanding an order of the district court, enjoining the sheriff from further proceedings, he had the right to go on and sell the property, being accountable only for the surplus to the assignee, and was not justified in giving up the property to th United States marshal. In the same case in the court of appeals (74 N. Y. 395), that court does not go further than to say that the order "assuming that it was binding on the sheriff who had no notice of the application for the orderand was not heard in respect to it, did not assume to dis- turb his possession," and that it was his duty to retain the possession and sell the property to satisfy the exe- cution and to take all reasonable means to protect his levy. It is not held that such an order would not ex- CIVIL PROCEDURE REPORTS. 177 Ansonia Brass. &c. Co. v. Conner.- cuse the sheriff so far as making his return witliin the statutory time is concerned, it' lie obeyed and respected it until it was regularty set aside, a course of proceed- ing which the decent administration of justice required of the officer. That is the only question we have to deal with here, and I nm inclined to adopt the ["] views expressed in the city court on this point by Chief Justice McADAM at general term, and by Justice HALL at trial term, that on the mere question whether the time in which the officer was to make his return was extended by the injunction order, no sub- stantial harm resulting therefrom to the execution creditor, courts should hold that he was entitled to the benefit of his obedience to the mandate of the court, notwithstanding any doubts as to its jurisdic- tion or powers in the premises. The judgment should be affirmed, with costs. Should the appellant desire to have the decision of the court of appeals on the questions of law not defin- itely settled by its decisions 1. Whether a stay of the sheriff's proceedings operates to extend the statutory time for making re- turn on the execution ; and, 2. Whether the order in question, having been obeyed by the sheriff until regularly vacated, operated as such a stay. I am willing to mnke an order authorizing an appeal for that purpose. LARREMORE and VAN HOESEN, JJ., concurred. VOL. VI -18 178 CIVIL PROCEDURE REPORTS. Apslcy v. Wood. APSLEY v. WOOD. SUPREME COURT, SECOND DEPARTMENT, GENERAL TERM, SEPTEMBER, 1884. ??G, 827. Renewal of motion. What is new proof. Ifrport of referee to talce proof on motion. When should stand. Where a motion to set aside a judgment taken by default, on the ground that ihe summons had never been served, was denied, with leave to renew upon new paper.", und the defendant thereafter re- newed the motion upon the same papers, and additional affidavits, impeaching the character of the plaintiff and averring that he was a person likely to procure a false affidavit of service; that hi: had a bad character, had been arrested for crime and had been found guilty of procuring a deed by fraud, IlrJif, that the plain: ifTs objection and that no new facts were presented on the ivimwal mo- tion was untenable that the additional affidavit did furnish new facts of weight. Although the report of a referee appointed to take proof on a motion is no't subject to ns strict a rule in respect to the result upon the disputed question of fact as upon the issues in an action tried before him, yet the report should stand even if only fairly sup- ported by the evidence. (Decided September, 1884.) Appeal by defendant from order dated February 28, 1883, denying his motion to set aside a judgment taken against Him by default ; also appeal by plaintiff from an order setting aside said judgment. The judgment in question was for $3,161.44 and was entered on defendant's failure to appear or answer on December 14, 188:3. It is asserted by plain tiif that the summons was served by one Samuel B. Rogers, a real estate broker, doing business in the city of New CIVIL PROCEDURE REPORTS. 179 Apslcy v. Wood. York. The defendant denied that he had ever been served with a summons in the action and claimed that the affidavit of Rogers in that behalf was wholly false ; and made a motion to set aside the judgment for that reason. The affidavits were conflicting and the court ordered a reference to take proof. The referee re- ported the evidence with his opinion that there had been no service of the summons on the defendant in the action. A motion to confirm the referee's report and to set aside the judgment was made at special term, based on the affidavits and the evidence taken, and on said report. Said motion was denied by the court, with $10 costs and all disbursements, amounting together to $75. The order denying said motion con- tained the provision that "the defendant be allowed to apply to the court upon such other papers and affidavits, as he may be advised, to set aside the said judgment and- to defend the action." The defendant without paying or tendering the costs, immediately renewed the motion upon the same papers which were the basis of the former motion, and upon the additional affidavit of the defendant in which he charged plaintiff with various crimes and offenses : in substance that, " plaintiff had been arrested by various persons in Lockhaven, Penn., and in Boston, Mass. ; that he had been arrested for larceny, false pretenses, embezzlement, forgery, &c." The motion was granted and the defendant allowed to serve an answer. From the order thereupon entered the plaintiff appealed, whereupon the defendant ap- pealed from the order denying his original motion. Other facts are stated in the opinion. Anson B. Moore and Andrew J. Moore, for the plaintiff. The statements in the moving affidavit of the de- ' fendant in regard to plaintiff's character, were clearly 180 CIVIL PROCEDURE REPORTS. Apsley v. Wood. incompetent, immaterial and inadmissible for any pur- pose ; they were scandalous in the extreme, and should have been stricken out on motion then and there made. The plaintiff was an attorney and counselor at law, an officer of the court, and was entitled to iis protec- tion. The statements therein were interposed for the purpose of disgracing and degrading the plaintiff, and to prejudice the court against him and his rights, and were calculated to have that effect, and this court can- not see that it did not have the effect to induce the court below to set aside the judgment. The plaintiff had not been sworn as a witness, nor had he made an affidavit in opposition to the motion, hence the im- peaching affidavit was incompetent evidence for any purpose. Evidence that a witness has been indicted for per- jury and for forgery is inadmissible to impeach his credibility. Jackson v. Osborn, 2 Wend. 555 ; People V. Gay, 7 2\T. Y. 378 ; 59 Barb. 619 ; 49 Id. '642 ; Peo- ple v. Herrick, 13 Johns. 82; 1 Greenleaf on Evidence, 457-463; 15 Hun, 269; Newcomb v. Griswuld, 24 J\ r . Y. 298, Opinion by ALLEN, J., 299; 3 Wail's Pr. 142; Lee v. Chadsey, 3 Keyes, 225; Warreil c. Parmley, 1 N. Y. 519; People v. Wiley, 3 /////, lO.'J; Con way r. Con way, 6 N. Y. 97 ; La Beau v. People, Park. Crim. JK. 371 ; Varona v. Soccaras, 8 Abb. Pr. 302 ; Griston v. Smith, 1 Daly, 380 ; Real v. People, 42 JY. Y. 270 ; People n. Crapo, 76 Id. 288; Jackson v. Lewis, 13 Johns. 504 The motion to set aside the judgment and to defend the action should have been denied and the order granted in pursuance thereof, should be reversed. This is a renewal motion upon the same state of facts. It is the settled practice in this stale that where a motion has been once heard, considered and denied, it cannot be renewed on the same state of facts. Mills CIVIL PROCEDURE REPORTS. 181 Apsley v. Wood. v. Thursby, 11 How. Pr. 114 ; People . Mercein, 3 Sill, 416. And see Gatherhead v. Bromley, 7 T. R. 455; Simpson ?>. Hart, 14 Johns. 63; Schtiman v. Weatherhead, I East, 537; Allen v. Gibbs, 12 Wend. 202; Dollfns v. Frosoh, 5 Hill, 493, note "A" to above case; Hoffman v. Livingston, 1 Johns. Ch. 211. The defendant was bound to present in bis first motion all necessary facts in his possession or within his knowledge to entitle him to any relief that he could or would be entitled founder any circumstances. No new state of facts being presented in the second motion, not known to the defendant and duly pre- sented in the first, the second motion was properly met by the established practice that, " a party com- plaining of any proceeding in a cause, must embody all objections then existing in one motion ; he cannot make a separate motion for each objection." Patter- son v. Bacon, 21 flow. Pr. 478; Desmond v. Wolf, i Code. R. 49; S. C., 12 Abb. Pr. 142; Schaumer v. In- gerstein, 19 How. Pr. 412-413; Simpson v. Hart, 19 Johns. 72; Smith ?>. Spaulding, 3 Robt. 615. A morion can only be renewed upon new grounds and not upon mere additional or cumulative papers. Bascom v. Feazler, 2 How. Pr. 16 ; Ray i\ Conner, 3 Edw. Ch. 479. Leave to renew a motion will not be granted to enable a party to present facts, which were known to him at the time of his original motion. Lovelitf. Mar- tin, 12 Abb. Pr. 178. A motion once denied cannot be renewed as a mat- ter of right, except upon a different state of facra arising subsequent to the decision of the former mo- tion. Bank of Havana v. Moore, 5 Hun, 624; Bolls /?. Daff, 56 Barb. 567; 38 Bow. Pr. 492 ; 7 Abb. N. 8. 385 ; 52 Barb. 637 ; 6 Abb. N. S. 442 ; Riggs e. Rus- sell, 74 N. Y. 370. 182 CIVIL PROCEDURE REPORTS. Apsley v. Wood. E. D. Chi Ids and C. M. Stafford, for defendant. The granting of the order appealed from by the plaintiff, rests in (he legal discretion of the judge be- fore whom the motion was made and decided, and being a discretionary order it is not appealable. Mar- tin v. Gould, 41 Super. Ct. (J. < S.) 544 ; Mead . Mead, 2 E. D. Smith, 223; Churchill v. Mallison, 2 Hilt. 70 ; Bolton t>. Depeyster, 3 Code R. 141 ; Carpenter v. Carpenter, 4 How. Pr. 139. BARNARD, P. J. This appeal is based upon an apparently contradictory decision at. special term upon the same substantial facts. Upon December 14, 188'2, the plaintiff entered up a judgment against the de- fendant for $3,lt51.44 by default. The roll shows that the summons was served by one Rogers, The defend- ant denied that he had been so served, and made a motion to set aside the judgment for that reason. The affidavits were conflicting and the court ordered a ref- erence to take proof. The referee reported that there had been no service of the summons. The special term, npon the report being returned, denied the motion with a leave to renew. The motion was renewed upon an affidavit which impeached the plaintiff's character, and upon the same papers which had been the basis of the former motion. The court set aside the judgment so far as to permit an answer to be served. .The de- fendant did answer and (he plaintiff appealed ; the defendant then appealed from the order refusing tot-et aside the judgment. The plaintiff moves to dismi>s that appeal because the defendant renewed the motion and took a benefit under the subsequent order. ai:d i* therefore bound to submit to (he former order. Upon The appeal from the second order by plaintiff he claimed to reverse that, because the rehearing was im- proper upon the same fact. If the second order is reversed because it was improper to have the motion CIVIL PROCEDURE REPORTS. 183 Apsley v. Wcod. a second time heard, and the appeal from the first order by the defendant, is dismissed, because he is estopped by the second order, the defendant will be without the power to present his case upon appeal. We think the claim made by plaintiff as to the illegal- ity of the renewed motion untenable. The right to renew was reserved by the order denying the first motion. The additional affidavit of defendant did furnish new facts of weight upon the renewed motion. The plaintiff was stated to be a person likely to pro- cure a false affidavit of service. That he had a bad character ; had been arrested for crime, and had been found guilty of procuring a deed by fraud. The re- port of the referee is abundantly sustained by the evi- dence. The parties to the occurrence disagree. Rogers says he served the paper. Wood denies the service. The surrounding facts are in favor of defendant's tes- timony. Rogers was a real estate broker and not a person who was accustomed to serve papers. The claim is a large one and the plaintiff delayed some three months after he could have entered judgment. Rogers says he served two papers at the same time ; one was the summons in this case, and the other a summons and complaint in the Kings county court. The de- fendant employed an attorney in due time to defend in the county court and although he denies any debt in this case, and although he had a store well stocked, in Brooklyn, in his possession, he waited until the sheriff came with the execution before making any defense. Although the report of the referee is not subject to as strict a rule in respect to the result upon the disputed question of fact as upon issues tried, yet the report should stand, even if only fairly supported by the evidence. -A referee has the benefit of the aid derived from the inspection of the witnesses and of their manner upon the stand as well as upon the trials oi issues in actions. Assuming that the defendant had 184 CIVIL PROCEDURE REPORTS. Stern v. Moss. failed to remember the service, lie was still entitled to answer if he had a defense,, but we think the summons was never served, from the evidence and report of the referee. The ord.3r should be modified by striking out the consent upon plaintiff's part to refer. It should be left optional with him to refer or not, as thus modified this order appealed from is affirmed, with costs and dis- bursements. The appeal taken by defendant from the denial of the motion to set aside the judgment, should be dis- missed with costs. PKATT and DYKMAN, JJ., concurred. STERN, APPELLANT, ?>. MOSS, RESPONDENT. N. Y. COMMON PLEAS, GENERAL TERM, MARCH, 1884. 549, 550, 2894-2904, 3209-3211. Execution against person in district courts. Where an action is brought in the district court of New York city, upon contract, and an order of arrest is granted upon affidavits showing facts extrinsic to the cause of action, which order is rot vacated, to entitle plaintiff to judgment and an execution against the person, he need only prove his contract claim. (Decided June 30, 1884.) Appeal by plaintiff from judgment of district court of New York city. A summons and order of arrest in this action were served upon the defendant, and on August 3, 1883, the CIVIL PROCEDURE REPORTS. 18? Stern v. Moss. parties appeared in court and issue was joined between them. The pleadings were oral. The complaint was for goods sold and delivered, and the answer was a general denial. A motion was made to vacate the order of arrest which was granted upon extrinsic facts .set forth in affidavits showing that the goods were ob- tained upon false and fraudulent representations. Counter affidavits were made in opposition thereto. On August 4, 1883, the motion to vacate the order was denied, and the trial of the action was adjourned to August 8, 1883, when it, was tried before Justice ANGEL (sitting in place of Justice McGowN). who, on August 15, 1883, rendered judgment for the defendant, dismissing the action, with costs. Upon the trial the plaintiff only proved the sale and delivery of the goods in question and non-pay- ment therefor. The defendant offered no proof, but moved to vacate the order of arrest for want of proof to sustain it. The plaintiff insisted that upon the evi- dence, as it stood, he was entitled to a money judg- ment for the value of the goods, together with the direction therein, the words, " defendant liable to exe- cution against his person." From the refusal of the justice to insert such direc- tion and from the judgment rendered this appeal is taken. Louis H. Mayer, for appellant. Jacob A. Canton, for respondent. PER CURIAM. The justice in a well considered opinion, refers to Coles c. Ilannigan (8 Daly, 43) as authority for his decision. In that case the action was commenced by a warrant of arrest in the first instance, pursuant to subdivision 3, section 16, chapter 346 of the Laws of 1857. The process used determined the 186 CIVIL PROCEDURE REPORTS. Stern v. Moss. character of the action, and as the fraud was not de- nied, nor any motion made to vacate the arrest, it was held the defendant was liable to arrest upon execution upon proof only of his indebtedness. But section 10 of theactof 1857, allowing the commencement of an notion by a summons, warrant or attachment, was repealed by section 3209 of the Code of Civil Procedure, which provides that an action brought in the district courts must be commenced by voluntary appearance of the parties or by the service of a summons. By section 3210 of the Code, article 3, chapter 19, is made applicable to the district courts. This article includes sections 2894 to 2904, subject to the qualifica- tions mentioned in section 3211. This latter section provides that existing statutes in relation to the dis- trict courts, which are not repealed, shall still be ap- plicable as to the manner of applying for, granting and executing an order of arrest, &c. As an action in these courts must now be com- menced by a summons, it would appear that an order of arrest therein is to be regarded as a provisional remedy somewhat analogous to the practice under sec- tion 179 of the old Code of Procedure, where f he action on contract might be prosecuted irrespective of the right to arrest upon extrinsic facts. Sections 549 and 550 have no application to arrests in the district courts of the city of New York, and subdivision 4 of section 549 is the only statute that requires that fraud in contracting the debt shall be proved upon the trial, if the plaintiff suing to recover money due upon a contract seeks the arrest of the de- fendant. Before the enactment of subdivision 4 of section 549, it was n^ver necessary that the plaintiff should allege in his complaint and prove at the trial that the debt that he sued to recover was fraudulently contracted. His cause of action wasanordiriaiy money demand, and the fraud used by the defendant in in- CIVIL PROCEDURE REPORTS. 187 ( ^ > Stern v. Moss. curring the debt was a circumstance extrinsic to the cause of action to be proved by affidavit if the plaint- iff attempted to arrest the defendant. Upon his arrest the defendant was at liberty to move upon affidavits to vacate the order of arrest, and the question of the defendant's liability to arrest was always decided upon affidavits where the ground of arrest was extrinsic to the cause of action. Though the subdivision we have mentioned has introduced a new rule in courts of record, the practice in the district courts has not, as we have said, been affected by it. Section 1304 of the consolidation act prescribes the case in which an arrest may be had in an action in the district court. When arrested, the defendant may move upon affidavits to vacate- the order of arrest. The very point was de- cided in Johnson v. Florence (32 How. Pr. 230). Where the original process was a warrant, the set.ing aside of the warrant put an end to the action ; but the order of arrest obtained under 1304 of the consolida- tion act is merely a provisional remedy which may be vacated without affecting the summons or the right of the plaintiff to proceed with the action, in order that he may recover judgment for his demand. Where the order of arrest is sustained, the plaintiff is entitled to an entry in the judgment, if he recover one, that the defendant is subject to arrest and impris- onment thereon ( 1386 of the consolidation act; Coles x. Hannigan, 8 Daly, 43). The execution is then to be issued in accordance with the provisions of section 1399. The judgment appealed from and the order vacat- ing the order of arrest should therefore be reversed and a new trial ordered, with costs to the appellant to abide the event. In order to prevent misconception, we will say that section 3018 is not now before us, but we do not think IRS CIVIL PROCEDURE REPORTS. Sniffin v. Peck. it has any bearing upon the question that we have passed upon on this appeal. LARUEMORE, P. J., J. F. DALY and VAN HOESEN, JJ., silting. SNIFFED, APPELLANT, o. PECK, RESPONDENT. CITY C^/URT OF NEW YORK, GENERAL TERM, SEPTEM- BER, 1884. 531, 781, 783. Tims V *vjs>e7. 8fay . llartmari, 70 N. Y. 221, and that, equity will interfere to set aside such a judgment or to restrain its execution or its o'peration iu any way which would work injustice. See Stores Eq. Jtir. 885, 886, 887 and cases there cited. The plaintiff is not estopped from invoking the CIVIL PROCEDURE REPORTS. 107 Wilmorc ?. Fluck. equitable interference of this court, from the fact that his trustee, Hillier, himself, took the appeal to the common pleas, which has resulted in the judgment complained of. It might be argued that lie is estopped from questioning the jurisdiction of the>common pleas in so far as related to an affirmance of the order ap- pealed from, together with such incidents by way of costs as the law imposes in such cases. But the estop- pel goes no fur-ther than the notice of appeal, and neither plaintiff nor Hillier c;m be estopped from com- plaining against the exercise of a jurisdiction which was not conferred nor invoked by that notice. The Jurisdiction to render judgment absolute is derived not from the mere act of appealing, but from the "assent" that such a judgment may be rendered. As neither Hillier nor the plaintiff, who is his eestuique trust, ever gave such assent, how is plaintiff estopped from ques- tioning the right of the court to render such a judg- ment? See same principle applied to an appeal fr< m convictioR for larceny, where the indictment charged both larceny and burglary. Held, that a reversal and new trial revived the charge of larceny only, and not that of burglary ; upon the principle that the prisoner -by appealing waived his privilege as to one, but kept it as to the other. Per FOLGEE, C. J., in People v. Downing, 84 N. Y. 4S3-4. The right of appeal to the court of common pleas, from the order of the marine court, general term, granting a new trial is like that of an appeal to the court of appeals fora similar order of this court, and the same principles and authorities may be applied to the former as to the latter. See McEteere . Little, 8 Daly, 167. The right; of appeal in suck a case to the court of appeals was iirst con- ferred in 3851. Prior to the amendments of section II of the Code of Procedure, in that year such orders were not appealable at all. The question had arisen whether they were not reviewable.. under th-e "general 198 GIVIL PROCEDURE REPORTS. Wilmore v. Flack. powers " of the court, but a negative answer was givea by the court of appeals. Lansing v. Russell, 2 Comst. 663 ; Tilley v. Phillips, 1 Id. 610 ; Duane . Northern R. R Co., 3 Id. 545. .. . . The defendants' testator, if better advised than Hil-, }ier as to the law, ought to have moved to dismiss the. appeal for want of that element of jurisdiction. (See Rust v. Hauselt, 60 N. Y> 485 ; 9 Abb. N. C. 150). Nofr having so moved, he must be taken to have acquiesced in the plain tiff's view of the scope of his appeal, and to have consented that in case the order should b& affirmed, the only result of such affirmance would be to remit the case for a new trial. He had no right^ta go further and ask the court to do something which, neither the statute nor any "assent'' on the part oi the plaintiff had given it power to do. SeeMcMahon v. Rauhr, 47 N. Y. 72; People v.; The Clerk, etc., 3 Abb. Pr. 309 "Consent cannot give jurisdiction to an appellate- court." .... Henry v. Cuyler, Yi Johns. 409; Camp- bell v. Stokes, 2 Wend. 146 ; Dudley v. Mayhew, 3 TV. Y. 9 ; People v. The Clerk, etc., 3 Abb. Pr. 300. The com- plaint is sufficient in that it invokes equitable juris- diction on the ground of fraud and collusion between- Hellier and Conner. HilMer undertook rhesnit against Conner for Wilmore's benefit and under Wilm ore's bond of indemnity, and in pursuance of a special" agreement with Wi lino-re. That ho had a right to r 76 fl. Y.J55Q.- FINCH, L The general term of the common pleas had no jurisdiction of the attempted appeal to [ 1 J that tribunal. Its appellate power was derived wholly from the statute and had no existence out- side of its permission. An appeal from an order of the general term of the marine court granting a new ['] trial, is allowed only upon condition that the ap- pellant consents to a timil judgment against him if the order is affirmed. Laws of 1874, chap. r>45, 9 ; Gor- don v. Hartman, 89 N. Y. 221. Without that consent there can be no appeal, and much less a iinal judg- ment founded upon it and impossible without it. The order and judgment of the common plea-s was, ['] therefore, without jurisdiction and void, and judg- ment entered in the marine court founded upon that void mandate was itself equally so. Neverthe- less, both tribunals have held the contrary and insist- ed against the motion of the plain-tin 8 that their action was valid, and the iinal judgment rendered, effectual. They have done so apparently upon the ground that the omission from the notice of appeal of the requisite consent was amendable, and that the appellant was estopped by his appearance in the appellate court and 'CIVIL PROCEDURE REPORTS. 203 1.. Wilmore v. Flack. submissions of the appeal to its jurisdiction. That a consent intended to be given,, but omitted from the notice of appeal by mistake, and when the appellant* in fact consented, might be inserted nunc pro tune,. may be conceded for the purposes of the aigument ;_ but where there has been no mistake because na [ 4 ] consent, and the latter \vas intentionally and con- sciously omitted, and has never been given, but steadily and persistently refused, -we do not see how, it-is possible to acquire jurisdiction by an amendment which falsifies the facts and originates only in the ar- bitrary will of the court. The right to give or with- hold the consent does not belong to the court but to- t-he party, and his free choice and option cannot be- taken away under the guise of correcting a mistake oi\ oversight. Nor is the plaintiff estopped from raising the qnes- tion of jurisdiction. His consent to its exercise- [*]' could not confer it. MoMahon v. Rauher,.47 N. Y. 67. If it did or could, it is still true that the ap- pellant did not consent to the jurisdiction assumed... He misled nobody. All parties acted in good faith on, the appeal, and under a common mistake of the law.. The respondent and the court had no right to rely upon the appellant's interpretation of the act of 1874. Each was quite as much bound to know and recognize the lack of jurisdiction as the appellant himself. At. the bottom of an estoppel lies either fraud or some- thing which operates- as such. Here there was none,, but simply an honest mistake for which each party and the court were equally responsible. The situation of the plaintiff appears to be one iu. which there exists a definite right without adequate remedy, unless a court, of equity can furnish it. The original action of Hillier was wholly for the benefit of the plaintiff. He stood behind it as the party inter- ested^ and having indemnified .tLe marshal against its. 204 CIVIL PROCEDURE REPORTS. Wilmore v. Flac-k. consequences, Hillier recovered a judgment. The pro- ceeds of it belonged and were payable to the plaintiff; but an appeal was taken to the general term of tha marine court, which reversed the judgment and ordered a new trial. All that followed was a nullity, and yet out of that void action the plaintiff iinds himself barred of the new trial by a final judgment against him and exposed through his indemnity to liability for a serious bill of costs. He, at first, pursues his remedy at law. He asks the marine court and the common pleas to set aside the judgment which they had no jur- isdiction to render. They refuse ; then he appeals to the power of a court of equity and is again defeated, substantially upon the ground that he has a perfect remedy at law, and that the final judgment entered in the marine court was within its jurisdiction even though the judgment and remittitur of the common pleas were absolutely void. The argument is that the final judgment entered in the marine court was mere- ly erroneous, and equity will not set it aside for that reason. The ultimate question therefore, is whether such judgment was' merely erroneous and so good until reversed, or utterly void as entered without lawful authority and .jurisdiction. In the original action the marine court had juris- diction, both of the Mibject matter and of the persons of the litigants, and so might have rendered a linal judgment equivalent in its effect to that now upon its records. But it did not do so. It made no such de- termination of its own. On the contrary, its deter- mination was an award of a new trial. The final judg- ment entered was that of. the common pleas, registered or docketed so to speak, in the marine court, in obedi- ence to a special statutory authority. The act of 1875, which authorized an appeal to the common pleas from an order granting a new trial, required as a condition, the appellant's consent to final judgment, and directed CIVIL PROCEDURE REPORTS. 205 Wilmore v. Flack. that "effect shall be given by the appellate court to such stipulation if necessary" (39). The act of 1875 more specifically provided that the appellate court "may render judgment absolute upon the right of the appellant." So that the final judgment here was that of the appellate court, and if absolutely void for [ 6 ] want of jurisdiction, how could it become less de- fective because submitted to the marine court and entered on its records ? Is its essential character changed by that process I If upon the judgment for costs thus entered in the marine court, proceedings to collect were instituted, and the judgment debtor resisted on the ground that the judgment was void, would it be a suf- ficient answer that the judgment was good until re- versed? Suppose that this court on a similar appeal should render a decision without a quorum, and send down its remittitur, and its judgment should be made by formal order the judgment of the supreme court, would the latter be merely erroneous and good until reversed, or absolutely void and a mere nullity? We think in such case the judgment entered on the remit- titur gains no new validity beyond that which it had in the appellate court, but remains void if it was so in fact when remitted to be enforced. If a judgment should be rendered in justice's court which was abso- lutely void for want of jurisdiction, and thereafter, upon transcript filed, wns entered in and became the judgment of the county court, it would gain from the process no new validity. The judgment entered in the marine court was a step in an appellate proceeding and must be measured by the statutory requirements. It was not a judgment of the marine court itself, founded upon its original jurisdiction, but the culmination of an appeal dependent wholly for its validity upon the authority of the appellate court. The case, there- [ T ] fore, is not one, as the general term argue, in which a court of equity is called upon to review a mere *06 CIVIL PROCEDURE "REPORTS. Wilmore v. Flack. error of law committed by another tribunal, but one in which a void judgment bars the rights of the plaintiff after his remedy at law has been exhausted. The special term seem to 'have thought that the legal remedy was not exhausted, and argue that tire judgment for costs -has not yet put in peril the plaint- iff's liability as the marshal's indemnitor, and if it should he 'might defend on the ground of the invalidity of the judgment. Jf sued on his bond in the marine court the defense would only renew the question upon which that court and its appellate tribunal have already decided against him. But he has a further right, and that is to the new trial which the marine court awarded him, and that he -cannot have unless equity can remove the obstruction of the linal judgment against him. The .whole difficulty in thecase originated in a mis- take as to the jurisdiction of the common pleas over the appeal sought to be taken ; a mistake in which both parties shared, and which the conrt did not correct. That mistake resulted in a. judgment of the common pleas which was entirely void, and did not become [*] valid by being remitted to tire marine court aad made its judgment. In such a case we think equity may relieve, and that the plaintiff's 'complaint there- fore contained a good cause of action. The judgment should be revered ,nd a new trial granted ; costs to abide the CIVIL PROCEDURE REPORTS. -Gearon v. Bank for Savings. GEARON, APPELLANT, v. THE BANK FOR SAV- INGS, IMPLEADED, -RESPONDENT. '.N. Y. SUPERIOR COURT, GENERAL TERM, MARCH, 188.4. 55. 'Attorney and client arrest. In the absence, of special authority, express or implied, by the client, or of ratification by him, the act of the attorney in directing the sheriff to arrest the wrong personage under a warrant of.attackment issued in the action, does not make the client liable. '"Guilleaumo v. Rowe, 48 Super. Ct. 170 ; Poucher v. Elanehavd, 86 N. Y. 263 ; Welsh v. Cochran, 63 Id. 182 ; Williams v. Preston, 47 L. .T. Rep. N. 8. 265 ; Smith v. Keal,-40 L. T. Eep. N. S. 770, cited and reviewed. '..(Decided April 7, 18S4.) Appeal from judgment dismissing the complaint on the merits. Action for false imprisonment. -The facts are stated in the opinion. Miles Gear-on and William II. Arnoux, for appel- lant. The act complained of was chargeable to the re- spondent by reason of the relation existing between .its attorneys, and because it was done by the attorneys in the course of their employment. The acts of an at- torney's clerk in the course of his employment are the -acts of the attorney Ostrich v. Gilbert, 9 Hun, 242. The rule that a principal is not liable for acts of an at- torney done after the issuing of an execution, is inap- plicable to a case where the directions are given in the 2C8 CIVIL PROCEDURE REPORTS. Gcaron v. Bniik for Savings. course of its prosecution. The same distinction has been pointed out in this court in Guillen time v. Howe, 63 How. Pr. 175 ; S. C., 48 Super. Ct. 169 ; 18 W. D. 196, and Barker v. Braham, 3 Wilson, 368. See also as to defendant's liability, 6 Thin, 422 ; Bates v. Pilling ; Barn v. Cress, 38 ; Barker v. Bra- ham, 2 W. Bl. 860 ; Brown ?>. Feeter, 7 Wend. 305 ; Griswold v. Sedgwick, 6 Cow. 456 ; Miller v. Foley, 28 Barb. 630 ; Davies v. Jenkins, 11 Jfecs. & W. 754 ; McMahon v. Green, 34 Vt. 69 ; Dnnstan v. Paterson, 2 Comm. Bench, N. 8. 493. Strong & Cadwalader, for respondent.. I. No one has a right to interfere with the sheriff to direct him whom to arrest, or to instruct him in the performance of his duty. An} 7 citizen ma}- assist him by opinions, but does not thereby become an original tort feasor. It is not within the duty or employment of attorneys, much less of Lynn, a quasi volunteer, or of Stewart, or of the managing clerk, by verbal advice or direction given to the sheriff to render the plaintiff in an action liable for the result of such advice or instruc- tion. Averill v. Williams, 4 Den. 29i5 ; Welsh v. Cocli- ran, 63 N. T. 181 ; Guilleaume v. Rowe, 16 J. & S. 172; Clark v. Woodruff, 83 2V. F. 5-18 ; Smith v. Keal, 9 L. R. Q. B. 344. II. (1.) There is no distinction in this case, because the act was done during and not at the end of a liti- gation. The ground assumed in the case is, that an authority to arrest or to levy is authority only to levy on proper goods, or to arrest the right party, or to issue a writ of commitment to the sheriff, but never to commit a trespass. (2.) Nor is there a difference be- tween directions to secure property and directions to arrest x iers ns ; both are trespasses. In both the principal must be held if at all, for the sheriff's acts, by his direction communicated through his solicitors, CIVIL PROCEDURE REPORTS. 209 Gcaron v. Bank for Savings. and snch directions are held beyond the attorney's authority. O" GORMAN, J. The material facts, as they appeared in evidence at the trial, are substantially rhese: An action was brought in the supreme court of this ju- dicial department, by the Bank for Savings, the pres- ent defendant herein, on the ground that different per- sons had laid claim to a sum of money amounting to $1,469, which had been deposited in the Bank for Sav- ings in 1827, by one Jacob Kniffer ; and in this action these several claimants, and also Michael A. Gearon, the attorney of one of them, named Lancaster, were made defendants. This Lancaster had been appointed administrator of Kniffer's estate, and the money had been paid over to Michael A. Gearon, his attorney, and was in the possession of Gearon. A motion in this ac- tion for the appointment of a receiver was made and granted on December 27, 1882, and an order was also made requiring Michael A. Gearon to pay the money into the hands of the receiver within five days. Diffi- culty was experienced in making service of this order on Michael A. Gearon. At last, service was made on a person then supposed to be Michael A. Goaron, and the money not having been paid into the hands of the receiver, in obedience to this order, a warrant of attach- ment was issued directing the sheriff to attach the per- son of said Michael A. Gearon, and to produce him be- fore the court. The sheriff's officer having charge of the execution of this attachment, applied to the attor- neys of the Bank for Savings, the plaintiffs in that action, fo;- instructions, and they sent with him one of their clerks to an office in Pine street in this city, where the sheriff's officer, acting under the instructions of this clerk, arrested the plaintiff in the present ac- tion, being informed by said clerk that the person so arrested Avas Michael A. Gearon, and plaintiff was held VOL. VI. 14 210 CIVIL PROCEDURE REPORTS. Gearon v. Bank for Savings. in custody by the sheriff all night and until the next morning, when he was discharged, on proof that he was not Michael A. Gearon, the. person named in the attachment, but his brother, Miles Gearon, the plaint- iff in the present action. There was no evidence of any special authority,, either express or implied, from the Bank for Savings, the plaintiff in that action, to their attorney, or to the sheriff, to arrest Miles Gearon ; nor was there any sub- sequent ratification by the bank, of the act of the sher- iff, or of their attorneys, after knowledge of that event. The trial judge dismissed the plaintiff's complaint in the present action, on the ground that there had been no proof of any authoriry from the Bank for Savings, the present defendant, to arrest Miles Gearon the present plaintiff ; and the question now to be dis- cussed, is whether, in the absence of such proof, the present defendant can be held responsible for the act of their attorneys in instructing the sheriff to arrest the plain.' iff Miles Gearon, the order of attachment having directed that officer to arrest Michael A. Gnarosi. The case of Guilleaume v. Rowe (48 Super. CL 179), although not in all its features resembling the case at bar, yet contains a valuable statement of the rules of law applicable to cases of this kind. The attorneys of the defendants there, in an action brought by them against Guilleaume, caused to be issued, without any authority of law, an execution against his person, and under that execution Guilleaume was arrested and held in custody. He brought ;:n action for false im- prisonment against the persons who had employed the attorneys. The learned trial judge dismissed the com- plaint on the ground that, conceding the execution against Guilleaume to be void for want of jurisdiction, there was no evidencce showing that the defendants authorized the issue of the execution, or the arrest of the plaintiff Guilleaume. OTVIL PROCEDURE .REPORTS. . 211 Qearon 0. B.-uik for Savings. The court at general terra held that the case should have gone to the jury, and ordered a new trial, on the ground that "the evidence established that the attor- neys who issued, the execution against the person of Guilleaume, had acted as the attorneys of the defend- ants all through the litigation, before and after judg- ment, and that that was sufficient to make tkemprima fncie the agents of the defendants; for unless re- stricted, the attorney had plenary power in the prose- cution of the suit to judgment and execution, and in these respects his acts bind and conclude his client." The court further says, "that in such a case, the au- thority may be deduced from the nature of the em- ployment, which is to collect the claim by legal pro- cess. ... As a general rule, a principal is liable for such wrong of his agent as is committed in the course of his employment, as for the benefit of his principal, and this, although no express command or privity be shown." In that case, this familiar rule of law, that the prin- cipal is responsible for the act of his agent acting within the scope of his authority, was properly applied, for the attorneys were employed to bring suit against G nil lean me, and the wrong done him by his unlaw- ful arrest was done in the course of that employment, and was within the attorney's plenary power in the prosecution of that suit. But the court, in its opinion, goes farther, and describes the circumstances, in which the act of the attorney under the plenary power to conduct the suit, would not bind the client. "It is only," says the court, "when, after having issued execution, the attorney undertakes to give special directions for its enforcement in a manner not war- ranted by the language of the writ, and when the offi- cer may justly decline to take the responsibility, in the absence of indemnity, that the client can be held only on proof of special authority to the agent, express or ',212 CIVIL PROCEDURE REPORTS. Gearon r. Bunk fcr Savings. implied, or of subsequent ratification, with knowledge of the facts." In these terms, the court describes, as I think, the state of facts in the case at bar, supplies the true test of the responsibility of the client for tlie act of his attorney, and marks out Uie limits within which the plenary power of the ai.orney, under his ordinary retainer, is confined. In the case at bar, the attorneys were employed by the Bank for Savings to bring suit against Michael A. Gearon. If, in the course of that employment, they arrested Michael A. Gearon, and arrested him wrong- fully, that act would have been within the course of their employment, and their clients would have been responsible. Poucher n. Blanchard, 86 N. Y. 26:). But if they had brought suit, not against Michael A. Gearon, but against Miles Gearon, and caused Miles Gearon to be arrested,, these acts would have been out- side their employment, which was only to sue Michael A. Gearon, and their clients (the Bank for Savings) would not have been responsible. So also, if in the action properly brought by them against Michael A. Gearon, they had caused a writ to be issued against Miles Gearon by name, and caused him to be unlaw- fully arrested, that- act would have been outside tlie course of their employment, and their clients would not have been responsible, because their clients had never employed them to molest Miles Gearon in any way. In the case at bar, they caused an attachment issued by the court to take the person of Michael A. Gearon to be unlawfully executed by taking the peison of Miles Gearon. That was, in my opinion, an act also outside the limits of their employment, and for which their clients were not responsible. Indeed, on the issue of the attachment and its de- livery to the sheriff for execution, the employment of the attorneys, as to that attachment, ceased. They CIVIL PROCEDURE REPORTS. 213 Geuron . B:ink for Savings. had done nil their duty in that matter. It was no part of their duty to instruct the sheriff how the attach- ment should be executed. That was the sheriff's duty, not theirs. With the writ of the court in his hands, directing him to arrest Michael A. Gearon. he was bound, in the course of his employment as sher- iff, to look to it that he arrested Michael A. Gearoti, and no one else, under that writ. He was under no obligation to obey the orders of the attorneys for the plaintiff in that action as to that writ, but only the orders of the court ; and if he arrested a wrong man, lie was responsible, and the fact that the attorneys for the plaintiff in that action had told him to arrest a man other than Michael A. Gearon, would be no justi- fication. In my opinion, the case is one precisely similar to that described in the latter part of the opinion of this court in Guilleaume v. Rowe (supra). Here, the at- torneys of the Savings Bank, after having issued the writ, undertook to give special directions to the, sher- iff for its enforcement, in a manner not warranted by the language of the writ, and to enforce it in such a manner that the sheriff would have been justified in declining to take the responsibility in the absence of indemnity ; and here, as in the c;ise supposed in the opinion in Guilleaume v. Rowe, the client (the Savings Bank), could be held only upon proof of special an- thorily to their attorneys, express or implied, or of subsequent ratification. There is, in the case at bar, no evidence whatever of such special authority orrati- iication. An analogy exists between cases of unlaxvful seiz- ures of goods under process, and unlawful arrests of the person. In Welsh . Cochran (63 N. Y. 182), the plaintiff sued for an alleged unlawful seizure and con- version of his property. It was seized under a war- rant issued in bankruptcy proceedings, and directing 214 CIVIL PROCEDURE REPORTS. Gearon 0. Bank for Savings. the taking of goods belonging to persons other than the plaintiff. The defendants were the petitioning creditors, and the warrant was issued at their in- stance, and the marshal acted under the instructions of their attorneys in making the seizure. The trial judge directed a verdict for the plaintiff. The court of appeals reversed the judgment, and ordered a new trial. I find in the opinion of that court the following expressions, which apply to the case at bar: " The warrant issued at the instance of the defendants only authorized the seizure of the goods of the bankrupt named therein, and not goods in possession of the plaintiff. The defendants were not present at the taking, and did not in person, direct or interfere with the persons committing the trespass on the plaintiff. They may have pnt the officers in motion, but the au- thority from defendants which the law would imply, was only co-extensive with that conferred by the war- rant, and to do only lawful acts pursuant to the war- rant. The law will not presume an authoritj" from the defendants to do an unlawful act The presence of the attorney for the defendants at the seizure of the goods, and his directions to the officers, did not make the defendants liable for I he tort ions act. In the absence of proof of special authority to an attorney, his acts in directing the levy on, or t he- taking of goods on process, are in excess of his gen -r:i! powers as an attorney, and do not subject his client to liability." Recent English decisions exhibit a similar femler.cy to the restriction of the-implied authority of I he. attor- ney to impose liability on the client. The client is no held liable for Ji fraudulent defense put in by his aftor ney. Williams v. Preston, 47 L. T. Rep. N. S. 20. 1 ). The client is not liable for the act of his attorney in directing the sheriff on what, goods to levy. Smith v. Real, 4(5 L. T. Rep. N. 8. 770. CIVIL ; PROCEDURE REPORTS. 215 Gearon v. Bank, for Savings. The cases cited by the learned counsel for the plaint- iff, in his brief, do not, in my opinion, give any real or effectual support to the plaintiff's claim in this action, and in none of them are the facts similar to those in the case at bur. Here the action of the attorneys of the B, ink for Sav- ings, in directing the sheriff to arrest Miles Gearon, the plaintiff in this action, was oiilside the scope of their employment, and outside of thegeneral authority presumed to have been conferred on them by the defendants. Their directing the arrest' of a man, olher than the man named in the order of attachment, was wholly unlawful, and defendants cannot be presumed to have authorized an unlawful act. The presumed lawful authority of the attorneys of the Bank for Sav- ings, as to the order of attachment, was at an end the moment it \vas delivered to the sheriff for execution. The sheriff's authority and his functions then began. They had no right to direct him in the execution of the writ, and he was not under their control as to the manner of executing it. In the execution of his official duty, he acted at his peril ; and their direction that he should arrest the wrong man would be neither justifi- cation nor protection to him. The facts, as they appeared in the evidence in this case, were clear, and no difference of opinion depending on different deductions or inferences could arise, requiring the decision of the jury. The burden of proving special instructions from the Bank of Savings, the defendants here, to their attorneys, or to the sheriff, to arrest the plaintiff, was on the plaintiff, and no such proof was given. The dismissal of the complaint was, therefore, proper. The judgment appealed from should be affirmed, with costs. FEKEDMAN, J., concurred. 216 CIVIL PROCEDURE REPORTS. Syracuse Savings Bank v. Burton. SYRACUSE SAVINGS BANK v. BURTON, ET AL. SUPREME COUIIT, UTICA COUNTY SPECIAL TERM, JULY, 1884. 438, 439. Infant. Service of summons on, T>y publication. Estoppel. Section 438 of the Code of Civil Procedure, which provides for the service of the summons in an action upon a non-resident, or where the residence of llie defendant is unknown to the plaintiff, is equally applicable to an infant as to an adult. I 1 ] For the purpose of determining the place of residence of an infant under the provisions of the Code of Civil Procedure, allowing service of the summons in an action by publication, that <>f the mother hav- ing the care, custody anil control of the. child must be regarded as that of the child.[*J The summons in an action must be served upon an infant defendant in one of the modes provided by statute, in oider to confer upon the court jurisdiction of the person, and give it authority to appoint a guardian ad litem to enable the defendant to appear and defend the action. [ 4 ] When the service has been in, frict made, in a manner provided by statute, and the infant lias appeared and answered, by which material issues have been made, and they have been tried and. determined by a court of competent jurisdiction, it is too late to challenge the truth of the affidavit conferring jurisdiction upon the court or of the infant's own sworn statement affirming the truth of such affidavit. [ s ] Where an order for the service of the summons in an action upon infant defendant by publication was made upon a complaint show- ing a good cause ol union against such defendants, and nn Affidavit alleging that the infants resided " with their mo; her in New Bedford in the state of Ma-snchusetts," and were then there : JIcl', that purchasers of property sold under a judgment recovered therein should not be excused from taking title, on the ground that one of the infants bo served who had appeared, had a guardian ad lit em appointed and defended the action, was at the time of the service temporarily within the state. [_*J {Decided August 2, 1884.) CIVIL PROCEDURE REPORTS. 217 Syracuse Savings Bank v. Burton. Motion by the plaintiff for an order directing Thomas Lane to complete the purchase made by him of certain lands bid off by him on a sale thereof upon a judgment of foreclosure, entered herein, to accept a deed, pay purchase money, &c. It appears that a mortgage was duly executed and delivered by Henry 13. Burton and Cornelia H., his wife, to the plaintiff bearing date on January ]1, 1871, given to secure the payment of a certain sum of money as therein provided. Default having been made in the payment, this ac- tion was commenced to foreclose the mortgage. The following among others were made defendants therein : Henry B. Burton, Cornelia H. Burton, his wife, Cor- nelia H. Burton, as trustee of Anna G. Burton, Grace Burton and Burr Burton ; Anna G. Bui-ton, Grace Bur- ton and Burr. Burton. The action culminated in a judgment of foreclosure and a sale of the mortgage premises by virtue thereof by the sheriff of Onondaga county. Upon the sale Thomas Lane became the pur- chaser for the sum of $3,960, that being the highest sum bid and he being the highest bidder. Lane refuses to complete the sale and pay the amount bid by him. The principal ground for Mich refusal being that the defendant, Anna G.. Burton, at the time of the com- mencement of this action, an infant of more than four- teen years of age, was not properly served with the summons herein, and that the courts acquirej.1 no juris- diction of her person and therefore the judgment is not conclusive against her, and because thereof the title is defective. The plaintiff claimed that Anna G. Bur- ton, was at the time of the commencement of this ac- tion a resident of New Bedford in the state of Massa- chusetts and that personal service of the summons could not be made upon her, and upon the presentation of an affidavit setting forth facts hereinafter stated, together 218 CIVIL PROCEDURE REPORTS. Syracuse Savings Bank ?:. Burton. with the verified complaint to a justice of this court, an order was -made for the service of the summons upon said Anna Gr. Burton, by publication. Such service was made before the time for answering expired, on her petition duly verified, she being sixteen years of age in which she states her place of residence to be with her mother, Cornelia H. Burton, at New Bedford in the state of Massachusetts. A guardian ad litem was duly appointed for her in the action, and answer interposed by him presenting the material issues for trial the same were tried by this court, judgment ordered for plaint- iff and subsequently entered. Charles G. Baldwin and Lewis Marshall, for the motion. J. Page fifunroe, for the purchaser, opposed. KENNEDY, J. The Code of Civil Procedure, section 438, provides that an order directing the service of a summons upon a defendant without the state o,r by publication may be made in either of the following cases. First. When the defendant, being a natural person, is not a resident of the state, or when after diligent inquiry the defendant remains unknown to the plaint- iff, or the plaintiff is unable to ascertain whether the defendant is or is not a resident of the state. The remaining subdivisions of said section are unim- ['] portant as bearing upon the question, except as reference is hereinafter made to subdivision 5. The provisions above quoted is equally applicable to an infant as an adult defendant. Wheeler case, f>0 N. Y. 607. The judgment-roll herein shows that on April 10, 1883, a verified complaint showing the existence of a sufficient cause of action against the said in fit nt, to- gether with an affidavit containing the following alle- CIVIL PROCEDURE REPORTS. 219 Syracuse Savjmgs Baok v. Burton. gation of the affiant, that is to say, " That the defend- ants Anna G. Burton, Grace Burton and Burr Burton, are infants and children of Henry B. Burton and Cor- nelia H. Burton, and reside wilh their mother in New Bedford in the state of Massachusetts and are now there, and that the plaintiff will be unable to make personal service upon them," v vvas presented to a justice of this court and an order ihat the summons be served by publication on said Anna G. Burton asked for, which was granted, and the service of the sum- mons thereafter made as required by said order and as in like cases provided by statute. The papers thus presented ( 439 Code) and acted upon confer jurisdic- tion upon the officer to make the order and it could not be avoided except by being vacated or set aside in proceedings instituted for that purpose. After the summons by publication had been commenced and before the time for appearance and answer had ex- pired the said Anna G. Burton presented her petition, sho being then 16 years of age, to a proper officer ask- ing for the appointment of a guardian ad litem for her in the action, in which petition verified by her, she stated her residence to be New Bedford in the state of Massachusetts, and that " the service of the summons herein was being made upon her by publication," and such guardian was appointed. By the appointment of guardian ad Litem for her, the ansyver interposed in her behalf, the trial of the issues made thereby, and the judgment of the court made thereon, the said in- fant has had her day in court and unless imperatively demanded she should not at any future time be per- mitted to question the verity of the record, nor should the integrity of the same be subject to impeachment by her. It is not questioned but that Anna G. Bur- ton was, at the time the service was made, in the care and custody of her mother and that her mother was a non-resident of the state. The most that can be 220 CIVIL PROCEDURE REPORTS. Syracuse Savings B;i!ik v. Burton. urged by the purchaser is that the said Anna was at that time temporarily staying in the city of New York and was away from her mother. This is assumed as I rue, although the statement in the affidavit real [ 2 ] in opposition to the motion, is alone upon infor- mation and belief, and does not prove I he alleged facts. Conceding the fact, however, as claimed, it does not in, any manner impeach I he regularity of the service as made. For the purpose of determining the infant's place of residence under the provisions of ['] this statute, I am clearly of the opinon that that of her mother having the care, custody and con- trol of her infant child, must be regarded as that of the child. If I am light in this, then the verity of the judgment -roll cannot be impeached either collaterally or by direct proceedings for that purpose. Belmont c. Cornen, 82 N. Y. 2f>(5. The summons must be served on infant defend- ants, in one of the modes provided by the statute [ 4 ] in order to confer upon the court jurisdiction of the person and give it authority to appoint a guardian ad litem to enable the defendant to appear and defend the action. Ingersoll v. Manga in, 84 ^V. Y. 623. When the service has been in fact made in a manner provided by statute and the infant has appeared and answered, by which material issues have been made, and they have been tried and determined by a court of competent jurisdiction, it is too late to chal- [*J lenge or void the proceedings afterwards, by an attempt to falsify the truth of the affidavit con- ferring jurisdiction upon the court, or of her own sworn statement affirming the truth of said affidavit. The petition of the infant for the appointment of the guardian ad litem forms a part of the judgment roll. It is referred to by her. and in it she states, that she is a resident of New Bedford, in the state of Massa- CIVIL PROCEDURE REPORTS. 221 Syracuse Savings Bank v. Burton. chu setts, " and that the summons is being served upon her by publication." Under the evidence in this case the judgment must be regarded as conclusive. The claim therefore of the purchaser is not available to him to relieve him from his contract, as tne title he acquires cannot be im- peached upon the ground urged by him. It is not im- portant on this motion to inquire what are the exact interests of Cornelia H. Burton under the deed from Emily Howland. It is sufficient to say that under that conveyance the defendant Anna G. Burton, had such an interest in the mortgaged premises as made her one necessary party defendant, within the provis- ions of the 5th. subdivision of seciion 438 of the Code above cited, and that the court had jurisdiction. of the subject matter thereof. Whatever interests Henry, B. Burton had in the premises as guardian in socage for the said Anna G., was cut off by the sale upon the judgment. The allegations in the affidavit of the pur- chaser as to certain conversations had by him between the individuals who were officers of the plaintiff upon the subject of tiie plaintiff's lending such purchaser, S3, 000 are not sufficient to exclude him from the per- formance of his contract. It follows than an order should be entered requiring the purchaser Thomas Lane to complete the purchase made by him on the sale of the premises upon said judgment of foreclosure by paying to the sheriff of Onondaga county who made such sale, the sum bid by him, that is $3,960, in the manner required by the terms of said sale upon re- ceiving a deed in the usual form, and executed by said sheriff to him for said premises. And in case of the inability of said Thomas Lane to complete said purchase by him then the sheriff shall resell said prem- ises upon said judgment that he pay the costs and ex- penses of such re-sale as well also the difference be- tween the price said premises shall sell for on such 222 CIVIL PROCEDURE REPORTS. Boyd v. N. Y. Central, &c. R. ll. Co. re-sale, provided said price shall be less than the said sum of $3,960 and interest thereon and the amount bid by him. Ten dollars costs of motion together with disbursements to be paid by said purchaser Thomas L-me, to the plaintiff. Unless the form of the order is agreed upon by the respective attorneys, the same may be settled before me at my chambers on one day's notice. BOYD, AS ADMINISTRATOR, ETC., OF BOYD, DE- CEASED, v. THE NEW YORK CENTRAL AND HUDSON RIVER RxVILROAD COMPANY. SUPREME COURT, RKNSSKLAEU CIRCUIT, SEPTEMBER, 1884. 1904, 3253. Extra allowance. Basis of, in action for musing death. An extra allowance in an action to recover damages for causing death, should be computed upon the sum awarded by the jury and the interest thereon, from the date of the death of the deceased, which the Code requires the clerk to add thereto. The expression "the sum recovered," in section C253 of the Codfi of Civil Procedure, wliich provides for the granting of additional al- lowances, includes nnd covers all damages awarded to a party and recovered by him in an action, whether compelled by a jury, a court or a referee, or given solely by statute or partly dependent <>n both. (Decided September, 1884.) Motion by plaintiff for an additional allowance on his recovery herein. Sufficient facts appear in the opinion. CIVIL PROCEDURE REPORTS. 223 Boyd v. N. Y. Central, &c. R. R. Co. ' JR. A. Parmenter, and F. J. Parmenter, for the motion. E. L. Fursman, opposed. WESTBROOK, J. The plaintiff after a severe con- test at the present circuit recovered a verdict of two thousand dollars in the above entitled cause. The action was brought under section 1902 of " The Code of Civil Procedure" to recover compen- sation for the death of a son. The plaintiff moved for an extra allowance under section 32f>3, and asked that it be computed upon the sum awarded by the jury with the interest thereon added from the date of the decedent's death (January 19, 1877), which interest the clerk is required by sec- tion 1904 to "add to the sum awarded" by the jury, "and include it in the judgment." The defendant conceded the case to bs "a difficult and extraordinary" one and that an allowance .was proper, but insisted that it should be computed upon the amount of the verdict only. The question which this motion presents therefore is, upon what shall the allowance be computed, upon the amount of the verdict only, or upon such amount with interest added from the date of the death ? The language of the section (3256) giving the allow- ance, and which is applicable to this case, requires it to be computed " upon the sum recovered" The claim of the plaintiff was that " the sum recovered" is the amount oF the damages which he recovers by the action ; while the claim of the defendant is that the expression only refers to the amount awarded by the verdict. The point involved has not been directly decided to my knowledge, and must therefore be treated as an original question. 224 CIVIL PROCEDURE REPORTS. Boyd t\ N. Y. Contra!, &c. li. 11. Co. In an action of this character when the plaintiff recovers, the jury, the court, or the referee to whom the question is submitted, may award "such a sum not exceeding five thousand dollars" as they or he deem or "deems to be a fair and just, compensation for the pecuniary injuries, resulting from the dece- dent's death, to the person or persons, for whose bene- fit the action is brought." The same section of the Code (1904), from which the quotation has just been made, further provides : " When final judgment for the plaintiff is rendered, the clerk must add to the sum so awarded, interest thereupon from the decedent's death, and include it in the judgment. The inqui- sition, verdict, report, or decision may specify the day from which the interest is to be computed ; if it omits so to do, the da y may be determined by the clerk, upon affidavits." From the section of the Code just referred to it seems reasonably clear that " the sum recovered" in this action is not only the amount of the verdict, which represented the judgment of the jury as to what would be "a fair and just compensation for the pecuniary injuries" to the plaintiff "resulting from the dece- dent's death," but also the interest upon such amount from the date of the death. That such interest is re- quired by express statutory enactment to be added does not make such addition anything other or differ- ent than a part of " the sum recovered." If the Code had authorized the jury to make the interest a part of the verdict, and that in fact had been done, the point that the allowance should be confined to the jury's es- timate of the "pecuniary injuries'' resulting from the death would not probably have been made. That the Code has by plain words made the interest a part of " the sum recovered" and has not left its allowance or non-allowance to the discretion of the jury, cannot alter or change the words of section 3253. That sec- CIVIL PROCEDURE REPORTS. Boyd v. N. Y. Central. &c. R. R. Co. tion does not provide that the allowance shall be based upon theamountof a verdict, a decision of a court, or the report of a referee, but "upon the sum re- covered." In other words, the allowance shall be made upon the damages which are awarded to the party by the action. These damages may be such only as a jury, a court or a referee may compute, or may be given solely by statute, or may depend, as in this case, partly on both ; but whether given in either of the ways mentioned, so long a.s they represent ''the sum recovered,'* that sum, and no other, is the one upon which the allowance is to be computed. The order in this case will be that the allowance granted shall be computed upon the verdict with the interest added from tlie date of the decedent's death. The allowance in this case will be at the rate of live percent., because that rute in this particular case is not too much. If the basis of the allowance will yield in some future case too large a sum, the rate is in the discretion of the court. The only point now decided is that the expression, " the sum recovered," used in section 3253 of the Code includes and covers all the damages awarded to a party, and recovered by him in ML a( tion. VOL. VL 15 226 CIVIL PROCEDURE REPORTS. Goodwin v. Bunzl. GOODWIN, ET AL., RESPONDENTS, v. BUNZL, ET AL., APPELLANTS. N. Y. SUPERIOR COURT, GENERAL TERM, MAY, 1884. 1328, 1329, 1335. Replevin. Undertaking on appeal. When sureties will &e held Halle on. Where both parties request the direction of a verdict, (here is no question of fact to be reviewed by the appellate court. Though an undertaking on appeal be defective in form, and not suffi- cient to give a stay of proceedings, yet as against the sureties it may be supported by any sufficient consideration. The burden of proving this is upon the party seeking to charge the sureties, but it may be shown by circumstantial evidence. Where a defective undertaking is made for the purpose of obtaining a stay, and respondent at appellant's request withdraws his excep- tion thereto, and the undertaking is approved on consent, and used to obtain a stay, and respondent relying solely on it does not issue execution, the sureties will be held liable thereon, especially when it does not appear that they knew of or took action on the excep- tion to the undertaking. In this case, where the judgment in replevin against three defend- ants, was affirmed as to two defendants, it was held, that there was a breach of the condition of the undertaking. (Decided June 20, 1884.) Appeal by defendants from judgment in favor of plaintiffs. Action against defendants as sureties on an under- taking on appeal in an action of replevin. The facts appear in the opinion. M. A. Rcgensbcryer and Eocritt P. Wheeler, for appellants. By sections 1328 and 1320 of the Code of Civil CIVIL PROCEDURE REPORTS. 22-7 Goodwin v. Bunzl. Procedure, an appeal from a judgment for the recovery of a chattel is not stayed until the appellant gives a written undertaking in a sum fixed by the court below, that the appellants will obey the direction of the ap- pellate court upon the appeal. No directions were made by the appellate court, which the appellants re- fused to obey. And if it were otherwise, these sure- ties did not make such an engagement. By the provision of section 1335 of the Code of Civil Procedure, the sureties when excepted to, must justify on oath in court, and the appellants' attorney must serve notice of the allowance of the undertaking on the exceptants, and the failure to justify, has the same effect as though no undertaking had been given Kelly & McRae, for respondents. The sureties chose and executed the undertaking in the form it is, intending it as a good and sufficient undeTtaking for the purpose of staying execution ; that it was considered and treated by all parties as fulfilling that purpose, and that they are estopped from denying its force or obligation. Harrison v. Wil- kin, 62 N. Y. 412 ; Hill v. Burke, G2 Id. 111 ; Wheaton v. Fay, 62 Id. 275; Coleman v. Bean, 3 Keyes, 94; Decker v. Judson, 16 N. Y. 439. There is no force in the contention that because the sureties did not formally justify in court, that they are not liable on their undertaking. This was waived by plaintiffs' counsel at the express request of defen- dant's counsel, and, therefore, the sureties cannot take advantage of it. Ballard v. Bollard, 18 J\\ Y. 491. SEDGWICK, Ch. J. The decision of this appeal must rest solely upon the determination of questions of law that are pertinent to exceptions taken upon the trial. There was no request to go to the jury upon an issue of fact. Both bides asked for a direction of a verdict. 228 CIVIL PROCEDURE REPORTS. Goodwin v. Bunzl. Although the defendants excepted to the direction that was made in favor of the plaintiff, that exception was not upon the ground that there was a question of fact for the jury, because the defendants contempo- raneously demanded a direciiou in their own favor, which implied that there was no dispute of fact. What has been said is to be applied to the main point taken by the defendants as to whether the un- dertaking by the sureties was supported by any legal consideration. They argued that the undertaking was not in the form prescribed by the statute as the one which, when executed by sufficient sureties, gives to the appellant in the action in which the undertaking may be given, a right to a stay of proceedings upon the judgment. It may be assumed that this proposition is correct. The undertaking, however, imiy bs sup- ported, as any contract may be, by a sufficient con- sideration, which, when the undertaking is not indue form, it is necessary that the plaintiff in an action upon it must affirmatively prove. Accordingly, the defend- ants in this action, upon the trial took the position that the plaintiff had not proved any consideration for the undertaking. In such a case the consideration nmy, as in- any other case, be an inconvenience suf- fered, or a forbearance of a right to enforce a legal remedy, by a promisee at the request of the promisor. There is no rule of law that requires ihis to be proved by direct testimony. It may beshown by circumstan- tial testimony. A stay of proceedings upon a judg- ment on request, is a sufficient consideration. Post o. Doremus, fy)-JV. Y. 370. In the present case the surd ins knew the law on the subject of the stay of proceedings upon judgments after appeal, or were presumed to know it. The only purpose for which they could have made and offered it, was to sescrre to their principal the benefit of a stay. The want of form to comply with the statute was, it is CIVIL PROCEDURE REPORTS. 229 Goodwin v. Bunzl. to be presumed, within their knowledge. The respond- ents, having the power to object to the undertaking arid to secure its disapproval, consented that it might be approved as it was ; and their attorney us a witness on the present trial, testified that he did not issue any execution, relying on the undertaking. All ihese facts and the necessary implications in them, tend to show a~stay at the request of the defendants. And if they do not incontrovertibly show this, they wonld prevent a direction for the defendant, and wonld give the de- fendants the light to go to the JUIT as to the fact. This right, however, was not, as has been observed, claimed. There v.as a genei'al objection to the direc- tion for the plaintiff, without calling 'the attention of the court to this particular fact, in any other way than in arguing that there was no evidence of a con- sideration. In Post v. Doremus (svpra), the court showed that the plaintiff in that case did not accept the undertak- ing as sufficient to secure a sta.y of proceedings, but only sufficient to perfect an appeal. In the present case, the facts would justify a finding of fact that the plaintiff did stay the appeal in consequence of the undertaking. I do not see how the del'endants can claim that the defect in form of the undertaking should signify that they did not impliedly request a stay of proceedings. There was no other object of an under- taking than a stay of proceedings. I am of the opinion that the ground stated by the judge below of his direction, was valid. The under- taking was used as the defendants (it is to be inferred) intended it was to be used, in being presented to the judge who approved it, for his determination as to whether it was in proper form and with sufficient sure- ties to give the appellants in that case a right to a stay. The approval was a judicial determination by him on the subject, and all the parties to it should be bound 230 CIVIL PROCEDURE REPORTS. ' Gootlwm v. Bunzl. by it, until it be set aside. The fact that the sureties made the undertaking and delivered .it, is sufficient evidence that the approval was by their consent, or rather at their instance. Manning v. Gould (90 N. T. 476), it is argued, is an authority that these defendants are not bound by the undertaking, because they were' excepted to and did not thereafter justify. To make the cited case an au- thority on the subject, it is said that the sureties failed to justify. The facts do not show that there was any failure on the part of the defendants to justify. They did not justify, nor was it shown that they knew there had been an exception to them. On the contrary, at the request of the attorney for the appellant in the former action, the attorney for the respondents with- drew his exception and consented to the approval of the undertaking. The first sentence of Judge TRACY'S opinion in Manning v. Gould (supra], shows that it implies that in a case like the present the sureties are liable. Judge TRACY said, "The question is whether the sureties on an undertaking given on appeal, when excepted to and they fail or refuse to justify, and jus- tification is not waived by the respondent, are never- theless bound by the conditions of I heir undertaking.' 7 If both parties stand upon the exception and there is a failure to justify, then in the language of the Code the effect is the same as if no undertaking had been given. But in case an exception is withdrawn and the undertaking is approved by consent, -the. case stands as if there had been no exception, especially when the sureties were not apprised of the exception tun! did not in any way act upon it. There was another objection : that the condition of the undertaking was not broken. The condition was, 41 that if the said judgment so appealed from or any part thereof be affirmed or the appeal be dismissed, the said appellants will pay the sum recovered or di- CIVIL PROCEDURE REPORTS. 231 Goodwin . Bunzl. rected to be paid by th^ said judgment/' The judg- ment was that "the plaintiff recover from the defend- ants, the possession of said property, iogether with said $49 damages and said costs, or if possession of said property is not delivered to plaintiff, then that they recover the said value, together with said dam- ages and costs, making in all the sum of $1,075.87, &c." The action in which the judgment was obtained was in replevin against three defendants. Two of them were parties who had assigned and transferred the chattels to the third, and the chattels were, at the time of the action, in the possession of the third, and remained there mi til he transferred them to other per- sons. The judgment was affirmed as to the assignor, and reversed as to the assignee. A new trial was had, and judgment rendered in his. favor. The judgment was really joint and several against the three, and when there was an affirmance as to the assignors the sureties became liable upon the undertaking. Seacord v. Morgan, 3 Ke't/es, 633. It does not follow that be- cause, in fact, the possession of the chattels was in the third defendant, that the obligation of the two, under the judgment to restore them to the plain tills, was affected. Iteplevin will lie although the defendant has parted with the possession of the property and the same is beyond the reach of the process of the court, so that in no event can a return of the property be had, either in virtue of the claim and demand of the plaintiff or any judgment that may be given in the action. Barrett v. Selling, 70 N. J'. 492, citing Nichols . Michael, 23 Id. L'64. It is not a question here, how in such a case, there can be judgment against the two while it. is in favor of the third. Such is the judgment, which binds all parties, and that is a final considera- tion, while it, may be imagined, how the result was competently reached. Certainly it appears that the judgment did not 232 CI7IL PROCEDURE REPORTS. Seligmau v. Wiillach. require the defendants unconditionally to pay the amount named, but only if possession of the property was not delivered to the plaintiff. In the present case, it was proved affirmatively and conclusively that the possession had not been delivered, so that the obliga- tion to pay the amount had become absolute. Seeing no reason for disturbing the judgment ap- pealed from, I am of opinion it should be affirmed, with costs. TKUAX, J.j concurred. SELIGMAN ET AL. v. WALLACE, ET AL. N. Y. SUPERIOR COURT, SPECIAL TERM, OCTOBER, 1884. 2435, 2436. Supplementary proceedings. Assignment for benefit of creditors. An examination in supplementary proceedings of a debtor, who lias made an assignment for the benefit of creditors, should not be con- fined to properly acquired since the assignment. It may include an inquiry concerning his property, whether leg;il or equitable, including property transferred to another with the apparent intent to hinder, delay or defraud creditors. (Decided October 23, 1884.) Special proceeding for examination of judgment debtor. The facts appear in the opinion. Seligman & Seligmaii, for plaintiffs. Richard S. Newcombe, for defendants. CIVIL PROCEDURE REPORTS. 233 Seligman . Wallach. 0' GORMAN, J. Defendants being examined in sup- plementary proceedings under section 2435 of the Code, claim that the examination should be restricted to questions relating to property acquired since the general assignment for the benefit of creditors. In this assignment the wife of one of the defendants and the daughter of the other defendant are preferred to amounts reaching in the aggregate $82,000, constitut- ing the bulk of the assets of the defendants. I do not think that such a restriction would be proper. The sections of the Code authorizing the examination of a judgment debtor provides that he may be required to attend and be examined " concerning his property" ( 2435, 2436). The attitude of the parties in such cases is this : The creditor has exhausted the ordinary remedies and means to collect his debt by judgment and execution neither the sheriff nor he can discover any property subject to levy without examination of the debtor himself. The law gives the creditor the right to examine the debtor ''concerning his prop- erty," meaning .thereby such property as could not be discovered, 'and which has been overlooked or hidden or put beyond the reach of creditors. It is an inquis- itorial proceeding and was meant to be so. An assignment for the benefit of creditors, so called, is too frequently an expedient of dishonest debtors and in order to hinder, delay and defraud creditors, and when made with that intention, the title to the property does not vest in the assignee, but is still, in equity, the property of the debtor and subject to levy under execution. The claim that the mere fact of the debtor's having made a general assignment of his prop- erty, stops all further inquiry on the part of the cred- itor in these proceedings, seems to me untenable and inconsistent with the manifest purpose of these pro- ceedings. Such seems to be the opinion of the court of appeals in Lathrop v. Clapp (40 N. Y. 33). In Me- 234 CIVIL PROCEDURE REPORTS. Seligmim v. Wulkich. chanics' and Traders' Bank v. Healy (14 J\ r . Y. Weekly Digest, 120), the creditor was allowed to show by ex- amination of the debtor in supplementary proceedings that a purchase of the debtor's property was not made in good faith. Property of the judgment debtor, which had become vested in the assignee under a valid agreement, cannot, of course, be reached by these pro- ceedings. It had ceased to be the property of the debtor. But if the assignment bears on its face, or in the circumstances of its execution, any of the ordinary and manifest indications of fraud, then by examination of the judgment debtor it can be shown that the as- signment is not valid. The question whether or not the assigned property is not still the property of the debtor is in doubt, and the examination may be di- rected to that inquiry. The provisions of section 2460 of the Code, which protect the judgment debtor against the use of his evi- dence of his own complicity with any fraudulent trans- fer of his property in criminal proceedings against him, seemed further to sustain the opinion I have above expressed, and I hold, for the purposes of this motion, that the examination of the defendants in this case must not be restricted to property acquired by them since the assignment, but may cover an inquiry "concerning their property" whether equitable or legal, including their property transferred to another with the apparent intent to hinder, delay or defraud their creditors. The scope, and extent, and nature, and mode of that examination must be subject to the control and direction of the judge or referee before whom the examination is taken. CIVIL PROCEDURE REPORTS. 235 Taylor v. Meldrum. TAYLOR, RESPONDENT, v. MELDRUM, APPELLANT. SUPREME COURT, FOURTH DEPARTMENT, GENEBAL TERM, OCTOBER, 1883. 829. JSviden.ee. Testimony as to personal transaction between a party and a deceased person through whom both parties claim. Where the principal question in controversy in an action was whether a certain transfer of personal property from one D., deceased at the time of the trial of the action, to plaintiff, was fraudulent and void, to,which the defendant claimed title by virtue of a sale un- der an execution against D., Held, that evidence by plaintiff as to personal transaction between himself and the deceased was inad- missible ; that the fact that such testimony merely reiterated" evi- dence previously given by the witness did not overcome the objec- tion, when such evidence was drawn out either by the plaintiff's counsel in the face of objections interposed by the defendant, or on cross-examination as to matters stated by the witness on his direct examination, or it did not appear until cross-examination that it related to personal transactions with the deceased. (Decided January, 1884.) Appeal from a judgment entered in Onondaga county, April 25, 1883, on the report of a referee. In March, 1876, the plaintiff, then and now a com- mercial traveler for a tobacco house bought at sher- iff's sale the stock of liquors of one Downing, a liquor dealer. Downing was thereupon made the agent of Taylor for the sale of those goods and other goods bought by Taylor. Downing acted as such agent down to July 28, 1878. In May, 1878, Downing moved Taylor's and his own goods into his, Downing' s, barn, and while they were there they were, levied upon and sold under an execution issued against Downing, and defendant became the purchaser of them. 23C CIVIL PROCEDURE REPORTS. Taylor t. Mcldrum. The opinion states farther Tacts. SedgioicJc, Ames & Kintj, for appellant. The conversation about the sale between Taylor and Downing was inadmissible under section S'2Q of the Code. Section 8:29 of the Code is a limitation placed upon- the admission of any and all evidence under certain conditions, and wh[le the evidence al- lowed to be given in regard to the sale was unquestion- ably res gestce, yet it was evidence relating to a trans- action between Taylor and Downing, since deceased, through whom both the parties to this suit derive their title, and clearly within sec-lion 8^9. The plaintiff was allowed, under proper objection, to tesfifyas to a conversation between the deceased and the deputy re- lating to a transaction between himself and the deceased, and in which he participated. This was clearly an error. Kraushaar P. Meyer, 72 JY. Y. 602. The evidence was incompetent and immaterial for any purpose. It was the mere declaration of the vendor after the alleged sale and after the levy had been made. Paige v. Cagwin, 7 Hill, 361; Cyler v. McCarthy, 40 N. T. 221. Waters, McLennan & Dillat/e, for respondent. SMITH, P. J. The principal question in controversy was whether a certain transfer of personal property from one Downing to the plaintiff, in Juh r , 1878, was made with intent to hinder, delay or defraud Down- ing's creditors. Downing died after the commence- ment of the suit and before the trial. The plaintiff claimed title to the property through said transfer and the defendant claimed it by virtue of a levy under an execution issued upon a judgment against Downing. At the trial the plaintiff was examined as a witness in his own behalf. His counsel asked him to state CIVIL PROCEDURE REPORTS. 237 Taylor v. Meldrum. what occuired between him and Downing on the 27th and 28th of July (the time of the alleged transfer) in relation to the goods. The defendant's counsel ob- jected to the question as incompetent and inadmissible under section 829 of the Code. The objection was overruled, the defendant's counsel excepted and the witness answered, "On the 28th I went down there, he got the key and went in and showed me these goods. Downing said he turned the goods over to me in satisfaction of a part of what lie owed me. We stayed there a few minutes and he wanted me to take the key. I said, I don't want to carry it. He said he would take it over and leave it with Mrs. Downing." The testimony was directly within the prohibition, of section 829. Both parties to the suit, claimed to de- rive title to the property in dispute through the deceased, and the testimony was given by the witness in his own behalf and it related to a personal transac- tion between the deceased and himself. The respondent's counsel suggests that the evidence in answer to the question merely reiterated the evi- dence given on defendant's examination of the witness. To some extent that is true, but insofar as the an- swer relates to the consideration for the transfer it, is new matter. Besides, the testimony previously given by the wit- ness in relation to the transfer was, for the most part, either drawn out by the plaintiff's counsel in the face of objections interposed by the defendant, or on cross- examination as to matters srated by the witness on his direct examination. Thus the witness was allowed to testify on his direct examination that on July 28, he was the owner of the property and then took posses- sion of it without stating from whom or how he ac- quired title, and the fact that he derived title from Downing did not appear till he was cross-examined. Had that fact appeared on the direct examination it 238 CIVIL PROCEDURE REPORTS.* Viadt-ro v. Morton. would have furnished good ground for a motion to strike out the entire testimony of the witness as to his ownership of (he property on the ground that it was incompetent under section 829 of the Code. And the fact having appeared on the cross-examination, the re examination on the same subject was properly objected to The defendant availed himself of the objection to that class of evidence at the first opportunity. When- the witness was asked on his direct examination who owned the property on July 28, the defendant's coun- sel asked the privilege of showing by the witness who owned the property on July ^7 and previous thereto, and that being denied him, he objected to the form of the question and on the plaintiff's being asked when he took possession of the property, the defendant object- ed, on the ground that a mere conclusion was called for and not the facts, but the referee in his discretion overruled the defendant on both points. The judgment should be reversed and a new trial ordered before another referee, costs to abide events. HARDIN and BARKER, JJ., concurred. VIADERO v. MORTON AND ANOTHER. CITY COURT OF NEW YORK, SPECIAL TERM, NOVEM- BER, 1SS4. 440, 4Z4. Parties to action. When all lite obligors in bond not necessary. Auction- eer's land. Liability of sureties. Suit on, by whom Irowjht. An notion may be maintained by one who has lost his property by the dishonest and fraudulent acts of an auctioneer on a bond jjiven CIVIL PROCEDURE REPORTS. 239 Viadero v. Morton. by the auctioneer to the Mayor, &c. of the city of New York, which the statute (Lfnos of 18-13, chap. 138), requires before a license for engaging in the business of an auctione T can be granted, and that although there has been no assignment of tlie boni from the Mayor, etc. 10 the plaintiff. The bond was intended to indem- nify persons losing property by the d'-ihouest acts of the auctioneer, and the mayor, etc. is merely their tm-toe. In such a case it is not necessary to maivc a.l the obligors in the bond parties to the action, but the plaintiff may select as defendants any or all of the parties liable upon the bond. The conversion, .by an autioneer, of property or the proceeds of prop- erty given to him for sale is a " fraudulent, an ri dishonest practice" within the meaning of the bond which tLe law requires an auctioneer to give before can engage in that business in the c'ty of New York. {Decided November 12, 1884.) Demurrer to a complaint on the ground of non- joinder of parties, and that it does not state facts sufficient to constitute a cause of action. This action was brought against the sureties in a bond given by an auctioneer to the mayor, aldermen and commonalty of the city of New York on the grant- ing of a license to him by the mayor to engage in the business of an auctioneer. The bond was in the pen- alty of $2,000, and was conditioned to pay all damages causecl by the fraudulent and dishonest practices of the auctioneer in his said business. The plaintiff asserts that the auctioneer converted certain property and appropriated the proceeds of certain other prop- erty belonging to the plaintiff, which was given to him for sale. The auctioneer was not made a party, and it did not appear that the bond given by him had been assigned to plaintiff. Other facts are stated in the opinion. Langbein Bros. & Son, for plaintiff. H. E. Farnsworth, for defendant. 240 CIVIL PROCEDURE REPORTS. Viadero v. Morton. BHOWNE, J. The questions involved arise upon demurrer to the complaint. Section 454 of the Code of Civil Procedure permits an action upon a written instrument to be maintained against persons severally liable upon the same instru- ment, and any or all of such persons may be included as defendants in one action. This section re-enacts those portions of section 120 of the Code of Procedure which relate to the questions involved here. That section, so far as it affects the right to maintain an ac- tion in the form as is claimed here, received a con- struction in the court of common pleas in the case of Field v. Van Cott (5 Daly, 308), where two only of the obligors upon a bond were sued the third and princi- pal in the bond being omitted. The court, held that the action was maintainable; that the common law rule was abrogated by the Code of Procedure ( 120), and the plaintiff could select, as defendants in the same action any or all of the parties liable upon the same written instrument. I find no distinction between that case and the case at bar. It follows that the first ground of demurrer must be overruled. The second ground of demurrer presents two ques- tions : I. It is not alleged in the complaint that the de- fendant Stacom, who appears and demurs, is guilty of any of the wrongful acts complained of as the cause of damage to the plaintiff and constituting the alleged cause of action. II. That the plaintiff cannot maintain the action because title to the bond is not shown in him by as- signment from the mayor, aldermen and commonalty, &c., or leave to sue thereon iirst obtained from the court. No provision of statute law exists specially applic- able to this bond, which requires a person damnified by a breach of its conditions to first obtain an assign- CIVIL PROCEDURE REPORTS. 5241 Yiadero v. Morton. merit, or special leave to sue, before he can maintain his action. Consequently we are relegated to existing general provisions of law to determine whether the action can be maintained by such person without such assignment, or leave being lirst obtained. In this connection we must regard the mischief which it/ was intended to remedy, and the abuses which it meant should be abated by the enactment of the law which required the giving of a bond by an auctioneer before he could lawfully pursue his calling as such, within the city of New York (Laws of 1858, chapter 138). The preamble, section 1, of the act recites the existence of an evil among certain persons, whereby others by the fraudulent and deceitful practices and dishonesty of those persons are deprived of their prop- erty. The second section defines certain penalties to be imposed upon such persons who obtain money, goods or other property from persons designedly, and with intent to defraud such other persons. The third section requires a license to be obtained from the may- or before a person can engage in the business of an auctioneer, such license to be granted upon tiling a bond with sureties in the penalty of $2,000. The fourth section provides fora hearing before the mayor, of charges of violations of the act, and vests him with power to revoke licenses, commit the offender for trial and to declare the bond forfeited. It is my duty, to give such a construction to the act as will suppress the mischief and advance the remedy. The intention of the lawgiver is to be deduced from a view of the whole and every part of the statute, taken and compared together. The language of the above act leaves little room for argument, as to its meaning, intent and effect. Its va- rious provisions are in harmony with the intent of the legislature to give the fullest and most ample security to the public, who might deal with persons licensed VOL. VI. 16 242 CIVIL PROCEDURE REPORTS. Viadero v. Morton. to pursue a calling in this city, which the act in effect declares was abused by vicious persons, who resorted to many subtle. methods to deprive others of their property. Care should be taken, where violations of the provisions of the act were established, that all the remedies provided by law should be applied when in- voked by a person defrauded. While the act provided penalties for the violation of its provisions which af- fected the personal liberty of the violator, it was also the clear intention to provide for the material and beneficial security of persons dealing with the auction- eer, who, by his fraudulent and dishonest practices, were deprived of their property. To give effect to the act and invoke the safeguards by ir established, it is consistent with fair interpretation to hold that the cu- mulative remedies contained therein are snsceptibleof being exercised, when occasion requires, independ- ently of each other. The remedy of imprisonment as a punishment for the Violation of the peace and dig- nity of the state or the proceedings to be taken before the mayor, do not impair the right of a person damni- fied to pursue his remedy upon the bond to recover damages incurred for breach of its condition. ]f the foregoing conclusions are correct, that the bond was intended to indemnify persons who lost their property by reason of the dishonest practices of the auctioneer, it seems to me that there can be no doubt as to the right of the plaintiff to maintain an action upon the bond without assignment from the mayor, aldermen and commonalty, &c. It is true that no provision is made in the act as to who shall be named obligees in the bond, nor where it is to be iiled, but as its execution and liling are made conditions precedent to the applicant obtaining a license from the mayor to engage in the business of an auctioneer, he (the may- or) is impliedly authorized to receive the bond and nominate the obligees. Where the law vests the power IVIL PROCEDURE REPORTS. 2*3 Viadero v. Morton. in an officer it imposes the duties incident to that power. It gave the mayor the power to issue the license in the name of the corporation of which he was at the time chief executive officer. In taking the bond the mayor acted as. a public official and exercised the power vested in him by law in harmony with the im- plied duty that powers of the nature conferred should be exercised in the name of the beneficiary which, in this instance, was the city of New York in its corpor- ate name. Aside from the legal implication resolved from tile power vested in the mayor to issue the license upon condition of the giving of the bond, the defend- ants are precluded from questioning the authority under which the mayor acted in receiving the bond in the form he did. Before their principal could act as auctioneer, a license was necessary. The mayor could not issue it without the bond. It was delivered in compliance with the legal right to demand it, con- ferred by the law under which it was given. The sureties permitted their principal to possess himself of the right to pursue his calling. He did so, and then violated his obligation. It is now too late to question their liability (Supervisors Rensselaer v. Bates, UN. Y. 245 ; People v. Norton, 9 N. Y. 178). While the bond was taken by the mayor, &c., as obligees, and nominally as beneficiaries, it was only as trustees of an express trust for the benefit of any per- son injured by breach of its condition. The plaint- iff in his complaint charges that the auctioneer con- verted certain property, &c. ; appropriated the pro- ceeds of certain other property sold by him which be- longed to plaintiff and was given to the auctioneer for sale. It is charged that such acts on the part of the auctioneer were " fraudulent and dishonest practices," and within the provisions of the bond. In this con- clusion I concur. The demurrer admits the facts. The complaint shows that the plaintiff was injured by 244 CIVIL PROCEDURE REPORTS. Viadero v. Morton. the acts of the auctioneer, secured against by the bond, and that he is entitled to the proceeds of the recovery herein. No interest in the result, because of the spec- ial breach charged is shown to be in the mayor, &c. The plaintiff is the real and only party in interest, and the action is properly brought in his name (Code Ciril Pro. 449). The section referred to permits an action to be brought by the trustee of an express trust for the benefit of his "cestui que trust," but it does not preclude the real party in interest from suing to an- force the liability incurred by the obligors. The fol- lowing cases fully illustrate the proposition, and ref- erence to them is made without further comment (Cudler v. Curry, ^How. Pr. 349-; Williams v. Kier- nan, 25 Hun, 358). It being shown that the cause for which the plaint- iff seeks a recovery is within the terms of the obligation provided against and that the action is maintainable as brought, the defendants are liable for damages for the breach, without recourse having been first had against the principal. The condition of the bond is that the principal "shall refrain from all fraudulent, deceitful and dishonest practices.' The principal did- not refrain, but practiced them. The sureties make themselves privies to the acts of the principal when he does thaj; which they all agree he will not do^ and they are bound to the same extent that he would be. Demurrer overruled ; judgment for plaintiff, with leave to the defendant to answer over within six days, upon payment of trial fee of an issue of law. CIVIL PROCEDURE REPORTS. 245' Estate of York. ESTATE OF JOSHUA YORK, DECEASED. SCJRROOATE'S COURT, NEW YORK COUNTY, NOVEMBER, 1884. | 2743. Surrogate.-^ Jurisdiction of, to determine rights of legatees. Ttie surrogate lias jurisdiction upon the settlement of the accounts -of an executor to lix anil determine the rights of all who claim, as legatees, under the will of the testator, notwithstanding that tlie validity of some of the legacies is attacked.* ['] Fraenznick v. Miller (I'-'Dem. 136), overruled; J" 1 ] Matter of Verplanck >,<91 N. Y. 430); [ 2 , 4 ] liig-rs v. Cragg -(89 N. Y. 479); [ s ] Purdy t>. ?Hayt(92 Id. 446) [] followed; Tiester t>. Shepard (92 N. T. 251), not followed. [ 5 ] (Decided November 20, 1884.) "Proceedings for the settlement of the accounts of an executor. Sufficient -facts are stated in the opinion. C. W. Van Voorhis, for executor. Lemuel SJcidmore and Abner C. Thomas, for lega- tees. ROLLINS, S. This testator, by one of the clauses in the second article of his -will, gives live hundred dollars "to the trustees of the Second avenue M. E. Church, corner of One Hundred and Nineteenth street, toward paying off the debt of the church." By the same clause, also, he gives "to the managers or trus- tees of the Methodist City Mission $500." His execu- tor having filed nn account of his administration, now * To the same effect, Estate of Orser, 4 N. Y. Cie. Pro. 129. Contra, In re Brown, 3 Id. 3fl. ,246 CIVIL PROCEDURE REPORTS. Estate of York. seeks to enter a decree for its judicial settlement ; but he attacks the validity of both the above named lega- cies, and suggests that the surrogate, for lack of juris- diction to determine the questions thus raised, should direct the accounting party to retain in his hands a sum sufficient to meet any demands growing out of these bequests, that may be successfully prosecuted in a competent tribunal. He claims that the bequest first named is ineffective by reason of the fact that the church in One Hundred and Nineteenth street is not now in debt, and was not in debt when the testator died. He claims also that there is no existing person or institution bearing the name of ;< Methodist. City Mission," and none which is competent to take the bequest, whereof the will makes the Methodist City Mission the beneficiary. It is insisted in behalf of the parties respectively claiming as legatees that the surrogate is fully author- ized by the Code of Civil Procedure to determine these disputed questions. Section 2743 of that Code provides that, " Where an account is judicially settled as prescribed in this article, and any part of the estate remains and is ready to be distributed to the creditors, legatees, next of kin r husband or wife of the decedent, or their assigns, the decree must direct the payment and distribution there- of to the persons so entitled, according to their re- spective lights." The section further declares that, "Where tin? validity of a debt, claim or distributive share is i;< t disputed or has been established, the decree must de- termine to whom it is payable, the sum to be paid by reason thereof, and all other questions concerning the same." In the case of Fraenznick v. Miller (1 Dem. 13G-lo1) ['] I contrasted the section just quoted from the Code with the statutory provision which it had supers**!- CIVIL PROCEDURE REPORTS. 247 Estate of York. ed, namely, section 71, title 3, chapter G, part 2 of (he Revised Statutes (3 Bunks' 6th ed. 104). I referred to the fact that while by the earlier provision, I lie light of determining all questions concerning any debt, claim, legacy, bequest or distributive share, had been conferred upon the surrogate, the authority of that officer to make such determination is limited by I lie later statute to "debts, claims or distributive shares whose validity is not disputed or has been estab- lished/' Because of this fact, and because of the fact that Mr. Commissioner Throop had declared in his edition of the Code by a note to the very section under con- / / sideration, that it was the purpose of the oodifiers to bring the letter of the new enactment into unmistaka- ble conformity with the construction that the courts had put upon the old, I felt bound to hold in Fraenz- jiick . Miller, that whenever an executor or adminis- trator should dispute the validity of a demand against his decedent's estate, whether such demand should be made in behalf of one claiming as creditor, or as lega- tee, or in any other capacity whatsoever, the authority of the surrogate in the premises would be straightway suspended, and would remain suspended until the validity of such demand should have been passed upon by some tribunal of competent jurisdiction, and by some other tribunal, of course, thai: the court of the surrogate. While this interpretation was. in my judgment, unavoidable, I adopted ir with no little reluctance, and urn glad 10 find what seems to me abundant wan-ant for abandoning it, in certain recent decisions of th court of appeals. In Matter of Verplanck (91 N. Y. 439), where ques- tions similar to those here presented were under [*] consideration. EAKL, J., pronouncing the unan- imous opinion of that court, declared that surro- 248 CIVIL PROCEDURE REPORTS. Estate of York. gates " must have jurisdiction to construe wills, so far at least as is needful to determine to whom legacies shall be paid." Referring to the then recent decision in Riggs v. Cragg (89 N. F. 479), he added : " We were unanimously of the opinion that they possessed such a power under the Revised Statutes before the Code of Civil Procedure, and it was clearly not the intention of the Code to narrow or diminish the juris- diction of surrogates, but rather to enlarge //," By the words italicised, taken in connection with their context, I understand that the propositions declared in Riggs v. Cragg, respecting the jurisdiction of sur- rogates upon final accountings, though those proposi- tions in terms relate only to cases arising under the Revised Statutes, are pronounced to be equally applic- able to cases arising under the Code. In Riggs v. Cragg. a }>erson claiming as legatee sought to enforce from his testator's executors the ['] payment of a disputed legacy. There were divers persons interested in the estate, whose rights would be affected by the enforcement of a decree in the peti- tioner's favor. None of these persons were cited or had appeared as parties to the proceeding. Comment- ing upon this fact, ANDIJKVVS, J., pronouncing the opinion of the court, said : " When the surrogate can see that other persons claim, or may claim the same thing as the petitioner, and that a real question is pre- sented as to the right of several persons to the legacy or fund, natural justice requires that he should not proceed to a determination, without the presence of all the parties who may l>e affected by the adjudication. The statute provides for bringing in all the parties in interest on the final accounting, and In that proceeding jurisdiction is conferred to settle and adjust conflicting rights and interests." The learned justice subsequently referred to the of t- cited decision in Bevan v. Cooper (72 A r . Y. 3171, and CIVIL PROCEDURE RETORTS. 24ft Estfitc of York. after suggesting that, upon the reported facts of that case, there seemed to have been no necessity, as inci- dent to the accounting or distribution, for the surro- gate to assume the power of inter preta ting the testa- tor's will, added : " It is doubtless true that a surro- gate lias no general jurisdiction in the construction of wills, but where the right to a legacy depends upon a question of construction, it must be determined before a decree for distribution can be made. The surrogate lias, we think jurisdiction .... upon a final ac- counting, where all parties interested are before the court, to determine such construction as incident to the authority to make distribution." In "Matter of Verplanck" (supra), the court of appeals recently upheld a surrogate's authority to [ 4 ] determine, upon an executor's accounting, whether a provision in a testator's will should be deemed invalid as involving a suspension of the power of alien- ation, and whether by another provision directing dis- ribution of a portion of his estate, the testator in- tended a distribution per sti.rpes or one per capita. The opinion of RUGER, Ch. J., in Fiester v. Shep- ard (92 N. Y. 251), contains intimations that [ 5 ] are not, perhaps, in thorough harmony with the doctrine of the two cases last cited, but the doc- trine has been still more recently reasserted by ["J the court of last resort (AXDKKWS, J., pronounc- ing its opinion) in Purdy o. Hayt (92 N. Y. 446). Upon the authority of these decisions, I must deny the motion of counsel for the executor, and, in the [ T ] decree about to be entered, must settle arid deter- mine the rights of all who claim as legatees under the will. A reference will be ordered for that purpose. 250 CIVIL. PROCEDURE REPORTS. In re Jcues. IN RE JONES. SUPREME COURT, NEW YORK COUNTY, CHAMBERS, NOVEMBER, 1884. 8, 11, 14, 854-857, 2285, 2481 sabd. 7, 3002. Contempt When criminal, punishable chilly. Fvrm of warrant of comm it men t Fine. Review. The refusal of a witness on the trial of a civil action or proceeding to answer legal and proper questions, may be punished :i a civil con- tempt, all hough the refusal was contumacious and might have been treated as a criminal contempt. Where the warrant committing a witness to jail for contempt in refus- ing to answer certain interrogatories propounded to her while upon the witness stand in a proceeding in a surrogate's conn. fur the prohate of a will, recited the faciS without setting out tne inter- rogatories, and committed her until she should answer " such legal and proper interrogatories." Held, that it Sufficiently speci- fied the act or duty to be penurmed. It- is not necessary to insert the particular inferrogatorJes in the War- rant for the commitment of a witness for refusing to answer ques- tions in a surrogate's or other court of record; the rule is different iu justices' courts and in certain proceedings before hoards, arbi- trators and committees, and even-before judges and referees where they are expressly authorized by law to hear, try and det -rmine a matter, and also, it seems, where the witness is proceeded against, as for a criminal contempt even in a court of record. The court has jurisdiction in civilly punishing a witness in a civil action or proceeding for refusing to answer questions properly put to him, to im|>ose a fine not exceeding the amount, of the complain- ant's costs and expenses, ond $2~>0 besides, although it is not shown that any actual loss or injury has been produced by the witness's misconduct, anil where there is an error in the amount of the fine, it can only be cured by appeal or motion, and cannot be reviewed apon.Adiem corpus or ancillary certiorari. (Decided November 25, 1884.) Motion on return of 7tabeas corpus for the discharge of the prisoner. CIVIL PROCEDURE REPORTS. 251 In re Jones. The prisoner, Miss Rebecca Jones, was a witness in a proceeding in the surrogate's court, New York coun- ty, for the probate of the will of one Louis Hammers- ley, deceased. While upon the stand certain questions were put to her which she refused to answer, where- upon she was committed to jail by the surrogate, until the questions were answered. The warrant of commitment did not set out the interrogatories. Further facts are stated in the opinion. William H. S7t,epard, for the motion. Franklin Bartlett, opposed. BARRETT, J. I. The prisoner was punished as for a civil contempt. Refusing to answer as a witness is none the less punishable civilly because the refusal was contumacious and might have been treated as a criminal contempt. II. The warrant of commitment specifies the act or duty to be performed ; namely, that the prisoner an- swer " such legal and proper interrogatories," that is; the legal and proper interrogatories previously recited, for refusing to answer which she was committed. These are the interrogatories "which," says the waiv rant, " may be propounded to her in this proceeding," and in answering which she may purge her contempt. III. When the party proceeds civilly in a court of record it is not necessary to insert the particular inter- rogatories in the warrant of commit merit. The statute only requires a specification of the act or duty to be performed. (Code, 2285.) The duty here to be per- formed by the prisoner is plainly stated. She is to make answer to the interrogatories which were pro- pounded to her upon the 19th day of May, 1884, while she was upon the witness stand at a surrogate's court 252 CIVIL PROCEDURE REPORTS. It) re Jones. held in the city, and which, notwithstanding I he direc- tion of the surrogate, she then smd there contuma- ciously and unlawfully -refused to answer. The rule is different in justices' courts (Code, 3002), also in certain proceedings before boards, ar- bitrators and committees ; and even before judges and referees, when they are expressly authorized by law " to hear, try and determine a matter." {Code. 854- 857.) It, may be, loo, that the particular question should be inserted in the warrant where the witness is proceeded against as fora criminal contempt, even in a court of record. (Code, 8, 11.) But I lintl no author- ity requiring the particular circumstances of the offense to be inserted in the mandate of commitment for a civil contempt in such a court. Under the present Code the surrogate's court is a court of record, and a surrogate, in court or out of court, has power to "punish any person for a contempt, of his court, civil or criminal, in any case where it is expressly prescribed by law that a court of record ma}' punish a person for a similar contempt, and in like manner." (Code, 2481, sub. 7.) IV. As to the fine. The court had jurisdiction, al- though it was not shown that actual lessor injury had been produced by the prisoner's misconduct, to impose a line not exceeding the amount of the complainant's costs and expenses, and $2,10 besides. (Code, 22S. 1 ).) As the. amount allowed in the present instance was within the statutory power of the court, the commit- ment is not void, and any error can only be cured by appeal or motion. Such error cannot be reviewed upon habeas corpus or the ancillary certiorari. (People ex rel. Woolf v.. Jacobs, Ctf N. Y. 8.) The writ must be dismissed and the prisoner remanded. CIVIL PROCEDURE REPORTS. 253 Irr v. Schroedcr. IRR, AS EXECUTOR, ETC., RESPONDENT, V. SCHROE- DER, APPELLANT. COUNTY COURT, ERIE COUNTY, OCTOBER, 1884. 1695, 1699, 2876, 2901, 2902, 2916, 2917, 2920, 2925, 2933, 3063. Justice of the peace. Provisional remedies in court of. Effect of error in replevin process on judgment. Error in taxing costs. An attachment, order of arrest and writ of replevin, in a justice's court are, substantially, provisional remedies, [ 5 ] and us a summons is is- sued in every case, the jurisdiction of the court does not depend upon their validity [ c , 7 ] and they m:iy be set aside and still the ac- tion continue to judgment if the summons has been properly issued and served upon the defendant. [j If a justice refuses to set aside an irregular provisional remedy ami proceeds to judgment, the ap- pellate court, on appeal, should not reverse a correct and meritori- ous judgment on account of the irregular provisional remedy, but should merely set aside the latter. | 1U J Where, in an action before a justice <>f the peace, to recover certain chattels, the affidavit and undertaking upon which a warrant to replevy the chattels was issued, were insuflieient, and the justice refused to dismiss the action because thereof, but on a trial of the action, rendered judgment in favor of the plaintiff, Held, on ap- peal, that the replevin should Ix: set aside, but as there was nothing in the case requiring a reversal of the judgment on the merits, it should be allowed to stand ;[ 1U , 13 J that the defendant's motion should have been to set aside the replevin process, not to dismiss the action. ['V 2 ] In an action before a justice of the peace, the affidavit on which a writ of replevin is granted, must state the value of the property ['] and the undertaking given by the plaintiff must be executed by two sureties. [*j In an action to recover a chattel proof of demand before the service of the papers on the defendant is sufficient; the action is not com- menced as to him until such service. [*] 254 CIVIL PROCEDURE REPORTS. I IT v. Schroeder. A justice's judgment should not be reversed by reason of an error in taxing costs. [ 4 J Fritze r. Pultz (2 N. Y. Civ. Pro. 142), not followed ;["] McNeury v. Chase (30 Hun, 491), followed. [] (Decided October 22, 1884.) Appeal from judgment rendered by a justice of the peace. The opinion states the facts. A. Bartholomew, for appellant. D. G. Jackson, for respondent. HAMMOND, J. Appeal from a judgment of a justice of the peace in an action of replevin. This action was brought by the plaintiff as execu- tor of the last will, &c. of Frederica Schroerler, de- ceased, to recover from the defendant a shot-gun, a blanket and a small quantity of tobacco, and some other small articles, which plaintiff claimed belonged to his testatrix ; but the value of none of said articles was stated in the affidavit, either separately or in the aggregate, but were found by the justice upon the trial before him to be of the value of $7.25. It must be conceded that the affidavit was deficient in this respect, as subdivision 6 of section 1005, [ l ] Code of Civil Procedure, especially provides that" the affidavit shall state the value of the property, and this section is made applicable to justices' courts by the provisions of section 2920. The undertaking wan also deficient in that it was executed by only oie surety, and two sureties are [*] expressly required by section 1G&0, which is also applicable to these proceedings in justices' courts made by section 2920. The appellant claims that the proofs show no de- CIVIL PROCEDURE REPORTS. 255 Irr v. Schroeder. mand made before suit brought, and therefore the [*] action could not be maintained, because the de- fendant was in lawful possession of the property. I cannot agree with him in this conclusion, as the proofs show conclusively that a demand was made be- fore the service of the papers upon the defendant; and that is sufficient, because the action was not com- menced as to him, until t\i&seroice of the papers upon him. (Code Civ. Pro. 2876.) Defendant also claims that the judgment should be reversed because the justice included more than $5 costs in his judgment against him. This position cannot be maintained, as it was many years ago provided by statute, that a justice's [ 4 ] judgment should not be reversed by reason of an error in taxing costs, and such is the law and prac- tice to-day ; but further than this the justice's return shows that only $5 was taxed in his judgment against the defendant. This brings us to a consideration of the important question raised by this appeal, and that is whether the judgment in this case should be reversed for the errors of the justice, in issuing the writ of replevin, upon an insufficient affidavit and undertaking, when it is con- ceded that the summons was properly issued, and personally served upon the defendant, and proper return thereof, made by the officer making the service. I have carefully read the evidence, and find nothing in the case calling for a reversal of the judgment upon the merits, and the foregoing is the only question nec- essary to consider further upon, this appeal. So far as this court is concerned the question is a new one. but I arn cited by appellant's counsel to the case of Fritze o. Pultz ("2 N. Y. Cie. Pro. 142), which is a decision of the general term of the superior court of Buffalo, and which he claims is decisive of the princi- ple which must govern this case, although that was a 256 - CIVIL PROCEDURE REPORTS. Irr v. Sclimeder. case of attachment ; while the counsel for the respond- ent cites the case of McNeary v. Chase (30 Nun, 49i) ; which he claims is decisive of the principle which must govern and control this case, although that was an action where the summons issued by the justice was accompanied by an order of arrest; answering to the warrant of arrest, under the old practice, and which decision is substantially contrary to the holding of the superior court, above stated. The attachment, the writ of replevin and the order of arrest, while taking the place of the like proceed- ings under the old practice, are, as now provided [*] by the Code of Civil Procedure, substantially provisional remedies, and constitute an entirely new practice in justices' court, quite analogous to the practice in courts of record in such proceedings. Now, as in courts of record, a summons is issued in every case, and the jurisdiction of the court [f] does not depend upon the validity of the attach- ment, or the warrant of arrest, or the precept in replevin ; they may be set aside, and still the action continue to judgment, if the summons lias been prop- erly issued and served upon the defendant. (Code Civ. Pro. 2902, 2917, 2933.) Provisions are also made for motions by the defend- ant to the justice to vacate or modify the attachment (Code, 2901), and the order of arrest ( 2916), and for claiming a return of the property taken in replevin ( 2925), in like manner as in courts of record. But, suppose that upon a motion of this kind being made, the justice errs in his decision, and refuses to vacate the attachment, or to set aside the requisition in replevin, or the order of arrest, when he ought to have done so ; or does vacate and set them aside when he ought not to have done so ; and still proceeds with the trial, by virtue of the jurisdiction he has obtained from the issuing and service of the summons, and com- CIVIL PROCEDURE REPORTS. 257 Irr v. Schroeder. mits no other error ; what is the remedy of the party, against whom the erroneous decision was made ? This is the precise question presented by this ap- peal. It is the prosecution of the action which is the end sought, and it is the issuing and service of the sum- mons which jrives the justice jurisdiction to attain [ 7 ] this end; these provisional remedies are merely incidental to the cause of action, ;md the action may proceed with, or without them : and the disposi- tion of any motion concerning them, can have but lit- tle bearing upon a proper disposition of the cause of action and a proper final judgment therein. But the case of Fritze o. Pultz, before referred to, would seem to hold that upon appeal from the ["] judgment, it should be reversed for an error of the justice in granting an attachment upon an insuffi- cient affidavit, although it should be conceded, that the judgment itself was proper and correct upon the merits : while McMeary v. Chase, before referred ['] to, seems to hold a contrary doctrine, the judge, while conceding that under the old practice such error would require a reversal of the judgment, says : "This new provision is excellent. It obviates the ne- cessity of reversing a just judgment merely for some little imperfection in the affidavit or undertaking, upon which an order of arrest was obtained." These remarks apply with equal force to an attach- ment or replevin, and it appears to me this is the [ la ] correct conclusion to be reached in applying these new provisions of the statutes ; and not reverse a correct and meritorious judgment, where the justice had jurisdiction, and has committed no error which could possibly affect the merits of the judgment. But in such case, the motion should not be to dismiss ["] the action, but to vacate and set aside the re- plevin process, or the attachment or warrant of VOL. VI. 17 258 CIVIL PROCEDURE REPORTS. Irr v. Schroeder. arrest as the case may be, which shall have been issued upon insufficient papers, and leaving the action to continue to judgment. In this case the defendant raised specific objections to the papers, claiming that they were insufficient ["] in the particulars pointed out, but he asked too much when he asked the justice to dismiss t he- action, and his motion was properly denied. Ke should only have asked that the writ of replevin be set aside, upon the objections which he made to the papers, and that motion might have been granted, leaving the ac- tion to continue. But the justice having committed an error in issu- ing his replevin-precept upon papers which gave ["] him no jurisdiction to issue it, and the specific objections having been made by the appellant, before the justice, to the insufficiency of the papers, the replevin itself should beset aside, but the judg- ment allowed to stand. The defendant may enter a judgment herein, modi- fying the judgment by setting aside the writ of replev- in issued by the justice and reversing his action in such writ ; but affirming his judgment as to the value and disposition of the property, with ten dollars costs and three dollars disbursements, making $13 to be paid by plaintiff to defendant. CIVIL PROCEDURE.. REPORTS. 259 White v. Rintoul. WHITE, RESPONDENT, v. RINTOUL, APPELLANT. SUPERIOR COURT OF THE CITY OF NFW YORK, CHAM- BERS, MAY, 1884. j 1352. Undertaking on appeal. Form o/", when guaranteed "by corporation au- thorized to guarantee undertakings. Where an appellant gave an undertaking to stay proceedings pending appeal," in which the plaintiff and a company authorized to guaran- tee bonds and undertakings by Laws of 1881, chapter 480, were named as obligors, and Which was signed by the plaintiff and the president and secretary of the company, and guaranteed by the ' :< company, Held, that tbe said company was not competent to guarantee such an undertaking so as to be accepted in place of two sureties; that the execution of the undertaking was insufficient as to the said company; also Held, that the acknowledgment of the execution of such undertaking by the president and secretary of said company in the usual form of an acknowledgmeat by indi- viduals was insufficient. -(Decided May 1, 1884.) Motion by respondent to disallow an undertaking and guarantee given on appeal. The plaintiff recovered a judgment in this action for $8,657, from which the defendant appealed to the general term of this court. To stay execution pending appeal, the defendant gave an undertaking, which, after reciting the recovery of 'the judgment, etc., con- tinued : "Now therefore, we, James Rintoul [the plaintiff], of No. 156 West Sixteenth street in the city of New York, and The Fidelity and Casualty Company of New York, do hereby pursuant to the statute in such case made and provided, undertake that the said appellant will pay all costs and damages which may be awarded against said appellant on said appeal, not '260 CIVIL PROCEDURE REPORTS. White v. Rintoul. exceeding live hundred dollars, and do also undertake that if the said judgment so appealed from, or any part thereof be affirmed, or the appeal be dismissed, the said appellant will pay the amount directed to be paid by the said judgment, or the part of such amount as to which the said judgment shall be affirmed, if it be affirmed only in part, and all damages and costs which shall be awarded against said appellant on the said appeal. "Dated New York, April 12, 1884. " J. RINTOUL. "Wat. M. RICHARDS, Pres. "JoiiN M. CRANE, Sec'y." An affidavit of justification in the usual form was annexed signed by the plaintiff solely, wherein he swore that he was a " house-holder within this state . . . worth the sum of $5,000 over all his debts/' etc. The acknowledgment on the undertaking (exclusive of the notary's signature), read as follows : "City and County of New York, ss : "I certify, that on this 12th day of April 1884, before me personally appeared the above named James Rintoul and William M. Richards, Pres't., and John M. Crane, Sec'y., to me severally known and known to me to be the individuals described in, arid who execu- ted the above undertaking, and they seveially duly acknowledged to me that they had executed the same." Annexed to the undertaking was a guaranty en- titled in the action of which the following is a copy. " In pursuance of a provision of an act. of the legis- lature of the state of New York entitled 'An act to facilitate the giving of bonds required by law,' passed June 13, 1881, The Fidelity and Casualty Company of New York, in consideration of one dollar to it in hand paid, the receipt whereof is hereby acknowl- CIVIL PROCEDURE REPORTS. 261 * M i i. i ... ......-.. i , , , Wliito v. Itintoul. edged, hereby guarantees the performance of the cov- enants and conditions of the within undertaking. "In witness whereof, the said Fidelity and Casual- ty Company has caused its corporate seal to be hereto affixed, and the same to be attested by the signature of its president and secretary. [L. s.] " WM. M. RICFIARDS, President. " JOHN M. CIIANE, Secretary." '*' City and county of New York, ss : "On the 12th day of April 1884, before me person- ally appeared William M. Richards, to me known, who being by me duly sworn, did depose and say, that lie resides in the city of Brooklyn, N. Y., that he is president of the Fidelity and Casualty Company of New York, the corporation described in and which executed the foregoing instrument ; that he knows the corporate seal of said company ; (hat the seal affixed to said instrument is such corporate seal ; that it was affixed by order of the Board of Directors of said com- pany, and that he signed said instrument, as president of said company, by like authority, and that the lia- bilities of said company do not exceed its assets as ascertained in the manner provided in section 3, chap- ter 486, of the Session Laws of 1881. [L, s.] " JAMKS C. MKKIAM, "Notary Public New York county." The plaintiff excepted to the sufficiency of the sure- ties and to the form of the undertaking, and at the time fixed for the justification made this motion. A. M. Robertson (Robertson, Harmon & Cuppia, attorneys), for the motion. George W. Dillaicai/ (Davenport & Leeds, attor- neys), for appellant, opposed. 262 CIVIL PROCEDURE REPORTS. White v. Rintoul. Charles A. Pfingsten, for The Fidelity and Casu- alty Company, opposed. SKDGWICK, Ch. J., granted the motion, without writing any opinion, and an order was entered, the- concluding part. of which read as follows : '' Ordered, that said undertaking and guaranty be and they hereby are- disallowed, and that the justifi- cation be, and it hereby is dismissed, on the ground that said undertaking is not joint and several, and that said company is not competent to guarantee an undertaking given by an appellant under section 1352" of the Code of Civil Procedure, so as to be accepted in place of two sureties, and that the execution of the undertaking, not of the guaranty, is insufficient as to the Fidelity and Casualty Company, and that the ac- knowledgment appended to the undertaking, not that appended to the guaranty, is insufficient as to the company. " It is further ordered, that the appellant may have three days after the entry and service of this order to- give a new undertaking to stay plain till" s proceedings, such as is required by section 1802 of the Code of CiviK Procedure, and a guaranty such as is provided for by chapter 486 of the Laws of 1881. That such undertak- ing may be executed by two sureties without justifica- tion, and that upon proper justification by .said con* pany upon exception said bond will be approved." CIVIL PROCEDURE REPORTS. 263 ROSS, RESPONDENT v. WIGG, APPELLANT. SUPREME COURT, FOURTH DEPARTMENT, GENERAL TERM, JUNE, 1884. 550, 636, 719, 844. Affidavits taken without -the state. Who authorized, tojake. Form of certificate to. Attachment. Order of arrext. When not vacated where prima facie case made, out. Contract. Wfan not ad- judged illegal. Doing business under fictitious name. Where a motion to vacate an attachment or order of arrest is founded only on the original papers, the statements therein contained are, for tlie purposes of an appeal from an order denying the motion to be regarded as true, and if they establish a prima facie case against the defendant he should be required to satisfactorily answer or ex- plain them before asking that the attachment or order of arrest be set aside. ['] A contract will not be adjudged illegal --whea it is capable of a con- struction making it valid. [ 3 j Where one Ro'ss, a resident of Canada, for along time carried on business in this state under the name of Ross & Co., without hav- ing any partner, and in that name sold the business by a written agreement, dated and -executed at Quebec, Canada, which did not, in terms, provide where it wits to be performed, but bound the purchaser to " remit "the payments t.) be made, to said Ross, Held, that no place of performance being tixed, the- rights and lia- bilities of the parties under it were to be dctenniued by the lex loci eo contractus j[~] that the statutes of this state prohibiting per- sons from transacting bu-iness under fictitious names, are penal laws and have no extra-territorial force;] 2 ] that if the contract was valid by the laws of Canada, where it was made and dated, it was valid everywhere ;['] and the burden of showing that it was invalid by the laws of that place rested upon the one attacking its validity. ['j One who acquires property in a business conducted under a fictitious name, -in violation of the law, does not forfeit the property thereby acquired or place it outside of legal protection ;[ 4 ] it is his, and is subject to sale ami transfer by any of the modes known to the usage of business. [ 4 1 Whether a contract for the sale of property so acquired, and providing for payment therefor by the purchaser, 264 CIVIL PROCEDURE REPORTS. Ross v. made in sucli fictitious name, and executed and to be performed within this state, would be invalid, query ?[_*] The statute (Laws of' 18JU, chap. 281), prohibiting the transaction of business under fictitioiTs names, docs not apply to commercial co- partnerships located ab.d transacting business in foreign countries, and, it seems, a single person located and transacting business under a firm name in a foreign country, is authorized to use such firm name in carrying on a branch of that business in this state. [*] By section 844 of tl.e Code of Civil Procedure, which provides for the taking of affidavits without this state to be used within the state, any officer authorized by the laws of this slate to take and J certify the acknowledgment and proof of deeds without the state, to be recorded in this state, is authorized to lake an affidavit wirh- out the state to be used in an action in this state. [ 8 J KOT..I.ETT. J., dissenting, Held, that section 844 vested I he power of taking affi- davits to be used in the courts of this state, in all officers of other states authorized by the laws of I he state of their residence, to take and certify the acknowledgment and proof of deeds to be recorded in the state of the officer's residence, and that the section does not authorize officials of other states to take affidavits to be read in the courts of this state, unless they are authniized by the laws of the state of their residence, to take acknowledgments of deeds to bo recorded in the state of their residence, i-xnept in cases specially authorized by statute. | 1& . 16 J The legislation on the subject re- viewed. [ I4 , M ] A judge of any court of record within the dominion of Canada, being authorized to take acknowledgments, may take an affidavit to be used in a court of this state [] An officer taking an affidavit without this state for use within the state, is not required to state in tin; jurat that he knows the affiant or has satisfactory evidence of his ideiiiity.[ |B J Where an affidavit taken without the state was accompanied by a cer- tificate of the clerk of a court of record within the county in which it was taken, that the name of the judge who took the affidavit was to him " well known to be tin; autograph sigmi ure of said judtje," Held, that this was a substantial compliance with the statute re- quiring a certificate by t ; ie clerk that " he \c well acquainted with ihe handwriting of puch judge and verih believes his signature genuiiie."["J contra, FOLLKTT, J., f the judge who took thcathMavit wns to him ' well known to be the au'otrriph signature of said judge" is not properly certified for use in a court of this stato. [ 3 J An agreement or acceptance made in Canada, which violates the laws of this state against usury and against the use of tlie words *'& Co." when not representing an actual partner, will not be held invalid unless invalid by the laws of Canada, and that fact must be shown; it will not be inferrred. [ 4 ] On an application for an attachment, an affidavit by the plaintiff that "there is now due to deponent from said defendant on said indcbt- edness over and above all offsets and counterclaims ihe sum of." j etc., substantially complies with the reqtiiiemcnc of section 030 of the Code of Civil Procedure that there must be an affidavit show- ing ''that the plaintiff is entitled to recover a sum stated therein over and above all counterclaims known to liim. : 'f 6 ] Instance of an action in which the papers on which an attachment and order of arrest were granted, stated and showed sufficient grounds therefor. [ e j CIVIL PROCEDURE REPORTS. 269 Ross v. Wigg. tion has been made for such order or warrant, and for this omission they should be set aside. See Code, 17 ; Rule 25 ; Schachne v. Kayser, 66 How. Pr. 395. The judge below holds that a non-compliance with this The discretion given in section 719 of the Code of Civil Procedure, as to vacating one of two or more provisional remedies granted in the same action, was undoubtedly intended to enable a court or judge to limit a party to one or the other remedy when either the one or the other should appear to be sufficient to secure or satisfy the plaintiff's claim, or when, upon the case as presented to the court, it should seem to be oppressive to allow both remedies. [ 7 ] (Decided March 22, 1884.) Motion to vacate an attachment and order of arrest. The facts are fully stated in the report of the general term opin- ions, supra. Oe&rge 2T. Burt and IF. A. Poucher, for the defendant and motion. C. G. French and W. H. Kenyan, for the plaintiff, opposed. CHURCHILL, J. This is a motion made upon the original papers to set aside the order of arrest and warrant of attachment heretofore granted in this action. In deciding the motion no papers are considered except those upon which the order and warrant were granted. Code. 5G8 -G83. Among the grounds originally stated for the motion, were some relating to the undertaking*, which have been amended upon the application of the persons executing them, which amendments socm to make the undertakings valid from the time of their execution. Code, 730. These grounds were not pressed by the counsel for the defendant on the argument, and are not considered now. As to the other grounds for this motion : 1. Rule 25 docs not make it imperative on the court to va- ['] cate an order founded on affidavits nor complying with the rule, but leaves it to its discretion. Bean v. Tonnelle, 1 2?. Y. Civ. Pro. 83. No previous application is claimed to have been made. The war- rant and order bear the same date, with the verification of the com- plaint and all but one of the affidavits used, making it unlikely any previous application hail been made. The delay in making this motion may be considered. Altogether this does not seem a case for the court in its discretion, oil this ground to vacate these orders. 270 CIVIL PROCEDURE REPORTS. Ross v. Wigg. rule was a matter of discretion, and has exercised that discretion in this case to uphold the arrest unti attachment. This discretion ought not to he exer- cised to sustain an order of arrest. This motion was 2. The warrant of attachment states that rtie defendant " lias dis- posed of and removed from this state, and is about to dispose of nnd remove from tins state his property, . . . for the purpose of de- frauding said plaintiff." The order of arrest states that the defendant "is about to dispose of and remove from this state his property, . . . for the purpose of defrauding said plaintiff." Each of these is a ground for the warrant or order stated tn {*] the language of the Code, and therefore, I think, sufficiently stated. Code, 550, sub. 2; and 030, sub. 2. The fact that each stale*, in addition, matters which are not made grounds for the issue of cither docs not vitiate them. 3. The affidavit of Alfred P. Poussette is not certified as re- {'] quired by section 844 of the Code, which now governs the tak- ing of affidavits in foreign states, to be used in this state. Before any legislation on the subject, courts were liberal in receiv- ing affidavits verified in other states. Welsh v. Hill, 2 Johns. 378; Marshall . Mott, 13 Johns. 423 ; Tucker v. Ladd, 4 Cow. 47; 1 Duer Pr. 106-312-318. But since the legislature has made provision for the taking of snch affidavits, and has pointed out the officers before whom they may be taken aud the mode of their authentication, their action must govern. This motion is therefore decided as though the affidavit of Pous- sette were not in the case. 4. It is claimed that the agreement and acceptance set up in the complaint are void as against the provisions of our statute, against the use of the words "& Co." when not representing an actual part- ner (Laws 1833, chap. 281), and that the ngreement is also void idr usury. But it appears from the papers on which the ordi-r and warrant were issued, that the agreement and acceptance arc iill Canadian [ 4 ] contracts and are to le construed by and as to their validity, are governed by the laws of Canada. If they arc: invalid under those laws, that fact must be shown. It docs not appear from the papers and will not be inferred. As to the use of the words " & Co.," it \s doubtful if the agree- ment and acceptances would be held invalid under the laws of this CIVIL PROCEDURE REPORTS. 271 Ross v. Wigg. made as promptly as it reasonably could be. Tfye case of Schachne v. Kayser holds (DANIELS, J.), that a non-compliance with this rule is good ground to move to vacate ord<-r of arrest, if made in time, and state. Laics 1841), chap. 347; St.-ddard v. Key, 02 How. 1:57; Zim- merman v. Erhard, 83 N. Y. 74; Ryan v. Ilurdy, 20 Hun, 176. 5. It is claimed that the affidavits are not sufficient to sustain the warrant of attachment, because not complying with section 030 of -the Code, which reads: '"The affidavit must show that the plaintiff is entitled to recover a sum stated therein over and above all counter- claims known to him." The affidavit of plaintiff, after stating the facts ns to the indebt- edness claimed, adds: " And that there is now due to deponent [*] from said defendant on said indebtedness over and above all off- sets and counterclaims, the sum of $81,233.44, and interest thereon from March 1, 1884." A statement very similar has been held by the general term of the fourth department, a substantial compliance with the Code, and therefore, sufficient. Alford v. Cobb, 28 Hun, 22. 6. The last ground for vacating the warrant of attachment and order of arrest is that the affidavits upon which they were granted, [*] do not state facts and circumstances to authorize their issue. The grounds for their issue, as stated in them, are the same, and are: 1st. That the defendant has disposed of and removed Ins property from the state for the purpose of defrauding the plaintiff. 2d. That he^is about to dispose of and remove from the state his property, for the same purpose. The first of these grounds is suffi- cient to sustain the warrant of attachment, and the second is sufficient to sustain either or both of these processes. Code, 5.">0, 630, 719. 1. The papers presented fail to sustain the first of these grounds. They do not show the defendant to have disposed of or sold his prop-* erty at less than market rates, or in any other than the ordinary modes, or to have concealed, or to have attempted to conceal from the plaintiff the nature or extent of his business transactions. The disposition which the papers show the defendant to have made of his property neither by logical deduction or fair inference can be said to have been made with intent to defraud the plaintiff or any other creditor. 2. As to the second ground, it appears from the papers that in the last week in February, 1884, the defendant was indebted to the plaintiff in upwards of $80,000 past due, and that two draftfi for 272 CIVIL PROCEDURE REPORTS. before case has b^en noticed for trial. This defect, taken together with the other defects in the papers, stated in Point II., warrant the exercise of the discre- tion of the court, to vacate both writs. Schachne fl. Kayser, 66 How. Pr. 395 ; Bean v. Tonnelle, 1 N. Y. Civ. Pro. 33. $18,000 and upwards accepted by the plaintiff for the accommodation of the defendant and upon his promise. to provide funds for their pay- ment at maturity were about to mature. In that week the plaintiff called upon the defendant to know if the latter proposed to furnish funds to reiire the drafts. The de- fendant at first offered to do this if the plaintiff would give him an additional credit by allowing him to draw on the plaintiff for the same amount; this offer he afterward withdrew, but offered to fur- nish f 10,000 for that purpose if the plaintiff would give him an ad- ditional credit for that sum as above. These offers the plaintiff declined, but urged the defendant to pay the above sums to apply on bis indebtedness to the plaintiff. The defendant said he had $20,000 which he could pay thereon but which he refused to do. That he was intending 10 go to Eng- land, that he should hang on to the money, and that if tin; plaintiff pushed him for payment, he should not spare him, but make him lose all he could. The affidavit of plaintiff wi'h the telegrams attached, seems within the rule approved by the general term of this department, in Bennett v. Edwards (27 ZTw/?, 352), and unc<>iUradioted and unex- plained, to be sufficient to establish for all purposes* of the application for thdsc processes; that on the 7th day of March, 1884. the defend- ant was in New York intending to sail on the next day for England. Taken altogether these facts seem to justify the conclusion that the "defendant was about to dispose of or to remove from the. state his property, with intent to defraud the plaintiff. 7. Should the plaintiff be required to elect which of these reme- dies he will retain and thereupon the other be. dismissed? The discretion given by section 719 was intended undoubtedly to enable the court or judge to limit a party to one or the other [ 7 j remedy, when either the one or the other should appear to be sufficient to secure or eatisfy the plaintiff's claim, or when upon the case as presented to the court it should seem to be oppressive to allow both remedies. Rock ford, &c. v. Boody, 56 N. T. 450, 400; Duncan t>. Guest, 2 N. T. Civ. Pro. 275. CIVIL PROCEDURE REPORTS. 273 Ross c. Wigg. There i no compliance with section 636 of the Code of Civil Procedure to \vit : there is no statement that the plaintiff is entitled to recover the sum stated therein over and above all counter -claim* known to kirn. Code, 636. sub. 2 ; Murray v. Hankin, 3 2V. Y. Civ. Pro. 342 ; Smith v. Davis, 3 Id. 74; Crippen v. Schillinger, 30 Hun, 248 ; Donnell v. Williams, 21 Hun, 216; Ruppert a. Hang, 1 N. Y. Cio. Pro. 411 ; Neal 0. Sacks, 15 A'. Y. Week/.?/ Dig. 476. The allegations in the complaint show that the plaintiff cannot maintain this action. (1.) It affiNna- tively appears that tlie plaintiff without any actual partner was doing business at Oswego under the firm name of Ross & Co., and has been for many years last past. This is in direct violation of the statute. 3 R. S. (7 Ed.) ]! 2239 (Laws 1833, chap. 28L) It reads as follows : 1. "No person shall hereafter transact bus- iness in the name of a partner not interested in the h'rm, and wliere tlie designation k and company ' or l & Co.' is used it shall represent an actual partner or partners." 2. "Any person offending against the provisions of this act shall upon conviction thereof be deemed guilty of a misdemeanor, and be punished by a fine not exceeding $1,000." Swords v. Owen, 43 Hon. Pr. 176 ; Bank of U. S. v. Owens, 2 Peters (U. 8. Sap. Ct.) 5LJ7; Hallot n. Hnroon, 14 Johns. 290 ; Pennington v. Townsemi, 7 Wend. 276 ; O'Toole v. Garvin, 1 Hun, 02; \Vood v. Erie H. 11. Co., 12 N. Y. Whether this is n p-opcr case t' >r the exercise of tint discretion dot's imt -tnpcar from the punT. upon wlncii Iho v.arrant and order were granic-il. \vhicli ;ire tnj in.ly |);i|K-rs before the court. The motion f'i sol usiJe tlie \v:ur;int of atT.-ichment anil order of arrest, are tlu-ielore deuie-1 \vitn $10 costs, !mt without prejudice 1o any application unit may nereaiter bo ina.le to v.-ioate or set aside the same upon alhdavits, or to any motion that may be made to compel the plaintiff to m-ikc an election under section 719 of the Code, or to reduce the amount of bail required by tlie order of arrest. \ 7 OL. VI. -18 274 CIVIL PROCEDURE REPORTS. Ross r>. Wijrg. 196; Zimmerman n. Erhard, 83 Id. 14. Doing what the law forbids can not be enforced, whether malum in se or only malum, proliibitiun. Bank of United States v. Owen, supra. The papers upon which they were granted show affirmatively that there is no cause of action. Manton t\ Pnole, 67 Sari. 330; Smith v. Davis, 3 N. Y. Civ. Pro. 7-L ; Murray . Hankin, 3 Id. 342. Again it will be presumed that the laws of Canada are like our own until the contrary appears. 2 Par- sons on Contracts, 62. C. G. French and IF. //. Kenyan ( W. H. Kenyan, attorney), for plaintiff-iespoiident. Rule 25 simply gives to the court power to decide in its discretion whether or not an order shnll in such case be set aside. This discretionary power has been exercised by refusing to vacate the order. Bean TO. Tonnelle, 1 N. Y. Civ. Pro. 33. ... A contract made in a foreign state will be pre- sumed lawful unless shown otherwise. Opinion of CIIUUCHILL, J. [Note ante, p. 208.] Cutler v. Wright, 22 N. Y. 472; Merchants 1 Bank r. Griswold, 72 Id. 472. . . . Our statute in regard to the use of fictitious names has no application to these Cana- dian contracts. Opinion of Judge CHURCHILL. [Note ante, p. 268.] Stoddard v. Key. 62 How. 137-144, 145 ; Ryan v. Hardy, 26 Hun. 136 ; Zimmerman 0. Erhard, 83 N. Y. 74. A supplemental statute provides that it shall not apply to foreign commercial houses. Laic-rof 1849, chap. 347 (4 Edm. Slat. 432). The original statute in express terms forbids one peison to use a firm name. Hence ttye modifying statute must be construed as authorizing a. single foreigner doing business under a firm name, to transact business here under such name. Laws of 1833, chap. 281 (4 Edm. Stat. 448) ; Laws of 1849, chap. 347 (4 Edm. Stat. CIVIL PROCKDVniE REPORTS. 275 Ross 0. Wigg. 452). This contract of sale, if made here, would not be within the statute. It is not made in transacting a business, but inclosing it out. Opinion of Judge GIIUKCIIILL. [Note ante, p. 268.] Wood v. Erie Rail- way, 72 N. Y. 196. t VANN, J, As the motion to vacate was founded only on the original papers, the statements contained therein are, for the purposes of this appeal, to be re- garded as true, and, if they establish a prima facie [ ! ] case against the defendant, he should be required to satisfactorily answer or explain them before asking that important remedies for the temporary se- eurity of the plaintiff should be set aside. It does not appear that any of the several contracts set forth in the complaint were entered into, in viola- tion of the usury laws of this state or of the statute prohibiting persons from transacting business under fictitious names. 3 It. S. (3 Ed.) 263, Laws . Wigg indebted to the plaintiff in the sum of $89,233.44, of which all but $8.000 had been past due for five ["] months, during which period only $50 had been paid thereon ; that this debt was for the purchase price of and for moneys advanced in a lumber business that he was conducting, and from which he received large sums of money; that instead ofj remitting his collections to the plaintiff weekly, as he had agreed in writing to do, he retained substantially all that he received during the period of seven months imme- diately preceding the granting of the provisional remedies in question; and although he admitted thut he had large sums on hand, yet he refused to pay the same to the plaintiff; that he ceased to make pay- ments on this debt in August, 1883, yet continued after that to sell and reduce his stock and property, until not more than $40,000 worth remained, that he had substantially no property aside from said busi- ness which he had purchased of the plaintiff wholly on credit, in December, 1882, and which he had agreed to pay for by October, 1882, with the excep- tion of $8,000, that in March, 1884, when the provis- ional remedies were granted he was owing the plaint- iff $89,233.44, or $1,490.12 more than the original purchase price, so that his indebtedness to the plaint- iff during the fourteen months that he had carried on the business had increased instead of diminished ; that in November, 1883, he refused to give plaintiff a mortgage upon a dock then rei-enlly constructed by him for the amount of plaintiff's money invested therein ; that during the same month, and after his large debt to the plaintiff was past due, he attempted to settle $10,000 that he had taken from the lumber business upon the lady to whom he was engaged to be married and actually paid over the money to trustees for her benelit, stating that he did it so that if any- thing happened in regard to his business she would CIVIL PROCEDURE REPORTS. 281 Ross v. Wigg. have that sum to fall back upon ; thnt at the same time he further stated that he had plaintiff in his hands, anu could do with him as IK* liked ; that he never in- tended to pay him at the time agreed upon and should not pay him until he got ready, and that he intended to bring plaintiff to his terms, and could fix his prop- erty in twenty-four hours so that he could get nothing out of it ; that said 10,000 was subsequently repaid him by the trustees upon the refusal of the lady's father to allow the marriage to take place; that in January, 1884, he said to plaintiff, ' NVhy do you watch me so? This is the fourth time you have been here ; if you are not satisfied, buy me out." and upon the plaintiff then offering to buy him out, he refused to sell, defied the plaintiff, and told him to do his best ; that in February, 1884, he admitted that he had $20,000 that he could pay to plaintiff, but refused to do so unless the plaintiff would give him credit to draw for a like amount, and when this was declined he said to plaintiff, "If you push me for payment I will not, spare you, I will make you lose all I can ;" that subsequently he withdrew even that offer, but offered to pay $10,000 if plaintiff would allow him to draw for a like amount, and when the plaintiff de- clined this but asked him to pay $10,000 on his debt, he refused, saying that he would hang on to the money; that on February 12th, 1884, he told said Pousette that he intended to sail for England in about ten days; that on the 17th of that month he mort- gaged to his brother for 1,700 a piece of real estate worth $4,000 but which was subject, to prior mortgage for $2,270 ; that the defendant is a widower with one child, and never resided in the United States until he purchased said business ; that on the fourth of March he was in the city of New York with three trunks, and on the sixth and seventh of March plaintiff re ceived telegrams from his agent to look after the 282 CIVIL PROCEDURE REPORTS. movements of defendant in that city, stating that the defendant was expected to sail for Europe on the eighth; that on the seventh the clerk of ihe hotel where the defendant, boarded in Oswego informed the plaintiff that the defendant had gone to Europe ; that the week before the defendant told the plaintiff that he intended to go to England. We think that these with other facts not recited, made out a prima facie c&se, and gave the justice ["] jurisdiction. Where a debtor who owes a large debt that is past due, and has a large sum of money that he ought to pay upon that debt, refuses to pay anything to his creditor upon demand, without giving any explanation for such refusal, slight evi- dence of a threatened removal or disposition of his property will authorize the inference of fraudulent intent. Where a man of very small estate is largely indebted, and attempts to settle upon his imeiuled wife a large sum of money wholly disproportions! to his property, so that if anything should happen to his business she would have something lo fall back upon, it is evidence of fraudulent intent. Where a debtor declares that he does not intend lo pay his chief cred- itor until he gets ready, but does intend to biing him to terms, and that he can speedily iix his property so that such creditor can get nothing out of it, and sub- sequently, when asked to pay something on account from nearly $20,000 he had on hand, refuses and threatens that if pushed for payment Le will make said creditor lose all he can, such declarations and threats are not consistent with an honest purpose, and without proof of any further act tend to show thai he is about to remove or dispose of his property, with in- tent to defraud (Gasherie o. Apple, 14 Alih. Pr. 64; Livermore w. Rhodes, 27 How. Pr. f)06). When, under all these circumstances, it further appears that, the debtor, having recently stated that lie was going to CIVIL PROCEDURE REPORTS. 283 lioss v. Wigg. England, gives a mortgage for $1,700 to his brother, leaves his business, and is found in the city of New York with tbree trunks, and with $20,000 in money either in his possession or unaccounted for, apparently intending to sail for England the next day, we think that the conditions of the statute relating to orders of arrest and warrants of attachment are fully complied with, and that it is incumbent upon the defendant to answer or explain these allegations before a provis- ional remedy based thereon is set aside. The order appealed from should be affirmed with costs and dis- bursements. Order affirmed, with costs and disburse- ments. HARDIN, P. J., concurred. FOLLETT, J. (Dissenting.) The affidavit of Pousette was verified before a judge of a county court of the province of Ontario, which court has a seal. The clerk of the court certified under seal, that the person before whom the affidavit was taken, was at the time a judge of the court, and that the signature is genuine, but fails to certify that the judge was authorized by the laws of the province, to take and certify the acknowl- edgment and proof of deeds to be recorded in that province. Section 25, 2 R. 8. 396, authorizing affidavits to be taken in foreign countries before a judge of a court [ l4 ] having a seal, was repealed by chap. 417, Laics of 1877. Affidavits may now be taken in foreign countries before commissioners appointed pursuant to chapter 136, Laws of 1875 (3 .72. S. [7th Ed.] 2230), or before the officers authorized by the fifth and sixth sections of chapter 3, part 2nd, of the revised statutes (1 R. S. 757), to take the proof and acknowledgments of deeds conveying real estate, and also by any consul or vice-consul or minister resident of the United States 284 CIVIL PROCEDURE REPORTS. appointed to reside at any foreign port or place. Laics 0/1854. chap. 206. It is assumed by the counsel for the respective parties that the word "state" in sec-lion 844 of the Code of Civil Procedure, embraces foreign countries, and that ihe section is applicable to affidavits taken without the United States, which I greatly doubt. But, conceding the correctness of the assumption for the purposes of this case, I think the affidavit is not properly certified. An affidavit verified before an officer of another state cannot be used in an action or special proceeding in this state, except where it is otherwise spec- ['"] ially prescribed by law, unless the officer before whom the affidavit is verified is authorized by the law of his state to tal'e and certify the acknowledg- ment and proofs of deeds to be recorded in his state ; arid the official character of the officer, the genuine- ness of the signature and that he is authorized to take and certify the acknowledgment and pi oof of deeds to be recorded in his state, must be certified under the name and official seal of the clerk, register, re- corder or a prothonotary of the county in which such officer resides, or by the clerk of any court thereof having a seal. Code Cicil Procedure, 844 ; Laws of 1848, chap. 195, as amended by chap. 557, Laws of 1867, R. S. (7 Ed.) 2224. This section of the Code evidently has reference to the statutes cited, and they must be read and construed together. Chapter 208, Laws of 1870, authorizes the officer before whom the questioned affidavit was taken to take the acknowledgment of deeds to be recorded in this state. The'argument is that by Ihe section of the Code above cited, the authority to take affidavits to be used in the courts of this state is vested in, and lim- ited to such officials of other states as are by the stat- utes of this state authorized to take acknowledg- CIVIL PROCEDURE REPORTS. 285 Ross v. \\igg. ments by virtue of holding certain designnted offices in other states. I think the intention was to vest the power of taking affidavits in all officers of other states authorized by the laws of the state of their residence, to take and certify the acknowledgment and [ ie ] proof of deeds to ce recorded in the state of the officer's residence, and that the section does not authorize officials of other states to take affidavits to be read in the courts of this slate, unless they are authorized by the laws of the srate of their residence to take acknowledgments of deeds to be recorded in the state of their residence, except in cases specially authorized by statute. The clerk of a county, or of a court of another state could not have official knowledge that a particular officer within his jurisdiction was authorized by the laws of this state to take the acknowledgment of deeds and could not make the required certificate. Some light may be thrown on this section and the reason for it, by briefly considering the course of ["] legislation on the subject of acknowledgments taken in other states and territories. Authority to take acknowledgments has from time to time been conferred by the statutes of this state upon designated officials cf other states and ter- ritories. But it was found that officers accustomed to the discharge of such duties were designated by- different official titles in the various states and terri- tories, and it was inconvenient to designate appropriate officials in all of the states and territories by their official titles. To avoid this difficulty and to enlarge the number of officials who should posvsess this au- thority, chap. 195, Laws of 1S4H was passed and amended by chap. 557, Laws of 18(37 vesting the power to take acknowledgments of instruments to be recorded and read in evidence in this state, in any officer of any other state or territory authorized by 286 CIVIL PROCEDURE REPORTS. Barnes v. Gilmore. the laws thereof to take the proof and acknowledge- men t of deeds. It. was the intention of the legislature not to re- strict but to enlarge the class of officials of other states authorized to take and certify affidavits to he used in this state. The affidavit of Pousselte ["J verified March 4, 1884. is not certified as required by the section of the Code above cited and cannot, be considered on this appeal. This construction of section 844 is in accordance with Phelps v. Phelps, 6 N. Y. Civ. Pro. 117; nflTd, 32 Hun, 642; Williams v. Waddell, 5 N. Y. Civ. Pro. 191 ; Harris v. Durkee, C Id. 376. Excluding the affi- davit of Poussette, the evidence is insufficient to sus- tain the. order of arrest and attachment. The order of the special term denying the motion to vacate the order of arrest and set aside the warrant of attach- ment should be reversed with costs. BARNES v. GILMORE. SUPREME COURT, ONEIDA COUNTY, SPECIAL TERM, JUNE, 1884. 500, 501. Pleading. Count ercJnim, trhen sufficient. Tenant denying landlord"*-* title. Res adjudienta. Complaint in action t<> set aside conveyance, and agreement to re-coutcy on the ground that they are an usurious mortgage. Tlio counterclaim permitted by section 500 of the Code of Civil Pro- ceilure, must tend in some way to diminish or defeat the plaintiffs recovery, and, except in an action on contract, arising out of .the contract or transaction set forth in the complaint as the foundation CIVIL PROCEDURE REPORTS. ' 287 Barnes v. Gilmore. of the plaintiff's claim, or connected with the subject of the ac- tion.pj In an action to set aside a deed of real property and a contract to re- convey, on the ground that they were in fact a mortgage given to secure an usurious loan, and for an accounting for rents and proliis received by the defendant, while holding under such deed, a claim for certain rents alleged to be due the defendant from the plaintiff for use of a part of the premises during a part of the period the .defendant held under said deed is properly pleaded as a counter claim. [ 2 ] Where one B. conveyed certain real property to one G., and took from him an agreement to reconvey, and subsequently leased a por- tion of the premises so conveyed, Held, that although the deed and agreement were in fact a mortgage made in pursuance of an usurious agreement and therefore, void, when B. made a new con- tract accepting the defendant as her landlord, she was estopped so long as she remained in undisturbed possession under that contract from denying G.'s title; that she could not set up the invalidity of tbe deed in summary proceedings to recover possession of the premises for non-payment of rent due under the lease, nor would an adjudication as to the validity of the deed made, in such pro*- ceeding be res ailjudicuta, and a bar to an action in equity, brought by B. against G. to set aside the deed.f 5 , 6 , 7 ] Where a complaint alleged that a conveyance of real property and a contract to reconvey were, in fact, a mortgage to secure a certain usurious loan, and that the loan was made by the settlement by the defendant, after such conveyance, of certain debts owing by tire plaintiff, which, together with a doubtful claim against the plaint- iff's husband, were to be paid the defendant in full by her, as a condition of sucli reconveyance notwithstanding any rebate ho might secure from any debt in settling it, and that this mode of making the loan was devised to cover the usury, Held, that the complaint alleged a cause of action; that the fact that the money was not paid to the plaintiff, but, wns paid for her benefit and with her consent would not change the real character of the transac- tion. [ 8 ] People ex rel. Ainslee v. Howlett (13 Hun, 139), distinguished. [ s , 4 ] (Decided Jane 12, 1884.) Demurrer by plaintiff to certain defenses and a interclaim alleged in the answer. The opinion states sufficient facts... ass CIVIL pRoc:::)Uii:<: REPORTS. Humes v. Gilmore. D. E. Stoddard, for plaintiff and demurrer. E. D. Mathews, for defendant, opposed. VANN, J. By her complaint the plaintiff sets forth in substance that, on the 10th of November, 1876, she owned certain real estate in the city of Utica, worth $17,500, that it was incumbered by various liens amounting to over $13,000, and had upon it an uncom- pleted building for the construction of which she was indebted to mechanics and meterial men in divers sums which she was not able to pay. That she applied to the defendant fora loan to complete ilie building and pay such debts ; that he exacted as a condition of making the loan that she should convey the premises to him and take back a written contract providing that he should complete the building, pay the just claims and liens for work and materials, retaining the benefit of any abatement that he could secure, and that she should have the right to purchase the premises nt any time within five years by paying all his expenditures for the benefit of the property, including at their face value such claims and liens as he should purchase or settle nt a discount, and including as a part of his ad- vances a doubtful claim of $1,900, that he had against her husband ; the rents received to be applied in reduc- tion of the sum to be paid upon such purchase by her ; that this arrangement was corrupt and usurious, and the same was made and carried into effect by the con- veyance of the property, the execution of the contract, the completion of the building and the payment of the claims and liens, many of them at a large discount; that said sum of 1,900 was intended as a bonus, over and above legal interest upon the loan of the money represented by the expenditures made by the defend- ant for the benefit of the property, and, together with the abatements from said claims settled at loss than CIVIL PROCEDURE REPORTS. 283 Barnes v. Gihnore. their face, a contrivance and cover for usury. No money is alleged to have been delivered to the plaint- iff by the defendant, but it is claimed that said ad- vances were in effect a loan. Said written contract as set forth in the complaint provides that in no event shall it be construed as a mortgage. The relief demanded is that the conveyance arid contract be declared usurious and void, and the de- fendant required to account for the rents and profits. There is no demurrer to the first defense, which admits certain allegations of the complaint, denies the same, especially that there was any loan or agreement there- for, and alleges i hat the transaction was a purchase, with a refusal to resell within a certain period and upon certain conditions, that the plaintiff has failed to perform ; but the defendant has performed in part, and is ready to perform in full. The second answer is a counterclaim for rent, use and occupation of part of said premises by the plaintiff, amounting to $2,412, of which only $675 has been paid, and judgment is de- manded by the defendant in his favor for the balance. The third answer alleges the letting of pare of said premises by the defendant to the plaintiff from April 1, 1878, to April 1, 1879 ; that on the 22d of March, 1879, summary proceedings were instituted by the de- fendant before a justice of the peace to recover posses- sion from the plaintiff for non-payment of rent, re- turnable on the 25th when the plaintiff appeared there- in and filed an affidavit denying the facts upon which the summons was issued, and ''alleging substantially all the equitable claims set forth in the complaint herein ;" that a trial was had, a witness sworn on either side, and the justice decided that this defendant as landlord, was entitled to the possession of the premises; that the judgment entered accordingly re- mains in full force, and a warrant to dispossess was duly issued thereunder. J3y his fourth answer the VOL. VI. 19 290 CIVIL PROCEDURE REPORTS. Barnes v. Gilmore. defendant alleges that on February 2, 1883, the plaint- iff and her husband rented of the defendant by a lease in writing and in the usual form, a part of the prem- ises in question, and entered and occupied thereunder, and that upon the expiration of the term they were duly dispossessed by a judgment in summary proceed- ings as tenants holding over. The third and fourth answers are alleged as "n liar to any recovery by the plaintiff and as an adjudica- tion in favor of defendant against said plaintiff, that defendant is the owner in fee of said premises, and that said plaintiff has no cbirn, legal or equitable, against the same or ag::inst this defendant arising out of said contract or of the facts alleged in said com- plaint." To the second, third and fourth answers the plaint- iff demurs on the grounds that they are insufficient in law upon their face ' as a counterclaim," and that the facts stated are not "'sufficient to sustain and to constitute a valid defense and counterclaim." She further demurs to the second answer on the grounds that the counterclaim does not arise out of the transaction set forth in the complaint and does not state facts sufficient to constitute a cause of action. I. The counterclaim permitted by section 500 of the Code of Civil Procedure must tend in some way to diminish or defeat the plaintiff's recovery, and ex- ['] cept in an action on contract must be a cause of action arising out of the contract or transactions Net forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. Code Civ. Pro. SOI. The counterclaim pleaded in the second defense conforms to the requirements of the statute. The plaintiff, as a part of the relief demanded, asks for an accounting for the rents and profits of certain premises during a certain period. The counterclaim is for CITIL PROCEDURE REPORTS. 291 Burnes v. Gihnore. certain rents due from plain tiff to defendant fora part of t'he same premises during a part of the same period. It therefore tends to diminish the plaintiffs re- {"] covery. It is connected with -the subject of the action, which is the real estate in question, and arises out of the transaction set forth as the founda- tion of tlie plaintiff's claim, to wit: the execution of said deed arid contract. It contains all the elements of a good cause of action for rent, or use and occupa- tion, viz.: ownership by the landlord, actual occupa- tion by the tenant, and an agreement by her to pay at a specified rate for a specified time in advance. The position of the learned counsel for the plaintiff, that this action is in tort for wrongfully depriving her of her lands, cannot be sustained. This is not an action of ejectment or at law to recover the possession of lands wrongfully withheld, but is a suit in equity to set aside a certain deed upon the ground that it is void for usury. No fraud is alleged. The deed was voluntarily given. If it is void for usury it is because a contract to which the plaintiff was a willing party, is In violation of a statute. If the statute was violated the plaintiff intentionally aided in the act. II. The third and fourth answers and the grounds of demurrer thereto are sufficiently alike in principle to.be considered together. In each of these answers an .adjudication by a tribunal of competent jurisdic- tion in a controversy between the parties to this action, that the conventional relation of landlord and tenant existed between them is pleaded as a bar. The plaintiff concedes that as long as that relation thus adjudicated upon continued to exist, she could not dispute the title of the defendant, but contends that when that relation ceased and she was no longer in possession, she could set up title in herself. In one of the proceedings to dispossess her, she is alleged to have set up as a defense the facts constitut- 292 CIVIL PROCEDURE REPORTS. . .1 Harries v. Gil more. ing her cause of action herein, and if this was regular she had a right to plead the same defense to the oilier proceeding. If, therefore, the justice of the peace had jurisdiction to adjudicate upon' such a defense, the plaintiff has had her day in court and cannot be heard again upon that subjec.t. In The People ex rel. Ainslee v. Hewlett, 13 Hun, 138, affirmed 76 N. Y. 574, it was held that al- [*] though the statute regulating summary proceed- ings permitted only a denial by the tenant of the allegations of the landlord, still an allegation by the tenant showing that the lease was void for usury was equivalent to a denial that there was a lease. It is goingbut a step further to hold in this case that if t lie deed was void for usury, the lease predicated upon the deed was voidable by the tenant, and that hence these facts when alleged amounted, to a denial of ihe [ 4 ] tenancy. The main difference between the case cited and the case at bar. is that in the latter the lease was not a part of the original transaction but was executed subsequently. It was held in effect in The People ex rel. Ainslee v. Howlett (supra) that the issue of usury could be tried in a summary proceeding. Therefore, if the defendant's right to dispossess the plaintiff would have been defeated by the determina- tion of the issue of usury against him, the determina- tion of that issue in his favor must be a bar to this action. The allegation of usury amounted to a denial and this seems to have been permitted by the court of appeals, notwithstanding lh< j usual rule that a tenant cannot dispute his landlord's till*'. This was upon the ground, however, that the person appearing to be a tenant, in reality was not a tenant, because Ihe in- strument apparently creating the tenancy was void as part of an usurious agreement. The lease in this case was not part of an usurious agreement but was a sub- sequent and independent contract. The original trans- CIVIL PROCEDURE REPORTS. 293 Barnes v. Gilmore. action took place Nov. 10, 1876, whilst the first lease was in March, 1877. I think lhat when the plaintiff made a new contract, accepting the defendant as ['] her landlord, she was estopped so long as she remained in undisturbed possession under that contract from denying his tiile. My chief reason for this conclusion which I have reached after some hesitation, is that the lease was not a part of the original transaction and hence was not directly affected by the alleged usury. The lease was as valid as-it would have been if the landlord had never had any title by an usurious contract or by any other contract. It had the same effect as it would have had if the landlord's title had been void for any reason other than for usury. The fact that a lessor never owned the land and never had any interest in it or right to lease it does not permit the tenant, while still in possession, to deny his landlord's title. Wood's Landlord and Tenant^ 372 ; McAdavi s Land- lord and Tenant, 422. It is one thing to allege that the lease itself is a void contract and another to allege that the lease is invalid because a different and prior contract is void. In the latter case there is a new and independent recognition of the landlord's title. The tenant could not deny that there was any lease, as it is intimated in The People v. Howlett, that, in the case of a lease void for usury, can be done. He would have to admit the existence of the lease that he [*] entered and. was holding under it and then deny in effect that the landlord had any title, or in other words deny what in the lease he had admitted. This, I think, cannot be done in any case except when the lease containing such admissions is void and inef- fectual for any purpose. III. The defendant insists that the complaint does not set forth a cause of action and that hence a de- murrer to the answer will not lie. I do not think that 294 CIVIL PROCEDURE REPORTS.' Adams v. City of Utica. the deed and contract are usurious upon their face, but it is alleged that an usurious agreement was made- and that the^deed and contract were merely the form adopted as a contrivance to conceal the usury. Ifv that was the case, the fact that the money was not [*] paid to the plaintiff, but was paid for her benefit' and with her consent would not change the real character of the transaction. If it was intended to be what npon the face of the papers it appeared to be, a- sale of real estate with an agreement to resell on cer-- tain terms it could not be affected by usury. But if it was intended to be what the complaint a'legesit was T - a loan carefully concealed under the form of an* [ a ] innocent business contract, then it was usurious* and void. The demurrer is overruled as to the second count of the answer, but is sustained ns to the third and fourth- counts. ADAMS v. THE CITY OF UTICA. SUPREME COURT, ONONDAGA COUNTY, SPECIAL TERM, . OCTOBER, 1884. 1013. Reference. T17/n compulsory, will not be ordered inaction by attorney for profexxionnl terviceit. Proof of valve rf strvicett in such, nit action where sum in gross claimed. Where in an neiioix by an attorney tn rceover for professional sei vires rendered in three matters, the defendant admitted the performance of the services and only contested their value, Ihll, that notwith- standing a gross sum was claimed in the complaint, the plain titl might prove the value in gross, or at his option prove the value of the services in each step of the action in which they we;e reu- CIVIL PROCEDURE REPORTS. 295 Adams v. City of Utica. dered;[*J tliat tlic actiou would not require the examination of a long accouut,['J and was not referable ;[ 3 J but the parties were entitled to a liial by jury.PJ (Decided October 23 1884 ) Motion by plaintiff to refer the issues made by the pleadings. The facts are stated in the opinion. Charles D. Adams, plaintiff in person, for the mo- tion. E. D. MatJtews, for defendant, opposed. KENNEDY, J. The complaint contains two counts. The first for services rendered by the plaintiff for the defendant upon its letainer as an attorney and coun- sellor of this court in the examination by him of ques- tions relating to the Utica & Mohawk Hail road Com- pany, for which the plaintiff seeks to recover $1(/0. The second count is for services of a like character rendered by the plaintiff in and about a contract be- tween said defendant and the Utica \Vaterwork Com- pany, and the rights and liabilities of such cities thereunder, and also for services rendered by the plaintiff in an action subsequently brought on said co-n tract by said Water Company, for which the plaint- iff claims to recover fifteen hundred dollars. The an- swer of the defendant, together with a stipulation now tendered the plaintiff, admits the services claimed to have been performed by him, and only contests the value of the same. A bill of particulars furnished by the plaintiff contains several items for the services ren- dered, separately stated, but all growing out of the above mentioned employment. The motion presents two questions. First. Is the case one in which a compulsory refer- ence can be ordered by the court ? 29fi CIVIL PROCEDURE REPORTS. Adiims v. City of Utica. Second. If so, should the court in the. exercise of a sound discretion order such reference? Tiie first question presented involves a substantial right, and is therefore the subject of an appeal. (Mar- tin v. Windsor Hotel. Co., 10 J\ 7 . Y. 101.) The claim of the plaintiff is based upon two retainers or employ- ments by the defendant, and a gross sum in each case is sought to be recovered. Except when the trial will require the examination of a long account, neither party can be deprived of his right to a trial of the issues by a jury. In my judgment, under the plead- ings and stipulation the trial of the issues herein ['] will not require the examination of a long ac- count within the legal definition of the proposi- tion. A gross sum is claimed in the complaint for the ser- vices rendered and upon the trial the plaintiff may [ l ] prove the value in gross, or at. his option prove "the value of the services in each step in the action in which they were rendered. (Fell. v. Tiffairy, 11 Hun, 63 ; Bathgate v. Haskins, 59 N. Y. 533 ; Thomas o. Reab, 6 Wend. 503; Dickinson v. Mitchell, 19 Abb. Pr. 286.) The most the plaintiff can claim is that his demand is composed of two items requiring simply the proof of their value. It is held in Waring v. Cham- berlain, (14 N. Y. Weekly Difj. 564). that such an ac- tion is not referable, bur that the parties are en- [] titled to a trial by jury. See also Tracy v. Stearns (12 Id. 5.33) ; and Merritt v. Vegelius ('28 Hun, 420). I have examined the cases referred to by the learned plaintiff, and tind in them nothing which conflicts in any manner with the doctrine enunciated in those above cited. The case of Kuger v. Belden ('21 Hun. 405), afterwards affirmed in the court of ap- peals will nut justify a reference in this case. The motion is therefore denied with ten dollars costs to lite defendant. CIVIL PROCEDURE REPORTS. 297 People ex rel. Herkimer v. Assessors of Town of Heikimer. THE PEOPLE ex rel. THE HERKIMER & MO- HAWK RAILROAD COMPANY v. THE AS- SESSORS OF THE TOWN OF HERKIMER. SUPREME COURT, ONKIDA COUXTY, SPECIAL TERM, OCTOBER, 1884. 723, 1991, 1992, 2120, Certiorari. Assessors of town to 1/e designated in, by individual names. Effect of omission of neat. The assessors of a town are not a board or body against which an action will lie without mentioning in the process the names of the persons who are such assessors; they have, as a body, no associate or official name, ami cousequenJly a writ of certiorari directed to "the assessors of the town," etc., without mentioning the names of the individual assessors is defective, and must be amended or dismissed. A writ of certiorori must be issued under the seal of the court, but the omission of the seal does not make the writ void; the defect may l>e cured by amendment. (Decided October 24, 1884.) Motion to qnnsh a writ of certiorari, under chap ter 269 of the Laws of 1880, to review an assessment made upon property of the relator by the assessors of the town of Herkimer. Further facts appear in the opinion. A. B. Stecle, for the defendant and motion. 8. Earl, for the relator, opposed. ,]. A writ of certiorari to review the deter- mination of an inferior tribunal is a state writ, which, by the express provisions of the statute is required to be issued under the seal of the court before which it 298 CIVIL PROCEDURE REPORTS. L i People ex rel. Herkimer v. Assessors of Town of Hcrkimer. is returnable. (Code of Cl oil Procedure, 1091, 1992.) An assessment of property by the assessors for the purpose of taxation, is a determination by an inferior tribunal within the meaning of section 2140, 'of the Code of Civil Procedure. The writ in question should therefore have been issued under the seal of this court. It is not, however, void 'by reason of this de- fect, which may be cured by amendment. (Code 241, 723.) The writ is also defective in that it is directed to "The assessors of the town of Herkimer," instead of to- the individuals who are the assessors of that town, naming them and adding the name of their office. ( 2129 Code CYo. Pro.} The mode of addressing these writs is now fixed by law, and the practice which pre- vailed to some extenf before the adoption of the pres- ent Code can no longer be followed. Section 2,129 of the Code requires the writ to be directed to the body or officer whose determination is to be reviewed. If an action would lie against the b'oard or body in its associate or official name, this section further requires that the writ should be direct- ed to the board or body by that name, otherwise to the members thereof by llieir names. The assessors of a town are not a board or body within the meaning of that section. An action would not lie against " The assessors of the town of Herkimer," without mention- ing in the process the names of the persons who are such assessors any more than it would lie against the commissioners of highways of that town, without as- serting their names in the summons. Tim assessors of a town have, as a body, no associate or official name. None such is mentioned in the statutes providing for their election and prescribing their duties and powers. (1 1L S. 824, 935.) Boards of Supervisors (1 21. S. 8611), of Commis- sioners ol Excise (2 It. S. 932) ; of Equalization (1 R. S. 946), and other boards are bodies having an official 'CUVIL PROCEDURE REPORTS. 299 r People ex rel. Hoyle v. Osborne. name independent of the official name of the officers composing them. An action might be brought against such a board by its official or associate name, bat not against assessors, because they have no official name when acting together that they do not have when act- ing separately. As an affidavit has been furnished stating the names of the assessors of the town of Her- kimer, I think the writ should be amended in this respect also. The other grounds upon which the mo- tion to quash was based are not sustained. An order may be entered granting the 'motion to dismiss the* writ with costs unless the relators, within ten days after notice of this decision pay $10 costs of motion to- the counsel' for the respondents, and upon such pay- ment being made, an order may be entered amending the writ in the respects above mentioned nuncpro tune. THE PEOPLE ex rel. HOYLE v. OSBORNE. SUPREME COURT, ONONDAGA, SPECIAL TERM, JANU- ARY, 1884. .2015 et seq., 2019. Habeas corpus. To secure custody of child. By whom issued. A petition by a wife living separate from her husband, for \\ habeas corpus for the purpose of removing her minor child from the cus- tody to which it had been committed by its father and to have it committed to her, should be presented to the court and the writ should be issued by the court; a judge at chambers cannot issue it. The failure to state in a petition for a habeas corpus that the person in whose behalf the writ is applied for, is not detained by virtue of a final order of a competent tribunal made in a special proceed- ing or of an execution or precept issued upon such order, is a fatal defect. (Decided January 5, 1884.) 300 CIVIL PROCEDURE REPORTS. People ex rel. Hoyle v. Osborne. Motion by defendant to dismiss an habeas corpus issued herein. The opinion states the facts. Tliomas Hogan, for the defendant and motion. C. S. Kent, for the relator, opposed. CHURCHILL, J. The writ in this case issues upon the petition of the ivlator, the mother of John Hoyle, an infant six years of age, who desires to take the child from the custody to which it has been committed by the father, and to have ir committed to her own custody. The writ was issued by a justice of the court at chambers, but was made returnable at a special term of the court. The revised statutes gave the supreme court the right to issue the writ at the instance of a wife living separate from the husband, and thereupon to deter- mine as to the custody of an infant child. (2 R. 8. 148, 12.) The chancellor also, independent of the statute and as a part of the power of the court of chancery derived from the common law, might by habeas corpus cause an infant child to be brought before him, and might thereupon commit the charge and custody of the child to the mother, against the wishes of the father, if the interest of the child so required. (People t\ Mercein, 8 Page, 47 ; Mercein o. People, 25 Wend. 04.) This power the chancellor could exercise at chain- bers as well as at term, and for its exercise the court of chancery was always open, and to this power by virtue of section 16 of the judiciary acts of 1847 (Laics of 1847, chap. 280, 16), the justices of the supreme court succeeded. (People v. Wilcox, 22 Barb. 178, 194, 195 ; Wilcox v. Wilcox, 14 N. Y. 575.) CIVIL PROCEDURE REPORTS. 301 People ex rel. Hoyle v. Osborne'. The cases established that under the judiciary act of 1847 the justice of the supreme court had power to entertain proceedings of this kind at chambers as well as at term, and that in entertaining them they acted as a court. Chapter 417 of the Laws of 1877 repealed subdivision 21, section 16 of the judiciary act of 1847, and since that repeal justices of the supreme court, when not sitting as a court, have not that power. The objection, therefore, that the petition should have been presented to the court, and the writ issued by the court seems to be well taken. (See 24 Barb. 521 ;* 1 Duer, 709 ;f 59 How. 1744) The petition is also defective in not stating, in sub- stance or otherwise, that the person in whose behalf the writ is applied for, is not detained by virtue of a final order of a competent tribunal made in a special proceeding, or of an execution or precept issued upon such order. This is particularly required by the Code, and the defect is fatal. (Code, 2019 ; People -c. Cowls, 59 How. Pr. 287.) This case does not. come under section 2025 of the code since that applies only to the case of an iUcf/al imprisonment or restraint, while the detention of the lad, John Hoyle, as shown by the papers in this rase, is a legal one, although one from which lhecowr, if his interest should be shown to require it, may relieve him. The proceedings should be dismissed, but without prejudice to any future proceedings that may be taken in the interest of ihe infant. * People v. Humphreys. t People v. Cooper. J People ex rd. Ward v. Ward. '302 IV1L PROCEDURE REPORTS. In re N. Y., &c. K. 11. Co. IN RE APPLICATION OF THE NEW YORK, WESt SHORE AND BUFFALO RAILROAD COM- PANY TO ACQUIRE TITLE TO CERTAIN REAL ESTATE OF WILLIAM -A. & SARAH J. JUDSON. SUPREME COURT, FOURTH DEPARTMENT, GENERAL TERM, JUNE, 1884. . 997. i -Appeal. Report of commissioners to proceeding to-acquire land for rail road, how corrected. "Where, on an appeal from the report of commissioners appointed in a proceeding by a railway company to acquire title to n-al property the stenographer's minutes of the testimony taken before the com- missioners which was annexed to and formed a part of tlie commis- sioner's report were asserted to be incorrect, Held, that the report should be sent back to the commissioners to settle the minutes upon a hearing on notice; that the court should not, in the ab- sence of bad faith or culpable irregularity, undertake to say for the commissioners what the record should be. Appeal by the landowners from the order of the Oswego special term denying a motion to correct the printed case. Upon the hearing before the commissioners, a sten- ographer was employed to take minutes and his report of the testimony and proceedings was attached to the report of the commissioners as being the min- utes of the testimony taken by them. The report -of the commissioners having been confirmed at special term, the railway company appealed from the order of confirmation to the general term. The printed papers on such appeal having been served, the re- spondents therein, the landowners, made a motion at CIVIL PROCEDURE REPORTS. 303 In re N. Y., 00.) But what the rule would be in case of speci::! appearance has not been, decided. By such an ap- pearance, the plaintiff certainly has notice that the de- fendant has employed an attorney and instituted a proceeding which, if successful, may entitle him to recover of the plaintiff the costs of motion. When, after such knowledge, the plaintiff discontinues, he takes the risk of being able to show that the motion is without foundation. If he shows that, then he may well claim that the discontinuance is complete. If lie does not show that, then he should pay the costs of the motion before getting the benefit of the discontin- uance. No defense is presented to the motion except the order of discontinuance. The order appointing the guardian is irregular by reason of the consent not being acknowledged as required by section 472 of the CIVIL PROCEDURE REPORTS. 307 Engle v. Fischer. Code. For that reason an order may be entered vacat- ing the proceedings for the appointment of the guar- dian and dismissing the action with $10 costs of mo- tion, with leave to plaintiff, within ten days after the service of the order to be entered herein, and upon payment of such costs of motion, to enter an order of discontinuance. ENGLE, APPELLANT v. FISCHER, RESPONDENT. SUPERIOR COURT OF THE CITY OF NEW YORK, GENE- RAL TERM, NOVEMBER, 1884. 401. Statute of Limitations. What coming into the state does not amount to a " return " thereto. Construction of statute. Where one F., a resident of Austria, accepted a draft, and there- after and before it became due, absconded from Austria and came to the city of New York, and there assumed and lived under a fic- titious namefor the purpose of concealing himself from his cred- itors, Held, that the statute of limitations did not commence to run as against the holderof the draft until he discovered the presence of F. within the state ;[ 3 , 4 ] that the coming into this state and con- tinuing therein concealed under a fictitious name to avoid the pursuit of creditors, was in legal effect no coming iu until the day that he was discovered. f 1 , 3 ] In the construction, of statutes the judge is vested with authority to disregard the letter in order, in a given case, to attain the ends cf justice. [ a j Troup v. Smith (2 Johns. 32) distinguished. [ 5 j (Decided December 1, 1884.) Appeal from a judgment entered upon a trial be- fore the court without a jury, a trial by jury having been waived. 308 CIVIL PROCEDURE REPORTS. Englu v. Fischer. The facts are stated in the opinion. B. Lewinson, for plaintiff, appellant. The word "return "as applicable to a debtor, it has been held, applies as well to persons coming from abroad, as to citizens of the country going abroad for a temporary purpose and then returning. Angell on Lim. 206 ; 3 Parsons on Contracts (6rh ed.) [105] and nnmerous cases there collated ; Ruggles V. Keeler, 3 JoJms. 263 ; Carpenter v. Wells, 21 Barb. 594 ; Bul- ger v. Roche, 11 Pick. (Afass.) 30 ; Cole v. Jessup, 2 Barb. 313 ; Dwight v. Clark, 7 Mass. 515. Such an effect should be given, if possible, to Hie provisions of the statute of limitations as will not impute to the legislature an intention to do an injus- tice, especially as to clauses in the statute which pur- port to save demands, where there has been no oppor- tunity of suing the defendant, by reason of his non-residence, absence or otherwise. Crosier v. Tam- lirison, 2 Mod. R. (Eng. K. B.} 71^73; Forbes v. Smith, 30 Eny. Law & Eq. 602 ; Chandler v. VilletC, 2 Saund. (Eng. K. B.} 120, 121 ; Sage v. Hawley, 16 Conn. 114-115 ; Swayn v. Stephens, 3 Cro. (Enr/. K. B.) 245 ; Lafonde v. Ruddock, 24 Encj. Law & Eq. 249 ; See opinion of MAULE, J. ; William v. Jones, 13 East. (Eny. K. B.} 440 ; Gill man v. Cults, 3 Foster's (N. H.}, 384, 385 ; Smith v. Bond, 8 Ala. 386. . . . The policy of the law is not fo-nwke contracts void to a greater extent than the mischief to be remedied renders necessary. Broom's Lt'f/al Maxims, (7th ed.) 727. The intent plainly expressed is, that every creditor shall have six full years to sue in the courts of this state, and that he shall not lose his demand except by such omission to sue as the laws deem voluntary and negligent. 2 R. S. 295-299, 18, 24, 26, 27, 32-37, and Code, 330-412 ; Ford v. Babcock, 2 Sand. 519, CIVIL PROCEDURE REPORTS. 3C9 Engle v. Fischer, 528, 52 ; Cole v. Jessup, 10 How. Pr. 515 ; Oilman v. Cutts, supra; Smith v. Bond, 8 Ala. 386; Van- landingham v. Huston, 9 TIL 125 ; Harden v. Palmer, 2 E. D. Smith, 172; Richards v. Maryland Ins. Co., &Cranch(U. S.) 91, 92. It was obvious there might be cases where. . . . there would be an entire omission to commence a suit within the time limited, without the least fault or neg- lect on the part of the claimant, and where the prin- ciples of natural justice would therefore plainly re- x[uire that his rights should be saved. Sage v. Hawley, supra. When cases present themselves in which no laches can be imputed to the plaintiffs, but great injustice would be done by applying to such cases the effect of the statute, the conclusion of reason and of the law is, that such cases were not in the minds of the legislature when enacting that law. Richards v. Maryland, supra. The courts have uniformly so "construed" the statute as to bring it within these general principles. Olcott v. Tioga R. : R. Co., 20 N. Y. 223. It has been repeatedly held that a defendant who is eimply out-of the state is beyond seas, so as to bring the demand within saving clause of statutes, using that phraseology. Anonymous, 1 Shower (Eng. K. .Z?.) 91 ; Ruckmaboye v. Mettichund, 32 Eng. Law & Eq. 85; Lane v. Bennett. 1 Mees & Wi-lsb. (Eng. Exch.} 70; Murray v. Baker, 3 Wheat. (U. S.} 141 ; Bank of Alexandria v. Dyer, 14 Peters (U. S.) 141 ; Pancoast v. Addison, 1 Harr. & Johns. (M^} 150. And these clauses have been applied to foreigners who never were in the state until the suit was brought, and who could not "return," within the literal or or- dinary sense of that term. Ruggles v. Keeler, 3 Johns. 267; Dwight . Clark, 7 Mass. 515; Bulger o. Roche, 11 Pick. (Mass.) -39, 40; Van Hemert ^.Porter, 310 CIVIL PROCEDURE REPORTS. Engle v. Fischer. 11 Mete. (Mas&.) 210 ; Graves??. Week, 19 Vermont, 179 ; Forbes v. Smith, 30 Eng. Law & Eq. 602. So the phrase out of the state embraces all defendants who are beyond its jurisdiction, so as to disable their creditors from commencing actions against them, even though they are within its territory. Sleight v. Kane, 1 Johns. Cas. 236 ; Smith v. Bond, sypra. So, though their condition was such when the demand fell due that they could neither return, nor even come into the state afterwards; e. g., where they have died abroad, never having been here. Davis fl. Garr, 6 -ZV. Y. 'J24 ; Douglass -v. Forrest,. 4 Bing. (Eng. C. P.) 686 ; Benja- min 0. Degroot, 1 Denio* 151 ; Lafonde v. Ruddock, 24 Eng. Law & Eq. 239. The above, and similar phrases, even when used in saving clauses relating to the absence of the creditor^ have been uniformly ap- plied in the same extensive and liberal sense to save the demand. Lafonde c. Ruddock, 24 Eng. Law & Eq. 239 ; Townsend v. Deacon, 3 Excheq. (Eng.} 706 ; Strithorst c. Graeme, 2 Win. BL (Eng. K. B.} 723; Williams v. Jones, 13 East, (Eng. K. #.) 439. So the word " person" in such and like clauses is sufficiently comprehensive to embrace foreign corporations as well, as natural persons. Olcott v. Tioga R. R. Co., 20 1\ T . Y. 223 ; Louisville v. Leston, 2 Haw. U. S. 497. By similar reasoning, and by like rule"? of con- . strnction, the courts have established the principle that in order to set the statute in operation and to take a case out of the exceptions created by section-. 401, the debtor's return to (/. e. "coming into") the state must be public and notorious. A return . . . within the chartered limits of the- state, but to which the jurisdiction of the state did not extend, would not be within the exception of the statute, any more than a secret and clandestine re- turn within the jurisdiction of the state. In both, cases the intent of the statute would be defeated the CIVIL PROCEDURE REPORTS. 311 En.v!e v. Fischer. opportunity afforded ths creditor of collecting, or at least suing for his debts. Smith n. Bund, 8 Ala. 386 ; See 3 Parsons on Contracts, *90, and cases cited ; AngcU on Lim. 206 ; Ford v. Babcook, 2 Sand. 518 ; Cole .v. Jessup, 10 N. Y. 96, 102 ; S. C., 2 Barb. 309; Fowler v. Bailey, 3 Mass. 201 ; Little v. Blunt, 33 Id. 359 ; Randall v. Wilkins, 4 Denlo. 577; Fowler e. Hunt, 10 Johns. 464. The statute ... in providing that the limita- tion should commence on the debtor's return (L e. '"coming") into the state, must intend such a return ("coming into") as would enable his creditors, using reasonable diligence, to arrest his body as security for the debt. By returning ( u coming") into the state must have been intended a return to dwell within its jurisdiction, and not to lurk in it as a place of con- cealment. Fowler v. Bailey, supra. To avoid the exception in the statute, the defendant is bound to show either that plaintiff knew of his return (' com- ing"), or that his return was so public as to amount to constructive notice or knowledge. Little v. Blunt, supra. This is a case in which the defense has its origin in a perpetrated fraud. It is a fundamental rule of law that no defense can arise out of fraud and no defense can be sustained. Justice MILLER, of the United States supreme court, in a case not otherwise authorative of this one well expresses this principle in these words, which have been cited with distinct approval by that court in Upton v. McLaughlin, 105 U. S. 640, and re- cently in Rosenthal v. Walker, 111 U. S. 191 : "They (the Statutes of Limitations) were enacted to prevent parties from asserting rights after the lapse of time had destroyed or impaired the evidence which would show that sncli rights never. existed, or had been satisfied, transferred or extinguished, if they ever did exist. To hold that by concealing a fraud or by committing. 312 CIVIL PROCEDURE REPORTS. Bugle v. Fischer. a fraud in a manner that it concealed itself until such time as the party committing the fraud could plead the statute of limitations to protect it, is to make the law which was designed to prevent fraud the means by which it is made successful and secure. Bailey . Glover, 21 Watt. (U. S.) 349, and see Poillon t. Lawrence, 77 N. Y. 211. C. E. RusJimore (W. & S. W. Fuller ton, attor- neys), for defendant-respondent. The defendant having been in this state when the cause of action accrued, and having remained in it until the commencement of this action, a period of ten years, the statute of limitations has run against the claim That fraud which it is claimed was practiced by the defendant in concealing himself by a change of name, does not prevent the running of the statute. That fraud or concealment on the part of the debtor does not prevent the running of the statute in actions at law, is well settled in this state. The rule in the United States courts as administered in Adams v. Stern, 29 Hun, 280, seems to be different so far as the concealment of a cause of action is concerned. Judge DAVIS in deciding that case, put it upon the ground that '"under the established rules of the United States courts, the question of a fraudulent concealment was a proper one to be submitted to the jury." No case can be found in this state where concealment of the debtor operated to take the case out of the statute and the contrary is expressly held. Troup v. Smith, 20 Johns. 32 ; Allen v. MHle, 17 Wend. 202 ; Humbert /\ The Rector, &c. of Trinity Church, 24 Wend. f>87 ; Foot v. Farrington, 41 N. Y. 164. .BY THE COURT. VAN VORST, ,T. The defendant, residing in Austria, in the month of May, 1873, in CIVIL PROCEDURE REPORTS. 313 Engle v. Fischer. curred the obligation as acceptor of the draft which is the subject of this action. In July, 1873, the defend- ant absconded from Austria and came to the city of New York, and "for the purpose of concealing him- self from his creditors assumed a fictitious name, and has ever since borne and been hiding under such ficti- tious name." The draft matured after the defendant took up his residence in New York. In April, 1882, the plaintiff, the owner of the draft, discovered de- fendant in the city of New York, living under his fic- titious name, and demanded payment, which, being refused, he commenced this action. Upon the trial the plaintiff's complaint was dis- missed upon the ground that the action not having been commenced within six years after the cause there- of accrued, the same is barred by the statute of limita- tions. The question arises whether the defendant was within the state during the period in question in the sense contemplated by the statute. It has been said that the statute of limitations "'is a shield, and not a weapon of offense." I am quite sure that it was no't designed to defeat justice. It should not shelter ['] a man who, designing to defeat the vigilance of his creditors, conies into this state and conceals himself under a fictitious name, thus doing all in his power to prevent his creditors from reaching and pro- secuting him within the time limited. In the construc- tion of statutes the judge is vested with authority to disregard the letter in order, in a given case, to [ a ] attain the ends of justice. This power has been repeatedly asserted and practiced upon the high- est authority. (Licber 's Hermeueutics [3d ed.] note- page 285/and cases cited.) If this defendant is shielded by the strict letter of the statute, he is certainly not by its trii^ spirit and intent. (Code, 40k) 314 CIVIL PROCEDURE REPORTS. Eagle v. Fischer. In decisions with respect to the former statutes of limitations, the word "return," found in-the section above cited, has been held to apply as well to a person coming from abroad, where he had resided, as to a cit- izen of this state going abroad for a time and then re- turning. (Fowler V. Hunt, 10 Johns. 4G4.) It has also been decided that the return must not be clandestine and with the intent to defraud creditors. The "return" must be public and under such circum- stances as to give the creditors an opportunity, by the use of ordinary diligence and due means, to prosecute the debtor. (Cole v. Jessup, 10 N. Y. 96, 103 ; Randall . Wilkins, 4 Denio, 577; Ford . Babcock, 2 Sand. 518 : Fowler p. Bailey, 3 Mass. 201 ; Little v. Blunt, 33 Id. 359.)- A coming into this state with the design of contin- uing therein, concealed under a fictitious name to avoid the pursuit of creditors, is in legal effect no [*] coming at all until the day that he is discovered. The construction contended for by the respondent would make this statute, which was designed to pre- vent fraud, " the means by which it is made success- ful and secure." The case of Poillon v. Lawrence (77 N. T. 207), which arose under the bankrupt law, has some anal- ogy. In that case the bankrupt contracted a debt in one name, and obtained a discharge under a different name, designedly omitting in his proceedings refer- ence to any fact which would disclose that he was the same person who was the debtor to the plain tiff. RA- PALLO, J., said : "It can hardly be supposed that any court would willingly sanction a fraud of that descrip- tion." Practically this defendant perpetrated a fraud equally obnoxious. Contracting a debt in a foreign country under his true name, he then comes to [ 4 ] this country and lives under an assumed name, in CIVIL PROCEDURE REPORTS. 315 Woodford v. Rasbach. this way to conceal himself from his creditors. Under such circumstances he cannot claim the protection of the statute of limitations. Troup o. Smith (20 Johns. 32), and other cases cited by respondent's counsel, involve the question of a . [*]., fraudulent concealment of the cause of action, but not of the person of the defendant ; that is a whol- ly different question. The judgment below is reversed and a new trial': ordered, with costs to abide the event. WOODFORD v. RASBACH. WOODFORD v. CHAPMAN ET AL. SUPREME COURT, OSWEGO COUNTY, SPECIAL TERM,., FEBRUARY, 1884. 1260, 3251. Attorney. Power of to settle and discontinue action and satisfy judg- ment. Effect of settlement of action and satisfaction of judgment. Report of referee on motion. Although the opinion of a referee appointed on a motioiv is not con- - elusive to the court, it is entitled to respectful consideration. ['J Where an action has been settled and discontnuicd, and a judgment satisfied of record by the attorney for the plaintiff therein without authority there seems to be no doubt as to the power of the court upon motion to set aside the discontinuance and satisfaction, and substitute another attorney in the place of said attorney. [*] The attorney of record in an action by virtue of his retainer as such without the consent of his client, and without any new authority from him. may discontinue an action before judgment, and after judgment may satisfy the judgment itself, at any time within two years after filing the judgment-roll, [*] but he can only do the first in such a manner as shall dispose of the action, without affecting his client's right to bring a new action for the same cause; and the 316 CIVIL PROCEDURE REPORTS. "Wood ford 0. Rasbach. seco-.id only upou the actual payment in money of tlic full amount of tin- judgment.! 4 ] "Where a stipulation for the discontinuance f an action executed l>y the aitorneys of record, and aa order dieooutiiiuing the actjn en- tered upon it professed in terms to rest upon a settlement of the cajjc, Held, that they would, so long as they were allowed to stand, be a ln.i- to any other action brought for the same cause. [ 5 J Such a disccutinuunce and a certificate of the satisfaction of a judgment made ou payment of a part only of the money due on the judg- ment, are HOD within the power of the attorney of record to execute, unless upoa some special authority given by the cliont.["j A certificate 01 the satisfaction of a judgment upon the payment of part thereoi and a stipulation that an action be discontinued, rest- ing in terms upon a settlement, both executed by the attorney of record, are as effective to discharge the plaintiff's claims as would be releases under seal, executed by him and the authority to exe- cute them should, therefore, be as distinctly shown, as that to -execute for another, any sealed instrument. [*j Motion by plaintiff to set aside a certificate of sat- isfaction of the judgment recovered in the first action and a stipulation and order discontinuing the second action, and for an order removing the plaintiff's at- torney of record in each action. The first of the above entitled actions was begun in January, 1874, for malicious prosecution and false im- prisonment. It was twice tried, at both of which the jury disagreed. A third trial in October, 1876, result- ed in a verdict for the plaintiff for $9,890, which, upon a motion upon the judge's minutes, was set aside and a new trial ordered. On the fourth trial, June 14, 1879, the plaintiff had a verdict for $3 0,000. A motion for a new trial on the judge's minutes was denied, and on February 17, 1880, judgment was entered upon the verdict, including interest and costs for $11,560.17. An appeal to the general term was taken from the judgment which was pending June 11, 1881. The sec- ond action was begun about May, 1879, and originally CIVIL PROCEDURE REPORTS. 317 Wood ford v. Rusbach. im pleaded David H. Rasbach the defendant in the first suit, as a party defendant. On motion made after the second verdict in the first action, the complaint in the second action was .dismissed as to David H. Ras- bach, on the ground that the cause of action was.the same in the two actions, and that the former action with the verdict recovered in it was a bar as to him to the second action ; but the action was allowed to pro- ceed against the other defendants. On the llth day of June, 1881, this action was on the calendar for trial at the circuit to commence in Madison county June 13, 1881. Judgment was asked in this action for $oO,000 damages, John W. Boyle of Utica, was attorney of record, and J. I. Sayles of Rome, was counsel for the plaintiff in both actions. On June 11, 1881, John W. Boyle, with the approv- al of J. I. Sayles, but without the presence or knowl- edge of the plaintiff, agreed with the defendants upon terms of settlement of both actions, to the effect, that upon the payment by them of $10,000, and the assign- ment by them to the plaintiff, or to his attorney, of a judgment against the plaintiff and his father and brother for $3, 807.59, recovered August 30, 1873, and the withdrawal of specifications tiled in the United States district court to prevent the discharge of the plaintiff in bankruptcy, the judgment in the first ac- tion shall be discharged and the second action discon- tinued. The defendants to carry the said settlement into effect, immediately, on the same day paid to John W. Boyle, the plaintiff's attorney, $10,000 and also gave to him an assignment of the judgment against the plaintiff and his father and brother, and gave a stipulation withdrawing the specifications above referred to, filed in the United. States district court. The plaintiff's attorney to cany said settlement into effect, also at the same time delivered to the defend- ant's attorney a satisfaction of the judgment against 318 CIVIL" PROCEDURE REPORTS. Woodford v. Rasbach. David H. Rnsbach, executed and acknowledged by John W. Boyle as -attorney for the plaintiff, and a^so a stipulation of discontinuance in the second action, which satisfaction and stipulation were on the same day tiled by the defendants in Madison county clerk's office, and the said judgment against Rasbach dis- charged of record, and an- order entered discontinuing I he second action. .None of the monej 7 or papers above referred to came to the hands of the plaintiff. The settlement itself was repudiated by him, and written notices to that effect were on or about June 1(5, 1881, served on the defendants and their attorneys, and soon after attorneys were employed by him to take steps* to restore the said actions to their former conditions. A motion was made in the first action to set aside the certificate of satisfaction h'led, and the discharge of judgment entered thereon in Madison county. A mo- tion was made in the second action to set aside t-he order of discontinuance entered in the action, and to restore it to its place on the circuit calendar. A part of the relief asked in each motion was that John W. Boyle be removed as attorney for the plaintiff and other attorneys substituted. The motions were referred to a referee to take tes- timony and report the same with his opinion thereon to the court. This has been done and the motions are now before the court upon his report and upon the original affi- davits. f. K. Fuller, for the plaintiff and motion. The court has power, on motion, to set aside a sat- isfaction of judgment, or an order of discontinuance entered by fraud or mistake. Wardvvell v. Eden, 2 Johns. Gas. 121, 258 ; Mechanics' Bank v. Minthorn, 19 Johns. 244; Campbells Bristoll, 19 Wend. 101-2; Lewis o. Woodruff, lo How. Pr. 630; Carstens v. CIVIL PROCEDURE REPORTS. 319 Woodford v. Rasbach. Branstorf, 11 Abb. Pr. K: S. 442 ; Rooney v. 2d Ave. R. R. Co., 18 W. Y. 368 ; McGregor v. Comstock, 28 Jd. 237 ; Murray v. Gibson, 22 Hun, 386 ; Marshall v. Meech, 51 N. Y. 140 ; Hatch v. Central National Bank, 78 Id. 487. An attorney is not authorized by his retainer to satisfy a judgment without full payment thereof iu money, nor to compromise or release the same ; nor can he settle a suit and conclude his client in relation to thesubject in litigation without his client's consent. Mandeville v. Reynolds, 68 N. Y. 528-540 ; Beerg v. Hendrickson, 45 Id. 665 ; Barrett v. Third Ave. R. R. Co., 45 Id. 628 ; Shaw v. Kidder, 2 ITow. Pr. 244 ; Quinn v. Lloyd, 5 Abb. Pr. N. 8. 281 ; Lewis v. Wood- ruff, 15 How. Pr. 639, and cases cited; Carstens v o. Barnstorf, 11 Abb. Pr. N. 8. 442. A party dealing with an attorney is bound to take notice of the scope of his authority as such. The at- torney cannot compromise the claim of his client or release the cause of action, or satisfy a judgment in his client's favor without payment in the absence of special authority. There is no implication of an au- thority to do acts of this character, from his appoint- ment as attorney in the case ; and a party dealing with him is bound to take notice, thnt they are not within the scope of his authority. Cox v. N. Y. C. & H. R. R. R. Co., 03 AT. Y. 414 ; reversing 4 Hun, 176 ; Benedict v. Smith, 10 Page, 126; Heyman v. Berenger, 1 Abb. N. C.- 315 ; Doubleday v. Kress, 50 N. Y. 410, reversing 60 Barb. 161. The plaintiff's attorney should be dismissed as at- torney of record in both cases, and be adjudged not entitled to any compensation therein for his miscon- duct. Nor should Mr. Snyles have any compensation for like reason within the case of Chattield v. Sim- mons, 02 N. Y, 209 ; Andrews v. Synge, 94 7d. 16. 320 CIVIL TnOCEDirilE REPORTS. Wood ford t. llfisbsirl). Boyle, Adams & Kernan, opposed. CHURCHILL, J. Two questions are presented here : 1. Is the relief desired properly sought by motion 1 2. If so, has the plaintiff shown himself entitled to it ? The referee has found for the plaintiff on both of these questions, and though his opinion may ['] not be conclusive upon the court (Marshall v. Meech, 61 JV. T. 140), it is certainly entitled to respectful consideration. There seems no question as to the power of the court at special term, to grant, upon motion, the [*] relief now sought. In many cases, the court hag deemed it unwise to exercise the power and has left the parties to establish their supposed rights by action. In Conchlin v. Taylor (68 N. Y. 221), the court of appeals approved an order of the special term, which vacated a satisfaction piece without prejudice to an action to affirm its validity. The lapse of time, the intricacy of the facts and the necessity of bringing in parties other than the parties to the record in order to a proper determination of the questions involved, are reasons which have induced courts to leave parties in cases of this kind to an ac. tion. These reasons do not seem to exist here, the settle- ment was promptly disaffirmed, and proceedings promptly taken to set it aside. There is but one ques- tion here that of the authority of the plaintiff's at- torney and counsel to settle these actions. To the settlement of that question, neither the attorney, whose authority is denied ; nor the Canas- tota Bank, who are mere volunteers in their connection in the matter, are necessary or proper parties. Every circumstance necessary to be presented to uphold the settlement, can be fully presented through the defend- CIVIL PROCEDURE REPORTS. 321 Wood ford . liusbach. ants in these actions, without additional parties. There seems no good reasons why these matters may not be determined upon motion. The attorney of record, by virtue of his retainer as such without the consent of his client, and with- [*] out any new authority from him, may discontinue an action before judgment ; and after judgment may satisfy and discharge the judgment itself, at any time within two years after filing tlie judgment-roll (Gillard v. Smart,- 6 Cow. 385 ; Barrett v. 3d Ave. R. R. Co., 45 N. T. 628-636 ; Code, 1260, 2 R. S. 362, 24), but he can only do the first in such a manner as shall dispose of the action without affecting his client's right of action or right to bring a new action for [ 4 ] the same cause; and the second only upon the ac- tual payment in money of the full amount of the judgment. "o>x v. N. Y. C. R. R., 63^. T. 414-419; Barrett v. 3d Ave. R. R., 45 Id. 628-635 ; Beers o. Hen- drickson, 45 Id. 665-670 ; Gar. lard v. Smart, 6 Cow. 385. In one of these cases the stipulation of discontinu- ance executed by the attorney of record and the order entered upon it profess in terms to rest upon a [ 6 ] settlement of the case and would, therefore, so long as they are allowed to stand, be a bar to any other action brought for the same cause. In the other case fhe certificate of satisfaction by virtue of which the judgment has been discharged of record, was given by the attorney of record upon the payment to him of a part only of the money due upon the judgment. Neither instrument was, therefore, within his power to execute as attorney of record, and if [*] sustained, must be so upon some special author- ity given by his client. The instruments executed in these cases, if allowed to stand, are as effective to discharge the plaint- VOL. VI. 21 322 CIVIL PROCEDURE REPORTS. Wood ford V. lias bach. iffs claims as would have been releases under seal ['] executed by him (Beers T>. Henderson, 45 JW. Y. 665). The authority to execute them should, therefore, be as distinctly shown as that to execute for another any sealed instrument. Mr Sayles, the counsel of the plaintiff, whose right to settle these cases was affirmed, perhaps in stronger terms than that of the attorney of record, did not as- sume for himself to have authority to execute any instrument which should, release the plaintiff's claims. The referee to whom these motions were sent has found that the certificate of satisfaction of the judg- ment and the stipulation of discontinuance of the action were executed without authority from the plaintiff; in this I think his report warranted by the evidence. If thej r are without authority, the discharge of the judgment upon the record and the order of dis- continuance entered are also without authority, and with them should be set aside. It seems quite obvi- ous that the parties to this settlement, on both sides, acted in good faith. The cause of action in these two actions had been adjudicated to be the same and that cause -of action lind been twice valued by a jury once at $9,890, and again at $10,000. It was the right of the defendants at any time, to pay the judgment for ten thousand dollars and costs, entered in the first action, and thereupon compel a discontinuance of the second action upon the payment of the costs of that action. The amount received by plaintiffs attorney was $10,000 in money, with an as- signment of a judgment against the plaintiff aud his father and brother for $H,807.59 and interest, from August. 30, 1878 (amounting to nearly $0,000), and the withdrawal of opposition to the plaintiff's discharge "CIVIL PROCEDURE REPOBTS. 323 Wood ford e. Rasbach. -in bankruptcy. The amount insisted upon and received upon the one side, and the amount paid on the other, tteems to establish that the defendants believed Messrs. Boyle & Sayles authorized to settle, and that each par- ty acred in good faith in the settlement. The defendants, having acted in good faith, should have the right to test, by action, if they so desire, the authority of plaintiff's attorney and counsel to agree upon terms of settlement which would bind the plaint- iff. An order should therefore be made setting aside the satisfaction and discontinuance above referred to, nd directing the return, by plaintiff's attorney, to the defendants, of the money and other matters received by him as a consideration for the s;>me, but without prejudice to any action that may be brought by the defendants, or either of them, for the purpose above indicated. The present relations of the plaintiff and his attor- ney, Mr. Boyle, as shown by the proceedings on these motions, are such that it would not be proper that the latter should continue to act as attorney for the for- mer in these actions. But the attorney has a lien upon the cause of action and the papers in .his hands which lie has not forfeited, and which must be satisfied or se- cured before he can be required to surrender his place as attorney. If the plaintiff and Mr. Boyle can agree as to the amount of the latter's lien, upon paying it, the plaintiff will have a right to substitute other attor- neys. In the absence of such agreement, the order may require that upon the giving of a bond by plaintiff to the attorney in an adequate sum (and $3,000 would seem to be such sum), conditioned for the payment of any judgment which may be recovered by the latter against the former for his charges, services and disbursements in the above entitled actions, and in matters connected with them, or either of them, the attorney be required to surrender the papers and the management of these 324 CIVIL PROCEDURE REPORTS. Gocttling v. Biehler. actions to such attorneys as the plaintiff may desig- nate, and that an order be entered substituting such attorneys for the present attorney ol record. Ten dollars costs of each motion, with necessary disbursements for referee's fees, to be paid by the de- fendants. 68 N. Y. 221-224 ;* Code, 3251. GOETTLING, APPELLANT, e. BIEHLER, ET AL., RES- POND ENTS. SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM, MAY, 1884. 993, 1023. findings. How disposed of by court before which action tried. Effect of failure to make, because considered unnecessary. The provision of the Code ( 1023) which requires the court or referee before whom a cause is tried, at or before the time when the decis- ion is rendered, to note upon the margin of the statement, of facts, etc., which he has-been requested to find the manner in which esich proposition has been disposed of, :md either'filc or return to the attorney the statement so noted is mandatory in its language, and no authority has been given to disregard it when the proposition may be considered not to be either important or material. The party is entitled to have each proposition of fact or l.ivv acted upon and noted, and it is only after that has b<-en done that the materi- ality of either is to be regularly considered. Where one of the parties to an action tried before the court without a jury, before the decision thereof requested the court to make certain findings of fact and law which the court refused to do on the ground that they were unnecessary, IIM, that this was not the disposition of them which in any possible view of tlie case the court was authorized to make; that an appeal from the judgment entered on the decision of the court was not in a condition to bo heard until such findings were passed upon, and for that purpose * Concklin v. Taylor. CIVIL PROCEDURE REPORTS. 325 Goettlingo. Bichler. they should be returned to the justice before whom the trial took place, and the decision of the appeal suspended until the proposi- tions should be considered and separately uoted. James n. Cowing (83 N. T. 449), followed. (decided October, 1884.) Appeal of judgment recovered on trial at special term. The opinion states sufficient facts. ...Hyland & ZabrisMe, for appellant. J). S. Riddle, for respondent. DANIELS, J. Before the decision of this action by the court before which the trial took place, the find- ings of fact und law were presented and submitted to the court, and the court refused to find either of them because -they were considered unnecessary. That was not the disposition of them, which, in any possible view r of the case the court was authorized to make, for by section-1023 of the Code of Civil Pro- cedure it has been provided and directed that the court shall, at or before the time when the decision is rendered, note (in the margin of th-e statement the manner in which each proposition has been disposed of, and must either file or return to the attorney the statement so rioted. This provision is mandatory in its language, and no authority has been given to dis- regard it when the propositions may be considered not to be either important or material. The party is entitled to have each proposition of fact or law acted upon and noted, and it is only after that has been done that the materiality of either is to be regularly considered. This is the clear intention and effect of this part of the Code, and it has so been regarded in James v. Cow- ing (82 N, T. 449). Until that shall have been done, tliis appeal is not in a condition to be heard. 326 CIVIL PROCEDURE REPORTS. Iu re Powers. A practice somewhat similar existed before this section went into effect. And when it was not fol- lowed it was considered to be proper to send the case back to have the proposition submitted, passed upon and noted (Bigler e. Pinkney, SO N. T. 636). The decision of the points presented by the appeal should be suspended until these propositions shall be considered and separately noted, and to have that done, they should for that purpose be returned to and dis- posed of by the learned justice before whom the trial took place. DAVIS, P. J., and BRADY, J., concurred. IN RE THOMAS POWERS, DECEASED. SURROGATE'S COURT, NEW YORK COUNTY, NOVEM- BER, 1884. 2615. Probate of will. When aliens should be cited to attend. Where among the surviving next of kin of a decedent who was a citi- zen of the United States and died intestate, were a Brother and i sister, both non-resident aliens : Held, that such brother and sister were entitled to the same interest in the decedent real estate as they would have taken were they citizens of the United States ; that the interest of the brother was subject to be defeated by the state, mid only by the state, u|x)n his failure to file an affirmation or deposition respecting his intended citizenship in the manner pro- vided in Laws of 1845, chap. 115, 1, Mid that both such brother and sister must be- cited to attend the probate of the will. (Decided December 10, 1884'.) Ex parte application for citations to attend probate of the will of Thomas Powers, deceased. CIVIL PROCEDURE REPORTS. . 327 In re Powers. The i'act sufficiently appear from the opinion. William A. Haggerty, for the proponent and mo- tion. Is it necessary on such probate to cite the non- resident alien brother and sister of said decedent ? The statutes in relation to this subject are Laws of 18 Jo, chap. 115 ; amended by Laws of 1874, chap. 201, and Laws of 1875, cliap. 38 ; 1 R. S. part II., chap. 1, tit. 1, 8, 15, 16, 17 ; Code of Civil Procedure, 2615. The title of the act of 1845 is "an act to enable resident aliens to hold and convey real estate and for other pin-poses." The use of the word resident in. the title would seem to exclude any intention of conferring sr.y rights upon non-resident aliens. See section 4 of this act as it was last amended in 1875 (cli. 38). Non- resident aliens are not, and cannot be, heirs of a resi- dent of the United States. An alien cannot take lands by descent nor transmit them to others as his heirs. 1 WdsJtbarn on Real Properly, marg. p. 49, 23. Every citizen of the United States is capable of holding lands within this state and of taking the same by descent devise or purchase. 1 R. S. part. II., chap. 1, tit. 1, 8. The provision as to declaration of intention, &c., contained in section 15 (1 R. S., part II., chap. 1, tit. 1) and referred to in section 1 of the act of 1845, applies only to resident aliens ["any alien who has come or may hereafter: come into the United States"] and en- ables them to take and hold only after such declara- tion, &c., is made. Id. 16. "Such alien shall not be capable of taking or holding any lands or real estate which may have descended or been devised or conveyed to him previously to his having become such resident and made such deposition or affirmation as aforesaid." Id. 17. The rule of descent contained i-n 1 R. S., part. II., chap. 2 must be limited by section 8, above quoted, as to persons qualified to lake by 328 CIVIL PROCEDURE REPORTS. In re Powers. " The following persons must be cited upon a peti- tion presented ns prescribed in the last section. "1. If the will relates exclusively to real propertj^, Hie husband, if any, and all the heirs of the testator.'* Code do. Pro. 2615. The will here relates exclusively to real estate. As would appear from the statutes and decisions above cited, the non resident alien brother and sister of the deceased are not heirs. It will be noticed that the Code says that the "heirs" must be cited, but does not say " persons answering the description of heirs." The statute is learnedly considered in Hall v. Hall, 81 JV. X. 130 ; Lulirs v. Eimer, 80 N. Y. 171 ; and Good- rich v. Russell, 42 N. Y. So ; to which cases I would respectfully call the court's attention. ROLLINS, S. The decedent, who at the time of his death was a citizen of the United States, owning real estate in this county, died here in July last. Among his surviving next of kin are a sister and a brother, both non resident aliens. A paper purporting to be his last will, and to devise to his wife and to a brother residing in the United States certain real property, having been offered for probate, the question has arisen as to the necessity of issuing citations to his alien brother and sister. Section 2615 of the Code of Civil Procedure directs that upon an application for the probate of a will affecting real estate, all the "heirs" of the testator must be cited. Are the alien brother and sister of this decedent to be deemed his "heirs" within the mean- ing of this section ? "An heir," says Blackstone, " is he upon whom the law casts the estate immediately on the death of the ancestor." (2 Blacks. Comm. chap. 14, p. 201.) At common law aliens were incapable of taking by descent, and they were formerly under the Mime incapacity in the state of New York. (2 KenVs Cumin. 53; Lynch c. Clarke,! Sand. Ch. 004.) This CIVIL PROCEDURE REPORTS. 329 In re Powers. disability was removed by the act of 1845. That act ( 4, chap. 115, Laws of 1845, as amended by chap. 261, Laics rtf 1874, and by chap. 38, Laws of 1875 [3 R. S. 7rh ed. 2170]), recognizes the right of alien kin of a person deceased, who was at the time of his death a resident alien or a citizen of the United States, to take, as Jiis Jieirs, the lands which would have des- cended to them in that capacity had they been citizens of the United States. The title of an alien male of full age is however made defeasible by the state upon his failure to file an affirmation or deposition respecting his intended citizenship in manner provided by section 1 of the act. That, under the provisions of this stat- ute> non-resident aliens can take by descent seems too plain to be doubted, and has been often expressly asserted by our courts. (Goodrich v. Russell, 42 N. Y. 85 ; Luhrs v. Eimeiy 80 N. T. 171 ; Hall v. "Hall, 81 X. Y. 130.) I hold, therefore, that this decedent's sister, though a non-resident alien, is entitled, if he shall be found to have died intestate, to the same interest in his real estate that she could take were she a citizen of the United States, and that his alien brother is entitled to a like interest, subject to be defeated by the state and only by the state, in case he should neglect to make and Hie the deposition and affirmation that the statute requires. Both the brother and sister must therefore be cited. 330 CIVIL PROCEDURE REPORTS. Hayes v. Davidson. HAYES, As ASSIGNEE, &c., OF GRANT FOR BENEFIT OF CREDITORS, APPELLANT, . DAVIDSON, SHERIFF OF THE CITY AND COUNTY OF NEW YORK, RESPONDENT. SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM, OCTOBER, 1884. * 531. Bill of particulars. When ordered in action 1>y assignee against sheriff for conversion. In an action by an assignee for the benefit of creditors against a sheriff for taking personal pioperty under an attachment against the as- signor, and converting it, the sheriff is not entitled to a bill of par- ticulars of the items of the stock of goods so seized and converted, [', 3 j but where a part of the goods were returned to the plaintiff after the commencement of the action and accepted by him, ho should be required to furnish a l>ill of particulars of the goods so returned. [ 2 J BRADY, J. (dissenting.), Held, that the plaintiff should furnish a statement in writing of the property alleged to have been carried away and converted by the defendant, together with a statement of the alleged value of such article, piece or por- tion of the property so alleged to have been taken. [ 4 , b ] (Decked October 7, 1884.) Appeal from an order requiring the plaintiff to serve on the defendant a bill of particulars. The opinion states the facts. Peter Condon, for plaintiff, appellant. W. Bourlte CocJcran, for defendant, respondent. DAVIS, P. J. Ordinarily I should be of opinion that a sheriff who is sued for taking on process a CIVIL PROCEDURE REPORTS. 331 Hayes v. Davidson. stock of goods from the possession of an assignee,. [':] and removing them from his possession is not en- titled, when sued by such assignee, to demand a bill of particulars of the items of the stock of goods so seized and taken. Presumptively his possession of them would be held sufficient to give him full knowl- edge of what they consist, and a bettei opportunity to know their items than the assignee in trust from whom they have been taken. In this case a part of. the stock was sold by the sheriff, and another >part returned by consent to the assignee. Reasonable diligence would of course have enabled the sheriff to know what part and how much of the stock was sold, and as to that part he should be in better position to know the particulars than the assignee can be pre- sumed to be. But as to the items returned to the assignee, if such return were in gross of a remaining bulk, the assignee who received them ought to be in better position to know the items than the sheriff. Upon the facts appearing in the affidavits I think the order ought to be so modified as to limit the bilL ["] of particulars ta the items returned to the plaint- iff, so that the sheriff may be relieved from the necessity of proving those items as part of his defense and his liability in respect thereof be limited to such damages as the taking, withholding and returning, with acceptance by plaintiff subject him. With this modification the order should be affirmed, without cost of this appeal to either party. DANIELS, J. [Concurring.] I am convinced that the modified directions suggested in the opinion of the presiding justice is as broad as the facts of the case will justify. There would be neither injustice nor inconvenience produced by an entire denial of the [*] motion ; for the sheriff must have known the goods, and of what they consisted, which he 332 CIVIL PROCEDURE REPORTS. Hayes v. Davidson. seized, and also those which were sold by him, excluding Miem, would as clearly indicate the articles returned. But as the plaintiff has the ability to i'ur- niish a statement of the articles returned, and that will remove all possible ground for misunderstanding con- cerning the subject of the controversy, he may well be required to do that. And to such a direction I therefore agree. BUADY, J. [Dissenting.] This action is brought to recover damages for the wrongful conversion by the defendant of certain personal property which was part of the estate of Duncan A. Grant, and claimed by the plaintiff as the substituted assignee of Grant. The taking of the goods is admitted. They appear to have been seized by the defendant, as sheriff, under certain warrants of attachment issued against. Grant, upon the ground that he had assigned and disposed of his property with the intent to defraud his credit- ors. Some of the goods seized were sold, and it ap- pears that about three weeks after the commencement of the suit for the conversion of the stock taken from Grant the merchandise which was not disposed of was returned by the sheriff to the plaintiff and accepted by him. Upon the application of the defendant an order- was made directing the plaintiff to furnish a statement in writing of the goods, chattels, fixtures and other personal property alleged to have been car- ried away and converted by the defendant, together with a statement of the alleged value of each ar- [*] ticle, piece or portion of the property so alleged to have been taken, and that in default of such an account the plaintiff should be precluded from giving evidence on the trial of the alleged conversion of the property mentioned in the complaint or the value thereof. The defendant is a public officer, and the conver- CIVIL PROCEDURE REPORTS. 333 Andrews v. Snydor. sion charged against him was an act which he was called upon to perform by virtue of the various war- rants of attachment issued. The allegation in the complaint is that between January 4th 1884, and February 25th following, the defendant, as sheriff, willfully and wrongfully seized, took and carried away and converted to his own use certain goods and mer- chandise, the property of the estate of Grant and belonging to the plaintiff as assignee. But this is too general an allegation in an action like this, and ['] the court below was justified in directing the order which was made in the exercise of its dis- cretion, and it cannot be interferrefl with under the circumstances revealed by the papers submitted on this appeal. The order should therefore be affirmed, with $10 costs and the disbursements of the appeal. ANDREWS, RESPONDENT, v. 8NYDER, APPELLANT. COUNTY COURT OF ONONDAGA COUNTY, NOVEMBER, 1884. 3046, 3048. Appeal from justice's court. Mode of service of notice of appeal. Service of a notice of- appeal from a judgment rendered in a justice's court upon ihc attorney who appeared for the respondent in the justice's court, is of no avail if the respondent is a resident of the county in which the judgment was recovered, and an order permit- ting the appellant to so serve the notice of appeal would be of no effect, as the statute prescribes when such service may be made and an order could not enlarge or limit the scope ot tho statute. Where a notice of appeal from a judgment of a justice's court was 334 CIVIL PROCEDURE REPORTS. Andrews v. Snyder. dnly served on the -justice and the fees and costs paid him, and r the voluntary dissolution of a corporation on the return ol cto order to show cause why it should not be dis- solved, a referee was appointed by the court " to take proof of the insolvency of the corpoiauou and of all matters relating thereto." Held, that the court had power to do so, but that the report of the referee or deciolod ol the court must contain a statement of the effects, credits and other property, and of thedebis and Otherengage- ments of the corporation and of all matters pertaining to its aff iirs, [ 6 | and that where neither the report nor the decision of the court contained such a statement the final order was void and must - be reversed and the proceedings remitted to the special term to proceed anew on the referee's report. [ 3 ] In re Eagle Iron Works (S Paige, 883); I 4 ] In re Pyrolusite Manganese Co. (3 fl. Y. Civ. Pro. 270), ['] followed. (Decided December 9, 1884.) Appeal from an order dissolving the corporation respondent; appointing a permanent receiver of its property and denying a motion to vacate order appoint- ing a temporary receiver. . On October 29, 1883. on a petition of a majority of the trustees of the E. M. Boynton Saw and File Com- pany asking for its dissolution or the ground that it was insolvent and that such course was beneiicial to the interests of its stockholders, and on affidavits two orders to show cause were granted herein ; one why the corporation should not be dissolved, and the oiher why a receiver should not be appointed, to preserve its property, pending a final order for its dissolution and a distribution of its assets. On November 2, 1883, the papers having been duly served on the attorney general, an order was entered appointing Wallace P. Groom as such receiver, to take, keep and preserve the property of the corpora- tion. On November 5, 1883, the receiver's bond was approved and filed, and he entered upon the discharge of his duties. Subsequent to this date, the National 344 CIVIL PROCEDURE REPORTS. In re Boynton, &c. Co. City Bunk of New York, Charles E. Bishop nnd the Wuterbury M'fg Co., obtained judgments against the company and issued executions therein to the sheriff under which formal levies were made on the property of the company. Thereafter motions to set aside the order appoint- ing the temporary receiver were made, and at the con- clusion of the argument a reference was ordered ''to take proof of the insolvency of the corporation and all matters relating thereto." Thereafter the referee's report was tiled, and the order appealed from made. Further facts are set out in the opinion. John B. Whiting (Gibson, Whiting & Parkin, attorneys), for the National City Bank of New York, appellant. The order appointing the temporary receiver is void and should be vacated because the court had no power to make such an order. If there is power in the court to appoint a temporary receiver in proceed- ings for voluntary dissolution, it must arise from some new provision of the Code of Civil Proceed ure ; there was no such power under the revised statutes. Cham- berlain v. Rochester S. P. V. Co., 7 Hun, 557. A creditor who obtains a levy under an execution on the personal property of the corporation after the petition for voluntary dissolution is filed, but before the final hearing has a valid lien and one that must be respected by the permanent receiver. Matter of Waterbury, 8 Paige, 380 ; Matter of French MTg Co., 12 IL.ui, 488. .... The court has no power to appoint temporary receivers in these proceeding. Matter of Open Board of Brokers, '3 N. Y. Monthly Law Bulletin, 57 ; Smith v. Danzig, 3 N. Y. Civ. Pro. 127 This proceed- ing is strictly statutory and must conform to the re- quirements of the statute. Sharp v. Speir, 4 Hill, 76; Matter of Hoff, 72 A~. Y. 184. CIVIL PROCEDURE REPORTS. 345 In re Boynton, &c. Co. Charles E. Chase, for F. W. Gade, a stockholder, appellant. The court had no jurisdiction to make an order of dissolution because the petition and schedules do not comply with the requirements of section 2421. There must be a strict compliance with all the statutory re- quirements to give jurisdiction. In re Pyrolusite Manganese Co., 3 N. Y. Civ. Pro. 270 ; Chamberlain v. Rochester S. P. V. Co., 7 Hun, 557; Matter of Westchester Iron Co., 15 How. Pr. 7 The order appointing the temporary receiver was made without jurisdiction No receiver can be ap- pointed except under sections 2429, and 1810. The former section confers authority of appointment only upon dissolution of the corporation. The latter is not a source of power of appointment but simply limits the power of appointment in proceedings for dissolu- tion to the court. Matter of Open Board of Brokers, 3 jy. Y. Monthly Law Bui. 57 This is not a case in which a temporary receiver may be ap- pointed. Chamberlain o. Rochester S. P. V. Co., 7 Hun, 557 ; Matter of Edson, 1 JV. Y. Monthly Law Bui. 51. Charles II. Luscomb, for receiver and trustees, respondents. As to power of court to appoint temporary receiver, cited Code of Civil Procedure, 1810, subd. 4; U. S. Trust Co. v. N. Y. W. S. & B. R. R. Co., 6 JV. Y. Civ. Pro. 90 ; Attorney General v. Continental Life Ins. Co., 28 Hun, 360. BROWN, J. This a purely statutory proceed- ['] ing. and the court has no power or authority to act, except as such power is conferred by the statute. The authority for the appointment of a re- ceiver is given by section 2429 of the Code, and this 346 CIVIL PROCEDURE REPORTS. In re Boynton, &c. Co. can only be exercised upon granting the iiiial order dissolving the corporation. There was no power in the court therefore to appoint a temporary re- [ 2 ] ceiver, and the order of November 2, 1883, waa void. This view of the statute is in harmony with the decision of the courts. (Matter of French MTg Co., 12 Huu, 488; Chamberlain v. Rochester S. P. V. Co., 7 Id. 557 ; In re Open Board of Brokers, 3 N. Y. Monthly Law Bui. 57.) The statute does not give the court control ['] over the corporate property until the decision is made upon the return of the order to show cause. If such control had been given there would doubtless be. as an incident to such control, authority of restrain creditors from suing the company and to prevent any interference by creditors with the corporate assets. (Phoenix Foundry Co. v. N. 11. Cons. Co., 4th Dept., N. Y. do. Pro. 160.) But in the case of the Eagle Iron Works (8 [ 4 ] Paige, 385), the chancellor held that an injunction would not be granted in such a proceeding as the one we are considering, and said: "The statute has not given to the court any control over the property until the coming in of the master's report and the dis- solution of the corporation." He pointed out the dif- ference between a proceeding for a voluntary dissolu- tion of the corporation, and proceedings against cor- porations in equity, and held that in the former case creditors who by their diligence obtained a lien upon the corporate property could not be deprived of the preference they had acquired ; while in the latter case the court might interfere by injunction to restrain the creditors' proceedings. I think, therefore, the order appointing the [*] temporary receiver was void, and should have been vacated. CIVIL PROCEDURE REPORTS. 347 In re Boynton, &c. Co. Another point is made by the appellant which I think is fatal to the proceedings. Upon the hearing upon the order to show cause, the court referred the matter to a referee "to take proof of the insolvency of the corporation and all matters relating thereto." This the court had power to do, and the Code pro- vides, section 2426, that the report of the referee ["] or decision of the court " must contain a state- ment of the effects, credits and other property, and of the debts and other engagements of the corpor- ation and of other matters pertaining to its affairs." The referee returned the testimony to the court, but made no report upon any of the matters mentioned in the statute, and there does not appear in the appeal papers to have been any decision of the court, except that contained in the final order. This, however, makes no mention of the matters required by the statute. In the case of the Pyrolusite Manganese Com- [*] pany (3^". Y. Civ. Pro. 270), for a voluntary dis- solution, a similar defect was held to be fatal to the proceeding. The requirement of the Code was one of substance and not of form, and a failure to comply with it renders the final order void. The order appealed from must therefore be [ 8 ] reversed with costs, and the proceedings remitted to the special term to proceed anew upon the re- feree's report in the manner required by the statute. BARNARD and DYKMAN, JJ., concurred. 348 CIVIL PROCEDURE REPORTS. Heenaii v. New York, &c. R. II. Co. HEENAN v. THE NEW YORK, AVEST SHORE & BUFFALO RAILROAD COMPANY. COUNTY COURT OF ALBANY COUNTY, DECEMBER, 1884. 341, 488, 499. County Courts. Jurisdiction of, of actions against domestic corporation*. Objection to, how raised. Instance of case in which want of jurisdiction did not appear on face of complaint. The general rule that for the purpose of ascertaining the place of venue of an action against a railroad corporation any county in which it operates its road, m;iy be regarded as its residence, dqps not apply to county courts; [',*] but. in them for the purpose of determining their jurisdiction a domestic corporation, or joint stock association, whose principal place of business is within the county is deemed a resident thereof.[ 2 j A county court has not jurisdiction of an action against a domestic corporation unless its principal office is located within tlie county and personal service of the summons is made within the county upon one of those officers of it whom the Code of Civil Procedure provides may be served with a summons in an action against MVJ . Where the fact that a county court had not jurisdiction of a defend- ant does not appear on the face of the complaint, he does not waive the objection by appearing generally and serving an answer, pleading among other defenses the want of jurisdiction ;[ 5 j under the Code a defendant may plead as many defenses as he has, whether, as formerly denominated, to the jurisdiction, in abatement or iti bar.fj Where the complaint in an action in the county court of Albany county against a domestic railway corporation, alleged that the defendant was a domestic corporation engaged in the business of carrying freight and passengers for hire in various parts of the State including the county of Albany and that a part of the line of its road was located in that county, Held, that the allegations of the complaint as to residence wore sufficient, [ & J and the defendant could not demur thereto, [ 6 J and did not waive its objections to the juris- diction by appearing generally and serving an answer averring that CIVIL PROCEDURE REPORTS. 340 Heenan v. New York, &c. R. R. Co. its principal place of business was in the city of New York and never was established or located in the county of Albany, and that the summons was served upon it in the city of New.York; [ 5 , 6 J that such allegations of the answer being true the court had not juris- diction of the defendant, f 4 ] (Decided December, 1884.) Motion by defendant for a new trial and that the complaint be dismissed. The opinion states the facts. Ira K. Place, for defendant and motion. B. R. Heyward, for plaintiff, opposed. , County Judge. This is an action to recover damages for injury to personal property caused by de- fendant's negligence in operating its railroad through the village of West Troy, in this county. The case was tried and submitted to the jury, which rendered a verdict for the plaintiff. The defendant now moves for a new trial, and that the complaint herein be dis- missed. Two questions are presented for the consid- eration of the court first, whether this court has such jurisdiction as to entertain the action ; and second, it' it has not, has the defendant waived, or is it con- cluded from raising the point. The complaint alleges that the defendant is a domestic corporation under our laws, and is engaged in the business of carrying freight and passengers for hire in various parts of the State, including the county of Albany, and that a part of its line of road is located in this county. The answer of the defendant admits that it is a domestic corporation, and a v errs that its principal place of business is and was at and long before the commencement of this action established by its articles of association and actually located in the city of New York; that its principal place of business never was established or 350 CIVIL PROCEDURE REPORTS. v. New York, &e. II. R. Co. located in the count}' of Albany, and that the sum- mons was served upon defendant in the city of New York. It also puts in issue the various allegations in the complaint. On the trial it was established that t!ie defendant, being a railroad corporation, operated its road through various counties of this State, includ- ing Albany county, and that by the articles of associa- tion, and in fact, its principal place of business i-s and was located in the city of New York, and that the summons herein was served upon one of the officers of the defendant in the city of New York. Corporations created under the laws of this ['] State are residents of the State, and an examina- tion of the adjudications of our courts will show, that their residence may be localized into one county or exist in many counties at the same time. For the purpose of ascertaining the place of venue in an action -in the supreme court against a railroad company, any county in which it operates its road may be regarded as its residence (Pond v. H. R. R. Co., 17 How. Pr. 543). So with reference to an action in the justices' court (B. Utica, &c. R. II. Co. snch as health, ability to labor or support, and the like. In the case at bar the learned counsel for the defend- ant has suggested an unusual number of chances, one or more of which, however, must apply to every case arising under the statute. Because the result was subject to chance, therefore, is no reason for hold- ing as matter of law that the plaintiffs were not en- titled to recover any damages at all, or only nominal damages. The question in all these cases must be, what were the chances worth in money to the next of kin under all the circumstances ? What were the probabilities worth? What was the reasonable ex- pectation of pecuniary benefit worth ? This was substantially the question that the jury was told to answer in this case. It was sent to the jury upon the theory of reasonable expectation, or in other words, probabilities. That theory was adopted without much time for reflection ; but, even now, after studying the question with some care, aided by th 1884.) Demurrer to a counter-claim set up in an answer. The plaintiff. sues individually and as executor and trustee under, .the last will and testament of Eliza Cakes, deceased, to recover $950 and interest, moneys alleged 'to have been loaned the defendant by the "plaintiffs." The complaint contained the following allegation, to wit: " 1st. That at the times hereinafter mentioned said plaintiffs Francis J. Oakes individually, and said Fran- cis J. Oakes as the executor and trustee under the last will and testament of Eliza Oakes, deceased, were doing business together in the city of IS T ew York as copartners under the firm name of Oakes & Co.;" and then sets out the loan. 358 CIVIL PROCEDURE REPORTS^ Oakes t>. Harway. The defendant's answer (omitting the formal parts) was as follows ; "first. As a defense to this action and as a counter-claim to the demand of the plaintiffs in said complaint alleged, this defendant alleges, that hereto- fore and on or about the 1st day of January ^ 1884, the plaintiffs, in their lima name of Oakes & Co., executed smd delivered to this defendant a certain agreement in writing bearing date on that day, wherein and where- by said plaintiffs in and by said firm name of Oakes & Co., promised and agreed to pay in. monthly payments to this defendant one fifth of all profits on all sales of dye woods, and dye wood extracts, paste and liquors of whatever name or nature made by said plaintiffs for the term, of five years from the date of said agree- ment ; that said plaintiffs have since the execution and delivery of said agreement sold large quantities of dye woods and dye wood extracts, paste and liquors made by said plaintiffs, upon which they have made large profits ;. that this defendant has often applied to, and demanded of said plaintiffs an account and, statement of such sales by them since the date of said agreement, and that they pay to this defendant the amount of one fifth of the profits thereon accord- ing to their said agreement, bub they have neglected and refused' to make such account or statement, and' to pay over the said one fifth of the profits thereon t(x this defendant. That this defendant has no informa- tion of the precise amount cf profits upon said dye woods and dye wood extracts, paste and liq-uors, made- by said plaintiffs, and he has not had, and has not now, any means of ascertaining the precise amount o such profits, and cannot ascertain the same precisely,, and particularly, without, inspection and examination of plaintiff's books of account, but upon information and belief he avers that the- said one-fifth of the pro- fits aforesaid, now due to this defendant from said CIVIL PROCEDURE REPORTS. 359 Oaki;s v. Hurway. plaintiffs amounts in the aggregate to a sum far ex- ceeding the amount claimed in the complaint herein, and for which judgment is demanded therein, and amounts to the sum of at least 2,000. " Wherefore this defendant demands that the plaint- iffs herein be required to account to him for the said one-fifth of the profits upon said articles mentioned in snid agreement according to the terms of said agree- ment, and that he recover such sum as may be found due to him, as a counter-claim in this action to the ex- tent of $2,000, and that out of the amount of such sum found due to him, the amount of the claim of the plaintiffs herein be deducted and allowed, and that he have judgment for the balance thereof, with his costs in this action." To the counter-claim set up in this answer the plaintiff demurred on the ground that the "court has not jurisdiction of the subject thereof, the alleged counter-claim being of such a nature that this court has no jurisdiction of an action thereupon." George Hill, for plaintiffs and demurrer. Theodore N. Melmn (Meloin & Sleekier, attorneys), for defendant, opposed. McADAM, Ch. J. The plaintiff individually, and as executor, &c. of Eliza Oakes, does business under the name of Oakes & Co., and in that name lent the de- fendant $1,950, of which 8950 is claimed to be due. The defendant by not denying admits the plaintiffs' cause of action, and pleads by way of counter-claim, the breach of a contract made by the plaintiffs in said firm name, and in like capacity 7 , on which the defendant has suffered $2,000 damages. If the plaintiff is author- ized to conduct business and contract in the name al- leged, and is authorized to sue thereon, it is subject to.. 300 CIVIL PROCEDURE REPORTS. Prudcn v. Tallman. the right of counter-claim and authorized by the Code. Section 3174 does not, militate against this construction, for it expressly provides "that in an action brought by an executor or administrator any counter-claim may be interposed, which could be interposed in a like action brought in the supreme court." The counter- claim pleaded here could have been pleaded in a like action brought in the supreme court, and is therefore properly pleaded here. The policy of the law is, that where a party brings suit, and voluntarily brings him- self within the jurisdiction of a court, he must settle the controversy there, and cannot complain that the power to do even justice is limited. This rule has its exceptions, of course, but the present case does not furnish one of them. It follows that the defendant must have judgment on the demurrer, with leave, how- ever, to the plaintiff to withdraw the demurrer, and reply to the counter-claim within six days on payment of ten dollars cost. PRUDEN AND 'ANOTHER v. TALLMAN. N. Y. COURT OF COMMON PLEAS, SPECIAL TERM, JAN- UARY, 1885. 867-869, 2432 et seq. Supplementary proceedings. Mode of compelling production of books, etf. on examination in. A witness or party in proceedings supplementary to execution rruiy be re-quired to produce books, papers, etc., by a subpcena duces tecuin, or by iii) order. (Urttded January 10, 1885.) CIVIL PROCEDURE REPORTS. 361 Pruden v. Tallman. Motion to set aside an order of a referee in proceed- ings supplementary to execution requiring the judg- ment debtor to produce certain books. The plaintiff as judgment creditor procured an order for the examination of the defendant in proceed- ings supplementary to execution, before A. H. Ber- rick, referee. After the defendant's examination had been commenced the following order was made by the referee : ''Adjournment to Wednesday, December 31st, at 2 P. M., at which time I direct said Darius Tallman to appear for further examination, and to bring with him the books of account of his business herein testified, and bring the books testified to." The defendant thereupon served notice upon the plaintiff's attorney that lie would "Ynake a motion before one of the justices of this court at a special term thereof," "for an order of this court overruling the direction of said referee, that the defendant herein produce before said referee at his examination in said proceedings his books of account, and for such other or further order as to the court shall seem proper in the premies," and on the day named in the notice made this motion. StepJien A. Walker, for judgment debtor and mo- tion. Edgar J. P7iillips, for judgment creditor, opposed. J. F. DALY, J. A witness may be required by sub- poena duces tecum to produce papers on an examina- tion in supplementary proceedings (Champlin v. Stod- dard, 17 J\ r . Y. Weekly Dig. 76), and of course a party may be.* * The following decision applies the same rule to a case iu which the witness was a corporation. 362 CIVIL FROCEDUKE REPORTS. Prude n v. Tall man. That- being the case, an order may be made for the production of books, &c. under sections 8G7-8G9, in- stead of resorting to a subpoena. The order may be made by the referee before whom the examination is had, under the two sections cited. Motion denied. HOLMES,. .BOOTH & HAYDEN v. STIETZ. CITY COUKT OP NEW YORK. CHAMBERS, OCTOREII, 1884. 8G7-8G9, 2432 et seq., 2444. Supplementary proceedings. Compelling production of looks of corpora- tion, wiled as a witness in. A. corporation called as a witness in proceedings supplementary to execution may be compelled to produce its books either by order or by subpoena duees tecum. (Decided October 25, 1884.) Motion to vacate an order requiring the president of a corporation called as a witness in supplement-try proceedings to produce its books. On the examination of the defendant, in proceedings supple- mentary to execution it appeared that he was the president and super- intendent of the Otto Stietz N. Y. Glass Letter Co. Thereupon the proceedings were adjourned and he was ordered individually and as president and superintendent, of said company to produce certain books and papers of the company to, be used on such examination. "Whereupon this motion was made. E. P. Wilder, for the judgment debtor and motion. Thomas 11. Barowsky, for the plaintiff, opposed. HAWES, J. The defendant claims that a corporation, called as a witness in a supplementary proceeding, cannot be compelled to pro- duce its books- either by order or subpoena duccs tecum. There seems to be no question but what this could be done upon a trial, for what- ever may have been the previous i tilings in this State upon that ques- tion, it is expressly allowed by 808 of the Code, and a corporation although not u party to the action, is brought within the same cate- gory as a natural person. I fail to discover any valid reason why the statute docs not apply to a hearing in a special proceeding. It is to all intents and purposes a trial, so far as the taking of testimony is concerned, and 2444 of the Code expressly declares that either party may be examined as a witness in his own behalf, and m:iy produce ami examine other witnesses us upon the trial of an actiou. I have CIVIL PROCEDURE REPORTS. 363 Keeler v. MeNeirney. KEELER v. McNEIRNEY. SUPREME COUIIT, OJSTONDAGA COUNTY, SPECIAL TERM, MAY, 1883. 447, 1498. Action to foreclose mortgage. Question which cannot le tried in. In an action to foreclose a mortgage where a defendant claims title paramount to the mortgagee under a deed executed before, but recorded after the making and recording of the rncrtgage in suit, the court can not determine whether or not the mortgagee was a purchaser in good faith and for a valuable consideration, for the purpose of deciding which of the parties had precedence under the recording act; the rights of the parties under the recording acts' are legal rights triable in the forum where legal lights are triable and not at special term, and the title which passes to a purchaser on foreclosure does not include rights paramount to the title of the mortgagor or mortgagee at the date of the mortgage. Emigrant Industrial Savings Bank v. Goldman (15 N. T. 127); Payn v. Grant, (23 Hun, 134)^ followed; Brown v. Volkeuing (04 N. T. 76)> distinguished. (Decided May 4, 1883.) no doubt that 8(J8 and 869, which are new, were designed to meet such a case as.is now presented, and the attempted distinction which is sought to be made between an action and a special proceeding has no foundation in fact. The right to compel the production of the books of a corporation when it is not a party to an action is valid under the statute, and the proceedings of the plaintiff in that behalf are regular. The case of Wertheim v. The Continental Railway Co. (3 N. 7. Civ. Pro. 871, U. S. Circuit Court), holds that it is a right at common law, but I do not deem it necessary to consider that phrase of the case, inasmuch as I am of opinion that the Code has expressly granted the power. Although it may be added that if such a right did exist at common law, there could be no pretence of an argument that the statute, by using the word ''trial," intentionally restricted it to the trial of an action. Section 2444 of the Code, however, expressly negatives any such distinction and grants to a party in that respect all the rights which he would have upon the trial of an action. Motion to vacate the order is deukd. 364 CIVIL PROCEDURE REPORTS. Ket'ler v. McNeirney. Action to foreclose a 'mortgage on real property. The opinion states the facts. D. B. Keeler, plaintiff in person. Geo. N. Kennedy and M. F. Sherlock, for defendants. MKRWIN", J. The plaintiff seeks to foreclose a mortgage given October 20, 1871, by James A. O'Hara, to Charles C. Gustin for $435.60 recorded same day and assigned November 10, 1876, to the plaintiff, the assignment not being recorded. The complaint is in the ordinary form arid alleges that the defendants McNeirney and O'Kiley, have or claim some interest in or lien upon the mortgaged premises, which interest or lien, if any, has accrued subsequently to the mort- gage. There is no special allegation as to the character of the interest of those defendants. Those defendants answer and deny the mortgage and assignment, and allege that said premises were on April 27, 1871, for a valuable consideration duly con- veyed by said O'Hara by warranty deed to Bishop Conroy, who on September 25, 1878, for valuable con- sideration by quit-claim deed, duly conveyed them to the defendant McNeirney, that Bishop Conroy went into possession at the date of the deed to him and so remained till he conveyed to McNeirney ; and the latter then went into possession and has since so remained ; and that the said mortgagee and plaintiff had full notice of said conveyances. It appeared on the trial that the deed to Conroy was recorded September 23, 1872, being after thegiving arid recording of the mortgage, so that the real question between the parties is which has precedence under the recording acts, and that depends upon whether the mortgagee was a purchaser in good faith and for a valuable consideration (3 R. S. 7 ed. 2215). The point is taken by the defendant, that the question cannot be CIVIL PROCEDURE REPORTS. 365 Keeler v. McNierney. determined in this action it being brought simply for the foreclosure of the mortgage. In Emigrant Ind. Savings Bank v. Goldman (75 JV. Y. 127) and in Payn v. Grant (23 Hun, 134), it was in eifect decided that legal rights accruing prior to the mortgage were not cut off by a foreclosure, and this too although the parlies holding such prior rights were made parties defendant with the usual allegation (9 N. Y. 502 ;* 64 N. Y. 77). The rights of parties under the recording act are legal rights and triable in the forum where legal rights are triable. They are not triable at special term unless the parties consent ; that consent does not exist in the present case. Had the complaint set out the facts in regard to this question and claimed its adjudication here, the complaint would have been demurrable (2 Barb. 20 ;f 75 N. Y. 132$). The statute prescribes what title shall pass to a pur- chaser on foreclosure (3 E. 8. 6 ed. 199, 102 ; Code Civ. Pro. 1632) and does not embrace interests which are paramount to the title of the mortgagor and mort- gagee at the date of the mortgage (75 N. Y. 132 ;$ 9 N. Y. f>02). If the opinion of Judge ALLEN in Brown v. Volken- ing (64 J\ r . Y. 76), is deemed an authority in the light of the subsequent cases, it may be said that in that case equitable not legal rights were involved ; this being the situation, I think that I have no right to determine in this action, whether or not the mortgagee was a purchaser in good faith and for a valuable consideration. It does not follow, I think, that the complaint should be dismissed as to the defendant McNeirney. He may have rights subsequent to the mortgagee, and if so as to those the foreclosure should * Lewis v. Smith. f Ilolcomb v. Ilolcomb. \ Emigrant's Ind. Savings Bank 0. Goldman. Lewis r. Smith. -360 CIVIL PROCEDURE REPORTS. Smith p, Fogarty. be operative, and it can be so only by his remaining-a party defendant. This is the logic of the case of Frost i'. Koon (30 N. . 428, 443). This decree, however, should contain a special provision that any rights of these defendants, prior to the mortgages, should not be deemed to be in a any way affected by the foreclosure. The defendants who defend are not in my opinion en- titled to costs. It is at least probable their rights would have been fully protected without answer, and besides, they unnecessarily put at issue the existence of the mortgage and assignment. The plaintiff is en- titled to a judgment of foreclosure in the usual form, -adding, however, a separate provision as above sug- -gested. SMITH ET AL. v. FOGARTY. CITY COURT OF NEW YORK, SPECIAL TERM, SEP- TEMBER, 1884. 435, 436,437, 636,1216. Attachment. When affidavit on which granted, insufficient. Substitvtei, service of summons. -When time to answer expires. When order for set aside. Proof on entry <>f judgment on. Where the affidavit upon whrch an attachment was issued stated as the ground for issuing the attachment "that the defendant has sold and mortgaged a portion of or all of his projwrty for the pur- pose and with the intent to cheat and defraud his creditors nnd particularly the plaintiffs . . . .; that deponent was informed and verily believes that the defendant is largely in debt; and that the defendant keeps himself concealed, as deponent believes, with the intent to hinder, delay and defraud his creditors and with the in- 'tentof evading service of process," and that a notice had appeared in the Ilerald of August 8, that the defendant was- missing since ' last Tuesday," with a description of his person, and no other facts or statements were set forth, allowing fraud, Hel'l, that the affida- vit was insufficient and the attachment should be set- aside. CIVIL PROCEDURE REPORTS. Smith v. Fogarty. If substituted service of a summons is ordered when the place where the defendant can be found is known to the plaintiff, the proceed- ings are irregular and the order should be set aside. A defendant, upon whom substituted service of a summons is made, is not in default until the expiration of six days after the filing of an affidavit showing service according to the order. By section 437 of the Code of Civil Procedure, substituted service of a summons is assirnil.-ited to that by publication, and application to the court and the same kiuds of proofs are necessary in cases t)f substituted service as where the service is-by publication. (Decided September 8, 1884.) Motion to vacate attachment and set aside order for substituted service, and judgment entered on such ser- vice. Henry M. Goldfogle, for defendant and motion. Hug7i Heavy, for plaintiff, opposed. BUOWNF, J. Motion to vacate warrant of attach- ment. Order for substituted service of the summons, and the judgment entered against the defendant upon such service. The questions will be taken up in their order. The affidavit upon which the attachment was granted sets forth a cause of action and that there is a sum due to plaintiff over and above all counter- claims. The following statements are set forth as con- stituting the grounds for the issuing of the attach- ment, to wit : " that defendant has sold and mort- gaged a portion of or all of his property for the pur- pose and with the intent to cheat and defraud his creditors and particularly the plaintiff, and by reason thereof the plaintiff was so cheated and defrauded out of the sum above mentioned. That deponent was in- formed and veril} r believes that the defendant is -largely in debt. That the defendant keeps himself 368 CIVIL PROCEDURE REPORTS. Smith v. Fojrjarty. concealed, as deponent believes, with tlie intent to hinder delay and defraud his creditors, and with the intent of evading services of process." It then recites that a notice appeared in the Herald of August 8, that Richard Fogarty, of Ninty-uinrh street and Third avenue, was missing since Tuesday, with a description of his person. Diligent creditors are entitled to the remedies* pro- vided l>y law for their protection against the acts of fraudulent debtors, and where the facts and circum- stances presented to a court or judge are such, that the intent to defraud appears to be a fair arid logical sequence from the facts shown, the protection will be extended and maintained, but there must exist and be shown by affidavit, this intent to defraud or to delay creditors, before the debtor's property will be seized in advance of the creditor's establishment of his right to a judgment against his debtor. In the case at bar no facts or circumstances are shown entitling the plaintiff to the warrant. The affidavit contains but general allegations, that the defendant was guilty of the vari- ous acts stated in the Code as ground for the granting of the warrant, and using almost the identical language of the Code. None of the statements have even the vir- tue of positiveness to commend them ; that as to sale or mortgaging of defendant's property being in the alter- native, while the other statements are upon the in form- ation and belief, or belief alone, of the affiant ; neither the source of information nor the grounds of belief are given. I might multiply reasons and cite innumer- able authorities showing the vicionsness of the affidavit and its insufficiency to maintain . the attachment in this case; one or two, illustrating the principle, I think, will answer. In Yates v. North, 44 on which tiie plaintiff ut the trial might elect to stand. [ 9 j and that substitution should not have beens ordered in this ctise.['] If in such a case any of the bondsmen were limited in the extent of their liability to only a portion of the property seized under any particular attachment or execution* a substitution should not be ordered, for the joint action could not be made divisible or appor* tioned in sucli a manner as to determine the amount for which liability would arise under each respective attachment or execu- tion. [,'] Where parties, even after the seizure of property by the sheriff, furnish him with indemnity against liability for his- tic ts in taking, holding and disposing of it, if a wrong was committed by ths seizure they make themselves parties to the wrong and liable for the full value of the property so seized. [*] If. the objection that an indemnity bond was nut given until after the commencement of the action is not made on a motion to substitute the indemnitors therein in place of the sheriff in an action against him for wrongfully seizing personal property, ii. is waived and cauuot be raised on appeal from an order grunting. the motion. ["} (Decided November 13, 1884.) Appeals from orders substituting the obligors in certain bonds of indemnity as defendants i-n place of the sheriff in an action brought against him for seizing and converting. personal property. The facts appear in the opinions. Peter Condon, for plaintiff, appellant. William Burke Cockran, for the sheriff, res- pondent. George F. Langbein, Edward 8. Halcli and Blu- menstiel & HIT sell, for the bondsmen, respondents. DANIELS, J. The property in suit and for the value of which the plaintiff, as substituted assignee, crvij; PROCEDURE REPORTS. 37$ Hayes v. Davidson. claims to recover against the sheriff, consisted of a^ stock of goods and fixtures contained in the st6ie 28 West Twenty-third street, occupied by Duncan A. Grant. He had previously made a general assignment for the benefit of his creditors to a predecessor of the plaintiff, who commenced this action as a substituted assignee. After the assignment, the property was* seized by the sheriff, on January 4, 1884, under four attachments and one execution, issued in favor of as- many different creditors. The sheriff, on January 4,.. seized and took possession of all the stock and fix- tures contained in the store previously occupied by, the debtor. After that, and an January 12, 1884 another attachment was issued to him, and still an- other on the 26th of the same month, arid on the 14th-. of that month another execution was issued to him, against the same debtor. Three of her executions were also issued, and the sheriff finally held possession of > the property under all the attachments and the five- executions. The creditors for whose benefit the prop- erty was seized by the sheriff under the attachments, . and the executions issued on Januarys and 14, sev- erally delivered to the sheriff bonds of indemnity to indemnify him and save him harmless from loss by. reason of his holding the property against the claim of the assignee. These bonds were given at different times, but they were all stated to have contained, the- same condition. And under and by virtue of the in- demnity so provided, and the process issued tre all united in maintaining and protecting the act of the sheriff in holding possession of and -afterward selling the property. And if any wrong or -l^gal liability was created by Ms 'acts in doing that, the parties to each of these bonds became jointly 'liable for th consequences of those acts and that pre- sented a case within this section of the Code {Mal- colm v. O'Reilly, 89 N. Y. 166; Hessberg v. Riley, :* A-. Y. OiD. Pro. 165; Hein ^Davidson, 5 Id. 391). It. has been objected to the order that it was not made to appear by the affidavits in support of -the -motion that the bonds were given previous to the com mencement of the suit. But if that were necessary, a strong probability arises that they were j so given, "The lirst was executed and delivered on the 9th/ of January, 1884, and the last on the 13th of February, 1884, and it was not intimated in the affidavit made by the plr.intiff that the suit against the sheriff had been commenced -before that time. If that was the fact, and any advantage could be derived from it by stating it, the plaintiff should at least have snggested it in {'] the affidavit made by him for the purpose of op- posing the motion. That was not done, neither -does it appear that any objection was taken to the omission of the statement on the hearing of the mo- tion which resulted in the order. If it had then been made, proof on the subject could have been supplied -by th permission of the court, which would have .re- moved all uncertainty as to this fact in the case, und the plaintiff's failure to present the objection at that time precludes him from deriving nny advantage from 4t when first made upon the hearing of the appeal. It was also objected that the order should not {'] be made without requiring a stipulation from the indemnitors allowing the statements or admissions made by the sheriff to be given in evidence against CIVIL PROCEDURE REPORTS. -383 Hayes v. Davidson. them upon the trial. But the right to give such testi- mony cannot be an important one to the plaintiff ; for proof of the fact can be really given that the sheriff did seize the entire stock and fixtures contained in the -store .No. 28 West Twenty-third street, and the bonds given by the applicants, even though less in the -aggregate -than the value of the property, subjected them to liability for all the consequences of such seizure. And those facts, together with the proof .of the value of the property seized, will be all that can be required to make out the plaintiff's right to recov- er, in the first instance ; and it will be for the defend- ants themselves, to establish the fact, if that can fee done, that they were entitled to seize the property notwithstanding the preceding assignment of their debtor. The same evidence required to present the case { 8 ] against the sheriff, with the additional fact of the .execution and delivery of the bonds, will present it completely and effectually against the parties exe- cuting those bonds, and no important right or interest of the plaintiff will be in any respect jeopardized or changed by substituting those parties as defendants in the action in place of the sheriff. The fact that the sheriff also acted under three other executions in seizing and holding the property is a circumstance of no importance. .For as to all .the property which he took, the parties executing .the bonds rendered themselves jointly liable to the plaintiff. The order, for these-reasons was right and it should -be affirmed, with $10 costs and the disbursements. BRADY, J. I concur with DANIELS, J. I think his reasons are conclusive. . P. J. I do not concur in the conclusions of 384 CIVIL PROCEDURE REPORTS. Hiiyc-s v. Diividson. my brother DANIELS in this case. A complete and per- fect cause of action arose in favor of the plaintiff upon t lie first seizure of the stock of goods on the 4th of January, 1884, when the sheriff attached undtook pos- session of the stock of goods by virtue of the attach- ments and execution then in his hands. The plaintiff has a right to rely on that cause of action if he chooses. Subsequently, on other and different day a other attach- ments and executions came to his hands upon which he entered attachments and levies of the same stock then in his possession. AH the several creditors in whose behalf the several processes were issued after their respective levies gave several and separate bonds of indemnity to the sheriff under which he proceeded. They all now seek to be substituted as defendants in the action against the sheriff, and to have him dis- charged therefrom. Under such circumstances this is neither just nor equitable. Several of the defendants are not liable for the first seizure, nor do their bonds <>f indemnity extend to that. If the plaintiff prefers upon the trial of the action against the sheriff to rely wholly on the seizure made on ihe 4th of January, 1884, hn is entitled to do so, and for that cause the creditors who subsequently issued attachments and executions are not liable to plaintiff nor bound to indemnify the sheriff. Nor is the plaintiff under any obligation io accept as substituted defendants in his action parties v ho, to say the least, will have power to raise against him embarrassing and doubtful questions touching their liability for acts of the sheriff, done for the ex- clusive benefit of others before their processes were put in his hands. The provision of the Code for such substitution was only intended Io apply to clear [*] and plain cases of liability, or by indemnirors, for any and all the grounds of action upon which the plaintiff at the trial may elect to stand. t I think there are many embarrassing questions in CIVIL PROCEDURE REPORTS. 385 Hayes . Davidson. this case that may be sprung upon the trial against the plaintiff if the substitution be made. For instance, if the sheriff was not liable for tort in the original seizure, but made himself so by subsequent misconduct affecting the property taken, by which it was lost or injured in value prior to the coming in of the second or third batches of process, the plaintiff may be greatly embarrassed in attempting to hold the last set or indeed any of the indemnifors for that cause of action ; and so if he chooses to stand on trial on proof of the seizure and removal of the goods on the 4th of January it is difficult to see why a party who had nothing to do with that wrong would not be entitled to a non-suit. It is not easy to see why, if all the parties sought to be sub- stituted as defendants are in, it will not be necessary as against each of them to show either a joint or several wrongful act for which he is chargeable. The plaintiff may therefore be forced to establish a series of wrongs before he can make out a cause of action against all the parties, while against the sheriff he may stand upon a single one. To my mind the case presented on the motion is not one upon which the court, in the exercise [ I0 ] of sound discretion, ought to uphold the order of substitution. It cannot, nor indeed should it, compel a division of the action into several actions, because that is imposing the burden of several litiga- tions upon the plaintiff, where, in both fact and law, he has a single one against a single defendant, of which he cannot be deprived. I think the order should be reversed, and the mo- tion denied. VOL. VI. 25 386 CIVIL PROCEDURE REPORTS. Hurd v. Hannibal, tfcc. R. R. Co. HURD, APPELLANT o. THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, RESPONDENT. SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM, MAY, 1884. 1326 et seq. Appeal. Corporate guarantee of undertaking on. Form of undertaking so guaranteed. Justification. The statute (Laws of 1881, chap. 481), authorizing the acceptance of bonds and undertakings guaranteed by certain corporations, so far modifies the- provisions of the Code of Civil Procedure, requiring two sureties in an undertaking on appeal as to dispense with them when such u guarantee is given. An undertaking in the form required by the Code of Civil Procedure given and executed by th appellant and guaranteed by a corpora- tion organized or authorized to do business under the laws of this State and guarantee the fidelity of persons holding positions of public or private trust, is sufficient on an appeal from a judgment, to the court of appeals. Where an undertaking on appeal is guaranteed by a corporation au- thorized to guarantee such undertakings, the respondent should be permitted to examine the officers of the company as to its ability to enter into and make the guarantee. Where an act of the legislature (I^ncs of 1881, chap. 48G), entitled "an act to facilitate the giving of bonds required by law " applied to both bonds and undertakings, Held, that as bonds and'undcr- takings are to a great extent understood to be convertible terras, the title of the act was not materially deficient ;["J that if it hnd been it would be of no importance for the reason that the act is neither a private nor a local one. (Decided May SO, 1881.) Appeal from an order approving an undertaking given by the defendant on uri appeal to the court of appeals. The undertaking was executed by the defendant and the performance of its covenants and conditions TV1L' PROCEDURE REPORTS. 38? Kurd o. Hannibal, &c. R. R. Co. guaranteed by the Fidelity and Casualty Company of New York. . The plaintiff excepted to the sureties, and the de- fendant gave notice of Justification and upon the return day, the president of the Fidelity and Casualty Com- pany attended in court to justify, when the plaintiff's counsel objected to the form of the undertaking. The court overruled the objections and deciding that an examination of the guarantor's., officers was not neces- sary, approved the undertaking. Lyman B. Bunnell, for plaintiff-appellant. Joseph Kun-zman (Jflliliu Root, attorney), for de- fendant-respondent. Thomas 8. Moore (Moore, Low & Sandf or d, attor- neys), for The Fidelity & Casualty Co. Cited Ryan v. Cochran, 11 Abb. N. C. Ill ; Colgate v. Penn. R. R. Co., 11 Id. Ill ; Matter of Filor, 11 Id. 107. DANIELS, J. The undertaking is in the form pre- scribed by the Code of Civil Procedure on an appeal from a judgment to the court of appeals. It was given and executed by the defendant in its corporate capa- city, and added to or indorsed upon it was a guaranty, t)f the Fidelity and Casualty Company of New York by which it guaranteed the performance of the cove- nants and conditions of the within bond. This guar- antee was taken under the authority of chapter 48th t)f the Laws of 1-881, by which any surrogate, judge, sheriff, district attorney or any other officer having au- thority, or required to approve of the sufficiency of a bond or undertaking may in his discretion, accept a t)ond -and undertaking and approve the same whenever its conditions are guaranteed by a company duly or- ganized or authorized to do business under the laws Of this State and guarantee the fidelity of persons 388 CIVIL PROCEDURE REPORTS. Kurd v. Hannibal, &c. R. R. Co. holding positions of public or private trust and vesting such corporation with- full power to guarantee such bonds and undertakings. This language was clearly so broad as to include the undertaking given upon the appeal in this action ; and as the company was a cor- poiation having authority to guarantee the fidelity of persons holding positions of public or private trusr, it was by this act empowered to make the guaranty it did of this undertaking. The act has been objected to as not being suffi- ciently broad in its title to justify the enactment. It is entitled an "act to facilitate the giving of bonds required by law." But as bonds and undertakings are to a very great extent understood to be convertible terms, the title of the act was not materially deficient. But if it had been it would be of no importance for the reason that the act is neither a private nor a local law. The power and ability of the company to act in this capacity was made the subject of investigation by the general term of this department, and as it appeared to be incorporated under the general laws of the State and authorized to transact business by way of guaran- teeing the fidelity of persons holding positions of pub- lic or private trust-, this authority to guarantee bonds or undertakings sivbject to judicial approval was found to exist, and it was accepted as competent for that purpose. The act has necessarily so far modified the provis- ions of the Code of Civil Procedure, requiring two sureties in such an undertaking as to dispense with them when a guarantee of this description may be given. That was clearly its object as to all bonds and undertakings. It was to substitute the guarantee of the bond in place of the liability und obligation of the sureties otherwise required by law. The court refused to permit the plaintiff to exam- ine the officer of the company as to its liability to CIVIL PROCEDURE REPORTS. 389 .Estate of Singer. enter into and make the guaranty. This we think was erroneous. When the specific objection was overruled further proceedings should 'kave been taken to exam- ine the officers on behalf of the respondent, if he so desired, and thereupon the court should have approved or disapproved of the undertaking. The order should be modified accordingly, and as so modified affirmed, -without costs. J P...-J., concurred. ESTATE OF ISAAC M. SINGER, DECEASED. SURROGATE'S COURT, WESTC HESTER COUNTY, DECEM- BER, 1884. 2481 sub. 6. Accounting of executor, trustee and guardian. Wlien decrees made on, will nut be opened Power of surrogated court. Before the Code of Civil Procedure a surrogate had power to open a decree for an excusable default resulting injuriously to the default- ing party, for clerical errors, for frauds in procuring the decree and other like causes. The only additional power conferred by the Code ( 2481 sub. 6), is to grant a new trial or bearing for newly discovered evidence. ['] A surrogate's court had no power before the Code of Civil Procedure to open a decree made on an .accounting, and grant a rehearing for an error of law, and the power to do so has not been conferred upon it by that Code.[*j When an intelligent and competent person is appointed special guar- dian of a minor on the accounting of an executor, testamentary guardian or trustee, the decree, made binds the minor us jnuah as it would an adult.[ 6 ] 390 CIVIL. -PRO'JKDITRE REPORTS,. EstaWcf Singer. Story v. Dayton (22 Hun', 450);[ 9 J Tucker v. McDermott (2 Redf; 312);[ S J In reTilden (6 #: T. Civ. Pro. 15X [*) distinguished. (Decided December, 1884.) Motion that a decree made on the accounting or David Hawley as executor of the will of the deceased, and two decrees made on accountings by him as trustee and guardian under said will, be- opened, etc. David Hawley, the testamentary guardian trustee of Adam M. Singer, under the last will and testament of Isaac M. Siftger, deceased, upon his ward's attaining his majority, caused a citation to be issued, requiring him to attend a settlement of his accounts as such guardian, &c~ Pending this proceed- ing and before the filing of the account said Adam M. Singer made this application, praying that a decree made on the accounting of said Hawley, as executor, &c., of the will of the deceased, entered in 1877, and that two other decrees made on accountings by him as- trustee and guardian of the applicant, entered respec- tively in 1878 and 1881, might be opened, vacated, modified or set aside, so far as to- permit him to con- test the allowance of commissions made to :said execu- tor, as such, and as trustee and guardian, by suid sev* eral decrees, alleging that the same exceed the amounts allowable under the statutes, and that some portion thereof were illegal by reason of being based upon \\\* estimated value of certain shares of stock in the Singer Manufacturing Company, claimed to have been spt-HH- cally bequeathed ; and also, to permit him to ronteM. certain items of expenditure allowed for legal expenses, and legal arid other services, and also to contest th<>. direr! ion in said decrees contained as to said stock, and the distribution of the proceeds of certain realty. It appeared on the hearing of the motion that on, each accounting a special guardian, was appointed for the applicant, then a minor. CIVIL PROCEDURE REPORTS. 391 Estate <>f Singer. - . _ j C. E. Tracy, for the petitioner and motion. J*. N. Rang St, for the guardian, etc.. opposed. COFFIN, S. There can be no doubt that subdivis- ion 6 of section 2481 of the Code, is inapplicable to tliis case. The proceeding for the last of the series of accountings was commenced before chapter 18 went into effect, and ^3347, subd. 11,. does not make it apply to such a proceeding. Nevertheless, that section was l>artly based upon former decisions of the courts, and was extended, also, so as to embrace a broader field of jurisdiction. Before the Code, a surrogate had T] power to open decrees for an excusable default resulting injuriously to the defaulting party, for elerical error, for fraud in procuring the decree, and other like causes. The only additional power con- ferred is to grant a new trial or hearing "for newly discovered evidence." Hence, I regard it as wholly immaterial, in this case, whether subd. 6 is or is not applicable. This brings us at once to the question, such as h is, whether this court can grant a rehearing for an error in law. This case certainly presents no feal ures resem- bling fraud, error in placing or adding figures, pro- curing a signature to any important voucher by fraud- ulent representations by which a credit is obtained, presenting a forged voucher and the like. The f-icts in the memorandum of the case of [?] Story v. Dayton (22 Hun, 450) are not very fully stated. 'It would seem that one ground of com- plaint was the appointment of an improper person a clerk in the office of the administrator's attorney as the guardian ad I item for the minors. The case as reported discloses no particular errors of fact or mis- takes justifying the decision to the effect that the order, of th surrogate be rovers ed " unless the respondent' 392 CIVIL PROCEDURE REPORTS. Estate of Singer. will stipulate that the decree on final settlement may be amended in the particular specified in the opinion herein," none of \vhu-h are specified in so much of the opinion as is published'. Apparently, errors in fact are the subject of the allusion. Tucker v. McDermott (2 Redf. 312) has no ['] application, as it was not on a motion to open a decree. In re Til den (6 N. Y. Civ. Pro. 15), no spe- [ 4 ] cial guardian for the minor was appointed on the first accounting, which occurred in 1872, be- fore the passage of any act requiring the appointment of such on an accounting. But at that time it was proper, as a matter of practice, to do so, and was then the actual practice of this court, and it had the effect of concluding him (Dayton" 1 s Sur. Pr. 505-7, 3d ed. ; Kelletta. Rathbone, 4 Paige,, 102). This fact, alone, warranted the opening of the first decree, and any alteration of that necessarily affected and involved the correction of other and subsequent accountings where special guardians had been appointed. But, in that cas^, the question here presented does not seem to have been raised, discussed or considered. It is thus shown that the authorities cited by the learned counsel for the petitioner furnish but a feeble support to the proposition he urges. If there were any such errors committed in the decrees as are complained of, and as to. which I am not now in a position to determine, they were purely and simply errors of Jaw. The question as to the proper amount of commissions to be allowed is not, in many cases, easy of solution, :is is evidenced by many recent and conflicting decis- ions in various courts. Hence, the erroneous fixing of them in the decree or the refusal by the court to allow any at all (of which I have heard) cannot be diamnteriZfd as a fraud, a mistake, a clerical error or the like. It is simply an error in law, however ignor- CIVIL PROCEDURE REPORTS. 393 Estate of Singer. ant, corrupt or negligent the court may have been in the discharge of his duty, and the only remedy, if the court, on attention being called to it dum ferret opus^ fail to correct it, is by appeal. r ihe decree embodies the deliberate and solemn, even if reprehensible, judg- ment of the court. This court, before the Code, [ 5 ] possessed no power to open such a decree and grant a rehearing in such a case, and none has been conferred upon it since, as the phrase for " other sufficient cause," is to be construed as applying to causes ejusdem generis only. It will, I think, be conceded that questions relat- ing to the allowance of commissions on specific bequests have arisen mainly as matters of law concerning the nature of the bequest as being specific or otherwise. Their allowance or rejection is still a question of law. And whatever the adjudication may have been, it can only be remedied, if erroneous, by appeal, and not by a motion of this character. The authorities cited by the counsel for the ["] trustee abundantly establish the principle that where an intelligent and competent person is ap- pointed the special guardian for the minor, the decree binds him as much as it would an adult. IN T o allega- tion is made as to any want of intelligence or compe- tency of the several persons who were appointed and acted as such on the various accountings, nor is there any suggestion of fraudulent conduct ou their part. The other errors complained of belong to the i-ame category, no errors of fact being assigned, and must be disposed of accordingly. Whether errors were committed on any or all of the accountings, it is, there- fore, needless to inquire. In any event, the petitioner having been represented by special guardian on each occasion, and the time to appeal having expired. I can- not but regard .him as concluded. Motion denied. 394 CIVIL PROCEDU RE RE POJ ITSv Da Vivier v. Smith. DE VIVIER ET AL. v. SMITH. CITY COURT OF NEW YOKK, CHAMBERS, DECEMBER,,. 1884 .2464.. Supplementary proceedings. Appointment of receiver. A. Receiver of the property of ;i judgment debtor may be appointed?- in proceedings supplementary to execution either before or after the return of the execution, upon the examination of a third person indebted to or having property of the judgment debtor. (Decided December 17, 1884.) Application by .judgment creditor for the appoint- ment of a receiver of the property of his judgment debtor. The facts are stated in the opinion. Edward Barllett, for the motion. Quggenheimer <& Uniermeyer, opposed. McADAM, Ch. J. Frederick Hackman, a third per* son, having property belonging to the judgment debtor,, was examined under an order supplementary to the issuing and before the return of the execution herein. The plaintiff moves for the- appointment of a re- ceiver, and the third person objects that the applica- tion cannot be founded on the examination of a third person, particularly before the return of an execution unsatisfied. It was held under the old Code that a re- ceiver could not be appointed where supplementary proceedings were instituted before the return of the execution. (Darrow v. Lee, 16 Alb. Pr. 215). Mr. CWIL PROCEDURE REPORTS.- De Vivier v. Smith. Throop, in a note to his edition of the Code (see note preceding 2464), says : "The books are full of cases* where the validity of such appointments has been taculy, if not expressly recognized," and he refers to- Tillotson 0. Wolcott (48 N. T. 188), and West Side Bank v. Pugsley (47 Id. 368). He adds " that the prac- tice of appointing a receiver in proceedings taken be- fore as well as after the return of an execution, had become so inveterate that the commissioners were un- willing to propose its abrogation." In order to effectually preserve the right to appoint^ a receiver before, as well as after, the return of an ex- ecution, section 2464 provides that, ''At any time after making the order requiring the judgment debtor, or a*iy other person, to attend and be examined, the- judge . . . may make an order appointing a re- ceiver of the property of the judgment debtor," &c. The same section provides for notice to the judg- ment debtor and for cases in which such notice may be<- dispensed with. In the present instance the judgment debtor could not be found, and the judge dispensed with notice to him. Section 2441, in regard to supple- mentary proceedings against third persons, is in har- mony with 2464 (supra}, and clearly indicates that a. receiver may be appointed upon such an examination, either before or after the return of the execution. The fact that 2446 authorizes the judge to make an order permitting the third person to pay the sheriff" on account of the execution in his hands, money con- ceded to be due to the judgment debtor, and the ad- ditional fact that 2447 authorizes the judge to make- an order directing the third person to deliver over property in his possession to the sheriff, does not limit the power of the judge, for the section last re- ferred to provides that the money or property be delivered to the sheriff, "unless a receiver has been < appointed," &c. 39G CIVIL PROCEDURE REPORTS. Note on Appointment of Uecciver in Supplementary Proceedings. The fact of indebtedness to the judgment debtor is conceded by the third person, but the amount has not as yet been fully ascertained, so that no order for the payment over of a specific sum can be made. It follows, therefore, that the application for the appointment of a receiver is appropriate, and that the application therefor must be granted. NOTE ON APPOINTMENT OP RECEIVER IN SUPPLEMENTARY Pao- CEEDINGS. When and by whom appointed. Notice of application. Extending former receieersh ipn Filing order. Security. Removing receiver. Effect of appointment on proceedings. When and by whom appointed. The Code .of Civil Procedure ( 2464) provides that "at any time after making an order requiring the judgment debtor, or any other person to attend and be examined Or issuing a warrant" for the arrest of a judgment debtor about to leave the state or conceal himself, " the judge to whom the order or warrant is returnable may make an order, appointing a receiver of the property of the judgment debtor." Under this provision a receiver may be appointed at any time after the granting of an order (or warrant), for the examination either of the debtor or a. third person, and irrespective of whether the execution has been returned. De Vivicr v. Smith, supra. Under the old Code it was held that an application for the appoint- ment of a receiver in supplementary proceedings must be made to the judge who granted the order; no other judge out of court had the power. Ball v. Goodenough. 37 Iltw. Pr. 479 ; Hatch v. Weybnrn, 8 Id. 1013; Smith v. Johnson, 7 Id. 559. Now the appointment must be made ''by the judge to whom the order is returnable" (Code of Civil Procedure, 2404). As to whom order is returnable, see Ibid. 2434. The order must be a chambers order. Ball . Goodenougli, 37 How. Pr. 475). The appointment cannot be made after the proceedings have been discontinued by a failure to adjmru them. Wright v. Nostrand, 47 N. Y. Super. (1 5 J. & 8.) 441. Unless the proceedings are regularly adjourned, they are termin- ated and jurisdiction is lost. Ammidon v. Wolcott. 15 Abb. Pr. 814; Carter v. Clarke, 7 Robt. 490; Thomas v. Kircher, 15 Abb. Jf. a. 342.; Bennell r. McGuire, 58 liarb. 025. CIVIL PROCEDURE REPORTS. 397 Note on Appointment of Receiver in Supplementary Proceedings. Although it is unusual and a work of supererogation to appoint a receiver where no property has been disclosed, it has been held that the judgment debtor cannot object to the appointment of a receiver on that ground, as he cannot be prejudiced by the granting of sucli an application (Myres' Case, 2 Abb. Pr. 476; 4 Paige, 574; 6 Id. 29; 8 Li. 5G8), but the practice is not to appoint a receiver unless some property has been disclosed. Where the only property disclosed on the examination was exempt, Htld, that the application must be denied. Keiher v. Shipherd, 4 N. Y. Civ. Pro. 275. It is no objection to the appointment of a receiver that the debtor has no property other than an equity of redemption which he has always been willing to have sold. Bailey v. Lane, 15 A!>b. Pr. 373, note. Where the examination discloses choses in action or the existence of a relation, like a partnership, rendering probable that there may be asset?, the appointment may be made. Webb v. Overmanu, 6 Abb. Pi'. 92. Where the examination discloses only an estate .of tenancy by curtesy the receiver may be appointed. Beamish v. Hoyt, 2 Rob. 307. Or an equity of redemption in real property. Bailey . Lane, 15 Abb. Pr. 373 (n.) Where it appears doubtful whether a third person examined as debtor of the judgment debtor, or another person is indebted to the judgment debtor, a receiver should be appointed. Corning v. Tooker, 5 How. Pr. 16. In Bann v. Daly (24 Hun, 55G) it was held, that where, upon the examination of the debtor, it, appears that lie lias an estate in land as tenant by the curfcesy, and it is not shown that an execution has been issued and returned since he acquired it, the proper course is not to appoint a receiver; but the creditor should be required to issue an- other execution, and sell the estate thereunder. See also Finkcy v. Langdon, 13 N. Y. Weekly Dig. 384; In re Englchart, 1 Sheldon, (514. Notice of application. " At least two days' notice of the applica- tion for the older appointing a receiver, must be given personally to the judgment debtor, unless the judge is satisfied that he cannot, with reasonable diligence 1 , be found within the State, in which case, the order must recite that fact, and may dispense with notice or may direct notice to be given in any manner which the judge thinks proper. (Code of Civil Procedure, 24(50; Strolin v. Epstein, 6 N. Y. Civ. Pro. 30; Morgan v. Van Kohnstamm, 9 2}nli/, 355; Wrights. Nostrand, 47 JV. Y. Super. [15 J. tfcS.j 441.) But where the order to attend and be examined, or the warrant has been served upon the judgment debtor, a receiver may be appointed upon the return day SOS CIVIL PROCEDURE REPORTS. Note on Appointment of Receiver in Supplementary Proceedings. 'thereof or at the close of the examination, without farther notice to -him." Code of Civil Procedure, < 2465. Where upon the conclusion of an examination of a judgment 'debtor before a referee and upon filingthe testimony taken before tire 'referee, a' receiver of the judgment d-btor's property was appointed 'without notice, BM, that the order was irregular and must be set aside. Strohn v. Epstein, nvpra. To same effect, Todd n. Crooke-, 4 <'&in. Pr. 197; My rick v. Seldon, 36 Barb. 15. Where a receiver of the property of a judgment debtor has been appointed, the judge, instead of appointing a receiver, " must make an order extending the receivership to the special proceeding before -him." Code of Civil Procedure, 2466. Such an order .gives to the judgment creditor the sntno rights- ae if a receiver was then appointed upon his application; including the 'CIVIL PROCEDURE REPORTS. *393 Note on Appointment of Receiver in Supplementary Proceedings. right to apply to the court to control, direct or remove the receiver, or to sul>ordin. Nosfrrand, 47 N. T. Super. (15 J, & S.) 441 ; rev'cl 94 N. Y. 31 ; Ball t>. Goodenough, 37 Zfotr. TV. 497; - 'Rockwell v. Merwin, 45 Si. Y. 166; Scroggs 'v. Palmer, 66 Barb. 505; 'People ex rd. Kingslund v. Palmer, 52 N. Y. 83; McKenna v. Ed- 'tnonston, 91 Id. 231; Whipple v. Christian, 80 Id. 523; Wright v. Nostrancl, 94 Id. 32-; Fredericks -v. Niver, 28 Hun, 417. A certified copy of the order should also be filed with the clerk of "every other county wherein any real property is situated, and if he resides without the county where the origin :il % order is filed, with the clerk of the county where he resides. Code of Civil Procedure, % 2468. A county-clerk with whom the order or a certified copy thereof is 'filed must immediately note upon it the time of tiling and as soon as practicable, must record it in a book to be kept by him indexed to the names of judgment debtors. Id. 2470. Security. Before entering upon his duties the receiver must ex- -ecute and tile with the clerk of tire court where the proceedings are pending (Code of Civil Procedure, 816), a bond to the people with 'tit least two sufficient sureties in a petaalty.fi xed- by the judge making the appointment; condition for the faithful discharge of his duties as receiver. CWe of Civil Procedure, 715. An order appointing a receiver is not void because it directed that a bond with one surery b given; it may be amended so as to require 'two sureties without prejudice to proceedings already taken. Holmes -. McDowell. 15 nun. 585; affd, 76 .V. Y. 596. The filing of the receiver's bond is necessary to -the completion of 400 CIVIL PROCEDURE HE PORTS. Note on Appointment of Receiver in Supplementary Proceedings. the uppointment. Banks v. Potter, 2-1 How. Pr. 469; Conger v. Sands, 19 LI. 8; Vobriiees v. Seymour, 26 Barb. 569. 582; Lottinier v. Lord, 4 E. D. Smith, 183; West v. Eraser, 5 SanJf. 653; Wilson e. Allen, 6 Barb. 543. But when the receiver has given ample security upon his first appointment, there can be no occasion for requiring him to give security over again in every proceeding which may bo afterwards instituted. Banks v. Potter, supra. But see Conger t>. S.i nds, 19 Id. . The Court or judge making the order by which the receiver was appointed or his successor in office may at any time direct the re- ceiver to give a new bond, with new sureties, with the like condi- tion. Id. It is discretionary with the court whether to require a receiver to give new security when one of his sureties has become insolvent. Hauleubeck v. llencock, 47 N. T. Super. C't. 533. The bond must be joint and several; it must be accompanied with the affidavit of each surety, subjoined thereto, to the effect, that he is a resident of, and a householder or freeholder within the State, and is worth the penalty of the bond, or twice the sum specified in the undertaking, over all the debts and liabilities, which he owes or has, incurred, and exclusive of property exempt by law,, from levy and s;de under an execution (Code of Cicil Procedure, 812); it must be acknowledged or proved and certified in like manner as a deed to be recorded (hi. 810), and must be approved by the judge before whom the proceeding is taken, and such approval must be indorsed upon the bond (Id. 812). The receiver need not join in the bond (Id. 811.) Tn Morgan v. Potter (17 Ilun. 403), it was held that none but the judgment debtor could take advantage of the fact that the bond lacked a sen!. Si-e also Underwood v. SufclifT, 10 //, 453. Removing' receiver. The court, or the judge who made the order appointing tin. 1 receiver, or his successor in office, may at any time remove the receiver (Code of Civil Procedure, 715); but before the court can entertain a motion for the removal of a receiver due notice in writing must be given of the motion, t-clling forth the grounds upon which the removal is sought. High on Iteceivere, 824; Campbell e. Spratt, 5 -ZV. Y. Weekly Dig. 25; Brunsr. Stewart Manf'g Co.. 31 Ilun, 11)5. An order removing a receiver on the ground that his appointment was collusive is discretionary and not appealable to the court of ap- peals. Connolly . Kretz, 19 N. F. 620. A motion to set aside an order appointing a receiver in place of one resigned is properly made to the court. Lippincott v. Westry, 6 N. F. Cic. Pro. 74. CIV r IL PROCEDURE REPORTS. 401 McBlane v. Speelman. Effect of appointment on proceedings. The appointment 01 u receiver after the examination has continued for a time does not per se operate as a discontinuance of the proceedings. People ex rel. Fitch o. Mead, 29 How. Pr. 3GO. The judge does not by the ap- pointment of a receiver lose jurisdiction of the judgment debtor nor the authority to punish a contempt on the part of sue!) debtor in re- fusing to answer on further examination (Id.); and where the debtor fails to appear, on a d;iy he is ordered to do so, a receiver may at that time be appointed and the debtor also punished for contempt. Siekels c. Hanley, 4 AVb. N. C. 281. Where an order is issued restraining a third person from disposing of property in his possession belonging to the judgment debtor * until further order in the premises," an order appointing a receiver is such further order; it is the final order in the proceedings, and any restraint thereafter desired should be inserted in that order. Court of Appeals, April 1878, People ex rel. Morris v. Randall, 73 N. T. 416. McBLANE AS ASSIGNEE, ETC., v. SPEELMAN. SUPREME COURT, YATES COUNTY CIRCUIT, JUNE, 1884. 635 el .9^., 682. Attachntent. Questioning validity in collateral action. Assignment for benefit of creditors. When complete. The provisions of section two of the general assignment act of 1877, requiring an assignment for the benefit of creditors to be recorded is mandatory, and title to the assigned property docs not pass to the assignee until it is recorded. The sufficiency of the affidavits on which an attachment is issued is not a juried ictional one to be raised to a collateral action. Renniec. Bean (24 Hun, 120); Smith v. Boyd (18 JH. T. Weekly Dig. 4(51). followed. {Decided June, 1884.) Motion to dismiss the complaint in an action to re- cover for personal property seized under an attach- ment, VOL. VI. 26 402 CIVIL PROCEDURE REPORTS. Mclilanc* v. Speelman. Ths plaintiff, as assignee for the benefit of creditors brought this action to recover the value of certain per- sonal property seized under an attachment issued against the property .of his assignor intermediate the execution and acknowledgment of the assignment, At the close of the case the defendant made this motion. R. II. Steam, for defendant and motion. Chapter 348, Laws of 1860, and chapter 466, of Laws 1877, are mandatory, regarding the requisites of an as- signment, and no title to the assigned property passes -to the assignee until the initial or essential require- ments of the statute are complied with. One of these initial and essential requirements is the recording. Rennie v. Betin, 24 Run. 1:23; Smith v. Boyd, 18 ^V 7 . Y. Weekly Difj. 401 ; Button . L;>rentz, 45 N. Y. 510.; Hardman v. Bowen, 39 Id. 196 ; distinguished 82 Id. 496; Jarland v. Rathbone, 39 Id. 369; Roy er Wheel Company v. Fielding, 31 Hun, 274 ; Loweryw. Clinton, 19 N. Y.Weekly Dig. 191; Fairchild v. Gwynne, 16 Abb. Pr. 23 : Cook v. K^lly, 14 Id. 466 ; Keilly on Assign- ments, 18-24, 118-121, 132 } Burrillon Assignment, 20, 21, 40. It has been held that section 682, of the Code of Civil Procedure does not limit persons who have ac quired subsequent liens upon or interest in attached property, to move to set aside attachment, but includes one who claims under a voluntary transfer. Trow'e Printing Co. v. Hart, 85 J\ T . Y. 500. A receiver of an insolvent national bank appointed after the issuing of an attachment against it, may, under the Code of Civil Procedure section 682, move to vacate an attachment without being a party to the action. National Shoe & Leather Bank v. Mechanics' National Bank, 89 N. Y. 440 ; Jacobs v. Hogan, 85 Id. 243. Even when there was an irregularity in the PROCEDURE REPORTS. JfcBUme c. Spcelman. judgment upon which the motion to vacate the Httachnrent was made, the court held the judgment sufficient to confer jurisdiction until set aside. Stu- -ben Co. Bank v. Alberger, 78 N. Y. 252. After the proceeds had been applied, plaintiff and the assignors are too late to'move to vacate or modify (Code Civil Pro. 682). The reading of this section would seem to '"be all sufficient, but even this section has been con- strued in cases other than those already 'cited. Vide, Woodmansee v. Rogers, 82 N. Y. 88 ; Parsons v, Spragne, 3 A 7 . Y: Civ. Pro. 390 ; Market Nat. Bank v, Pacific N-at. Bank, 30 Hun, '50. The attachment stands, whether good or bad origin- ally, and cannot now be disturbed in that proceeding or in this. Denman v, McGkiire, 17 JV. Y. Weekly -Dig. 504, and cases cited ; Stevens w. Middleton, 14 Id. 126. An attachm-ent may be amended and in this way existing defects cured. Kibbe v. Wetrnore, 31 Hun, -424. The judgmemt may be proven to show that plaintiff's -claim, in the attachment proceeding, is a valid and existing claim. Rinchey-y. Stryker, 28 N. Y. 45 ; Coffin v. Stitt, 19 N. Y. Weekly Dig. 22, "23 ; Cribbinsw. Freer, 93 N. Y. 93 ; Shoemaker v. Spencer, 54 Id. 366 ; Carr ?). Van Hoesen, 26 Hun, 316. Should it be held that .plaintiff can raise that question collaterally in this ac- tion, then it is urged that the county judge had juris- diction to issued the warrant. Colliding c. Dutcher, 5 How. Pr. 386 ; Kissock v. Grant, 34 Barb. 144. The granting of the attachment is greatly a matter of discretion, and if granted upon any facts at all it should not be disturbed. Ruppert v. Haag, 1 J\ r . Y. C/c. Pro. 411 ; Allen v. Meyer, 73 N. Y. 1 ; Van Alstine v. rrwine, 11 Id. 340 ; Lamkin . Douglas, 27 -Him, 517; Crandall v. McKay, 6 Id. 483. The answer in this case sets up the attachment, and acts done by virtue of it as a justification, and the 404 CIVIL PROCEDURE REPORTS. MeBlanc v. Speeimun. defense is a good one. Day v. Bench, 87 N. Y. 57; Jacob v. Hogan, 85 Id. 243 ; Kinchey v. Stryker, 28 Id. 45 ; Hall v. Stryker, 27 Id. 596 ; Hull v. Hunger, 5 Lans. 102 ; Miller v. Adams, 7 Id. 134 ; Brown v. King, 11 Han, 250; aff'cl, 75 N. 7.009; Savacool v. Bough ton, 5 Wend. 170; McGuire v. Herrick, 5 Id. 240; Peo- ple v. Warren, 5 Hill, 440. /. E. Bean, for plaintiff, opposed. ANGLE, J. By section 1 of the assignment act of I860 (Laws of I860, p. 594), it is enacted that assign- ments shall be in writing, shall be acknowledged and the certificate of acknowledgment indorsed thereon before delivery to the assignee. Section 2 providing for the inventories, or schedules, and their verification ; section 3 for the giving of a bond by the assignee ; sec- lion 4 for an accounting; sections for compelling an assignee to perform decrees and orders; and section 6, requiring an assignment to be recorded, appear to hare been regarded as directory only. Chapter 466, Laws of 1877, p. 543, repeals 28 of the -above, act of 1860, and makes a more detailed system. It is entitled k ' An act in relation to the assign- ments of the estate of debtors for the benefit of credit- ors." Section 1 simply provides that the act may be cited as the general assignment act of 1877. Section 2 enacts that assignments shall be in writing, shall be duly acknowledged, and shall be recorded in the county clerk's office of the county where the debtor resided or carried on business at the date of the assignment. Another sentence in the same section provides that when real property is assigned which is situate in another connty than the one in which the original assignment is required to be recorded, a certified copy of such assignment shall be tiled and recorded in the county where such property is situated. CIVIL PROCEDURE REPORTS. 405 McBlane v. Spcclmaa. The concluding sentence of: the section declares that the assent of the assignee, subscribed and ac- knowledged by him, shall appear in writing, em- braced in, or at the end of, or indorsed upon the as- signment, before the same is recorded, and if separate from the assignment, shall be duly acknowledged. The attachment under which the defendant levied upon the property, was issued intermediate to the writing and acknowledgment of the assignment, and the question is presented whether the recording of the assignment is requisite to give title to the assignee in a case where he has taken actual possession before it is recorded ? All the provisions in section 2 are cer- tainly not prerequisites to the assignment becoming effective, especially the one requiring a certified copy to be filed and recorded in another county when there is real estate situate in such county. But for this statute the assignment would have been sufficient without recording or acknowledgment by the assignor. One author appears to have been of the opinion that under the act of 1860, the title passed to the assignee from the date of the recording (Keilly on Assign ment, 118-121). The opinion of the general term in Rennie v. Bean, 24 Hun, 126, is directly to the point that the provision in regard to recording is manda- tory, and compliance with it is requisite to a valid assignment. And such, too, seems to have been the opinion of the New York common pleas in Smith v. Boyd, 18 TV 7 ". Y. Weekly Dig. 461, 462, and my de- cision in the present case must conform to such opinions. The counsel for the plaintiff, however, in- sists that the affidavit on which the warrant or attach- ment was issued was not sufficient to give jurisdiction to the officer who issued it. The affidavit is defective, and would not for a moment stand against a motion made at the proper time to set the attachment aside ; .but the sufficiency of the affidavit on which the attach- 406 CIVIL PROCEDURE REPORTS. L i lleis v. lihodc. ment is issued is not a jurisdictional question to be raised in a collateral action (Matter of Griswold, !& Barb. 412 ; .Oarr v. Van Hoesen, 26 Hun, 316). I am,, therefore, unable to concur with plaintiff's counsel as to his right here to raise the question on the affidavit. Defendant must have judgment in his favor. REIS ET AL., RESPONDENTS, . RHODE ET AL.,. APPELLANTS. SUPREME COURT, FOURTH DEPARTMENT, GENERAL TERM, J^JNE, 1884. ; 603 r et &eq., 1948, et seq.. Injunction. Power of court to grant, restraining interference with acting ,, trustees of religious, corporation ly_ rival claimants of iht office. When granted. Determination of titles, of da'Imants to office of trustees of rcliyioua corporations. Primafaeie evi- dence of election. The title cf jrival claiuiaats to tlie office of .trustee of a religious cor- poration cannot be determined ia an equitable actiou brought by one claimant or set of claimants against, another claimant or set of claimants ;[*] the remedy is by an action brought by tUc attorn*- y . general in the name of the people.(*] The supreme oourt has jurisdiction to- restrain those claiming to be the trustees of a religious corporation out of possession, in an action brought by yival claimants to the office in possession, from interfering with the property, records and seals of tlie corporation in the possession of acting trustees, until the claimants out of pos- session establish their title to the trusteeship in an action brought for t'-nt purpose. [ ia ] A certiticate of the eleetioa of trustees of a religious corporation ia- not jirimn facie evidence of their election unless it is signed by both of the officers who presided at the election. ['] Where persona claiming to have been elected and acting, as trustees; CIVIL PROCEDURE REPORTS. 407 Reis v. Rhode. of a religious corporation :iro recognized as sucli by the religious organization and by a majority of those in office at the time of the election, rival claimants to the office, not having statutory evi- dtnce of their election, should be enjoined from interfering with them until- the determination of their legal rights in the proper fo!-urn.[ 2 ; 3 j People v. Alattier (2 Abb. JV. 8. 239) ;[ 5 ] People v. Conkling (5 //, 45^)-,L 5 J Mickles v. Rochester City Bank (11 Paige, 118);[ 8 j Tap- pan v. Gray (3 Edu;. Hli. 452);[ 7 J Mayor v. Conover (5 Abb. Pr. 1T1);[ 7 J M-ottB. Conaally (50 Barb. 51G);[ 7 ] Coulter . Murray (15 Abb. N. 8 12!));['J Morris v. Whelan (11 All. N. C. 64; S. C., G4 How. Pr. 109);( 7 j Palmer v. Folcy (14 How. Pr. 308) ;[ 7 ] distin- guished. Johnson v. Jones (23 N. J. Eq. 21G);L 8 ] Featherstone . Cook (/:. 11. 10 Eq. 298) ;[ 9 ] Lutheran Ev. Ch. v. Gristgan (34 Witc. 328>;[*-| Evving v. Thompson (43 Pa. St. 372);[ 1(> J followed. {Decided Octvber, 1884.). Appeal from order Onondaga special term denying morion to vacate injunction which restrained the de- fendants until the further order of the court from in any way interfering with the plaintiffs in the use, enjoyment and possession of the chinch edifice or interfering- with the individual plaintiff in acting as trustees, and also restraining defendants from acting as trustees. This action was brought by Herman Reis, Jr., and others claiming to be trustees of the Evangelical Lutheran Church of St. John, to obtain an injunction restraining the defendants, who also claim to be trus- tees of said church, from interfering with their posses- sion and use- of the church property, and from acting as trustees. The church was made a party plaintiff. Further facts are stated in the opinion. Goodelle & Notingham, for defendants-appellants. Lewis Marshall, for plaintiffs respondents. 408 CIVIL PROCEDURE REPORTS." lie-id v. lihodc. MERWIX, J. The number of the ti'ustees of, the cor- poration plaintiff was seven. Prior to December 18, 1883, the offices of four of them had been judicially declared vacant. The office of one more expired Jan- uary 1, 1884. For the purposes of tilling these va- cancies existing and to exist, an election was in prop- er form called for December, 18, 1883. Two elders were chosen as presiding officers, and they under the statute were the persons to certify as to the result of the election. The defendants claim they were elected, and one of the presiding officers so certifies. The plaintiffs, Reis, Korb, Wigand and Schwartz, claim that they and one Oswald were elected, and one of the presiding officers. so certifies. Under the statute* both presiding officers must join in the certificate in order to furnish to the party the pi'ima facie evidence of election that the statute provides for. So that in the present case neither party has the statutory evidence of election. The defendants base their claim upon the fact that they were orally declared elected. Still the force of such declaration, if there was one, depends upon the surrounding circumstances, about which there is a dis- pute, and it is not what the statute makes prima facie evidence. Both sides concede that the question as to who in fact were elected cannot be tried in this action. That being so, will this court by injunction control the possession ? Of the three in office at the date of the election one was the plaintiff Reis, whose term expired on Jan- uary 1, 1884, and who claims to have been re-elected and who would hold over in case there was no elec- tion. Of the other two, one sides with the plaintiff, mid the other with the defendant. The pastor of the *Luws of 1813, chap. 60, 5 3,6. CIVIL PROCEDURE REPORTS. 400 * P. - - _- _ _ __ . _ ^-_ t _ _ _ ^ . _. _ __ r Reis v. Rhode. society, the vestrymen, and one of two elders recog- nize the plaintiff its properly elected. So that it is to be assumed that the religious organization sides with the phi in tiffs. The question then would be whether, in the absence of the statutory evidence of elec- [ a ] tion, that party \v,hich is recognized by the relig- ious organization and by the majority of those in office at the time of the election should not also be re- cognized by the courts until the determination of the legal right in the proper forum. Were the election entirely invalid, or had there been no elecrion at all, the control by the trustees then in office would have been substantially as the plain) iffs now desire it to be. The main object of a religious corporation is the religious culture of the so- ciety connected with it ; and that will be better sub- served by harmony between the religious and temporal organization. This seems to be .a case calling for equitable inter- ference (2 High on Injunction^ 315 ; Kerr v. Trego, 47 Pa. St. 292-296; Lutheran Ev. Ch. v. Gristgan, 34 Wise. 328, 336) ; not on the ground, as stated in the in- junction order, that the individual plaintiffs were [ 3 ] duly elected, but on the ground that they were recognized by the authorities then existing tem- poral and spiritual and should not be interfered with by those not having statutory evidence of election, and not having their right established at law. As was said in Kerr v. Trego, the confusion that would be caused by two opposite parties pretending to act as the society should be stayed. It follows that the order appealed from should be affirmed. FOLLETT, J. [Concurring.] The title of rival claimants to the office of trustee of a religious corpor- ation cannot be determined in an equitable action 410 CIVIL PROCEDURE REPORTS) Reis v. Rhode. [*] brought by one claimant or set of claimants against another claimant or set of claimants. The remedy is by an action brought by the attorney general in the name of the people (Code Cio. Pro.: 1948-1056,. 1984; Hart t v. Harvey, 32 Barb. -55 ; The North Baptist Church v. Parker, 80 Id. 171). Such is* the rule in respect to all contested corporate elections except as it is otherwise provided by statute (People- o t A. &.S. R. B. Co. ,.-67 2T. T. 101, 171, 172.) This action was not brought to determine the title* o>f the rival claimants to the trusteeships, .but to restrain, the defendants who are out of possession from forcibly- divesiing the plaintiffs of their possession of the prop- erty and records of the corporation. No case has been, cited in which the courts of this State have determined whether an injunction may be issued for this purpose. People v. Mattier (2..Abb. N. 280), arid People v* [*] Conkling (5 Ilun, 452), relied upon by the defend- ants, hold that trustees de facto of corporations will not be restrained from continuing to act as trustees during the pendency of actions to try their title to the trusteeships. People v. Mather arose oat of a contest for the control of the New York State Inebriate Asylum, and People v. Conkling arose out of a contest over the control of a savings bank. Mickles v. Rochester [] City Bank (11 PaiQe, 118), holds that acting trustee* of a manufacturing corporation will not be re- strained from acting because the validity of their elec- tion is questioned in a suit by a stockholder to wind up the corporation, especially when it is not alleged that the. trustees are irresponsible, or that they are wasting the property of the corporation. The rule that acting trustees will not be restrained from continuing to act at the suit of rival claimants out of possession, affords no support to the defendants' contention that the court is without power to restrain claimants out of possession from interfering with the GTVIL PROCEDURE . REPORTS. 41 V Reis v. Rhode. property of the corporation in the possession of acting- claimants. Tappan v. Gray, 3 Edw. C7l. 452 ; rev'd ^ ['] Paige, 507 ; aflTcl 7 Hill, 259 ; Mayor -c. C^uover, . 5 Abb. Pr. 171; Mott v. Connally, 50 Barb. 516;:, Coulter -o. Murray, 15 Abb. N. S. 129 ; Morris v. Whe- lan, 11 Abb. N. C. 64 ; S. C.,. 64 #bzo. Pr. 109 ; and Pal- mer v. Foley, 44 77oio. Pr. 308; .affd, 36 2V. T. 5^er. (4 /. & ) 14 ; S. C., 45 How. Pr. 110, all arose out of. eontest, for municipal offices, and, with. the exception, of Palmer v. Foley, all hold that claimants of munici- pal offices will not, in suits brought by rival claimants, . be enjoined from acting. These cases have little bear- ing upon the question now presented. The policy of this State has been not to permit cit- izens to control the actions of public officers by suits brought in their own name or interest, .except pursu- ant to enabling statutes. Religious corporations are in no sense governmental,, and cannot be, under our constitution. . Such corporations consist of their mem- bers who own and y through their trustees, control the - property (Robertson ?). Bullions, 11 JF. Y. 243; Gram ; Prussia, &c. Society, 36 Id. 161). The chief distinction, between such corporations and business corporations is that there are no stock- - holders, and that they are organized not for profit but for the improvement of society. They are subject to the control of their members like private corporations. . In New Jersey, where it is held, as in this State, . that a court of equity is without jurisdiction to ["] determine the rights of rival claimants to offices in corporations, it was said (Johnson v. Jones, 23, A r . J. Eq. 210, 226), " If the question of the legality of an election, or whether a certain person holds such an office, arises incidentally in the course of a suit of which equity has jurisdiction, that court will inquire into and decide it as it would any other question of. 412 CIVIL PROCEDURE REPORTS. llcis T. Rhode. law or fact that arises in the cause. But (he decision is only for the purpose of the suit ; it does not settle the right of the office or vacate it if the party is iu actual possession/' The case last cited was brought by a railroad cor- poration and several of its directors to restrain persons claiming to be directors from interfering with the property of the corporation, in which an injunction was grunted and sustained. In Featherstone v. Cooke (L. H. 16 Eq. 298), it was held that the existence of disputes between mem- ["] bers of the governing body of a company, prevent- ing irs affairs from being carried on properly, is a sufficient ground for an injunction restraining directors out of possession from interfering with the property of the corporation in the possession of acting directors. In Lutheran Evangelical Church v. Gristgan (34 Wise. 328), this question is fully discussed, and it [ lo ] is held that an action in equity to restrain the actions of claimants to trusteeships whose title to office is contested may be maintained. In Ewing v. Thompson (43 Pa. SI. 372, 379), an "] injunction restraining a claimant of the office of sheriff who was out of possession, from interfering with a claimant of the office, who was in possession, was granted and sustained, pending the determination of an action at law to determine who was legally elect- ed. In Kerr v. Trego (47 Pa. SL 292), the doctrine of the last case was again asserted. It was said, "If a private partnership or corporation were to fall into a similar confusion, affecting all its members and all its creditors, we can think of no better remedy than this (an injunction) for staying the confusion that would be caused by two opposite parties pretending to act as the society. It is the very remedy usually adopted when churches divide into parties, and we applied it in three such cases in ihe last year. Therein we de- CIVIL PROCEDURE REPORTS. 413 ^ , ^ Reis v. Rhode. cided directly on rights of property, because that became the aim of dispute. Here we must decide on the right to public functions, because that is here for the purpose of the dispute. The main question in all such cases is regularity of organization, and the right to functions and property is a mere consequence of this. May one of the conflicting bodies or the mem- bers of it maintain this action (an equitable one for an injunction) against the other? We think they may. This could not be doubted in relation to private cor- porations and partnerships. But it is argued that in relation to public corporations the attorney general alone can file such a bill. We do not think so. It is right for those to whom public functions are intrusted, to see that they are not usurped by others. Either of these bodies has the right to demand of the courts that it and the interests of the public alleged to be committed to it shall be protected against the usurpa- tion of others" (47 Pa. 200). The Pennsylvania cases go further than the cases in this State in asserting the jurisdiction of a courc of equity, and much further than is necessary to sustain the jurisdiction of this court over this case. The case last cited distinctly asserts the jurisdiction of a court of equity to control the action of contend- ing trustees of churches and private corporations. A legal action in a court of law is the appropriate mode of determining the right of possession or title of rival claimants to real property ; but when a claim- ant out of possession threatens waste, or an irreparable injury, a claimant in possession may maintain an ac- tion to restrain, and in such and like cases the right of possession or title may be determined in so far as it may be necessary to determine the action. If this court has not jurisdiction of such an action with the power of restraint, the seal, records, tempor- alities and franchises of such corporations are exposed 114 tTIVIL PROCEDURE RETORTS. Feely v. Manhattan R. Co. 'To the hazards incident to frequent and perhaps violent fchanges in possession ; the control finally resting with the claimants possessing the most temerity, physical force and pertinacity, 'and 'thus exposing to destruc- tion, by the fends of contending claimants, the rights f>f individual corporators and every interest which the forporarion was organised to promote, besides engen- dering a multiplicity of suifs. We think this court has jurisdiction to restrain the claimants of trusteeships out of possession (in ["] an action brought by a religious- corporation and the trustees in possession) from interfering with 1 he property, records and seal of the corporation in the possession of acting trustees until the claimants out of possession establish their title to the trusteeship in an action brought for that purpose. To this ex'tefit the injunction in this case Should be sustained. HARDIN, P. J., concurred. FEELY, RESPONDENT, v. THE MANHATTAN RAIL- 'WAY COMPANY, IMPLEADED, ETC., APPELLANTS. SUPERIOR COURT OF THE CITY OF NEW YORK, GEN- ERAL TERM, DECEMBER, 1884. 531. Bin offfirtimlnTS.ltittance of case in which ordered. Where, in nn action against an elevated ntilroad company for damages to real property of the plaintiff by the construction, maintenance 'and operation f>f the roar], the answer alleged a? a defense, "that the plaintiff is barred by his own negligence, acquiescence and the 'apse of time from maintaining this action," //. Manhattan R. Co. Appeal from order requiring defendant to serve i>ill of particulars. Tins action was -brought against the Manhattan Hail way Company as lessee and the .Metropolitan Ele- vated Railway Company as owner of the Second Ave- ime Elevated Railroad in the city of New York, by one owning real property fronting upon Division street in ' said city, for damages to such property, and its easements, by the defendant/ s construction, maintain- ance and operation of their elevated railway through said street. The answer of the Manhattan Railway Company contained thefollowing defense, with others: "And for a tenth defense this defendant -alleges : that til is plaintiff is barred by his own negligence, acquies- cence and the lapse of time, from maintaining this action." The plaintiff moved for a bill of particulars of this defense en an affidavit, the material part of which was as follows : "I know o'f no acts or omissions whereby 1 have manifested any acquiescence in or been guilty of- any negligence in regard to the construction -and operation of the defendant's railway in Division street, or whereby I am barred from maintaining this action.; mid I am advised by my said counsel and I verily believe that I shall be greatly embarrassed and im- peded upon the trial of this action unless I am fully informed of the auts and omissions referred to in the allegations in the tenth defense in the answer of said defendant as barring me from maintaining this action by my own negligence, acquiescence and the lapse of time." A bill of particulars was ordered by Judge TRUAX, and the defendant appealed. William A. Duer, for defendant-appellant. The affidavit is insufficient. Orvis v. Dana, 1 Abb. N r --C.268. This is a fishing expedition. Higginbotham v. 41G CIVIL PftOCKDUIlE KK POUTS. Cornwell v. Diekcl. Green, 25 IJuti, 210 ; Gee v. Chase Manufacturing Co., 12 Id. 630; Work v. Fair, 5 720M. 694. A general aver- ment of negligence is sufficient. OldhVld v. N. Y. 0. & H. II. R. Co., 14 N. Y. 310; Knowlton v. Western K. 11. Co., 15 Id. 444. Roger Foster, for the plaintiff-respondent, Cited : Dwiglit o. Germania Life Ins. Co., 84 JY. Y. 473 ; Til- ton o. Beecher, .00 Id. 176 ; People ex rel. Swinburne v. Nolan, N. Y. Daily Register, July 7, 1882; WilmoUr v. Pravion, 13 Fed. R. 2, 386. PKU CURIAM (SEDGWICK, Ch. J., VAN" VORST and FREEDMAN, JJ.) Order affirmed with costs. CORNWELL, RESPOXDEXT, v. DICKEL AND ANOTHER, APPELLANTS. N. Y. COURT OF COMMON PLEAS, GENERAL TERM, JANUARY, 1885. District court in the city of New York. Right of party to le heard btf counsel on subminaiun of case. While :t justice may in his discretion limit the time of a party's oral argument on the conclusion of a trial in n dis'rict court of the city of New York, he cannot deprive him of that right altogether. (Decided January^ 1885.) Appeal from judgment rendered by Justice JOHN HENRY MCCARTHY in Seventh district court. Upon the trial there was a disputed question of fact. At the conclusion of the testimony defendant's coun- sel asked permission to be heard upon the facts and the law. The justice declined to hear any argument. CIVIL PROCEDURE REPORTS. 417 CorriTvell v. Dickcl. Defendant's counsel then asked permission to submit a written argument. This request was also denied, and judgment given for the plaintiff. An exception was taken to each of the rulings ; and the defendants appealed. Roger Foster, for defendants-appellants. The defendants, had the constitutional right to be heard by counsel (Constitution of the State of Neio York, Art. I. 6 ; Rex v. Chancellor, I Sir. 557 ; Bor- den v. State, 11 ArJc. 519, 569 ; Boswell's Lessees. Otis, 9 How. [17. S.] 336). This right was denied them. Chapman v. McCor- mick, 86 N. Y. 479 ; People ex rel. Cooper v. Nichols, 79 Id. 582 ; Article in N. Y. Daily Register, Dec. 15, 1884. P. Q. EcJterson, for plaintiff-respondent. It is the invariable practice, in district courts not to allow counsel to sum up, except in jury trials. DALY, Cli. J. [Orally.] Although a justice may in his discretion limit the time of a party's oral argu- ment he cannot deprive him of that right altogether.* Judgment reserved, and a new trial ordered. Costs to abide the event. LARREMORE and VAN HOKSEN, JJ., concurred. * Sue case cited by counsel for appellant, and Graham'* Practice (3 Ed.) pp. 280, 290 ; Ehvell . Chamberlain, 81 2f. Y. 611 ; Hoxie . Green, a? How. /V. 97 ; Murray v. N. Y. Ins. Co., 9 Abb. N. C. 309; sustaining this view of the subject. Contra, People o. Cook, 8 2f. Y* 67 (77) ; D Trial Practice, 233. VOL. VI. 27 418 CIVIL PROCEDURE REPORTS. Little v. Lynch. LITTLE, AS RECEIVER, ETC., RESPONDENT, V. LYNCH, APPELLANT. SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM, JANUARY, 1885, 1019.. Referee's report. What amounts to a sufficient delivery thereof to prevent reference being ended and entitle the referee to his fee. A referee who, having his report ready for delivery, notified the attorney for the successful party within the sixty days allowed for its delivery, of that fact, and offered to deliver it upon payment 6f his fees, has thereby made- a sufficient delivery thereof within the meaning of section 1010 of the Code of Civil Procedure, to prevent the reference being terminated and the forfeiture of his fees.[VV s j Little v. Lynch (5 N. Y. Cic. Pro. 216), reversed ;{*, "] Phipps v. Car- man (23 Hun, 150; nff'd, 84 N. Y. 050), overruled and distin- guished ;[V,] Waters. Shepherd (14 Hun, 223);[VJ Cornelius -e. Barton (12^. Y. Weekly Dig. 216);[ 8 , 1S J Thornton v. Thornton {66 How. Pr. 119);[ 4 ,VJ Geib v. Topping (83 JV. Y. 40)^[*J followed. (Decided January 8, 1885.) Appeal from order vacating and setting aside judg- ment entered on referee's report. Reported below, 5 N. Y. do. Pro. 216. Sufficient facts* are stated in the opinion. Abram Kliny, for defendant,, appellant. W. T. B. Milliken, for plaintiff-respondent. BRADY, J. This motion appears to have -been made and granted upon the ground that the reference had been terminated before the filing of the report of the referee. It appears that the order of reference was entered upon the 5th of April, 1881, and that the "CIVIL PROCEDURE REPORTS. 419 - Little v. Lynch. referee, upon the 18th of May following, made his final report in favor of the defendant, dismissing the plaintiff's complaint, and offered to deliver it to the defendant's attorney and said that he con Id have the same upon the payment of his fees ; all of which was done within sixty days from the time of making the same. But the fees were not paid by the attorney. A similar application to this was denied by the supreme court of the second district (Waters . ['] Shepherd, \:Han, 223). In that case it appeared the referee made his report within the time limited by the statute, and on the same day gave notice to the attorneys for the plaintiff and the defendant that the report was ready for delivery. The report was not taken up, however, until after the expiration of sixty days, when the defendant served a notice in writing upon the referee and the plaintiff's attorney, that she elected to end the reference. The plaintiff's attorney, however, took the report from the referee and entered judgment upon it. The special term ordered the judgment to stand as having been regularly entered. The general term affirmed the order. It was held to be sufficient to comply with the terms of the statute that the report was made and the parties notified of its terms, and that it could be obtained on application to the referee. That decision rested upon section 273 of the Code then in force, which required the referee to make and deliver his report within sixty days from the fime the action was finally submitted. The decis- ion was made in May, 1878. In December, 1880, the same department decided a similar.question (Phipps t. Carman, 23 Hun, 150), [ 2 ] holding, however, that the binding force of Wat- ers 11. Shepherd was destroyed by the Code as al- tered since the decision therein was made, a-nd the judgment of the court seems to have rested upon the ohange which was made by section 1019 of the Code of 420 CIVIL PROCEDURE REPORTS. Little v. Lynch. Civil Procedure, to the effect that the report may be delivered to the attorney for one of the parties, or liled with the clerk within sixty days; and they de- clared that the referee would not have done his duty under the section unless he delivered his report to the clerk to be liled in case it was not taken up by one of the attorneys within the sixty days. That case was taken to the court of appeals and decided on the llth of February, 1881. It was affirmed without any opin- ion, but upon the concurrence of all the judges.* In the January preceding, however, the general term of this court, in the third department, in the [ s ] case of Cornelius v. Barton (12 J\~. Y. Weekly Dig. 216), held that where the referee had made his report and was ready to deliver it in the statutory time, but held it for the payment of his fees r there wag a sufficient delivery to prevent the forfeiture of his fees on the termination of the reference under section 1019 of the Code. In that case it appeared that within a 'very few days after the cause was. submitted, the referee notified the plaintiff's attorney that the report was in readiness to be delivered on the receipt of his fees. The court seems to have rested its judgment in that case upon the decision in Geib v. Topping, in the court of appeals (83 N. Y. 46), Subsequently the [ 4 ] case of Thornton v. Thornton (66 How. Pr. 119), was decided at special term, namely, in August, 1883, and it was held that where the referee makes his report within the statutory lime and notifies the attor- neys that his report is ready and at their disposal, and also of the amount of his fees, it should be deemed a sufficient delivery to prevent the forfeiture of his fees by the termination of the reference, under section 1019 of the Code of Civil Procedure. Justice HAIGIIT, in delivering the opinion, said he was aware the decision * See memorandum of decision iu 84 JV. Y. 650. CIVIL PROCEDURE REPORTS. 421 Little . Lynch. of Phipps v. Carman (supra), was in conflict with the conclusions at. which he had arrived, and that the case had been affirmed in 84 N. Y., but slated that he was unable to concur in the opinion written in general term, and it seems for the reason that th general term of -another department had held the other way doubt- less referring to the case of Cornelius n. Barton (supra}. The learned justice also said that the court of appeals, it- was true, affirmed the-decision in Phipps v. Carman, Uut did not state the grounds upon which the decision was based, that there was a delay of two years in that case in h'ling the referee's report, and the case was distinguishable from the one under consideration .by liim. The supreme court, in the second department, seems to have overlooked the provision authorizing .['] the delivery of the report as an act which would prevent the-operation of the statute, and destroy the right of parties to terminate the reference by giv- ing the notice provided for, and to have held that the referee, if the report was not actually delivered to one of the parties, must tile it in the clerk's office. It is quite apparent, from the reading of the statute, that it is complied with if he does deliver the report tis one of the alternates declared, and if the notification under section 273 of the old Code, that the report was made and ready for delivery, was a delivery within the terms of that statute, it certainly is within the terms of section 10.19 of the present Code. The h'ling. then, is not necessary, for the first alternate is accomplished. This view was not, it would seem, considered by the court of appeals upon the submission of Phipps v. Carman, because no opinion was delivered. I think, therefore, in accordance with several cases, some of which are cited by Justice HAIGIIT in his ['_] opinion in the case of Thornton v. Thornton that tlie report -was constructively -de- ,423 CIVIL PROCEDURE REPORTS n = =1 Little v. Lynch. livered by the referee in this case prior to the expira- tion of the sixty days and under the statute, and that the requirements of section 1019 of the Code of Civil Procedure were complied with. The order appealed from should be reversed. DANIELS, J. [Concurring.] The order was made upon the ground that the . referee had failed to make and deliver his report within the time prescribed for that purpose by the Code, and that notice had been given on the part of the plaintiffs terminating the reference. But it was made to appear that the report of the referee was subscribed and ready to be delivered before the expiration of the sixty days mentioned in. section 1019 of the Code of' Civil Procedure, and that it was offered to be delivered to the defendant's attor- ney upon the payment of the -fees of the referee. Such an offer was considered to be equivalent to an actual delivery of the report under section 273 of the Code of Procedure. That provided, as the present Code in effect does, that the referee should make and deliver the report within sixty days from the time the action should be finally submitted, and in default thereof, and before the report should be delivered, either party could serve notice upon the other that he elected to end the reference. Under that language, it was held, in Waters v. Shepherd (14 Hnn, 223), ['] to be sufficient to prevent the reference from being avoided or the report annulled, that it should bo offered to be delivered within the sixty days, as this report was, to the attorney of one of the parlies, upon the payment of the fees of the referee. And that was regarded as an accurate construction of this provision of the Code, as it was repeated in this section of the Code of Civil Procedure, in Geib v. Topping (83 ['] jy. Y. 46), where it was said that " the referee un- doubtedly was not bound to part with the report CIVIL PROCEDURE REPORTS. 423 Little 0. Lynch. without payment of his legal fees, and where a referee lias his report ready within the statutory time and offers to deliver it on payment of his legal fees, such offer should, we think, be deemed a sufficient delivery to prevent the forfeiture of fees declared by section 1019 of the Code of Civil Procedure (Id. 48). It has been supposed, inasmuch as the legislature, by the enactment of section 1019 of the Code of Civil Procedure, authorized the report of the referee to be tiled with the clerk within sixty days, that this [*] additional liberty prevented the other provision from being complied with by such an offer as was made in this case, and was sanctioned by the author- ides already mentioned. This was held in Phipp v. Carman (23 Ifun, 150), which was affirmed by the court of appeals (84 N. 1^.050). But that affirmance, as was stated by Mr. Justice HAIGHT in Thornton t. [ 10 J Thornton (66 How. 119), may very well have pro- ceeded upon the great delay appearing to have taken place before the referee's report was filed. There certainly was no good reason for holding that the lan- guage, standing by itself, which would permit a com- pliance with what it required to be done by an offer of the report upon the payment of the fees of the referee, should be deprived of its effect by the additional lib- erty given to file it with, the clerk. That was not the form in which the section was enacted, but it declared that either might be done to maintain the force and effect of the report. It might, within the sixty days, "be either filed with the clerk or delivered to the attorney for one of the parties." The referee accord- ingly had his election to do one or the other of these acts, and either would comply with what the legislature has required. If he filed it with the clerk, that ["] would be sufficient. If he did not do that, then a delivery to the attorney for one of the parties would secure the preservation and validity of the re- 424 CIVIL PROCEDURE REPORTS. Little v. Lynch. port. And no more was required to make this delivery to the attorney for one of the parties than had rx^en when the same provision formed a part of the Code or Procedure. Consequently, what would have b eti a delivery of the report to an attorney for one of the parties under the Code of Procedure, would be equally as complete a delivery of it under this section of the Code of Cicil Procedure. And so it was considered in Geib v. Topping (supra). The same point arose in Cornelius v. Barton (12 ["] N. Y. Weekly Dig. 216), where this construction. of the section was sustained by the court. Certainly, as the enactment is precisely the same concerning the delivery of the report to the attorney in the Code of Civil Procedure as it was in the ["] Code of Procedure, what would constitute a com- pliance with the latter, should be held to be equally as effectual as the former. For the additional privilege secured to the referee of filing his report with the clerk in no manner tended to indicate what might be necessary to constitute a delivery to the attorney. Each delivery was separate and distinct. What was a good delivery under the same language employed in the Code of Procedure must necessarily be equally as good under the like phraseology in the Code of Civil Procedure. The order should be reversed with the usual cost and disbursements, and an order entered denying the motion. DA. vis, P. J., concurred. CIVIL PROCEDURE REPORTS. 425 Learned . TiHotson. LEARNED, APPELLANT, *>. TILLOTSON, BES- PQNDENT. COURT OF APPEALS, OCTOBEB, 1884. 970-972. 1003, 1337. Verdict of jury on specific question of fact in actions triable by court. Power of court to disregard. Evidence. When letter may not be received in. on behalf of party who wrote it. Appeal. Reviewing facts on him.[ j9 ] \V1iere, in such a rase, it appeared that the plaintiff had a conversation with the defendant, subsequent to the receipt of the letter by him; as to which- and the plaintiff testified, that in it the defendant ad- mitted the receipt of the letter, and said that he did not remember making the agreement, and the defendant testified that he expressed surprise at the contents of the letter; asked an explanation of it and denied having made the agreement. Held, that the letter was not answered in this conversion so ad to render it admissible. [ I8 j Keen v. Priest (1 Footer & Fin. 314);[ 1S ] Rr.e v. Day (17 Can: & P. 098) ;[ 14 ] Gaskill v. Skene (14 Adol. & E^ N..-S. [En J fol- lowed. (Decided October 7, 1884.) Appeal by plaintiff, from a judgment of the supe- rior court of the city of New York, general term, affirming a judgment dismissing the complaint, ren- dered on a trial at special term. Reported below, 48 N. .F. Super. (16 J. & S.) 239. This action was brought for an accounting of prof- its made by defendant on certain purchases and sales of stock of the Silver Islet Consolidated Mining and Lands Company, alleged to have been made by defend- ant under an agreement, for a partnership venture CIVIL PROCEDURE REPORTS. 427 Learned v. Tillotson. between him and the plaintiff with an equal division of profits. The complaint alleged the agreement for the part- nership venture, purchases of stock, under that agree- ment by the defendant, ignorance by the plaintiff of the amounts and prices of the purchase, and a refusal to account by the defendant. The answer was substantially a general denial. The issue whether the alleged agreement was made, was tried before a jury, and a verdict thereon was ren-* dered in favor of the plaintiff. A motion for a new trial of that issue, made upon the minutes of the presiding justice, was denied. A.-> second motion for a new trial of that issue made at special term, before the justice before whom the remain- ing issues in the case were tried, was by him denied. - The justice at the^ special term, after denying that motion, disregarded the verdict, found the fact as to the making of the agreement against the plaintiff and dismissed the complaint. In addition to finding that the agreement alleged in the complaint was not made, the justice further found that ''the defendant did not enter into .... any agreement similar to it or of like effect with it." The plaintiff and the defendant were both residents of Pittstield, Mass., and in the summer of 1878 were intimate friends. The former had been engaged in mining for many years ; ^ince 1866 he had been in the habit of making an annual visit to the mines of the Silver Islet Company, of which his brother Edward was the president. He made the usual visit to Silver Islet in August, 1878, but before leaving Pittsfield had a conversation with the defendant, on his version of which he founds his claim. As to the time, place and words of this conversation, Learned and Tillotson were in conflict. The plaintiff said : " During the seven days before 428 CIVIL PROCEDURE REPORTS. 1 Learned v. Tillotsrm. I left, I met him (Tillotson) on the east side of South street, in PittsfiVld. . . . I said to him, I am going to Silver Islet in a few days, and during my stay there, if a deposit of rich ore a bonanza is found, I will telegraph yon, provided you will buy the stock and give me one-half of all the profits, which he said he would do. . . . The conversation took about as long as I am now repeating it." The defendant denied the meeting and theconversa- tion and said : " I met Mr. Learned .... in the drug- store As I was leaving the store, he said he was going to Silver Islet, and as I bid him good-bye, he said : 'If anything turns up, I will let you know.' I made no reply whatever that I recollect." Three years before, a "bonanza" had been struck at Silver Islet, but after y elding a million and a half in two \ T ears, it had given out, and wheti Learned left Pirtstield on August 2, 1878, the mine was poor, and the stock selling at $5 per share. While he was at Silver Islet another rich vein was struck, and on August 18, he telegraphed to Tillotson : "Buy Silver Islet stock immediately, as we arranged ; mine immensely rich, unparalleled." After making inquiries as to the condition of the mine the defendant bought some stock, which is that for an accounting for the profits of which this action is brought. On the trial the plaintiff offered in evidence the following letter which was excluded arid an exception taken : " Office of John . Watson, <50 Devonshire Street, Boston, Dec. 2nd, 1878. "FRIEND TILLOTSON: " In the Stock Board this afternoon fifty-three dol- lars was bid for Silver Islet certificates. As this stock . is steadily advancing in price and as I may -be disposed CIVIL PROCEDURE REPORTS. 429 Learned v. Tillotson. to sell some stock before you are inclined to sell, or mce versa; 1 think it best that you should transfer to me my proportion of the stock you purchased as per the veibal agreement and understanding we made a short time before I left for Silver Islet last summer, which was as follows: that if the mine showed indica- tions of being rich, during my stay at the Islet, I was to advise you to purchase Silver Islet certificates, which you agreed to do, giving me one-half of the profits accruing from the purchase and sale of such stock or certificates. This information furnished was my capital. During my stay a rich bonanza was found, and 1 telegraphed you to purchase Silver Islet cer- tificates as per agreement ; mine unparalleled. You did purchase (as you stated to me) three hundred shares or certificates, paying ten dollars per share for one hundred and twenty-five shares. The balance I can't say what you did pay for it. If you will calcu- late what your stock cost you, including interest and then multiply 300 shares by, say $50 per share for example, and then deduct the cost of this stock, you will have the net balance. Now take one half of this net balance and divide it by $50 per share and you will have the number of shares I am entitled to on this basis. An early reply will greatly oblige. " I am veiy truly "T. II. LEARNED." A conversation was thereafter had as to this letter between the plaintiff and the defendant in the latter part of December, at Pittsfield, Mass. The plaintiff's evidence as to which conversation was as follows : "I had a conversation with him about these matters ; I was in the club room, and I asked him if he had re- ceived my letter and he said he had ; I asked him when ho was going to give me my proportion of the stock according to our agreement, he said : ' I do not remem- '330 CIVIL PROCEDURE REPORTS. Learucd t>. Tillotson. ber having any agreement with yon ;' said I * Tillotson why do you say that? Why did I telegraph fo yon about buying Silver Islet certificates unless I had an understanding with yon? I did it for this reason, that I had an agreement with you v if I had not tele- graphed you to get the stock the consequence would have been, that nobody could have got the stock, and I would have had to pay a very large price for it ;' I do not remember that he made any reply to it. As it was necessary and admissible upon. this issue, to give in evidence the entire history of the acts and com- munications of, the parties, for the purpose of ascer- taining which party told the truth. No one of those acts and communications is conclusive ; each one is to be weighed, but all are .... alike admissible. This entire series of acts and communications, as to this transac- tion between these two parties, constitutes the res ycstcB. It is -secondary and circumstantial evidence. It is admissible in the absence of conclusive primary evidence The letter is admissible as part of the res gesf(B notwithstanding it contains the plaintiffs own declarations in his own fdvor. Citing Greenleftf -on Evidence, 108 ; 1 Taylor on [Evidence, 585 ; Bea- ver . Taylor, 1 Wall. (U. S.) 637 ; Milne . Leisler, 7 Burl. & A r . (Eng. Excr.) 786, 796 .; Conn. Mutual Life Ins. Co. v. -Lathrop, 29 Alb. L. J. 429. Although the letter contains a statement as to the alleged agree- ment, made after the date when the agreement was made, it is still admissible as part of the rvs -geslce. Citing 1 Taylor on,. Evidence. 588; Mc- Cotter a. Hooker, 8 N. Y. 497 ; Palmer v. First Nat, Bank, 4 N. Y. Weekly Dig. 268 ; Jewell's Lessee v. Jewel], 1 How. (Z7.)219; Commonwealth ?>.M'Pike. '3 Cush. .(Mass.) 181; Commonwealth v.. Hacket, 2 Alien .(Mass.) 136; Tompkins r. Saltmarsh,14 SergL-& .Raw. (Pa.) 275; Rawson v. Haigh, ZBing.^Eng.C: P.) ; 99 ; Ridley v. Gade. 9 Id, 349 ; Rouch v. Great Westn. R. R. Co., 1 Q. B. 51 ; Thorndike v. City of Boston,: 1 Mete. (Mass.} 242 ; Doe v. Arkwright, 5 Carr. < P. (E)ig. N. P.) 575. The only principal that can belaid on this branch of the law of evidence is, that every act or declaration of any party, which is a part of the history of the transaction under investigation, isadmis- 432 CIVIL PROCEDURE REPORTS. Lv.-irned v. Tillotsou. sible as part of the res gestce, as circumstantial evidence, in the absence of conclusive direct evidence and upon the precise point in issue. Citing Hickler-y. Leighton, 70 N. Y. 610 ; Fisher v. Mayor, 67 Id. 73 ; Xwomley v. Cent. Park, &c. R. R. Co., 69 Id. 158 ; Eager e. Craw- ford, 76 Id. 97 ; Shaw v. People, 3 Hun, 272 Even if the letter was a mere unanswered letter, it was admissible. Keen t>. Priest, 1 Poster. & Fin. (Eng. N. P.) 314; Roe v. Day, 7 Carr. cfr Pa. (Eng. K. P.) 705. Taken however in connection with all the circumstances, the defendant's omission to answer the letter constituted an admission by conduct. Citing, Greenleaf on Evidence, 197, 198 ; Kelley v. People, 55 N. Y. 565 ; Le Ban v. Vanderbilt, 3 Rvdf. 384, 399 ; Gaskill v. Skerie, 14 Ado/. & E. N. 8. (Eng. Q. B.} 664 ; Fenno v. Weston, 31 Vt. 345 ; Allen v. Peters, 4 Phila. 84. The letter, however, was answered in the subsequent conversation, and was admissible for that if on no other ground It is an ordinary occur- rence to prove statements of a party for the purpose of showing that he knew them to be untrue, and thereby establishing against him a wrongful or fraudulent intent in making the statements. Coleman o. People, 58 N. Y. 555, 560 ; Platt o. Platt, 58 Id. 649 ; Dalton v. Woodman, 9 Cash. (Mass.) 25. 1 ). It was not within the power of the court to disregard the verdict of the jury .... It, was an error for the court to go beyond iinding against the contract pleaded in the complaint, and to find that the parties did not make any agree- ment similar to it or of like effect with it. We are unable to find any precedent ,for such a course. The iindings in a case should cover only issues that are on the record and have been tried. It might have great weight against the plaintiff, in case he should be finally defeated in this action and should see fit to bring another action on a somewhat different agree- ment. CIVIL PROCEDURE REPORTS. 433 Learned v. Tillotson. Joseph H. Glwate and Henry A. Root (Root & Mar- tin, attorneys), for defendant, respondent. This court has no power to review the facts. Code Civ. Pro. 1337 ; Matter of Ross, 87 N. Y. 514. It was contended in Vermil yea i\ Palmer, 52 N. Y. 471, that under the Code of Procedure this court had power to examine and review questions of fact in an equity- action, where a specific question of fact had been tried by a jury; and this court there held that it did not have that power. Their reasoning to support that decision (Id. 473), is appropriate to cases arising under the Code of Civil Procedure, except that the inhibition of the latter is express. The court at special term dis- regarded the verdict as unsatisfactory and found for itself against the plaintiff. This was within the court's power and wholly within its discretion. The issue is tried by the court, and not by the jury. The jury simply find on a question of fact. Their verdict, is an- cillary to the court's action ; it is purely advisory ; it is not conclusive. If it goes before the court, undis- turbed, and no motion to set it aside is granted, the court can give that verdict such weight as it pleases; it can treat the verdict as conclusive and refuse or dis- pense with other evidence on the question submitted ; it can demand or receive other evidence on that ques- tion, or it can disregard the verdict and find the fact for itself. Citing Bootle . Blundell, 19 Vcs.Jr. (Eng. Chy.) 494, 499 ; Ilampson v. Hampson, 3 Ves. & Bea. (Eng. City.) 41, 42 ; Basey v. Gallagher, 2 Wall. (U.S.) 070, 680;' Watt v. Starke, 101 U. .S. (11 Otto) 247; Colie v. Tiffr, 47 ^V. r. 119 ; Birdsall v. Patterson, 51 Id. 43; Vermiiyea v. Palmer, 52 Id. 471 ; Brinkley v. Brinkley, 2 ?'. & C. 501; aff'd in effect, 50 N. Y. 1*92; Smith v. Chasseand, 1 JV. Y. Weekly Dig. 117; Miaghan v. Hart- ford Ins. Co., 12 Han, 321 ; Hatch i\ Peugnet, C4 Barb. 189. The Code of Civil Procedure has not changed the effect of special findings In the following VOL. VI. -28 434 CIVIL PROCEDURE REPORTS. Li'.-irned v. .Tillotson. cases, decided since this Code went into effect, it has been laid down that the court at special term had power to disregard the verdict. Ward v. Warren, If) Hun, 600; aff'd, 82 'N. Y. 265; Wallace v. American Linen Thread Co., 16 Hun, 404; Madison University v. White, 25 Id. 490 ; Carroll v. Beimel, 13 N. Y. Weekly Dig. 401 It makes BO difference in the effect of the verdict or in the value of -our objections to it that our motions for a new trial had been denied. Brown v. Clifford, 7 Lans. 46; appeal dismissed, 64 J\ 7 . T. 636 The letter of December 2, was admiss- ible to prove a demand but incompetent as of the facts it stated. ... It was simply plaintiff's declaration in his own favor. Citing Waring v. United States Tel. Co., 4 Dal '//, 233; Allen v. Peters, 4 Phila. 78; An- thorne . Coit, 2 Hall, 40; Robertson v. Fitchburg R. II. Co., 7 Gray (Uass^ 92 ; Hill v. Pratt, 29 Vt. 119; People v. Lockwood, 3 Hun, 304 ; Fairlie v. Denton, 3 Carr. & Pa. (Eng. N. P.] 103 ; Gaskill o. Skene, 4 Aaol. & E. N. S. (Eng. Q. B.) 664 ; Richards v. Fran- kime, 9 Carr. & Pa. (Eng. N. P.) 221; Drapers. Crofts, 15 Mees. & Wels. (Eng. Excr.} 166 ; Talcott v. Harris, 93 N. Y. 567, 571 ; Meguire v. Corwin, 3 Mac- Arthur^ (D. C.) 81 ; Wright v. Doe ex dem. Totharu, 7 Adol. <& E. (Eng. Q. B.} 313 It was right for the court to find that no agreement was made of like effect with that, alleged. The defendant is entitled to nn adjudication that, will put the whole controversy forever at rest. If plaintiff chose to allege one agree- ment and prove another, he must be barred as to both. The judgment is conclusive between the parties, not only as to all matters expressed in the pleadings, but also as to all matters which were litigated or might have been litigated in the action. Patrick v. Shaffer, 94 TV. Y. 423, 430. MILLEH, J. The plaintiff, in his complaint in this CIVIL PROCEDURE REPORTS. 435 Learned . Tillotson. action, demands that the defendant account for all purchases and sales made by him of certain stock of the Silver Islet Consolidated Mining and Land Com- pany, under an alleged agreement for a co-partnership venture with an equal division of profits, by which the plaintiff was to furnish information as to the probable value, a.s-a purchase, of the capital stock of said com- pany, which information was to be used for the joint benefit of the plaintiff and defendant, and for all uses made by the defendant of such information furnished by the plaintiff. The question whether a valid agreement was estab- lished between the plaintiff and the defendant, by which the defendant obligated himself to pay to the plaintiff a portion of the profits realized by him in the purchase of the stock of the Silver Islet Mining Com- pany, involved a matter of fact for the consideration and determination of the judge at special term upon the trial of this action. The testimony of both the plaintiff and defendant, who were the principal wit- nesses in regard to the terms of the alleged agree- ['] ment, was in conflict, and there was no such pre- ponderance in the evidence as would authorize a holding, as a matter of law, that a valid agreement was established, by which the defendant was bound to render an account to the plaintiff for profits made, or for one half of the stock purchased by him by rea- son of such agreement. It is well settled that, under such circumstances, upon an appeal to this court the facts are not reviewable (Code of Civil Procedure, 1337; Matter of Ross, 87 N. F. 514; 'see also, Ver- milyea c. Palmer, 52 Id. 471). In this case, however, it appears that a specific question of fact as to the 1 existence of an agreement between the parties had previously been submitted to the jury upon the trial before the judge at special term, and a verdict rendered in plaintiff's favor-, and that the 436 CIVIL PROCEDURE REPORTS. Learned t>. Tillotson. cause was subsequently tried by another judge upon oral testimony taken, as well as the testimony given upon the former trial contained in an exhibit, which was introduced in evidence, and the verdict previously rendered, and it is claimed by the appellant's counsel that it was not within the power of the court to disre- gard the verdict of the jury. Under the practice of the court of chancery as [ a ] it formerly existed the rule undoubtedly was that the finding of speciiic issues, tried before a jury when ordered, was not a final determination of such issues. The verdict of the jury was not conclusive, and could only be read on the hearing with full power in the court to follow or reject it as might be deemed fit and proper. It was only a part of the evidence, and if for any reason it was deemed unauthorized, it could be rejected, and was not obligatory upon the court. The object of such a proceeding was ancillary to the action of the court and, simply advisory. If the verdict was not set aside the court was authorized to give it such ['] weight as it determined it was entitled to. It could treat it as entirely conclusive, and dispense with other evidence upon the issues presented, or it could allow other evidence to be given, or entirely disregard the verdict, and find the fact according to its own judgment (DanicW s Ch. Pr. 1146 ; Bootle v. Blundell. 19 Vcs. Jr. \Eng. Chy.~\ 494, 499 ; Hampson v. Hump- son, 3 Ves. & Bea. \Etifj. City.'} 41 ; Basey x. Gallagher,- 20 Wall. [U. A?.] 070, G80; Watt v. Starke, 101 U. S. 247; Colie v. Tifft, 47 N. Y. 119; Birdsall v. Fader- son, 51 Id. 45} ; Vermilyea v. Palmer, fi2 Id. 471, 474). The Code of Procedure did not change the rule [*] but left the verdict of the jury as evidence only and not a determination of the issue. It is claimed that the Code of Civil Procedure has changed the prac- tice and has made the verdict of a jury in an equity case the final determination of the issue, and reliance CIVIL PROCEDURE REPORTS. 437 Learned v. Tillotson. is placed upon the provisions of section 1003 of that Code, which provides for-the reviewing of the verdicts of juries in both common-law and equity cases, and declares that " the provisions of this article relating to the proceedings to review a trial by a jury are applic- able to the trial by a jury of one or more specific ques- tions of fact arising upon the issues in an action tri- able by the court." It then refers to the special term as that court where "the remaining issues of fact are tried." The preceding section (972) which is also relied upon, contains* words of a similar import and pi-ovides that " if the questions directed to be tried by a -jury, as prescribed in the last two sections, do not embrace nil the issues of fa*ct in the action, the remain- ing issues of fact must be tried by the court or by a referee.'" If any change is made it is by virtue of [*] the section last cited, which, we think, simply declares the law as it previously existed, and works no alteration in the practice. The enact- ment that questions not 'submitted to a jury must be tried by the court is not a declaration that the question submitted to the jury must not be tried by the court. It simply pVovides in what manner the issues not tried shall be tried, leaving the issues which have been tiled to be determined the same as formerly upon the final hearing. The right and the power to try and determine all the issues in [*] the case -could not be taken away without ex- press words to that effect and a clear intention manifested by an enactment for that purpose. So great a change in the practice of a court of equity is not to be inferred and can only be sanctioned by clear and explicit provisions for that purpose. The claim urged, that the ' remaining issnes" are to be interpreted as meaning that the questions submitted to the iurv no longer remain for trial, and are j f *] -finally disposed of by- the verdict, is not, we.think, 438 CIVIL PROCEDURE REPORTS. _l Learned v. Tillotson. well founded. In the sense in which these words are used they simply mean the other issues which have not been tried, thus leaving it for the court to deter- mine, upon the entire case, of which the verdict con- stitutes a part, the questions presented for trial. This construction is supported by the opinion of CHURCH, C. J., in Vermilyea v. Palmer (supra), where, after referring to *he facts foun'd by the jury, he speaks of the other facts as the " remaining facts." There is no provision in the Code of Civil Procedure as to the [ 8 ] effect of the verdict, and thus the law is left un- changed in this respect. This construction is also supported by the notes to sections 1003 and 972, in Throop's Edition of the Code. There is nothing, we- think, in section 1225 of the Code, or in any other of the provisions relied upon, which sustains the position of the appellants counsel. The motion for a new trial upon the minutes > . [*] after the verdier, and its denial does not, we think, preclude the court, upon a trial of the entire case, from disregarding the verdict. An examination of the various provisions of the Code leads us to the conclu- sion that the court at special term committed no error in this respect. "Upon the trial it appears to have been conceded that the verdict was not conclu- sive, Tor the appellant submit ted ev-ery question to the- court, proved his whole case denovo by oral testimony, and introduced in evidence the verdict, the stenogra- pher's minutes of the first hearing, including the judge's charge. In fact, the testimony tended to show nn agreement which differed somewhat from th;ir, found by the jury. The whole ease was thus tried, ["] and we are unable to discover that there was any rule of practice violated by the judge in disposing of the same. Upon the trial at special term objection was made* to the introduction in evidence of a letter from the- PROCEDURE KEPORTS. 439 Learned*. Tillotspo. plaintiff to the defendant dated, the "2d day of Decem- ber, 1878 r and the letter was excluded, except for the purpose of showing a demand by the plaintiff of the defendant of the stock claimed to belong to the plaint- iff.. This same letter was received in evidence npou. the first hearing against, the objection of the defendant, and an exception laken to the ruling. The letter in question contained a statement of the plaintiff's claim against the defendant, and it is insisted that it was admissible as a part of the res cfestcz, If the letter was competent it must be on the ground that it was a statement made by the. plaintiff, which called for a response from the defendant, and none having been given, the silence of the defendant, arid kis failure to make any reply to the same was an ad- mission of the accuracy of the statement made in tho letter. The letter itself cannot be regarded as [ ?I J coming within the rule that where a staiement is made at the time when credit is given, as in an action for falsely representing the solvency of a si ranger, proof may be given that the plaintiff trusted him in consequence of the misrepresentation, or as evidence of declaration in kindred cases accompany- ing the acts done, which constitute a part of the res yextce. (1 Taylor on Evidence, 585 ; Beaver T>. Tay- lor, 1 Wall. [V. ]637; Milne v. Leisler, 7 HurL & N. [Eny. Excr.] 786, 796.) The letter containing the statement as to the ['"] transaction was written long after the alleged agreement was entered into, and cannot well be re- garded as accompanying and constituting a part of the same.. It was evidently an after- though, intended to draw from the plaintiff, in response, a. statement of his version of the transaction, and the evidence cannot be justified upon the ground that it was in the nature of a conversation had after the contract had been made,, which contained statements as to what had taken 440 CIVIL PROCEDURE REPORTS. Learned v. Tillotson. place at the time of the original contract, and hence was a part of {\\sresgestcB within some of the authori- ties cited by the appellant's counsel. The statement was entirely ex parte, not made in the presence of the defendant, and, therefore, he was not in the position of one 10 whom a conversation is addressed, who is called upon lit the time to make an answer to the same, or 10 suffer the consequences of such inferences as may be derived from the fact of his remaining silent, and t.li us acquiescing in the correctness of the representa- tions made. Nor can it be said, we think, that the statement contained in the letter bears any analogy to a case where an injured party makes a statement after the transaction, which is held under certain cir- cumstances in some of the authorities, to be compe- tent testimony. Some of the cases cited, to establish the admissi- bility of declarations in favor of or against the party making them, relate to the question of intent, and have no application to the case at bar (Ridley 0. Gade, 9 Biny. \_Eng. C. P.] 849 ; Thorndike v. City of Boston, 1 Mctc. [Mass.'] 242). Other authorities are cited to sustain the position that the letter taken in connection with the defend- ant's silence and the subsequent interviews between the parties, was evidence, on the ground that it tended to establish an admission by the defendant. These cases have been examined, and we think none of them present the precise question now considered. In Keen v. Priest (1 Foster & Fin. [Eng. N. P-] ["] 314), the letter then in question was from the plaintiffs attorney to the defendant demanding redivss For "an illegal seizure of sheep," and it was jtdinitted on the ground, that it was evidence of the conduct of the defendant, of which silence Was some- times evidence. It will be seen that the case was one of a tortious nature and in this respect differs from an CIVIL PROCEDURE REPORTS. 441 Learned v. Tillotson. action upon a contract, where the letter is offered to show the plaintiff's version of the contract and its admission by the mere silence of the defendant. lu lioe />. Day (7 Carr: & P. {JSng. JH. P.] 393), [ I4 ] the letter introduced was the last of a written cor- respondence, and was .com patent for the purpose of- showing all that passed between the parties. In GaskiJl v. Skene (14 Adol. & E., N. S. \Eng. Q. B.^ [ )0 ] (304), the letter was received in evidence, as being, in substance, a demand, and containing only such, statements as might fairly accompany a demand. The remaiks oi COLERIDGE, J., evince that a mere ex parte statement in a letter, of the party's case, cannot be received as evidence upon the ground that it remains unanswered. In Fenno v. Weston (31 Vt. 345), the letter in ['"] question was introduced in evidence without ob- jection, and constituted a portion of the corre- spondence between the parties and the question in reference to it was raised in regard to the charge of the judge. The precise point now made was not pre- sented. There were no letters passing between these parties which authorizes the admission of the letter objected to as a part of the correspondence, and it does not appear that the defendant ever wrote to the plaint- iff, or had any communication with him on the subject, except of an oral -character. In Allen v. Peters (4/Phila. 78), the decision ["] was based on the ground of a misdirection, or a want of full direction in the charge, and the ques- tion whether the.letter was properly admitted was not decided and there is nothing in the opinion of the court which sustains the admissibility of a letter of the character of the one which was excluded under the facts presented in the case at bar. Nor can it be said, we think, that the letter /"] was answered, in the subsequent conversation 442 CIVIL PROCEDURE REPORTS. : i Learned v. Tillotson. between the parties, winch was given in, evidence upon the trial, so as to render the letter admissible. Some other cases are cited by the appellant's counsel, but none oil them hold, that a letter, written under the circumstances presented here, is competent evidence, of itself, against the party to whom it is addressed. On the contrary, numerous autorities sustain the ["] position that a letter, written long after the trans- action has taken place, stating the facts relating,, to the same, and the agreement of the parties, under ordinary circumstances, is a mere declaration of the party in his own behalf, which does not demand an- answer, and that the silence of the party cannot be considered as an admission of the truth of the state- ment made and as binding upon him. The question here discussed has been the subject of consideration in a recent decision of this court (Talcott v. Harris, 93 N. Y. 567, 671). In that case the [."] action was against a person who had been dis- charged in bankruptcy, and it was claimed that the discharge was invalid on the ground that there was fraud in the contract by the bankrupt. An order of arrest had been issued upon affidavits averring fraud in contracting the debt, and upon the trial the plaintiff introduced in evidence, against the objection and ex- ception of the defendant, the papers upon which said order was granted. This ccurt held that the evidence was erroneously received, and reversed the judgment. It was laid down in the opinion that "if the affidavits in question were competent evidence, it must be upon the ground that they were statements made by, or on behalf of the plaintiff, showing the fraud of the de- fendants, which were uncontnidicted by the defendants and that they acquiesced in the propriety of the order and in the truth of the statements. . . . While a party may be called upon in many cases to speak where a uliarge is made against him, and in failing to do so CIVIL PROCEDURE REPORTS. 443 Learned v. Tillotsoa. may be considered as acquiescing in its correctness, his omission to answer a written allegation, whether by affidavit or otherwise, cannot be regarded as an admission of the correctness thereof and that it is true in all respects. Reasons may exist why hemuy choose and has a right to remain silent and to vindicate him- self at some future period, and on some more oppor- tune occasion." We are unable to see why the case cited is not directly in point. The affidavits consti- tuted a statement by the plaintiff, which was not con- tradicted, no motion having been made to vacate the order of arrest, upon the ground that the facts were not true and no exception having been, taken to the same. The facts are very similar in reference to the letter of the plaintiff in the case at bar, and if silence could be regarded as an admission of the correctness' - of the statement made, the same rule is applicable to each case and the decision last cited is controlling. Numerous other cases tend in the same direction (Waring v. United States Tel. Co., 4 Daly, 233; An- thorne v.-Coit, 2 Hall. 40; Robinson ?>. Pitchburg & AV. R. R. Co., 1 Gray [Mass.] 92; Hill v. Pratt, 29 VI. 119 ; People v. Look wood, 3 Hun, 304 ; Fairlie v. Denton, 3 Carr. & P. [Eng. N. P.] 103; Draper v. Crofts, 15 Mees. & Wcls. [Eng. Excr.] 166 ; Meguire v Cor wine, 3 Mac Arthur [D. 61] 81). From an examination of the cases, we think that a distinction exists between the effect to be given to oral declarations made by one party to another, which are in answer to or contradictory of some statement made by the other party and a written statement in a letter, . written by such party to another. It may-well be that under most circumstances what is said to a man to his face, which conveys the idea of an obligation upon his part to the person addressing him, or on whose behalf the statement is made, he is at least in some measure called upon to contradict or explain ; but a failure ta 444 CIVIL PROCEDURE REPORTS. Learned v. TiHotson. answer a letter is entirely different, and there is no rule of law which requires a person to enter into a corres- pondence with Another in reference to a matter in dis- pute between them, or which holds that silence should be regarded as UH admission against the party to whom the letter is addressed. Such a rule would enable one party to obtain an advantage over another and has no sanction in the law. We think that the court on ["] the trial at special terra, properly held that the letter was inadmissible except for the purpose of sliowing a demand, and that the judge, upon the previ- ous trial of the issue, which was submitted to the jury, erred in receiving the same in evidence. There was no error in any of the findings of the court, upon the trial, and the judgment should be af- firmed. .All concur, except DANFOETH, J., absent. INDEX, Pge ABATEMENT AND REVIVAL Revival and continuance of action in case of death 144 May be by assignee of executor or administrator 144 Effect on counterclaim set up in answer. 144 ACCOUNTING When petition for, of executor not denied on the ground of laches. '. 85 When accounting of executor, administrator or guardian should be opened 10 When not opened - . . 389 See SURROGATE. ACTION When party in interest not party to action may apply to court for protection of his interest 90 Joinder of, for obtaining signature to bond by false repre- sentations with one for conversion 121 ADMINISTRATOR See EXKCUTOH AXD ADMINISTRATOR. AFFIDAVIT Who authorized to take without (lie State. .203, 2G8 - Form of certificate to 117, 203, 2(58 Effect of absence of such certificate on order for service by publication 117 When absence of, of no prior application for order of arrest or warrant of attachment does r.ot imperatively require vaca- tion thereof 268 AG2NT See PRINCIPAL AND AGENT. ALIENS Inherit the same interest in real estate as citizens, sub- ject to be defeated by the State 326 ALLOWANCE Basis of extra, in action for causing death . . . 222 What is sufficient monetary basis for extra allowance 25 ANSWER See PLEADINGS. APPEAL From final judgment overruling demurrer brings up order overruling demurrer for review 121 Power to amend complaint on. , . . . 158 [445] < 446 ' INDEX. ; - When judgment not reversed where its correctness depends on credibility of witnesses ................................. 153 - - Reducing judgment on .... ............................ . 158 - - When liotli parties request the direction of si verdict there is no question of fact to !>e reviewed by the appellate court ..... 226 ~ W4iut brought up for review by appeal from order, denying resettlement .............................................. -74 - -- Report of commissioners in proceedings to acquire land for railroad purposes, how corrected ........................... 802 See FINDINGS ; COURT OF APPEAL : COURT op COMMON PLEAS; JUSTICE OF THE PEACE; UNDERTAKING. APPEARANCE What amounts to ......................... 117 -- When order discontinuing action .ineffectual, after special appearance of defendant .................................. 305 ARREST When order of, not vacated where primn facie case is made out ............................................. 263, SJ68 - - When complaint or .affidavit stating its contents, to be presented on application for order of ...................... 4-7 - - When absence of affidavit of no prior application for order of, does not require vacation of the order ................... S68 -- - Party to action when not liable for false arrest directed by ' his attorney .............................................. 207 - See CONTEMPT; EXECUTION AGAINST THE PERSON. ASSIGNMENT FOR BENEFIT OF CREDITORS Wlien com plete ............................................... 401 - Necessity of recording .............................. 401 - See EXAMINATION BEFOUE TRIAL. - ATTACHMENT When not vacated where prima facie case is made out ........... ..... ........................ 203,268 - - When- defects in affidavit on which issued are not jurisdic- tional they cannot be raised in collateral action ............. 401 -- Instance of affidavit on which, granted 'held insufficient. . . 3C6 - - When absence ot' affidavit of no prior -application not fa';il defect .................................................. 208 -- When, will not lie ---- ................................. 79 - Judgment or statutory liability not contract .............. -70 -- Mode of levying on promissory note, etc ................ K'4 - Effcet of prior fraudulent transfer .......... ............ 104 - Levy on instrument for payment of money made only by taking it into actual custody ............................... 164 See PLEADINGS; COMPLAINT. ATTORNEY Power of, to settle and discontinue action and satisfy judgment ............................. ... ......... 315 - -- When liable for costs. . . 294 Page See EVIDENCE ; REFERENCE. AUCTIONEER Liability of sureties on bond of, given on grant of license in city of New York 338 Suit on bond, by whom brought 238 BANKRUPTCY Debt not discharged by .discharge in, when creditor is fraudulently omitted fiom schedules 62 JWhen.. judgment not discharged of record on account of debtor's discharge in 148 -BELL OF PARTICULARS Stay in order for, 4o be vacated on service of 188 When bill of particulars required inaction by mutual benefit society against its late treasurer for moneys alleged to have licen misappropriated by him or through his negligence 161 When ordered in action by- assignee against sheriff for con- version 339 L When ordered, in action for damages to real property, of defense alleging negligence, and waiver 414 BOND See AUCTIONEER. -BROKER See PRINCIPAL AND AGENT; LIMITATIONS TO ACTION. CERTIORARI Assessors of town to be designated in, by in- dividual names -297 Effect of omission of seal 297 Amendment of, when seal omitted *387 .CITY COURT OF NEW YORK What counterclaims may be pleaded in action in, brought by executor 357 See COURT of COMMON PLEAS ; JUDGMENT. COMPLAINT See ARREST; PLEADINGS. CONTEMPT Power to punish for, is branch of common law. . 43 When criminal, punishable civilly -250 Form of warrant of commitment 250 Punishment ; amount of tine 43, 350 Review of adjudication in proceeding to punish for 350 Perjury is '. 43 When surety to undertaking on arrest, guilty of -33 Effect of appeal from judgment in action on which under- taking was given 43 See SCUROGATK. .CONTINUING ACTION See ABATEMENT AND REVI-VA.L. CONTRACT When not adjudged illegal 263, 268 - Effect of doing business under fictitious name 2C3, 368 Judgment, or statutory liability is not 79 CORPORATION Power of court in proceedings for voluntary dissolution of 342 Appointment of receiver, when may be made 342 448 INDEX. Page Contents of report of referee or decision of court in such proceedings 342 Determination of title of. claimants of office of trustee of rcligous, cannot be made in equitably action brought by one claimant or set of claimants 400 What \prima facie evidence of election of such trustees. .. 400 See COUNTY COURTS ;FouECLoauRE; INJUNCTION; RECEIVER; UNDEHTAKING. COSTS Liability for, created by section 3247 of the Code of Civil Procedure, is not contract 79 Liability of attorney for 371 See ALLOWANCE; EQUITY; JUSTICE OF THE PEACE; PLEAD- INGS; COMPLAINT; REFERENCE. COUNTERCLAIM S e ABATEMENT; PLEADINGS. "COUNTY COURTS Jurisdiction of, of actions against domestic corporations 34S Objection to, how raised 348 Waiver of ... 348 Instance of case in which want of jurisdiction did not appear on face of complaint 348 COURT OF APPEAL When will consider case upon cause of action disclosed by evidence rather than upon that set up in plead i ngs 1 Reviewing facts on appeal to 425 COURT OF COMMON PLEAS On appeal to, from N.Y. City Court from judgment directing new trial, appellant must con- sent to final judgment or court is without jurisdiction 191 Where consent intentionally withheld, court cannot supply omission, mine pro tune 191 Jurisdiction not conferred on appellate court by consent. . . 191 Discretionary orders of N. Y. City Court not re-viewable on appeal to 120 - Relation of, to N. Y. City Court 120 iSt.-e JUDGMENT. DEATH Measure of damages in action for causing 333 O C What is amount of recovery in action for causing 222 bee ABATEMENT AND REVIVAL; ALLOWANCE. DEMURRER See API-HAL ; PLEADINGS. DISCONTINUANCE OF ACTION Power of attorney to con- sent to 315 ElTectof, on cause of action where, in terms, made on a set- tlement 315 See APPEARANCE; PLEADINGS Complaint. DISCOVERY See INSPECTION. 'IKDEX. 449 Page DISTRICT COURT IN CITY OP NEW YORK Right of party to be heard by counsel on submission of case, cannot be denied by justice although he may limit time of oral argument 416 See EXECUTION AGAINST THE PERSON. EJECTMENT Damages on recovery of real property in 89 What improvements may be set off 39 What amounts to ouster 89 EQUITY When has jurisdiction of action to set aside judgment 191 Party liable for costs of action brought for his benefit, may move to set aside void judgment therein. Determination of title of rival claimants of office of trustee of religious corporation cannot be made in equitable action brought by one claimant or set of claimants 406 ESCHEAT See ALIENS. EVIDENCE When testimony of personal transactions, etc. not excluded in action against administrator on the ground of interest of witness .... 71 What evidence of interest necessary 71 In Surrogate's Court such testimony must be objected to by executor, administrator or survivor of decedent . . . . '. 63 Objection by creditor not sufficient 63 Testimony as to transaction between a party and a deceased person through whom both parties claim, when should be ex- cluded 235 When letter may not be received in, on behalf of party who wrote it 425 Burden of proof of consideration in action on undertaking on appeal defective in form 226 Proof of value of professional services in an action by an attorney therefor where a sum in gross is claimed 294 Admission on which new trial granted is evidence against party making it, on such new trial 173 Proof of partial satisfaction of cause of action sounding in tort by one of two joint tort fcasors admissible in mitigation of damages 135 EXAMINATION OF PARTY BEFORE TRIAL In action to recover chattels, the sale of which is alleged to have been procufed by fraud 152 In such case there may be an examination of an assignee for benefit of creditors 152 EXECUTION Time of sheriff to return, extended by stay of proceedings 173 See SUPPLEMENTARY PROCEEDINGS. EXECUTION AGAINST THE PERSON When may issue VOL. VI. 29 450 INDEX, out of N. Y. District Court without proof on trial, of facts authorizing ........................................... 184 EXECUTOR AND ADMINISTRATOR Subrogation of claim of, for money paid to redeem real property from tax sale, in place of lien of tuxes .................................... 62 - Power of Surrogate and of Supreme Court to open, vacate or sot aside accounting of ....... , ....................... 15 - Effect of agreement between heirs on liability of ......... 15 - See ABATEMENT; ACCOUNTING; CITY COURT OF NEW YORK; EVIDENCE; LACHES; SURROGATE. FICTITIOUS NAME See CONTRACT. FINDINGS How disposed of by court before which action tried ................ . ................................... 324 - Effect of failure to make, because deemed unnecessary ____ 324 FORECLOSURE Questions which cannot be tried in action of .................................................. 836, 363 - Parties to action of ................................ 336, 363 - Adverse claimants not proper parties to. ... .......... 336, 363 - Action for, of mortgage given to trustees to secure bonds by whom brought ........................................ 90 FRAUD What amounts to, in contracting liability ........... 148 -- Action for fraudulently obtaining signature to bond is for injury to property ____ ................................... 121 - Special allegation of damage not necessary ............... 121 GUARDIAN See ACCOUNTING. GUARDIAN AD LITEM Effect of failure to acknowledge consent to be ......... ................... , .............. 305 - See SURROGATE. HABEAS CORPUS To secure custody of child, by whom issued ...................................... ......... 299 - Effect of failure to state in petition that person in whose be- half writ is issued is not detained by virtue of a final order of a competent tribunal, etc ................................ 299 HEIR See ALIENS. HUSBAND AND WIFE Liability of husband for wife's torts. 135 See PARTIES TO ACTION. INFANT Place of residence of, how determined ............ 216 - See GUAHDIAN AD LITEM : SUMMONS ; SURROGATE. INJUNCTION Order staying actions and proceedings when not void because too broad ................................. 106 - Power of court to restrain actions and interference with property when receiver lias been appointed ............. 106, 113 - Application of Code to such order ....................... 106 'INDEX. 451 Page Power of court to grant, restraining interference with acting trustees of religious corporations by rival claimant of office. . . 406 When granted 406 - Effect of insufficient service of injunction order 106 Motion to vacate order where made 106 When vacated as to attaching creditors 113 See EXECUTION. INSPECTION When order for, of books granted 33 JOINDSR OP ACTIONS See ACTION; PLEADINGS Complaint, JUDGMENT Effect of satisfaction of 315 The filing of remittirur and docketing inN. Y. city court of void judgment rendered in N. Y. court of common pleas does not give it new vitality 191 See BANKRUPTCY; EQUITY; JUSTICE OF THE PEACE. JURISDICTION See APPEAL; COUNTY COURT; COURT OF COMMON PLEAS; ORDER. JUSTICE OF THE PEACE Provisional remedies iu courts of 253 Effect of error in replevin process on judgment 253 Effect of error in costs and mode of correcting. ... 253 Testimony taken in court of, on adjourning case, will not sustain judgment unless read in evidence 28 When offer to reduce verdict may be made 56 Effect of such offer made after judgment 56 Power of, to change record 56 Right to costs on appeal 56 Mode of service of notice of appeal from judgment of 333 Curing defective service nunc pro tune 333 Action to recover chattel when commenced in court of. . . . 253 LACHES Effect of, on proceeding for accounting of executor, etc 85 See SECURITY FOR COSTS. LANDLORD AND TENANT See SUMMARY PROCEEDINGS. LIMITATIONS TO ACTION When coming into the State does not amount to a " return " thereto 307 Application of statute of limitations to broker's contract. . . 1 When proceedings for accounting in surrogate's court not barred by 85, 88 MARINE COURT See CITY COURT OF NEW YORK. MARRIED WOMAN See PARTIES TO ACTION. MORTGAGE See FORECLOSURE. MOTION Renewal of 178 What amounts to new proof on 178 Report of referee to take proof on, when should stand 178 452 INDEX. NAME See CONTRACT. ORDER Re-settlement of ____ ; ............... .............. 74 - When properly made by court .......................... 74 - Void, may be disregarded ............................. 90 - Made by judge not having jurisdiction is absolutely void. 90 ORDER OF ARREST See ARREST. ORDER TO SHOW CAUSE Specifying irregularities in ____ 188 OUSTER See EJECTMENT. PARTIES TO ACTION Husband not proper party defendant in action against married woman for slander ................ 51 - When all obligors in auctioneer's bond not necessary ...... 238 - See ACTION ; FORECLOSURE. PERJURY Is a contempt of court .......................... 43 - Instance of case in which an affiant was guilty of ......... 43 PLEADINGS Duty of court to give party benefit of cause of action established by evidence notwithstanding insufficiency of pleadings ............................................. 1 - See COURT op APPEALS. - Complaint. Cannot be amended on. trial so as virtually to discontinue "action as to a defendant without payment of costs. 336 - Effect of service of, after service of summons and before appearance of defendant .................. . ............... 69 - Not necessary to aver malice or want of probable cause in action on undertaking given to procure warrant of attachment. 28 - Allegations which will not admit proof that attachment was void ................................................... 26 - A cause of action for obtaining the execution of a bond by false representation, may be joined with one for conversion, both being for an injury to property .............. ....... 121 - Not necessary to allege special damages in action for ob- taining the execution and delivery of a bond by false repre- sentations .......... ... .............................. 121 - Allegations of fraudulent intent implies that defendant knew representations to be false .......................... 121 - Prior to amendment of Code in 1879 not necessary to plead fraud in contracting liability ............................. 148 - Instance of an action to set aside conveyance and agreement to re-convey on the ground that they are an usurious mortgage. 286 - See ACTION; APPEAL; FIIAUD. Answer. Former recovery, when to be pleaded ........... 89 - Denial in, may be on information and belief ............. 54 - When verification of, may be omitted .................... 30 - Stay of proceedings not extension of time to answer ...... 188 Counterclaim. When sufficient ........... . 286 INDEX. 453 ' For rent in action to declare deed mortgage and for ac- counting of rent when proper .............................. 286 - See CITY COURT OF NEW YORK. - Verification. Taken out of state without certificate re- quired in sucli cases pleading to be regarded as unverified. . . . 117 PRINCIPAL AND AGENT Effect Of concealment by agent of name of principal ...................................... 1 - Rights and liabilities df broker Who conceals name of priu- cipal ................................................... 1 - Sec LIMITATIONS TO ACTION. PROCEEDINGS SUPPLEMENTARY TO EXECUTION See SUPPLEMENTARY PROCEEDINGS. PROVISIONAL REMEDIES When one of two graated in same act ion to be vacated ................................. 368 RAILROAD See APPEAL; CORPORATION. REAL PROPERTY See ALIENS; EJECTMENT. RECEIVER Motion for appointment of, of corporation to be made in county in or adjoining whicU principal office is ...................................................... 90 - Power of supreme court to appoint, of foreign corpora- tion ......................... . ...................... 106, 113 - Notice to attorney-general not necessary ............... .. 113 -- Motion'for appointment of, where made ................. 106 -- Motion to vacate order appointing, where made ........ ;. 106 - Who appointed in case of prior appointment by void order. 90 - See CORPORATION ; SUPPLEMENTARY PROCEEDINGS. REFEREE See REFERENCE. REFERENCE Wlien compulsory, will not be ordered in ac- tion by attorney for professional services ................... 294 - Report of referee on motion ............................ 315 - Taxation of costs ot such reference ..................... ; 315 What amounts to sufficient delivery of report of referee to entitle him to his fees and prevent reference being closed. . . . 418 - Sec MOTION. RELIGIOUS CORPORATIONS See CORPORATIONS; INJUNC- TION. REPLEVIN See JUSTICE OP THE PEACE. RES ADJUDICATA See PLEADINGS, Answer; SUMMARY PROCEEDINGS. RESIDENCE What presence in State does not constitute 371 See INFANT. REVIVAL See ABATEMENT AND REVIVAL. SECURITY FOR COST When ordered on ground f non- residence >.-..,. 158 Laches 156 454 INDEX. - Attorney when liable for costs because, not given . ........ 294 - See COSTS. SERVICE See AFFIDAVIT; PLEADINGS, Complaint; SUMMONS. SERVICE BY PUBLICATION See AFFIDAVIT; SUMMONS. SHERIFF Substitution of iudemnitors for, in action against, for wrongfully taking, etc., personal property, when properly ordered. ............................................... 377 - Liability of inderanitors ..................... .......... 377 - Waiver of objection that bend was not given until after commencement of action .............................. . . .. 377 - Sue BILL OF PARTICULARS ; EXECUTION. SLANDER See PARTIES TO ACTION. STATUTE In construing, judge vested with authority to disregard the letter in order, in a given case, to attain the ends of just ice ................................................ 307 STAY OF PROCEEDINGS See BILL OF PARTICULARS; EXE- CUTION; PLEADINGS, Answer. SUBROGATION See ABATKMKNT AND REVIVAL. SUMMARY PROCEEDINGS Tenant cannot deny landlord's title in ................................................. 286- -- When adjudication as to, in such proceeding riot res ad- jndicata ........................ ....................... 286 SUMMONS When substituted service of, ordered ........... 300 - Time to answer when, so served ......................... 366 - Proof on entry of judgment 011 .......................... 366 - Provisions of code relating to service of, by publication equally applicable to infantas to an adult .............. ... 216 - Infant wkcn estopped from denying regularity of such service .................................................. 261 SUPPLEMENTARY PROCEEDINGS Mode of compelling production of books on examination in ................ 300, 302 - Corporation may be compelled to produce books, etc ...... 363' Examination in, where debtor bus made assignment for bene- fit of creditors not confined to property acquired subsequent to assignment .............................. . ........... 233 - Order appointing receiver in, in place of one who luis resigned, properly made by court and not by judge ......... 74 - Notice of application for receiver in, when necessary ...... 3l> - Receiver-may be appointed in, cither before or after return of execution and on examination of third party ............. 31)4 - NOTE ON APPOINTMENT OF RECEIVER IN SUPPLEMENTARY PROCEEDINGS ............................................ 3U6 - When and by whom appointed, 396; notice of application, 897; extending former receivership, 398; filing order, 399.; INDEX. 455 Page r security, 399; removing receiver, 400; effect of appointment on proceedings, 401. SURROGATE Jurisdiction of, to determine rights of legatees 245 Effect of irregular service of citations iu surrogates court. . 15 Appointment of guardian ad liteni . 15 When decree made on accountings of executor, trustee and guardian will not be opened 389 Power of, to open decrees and grant new hearing 389 Power of, to puuisli for contempt. . . . . 250 See EVIDENCE; EXECUTOR AND ADMINISTRATOR. TORT Effect of partial satisfaction by one of two joint tort- feasors 135 See HUSBAND AND WIFE; PARTIES TO ACTION. TRIAL What amounts to waiver of notice of 82 Who may move case for 83 Verdict of jury on specific questions of fact in action triable by court 425 Power of court to disregard 425 UNDERTAKING Form of, on appeal when guaranteed by corporation authorized to guarantee undertakings 259, 386 When guaranteed by corporation, must be executed by party 169 Justification of corporation guaranteeing, and ap- proval 169, 171, 386 Although defective in form, it may be supported as against the sureties by any sufficient consideration 226 Form of, to replevy chattels in action in justice's court. . . . 253 When reversal of judgment as to one of three defendants amounts to breach of condition of, on appeal 226 Effect on undertaking on arrest of appeal from judgment in action in which it was given. 43 Sec CONTEMPT; EVIDENCE; PLEADINGS, Complaint. ' USURY See PLEADINGS, Complaint. VERDICT See TRIAL. VERIFICATION See PLEADINGS. WILL When aliens should be cited to attend probate of 826 When admitted to probate against testimony of subscribing witness 128 WITNESS See EXAMINATION OF PARTY BEFORE TRIAL. TABLE OF CASES REPORTED IN VOLUMES 1 TO 6 OP THESE REPORTS WHICH HAVE BEEN AFFIRMED, REVERSED, MODIFIED, ETC. Reported N. Y. Civ. Pro. R. Vol. Page BAILEY, In re 4 140 Order affirmed with $10 costs, and disbursements (Sup. Ct., 1 Dep't., Gen'l T., Jany. 1884), 6 JIT. Y* Civ. Pro. 253. BARNARD v. ONDERDONK 2 294 Judgment affirmed with costs by court of appeals Feby. 10, 1885. BENQTSON v. THINGVALLA STEAMSHIP Co . .3 263 Judgment affirmed with costs (Sup. Ct., 2 Dcp't., Gen'l T., Sept. 1883), 4 N. Y. Civ. Pro. 260. BOGERT, ESTATE op ....... 4 441 Decree of surrogate affirmed with costs to appellant (Sup. Ct., 2 Dep't., Gen'l T., Sept. 1884), 6 2T. T. Civ. Pro. 128. BOWE v. CAMPBELL 2 232 Judgment affirmed on opinion of VAN VORST, J., and on authority of Flack v. State of New York, 29 Hun, 286 (Sup. Ct., 1 Dep't., Gen'l T., March 1884), 32 Hun, 243. BOTD v. SMITH 3 847 Order affirmed with costs (Ct. App. June 1883), 8 N. T. Civ. Pro. 416. .BUCKLEY v. GOTTA PERCHA & RUBBER MAN'F'G Co. . 3 428 Appeal dismissed; no opinion (Ct. App. June 1883), 93 N. Y. 637. CLARK t. DILLON 4 245 Judgment affirmed with costs by court of appeals Nov. 25. 1884. [456] CASES AFFIRMED, ETC. 457 Reported v N.T. Civ. Pro.B VoL Pag COMBS v. OOMBS . . . . . . . .1 29tf Order reversed, with costs (Sup. ;Ct, 4 Dep't., Geu'l T. 1881), 25 Hun, 279. CONCORD GRANITE Co. v. FRENCH . ... . .3 W Judgment affirmed with costs and disbursements (N. Y. Com.. Pleas, Gen'l T., May 1883), 3 JK T. Civ. Pro. 445. COOPER v. JOLLY 8 9 Order reversed (Sup. Ct., 4 Dep't., Gen'l T., 1883), 30 Sun, 224. Order of general term reversing order of special term affirmed, without opinion (Ct. App. June 1884), 96 N. T. 667. CBOSSMAN, In, re. . 3 65 Decree of surrogate affirmed with costs, tub nom, Grossman v. Grossman (Sup. Ct. 2 Dep't., Gen'l. T. 1883), 30 Hun, 385. Order of general term affirming surrogate's decree, affirmed sub nom. Grossman v. Grossman (Ct. App. Feb'y, 1884) ; 5 N. T. Civ. Pro. 204. DICKENSON v. THE MAYOR 3 98 Judgment affirmed (Ct. App. June 1883), 92 Jf. T. 584. ERKENBRACH-P. ERKENBRACH .5 184. Order of .general term affirmed (Ct. App. Oct. 1884), 96 N. T. 456. 'FIRST NAT'L BANK- OP OSWEGO v. Duxu. . . . 4 376 Order of general term reversing order of special term, granting motion, ;eversed, and order of special term affirmed (Ct. App. Oct. 1884), 20 JV. T. Weekly Dig. 17. FITZGERALD v. QUANN. 1 273 Judgment and order reversed (Sup. Ct. 5 DepH., Geu'l T. Oct. 4884), 33 Hun, 652, GATES v. CANFIELD 2 254 Order reversed (Sup. Ct. 4 Dep't., Gea'l T. 1883), 28 Hun, 12. GROSS v. CLARK. , 1 17 Order affirmed with costs (Ct. App., Dec. 1881), 1 Jf. T. Civ. Pro. 464. *HALL v. U. S. REFLECTOR Co. . . . . .4 , 148 Order reversed with $10 costs and disbursements, (Sup. Ct., 1 Dop't, Gen'l T. ; Jan. 1884), 31 Hun, 609. -Order of .general term affirmed without opinion (Ct. App. May 6, 1884), 96 Jf. 7. 628. 458 CASES AFFIRMED, ETC. Reported N.Y. Civ. Pro. B. Vol. Page. HAYES v. DAVIDSON . ' " .6 877 Orders of general and special terms reversed and motion denied with costs in all the courts (Ot. App., Jan'y 20, 1885), to be reported, 7 N. T. do. Pro. HKIN D. DAVIDSON * ... 5 2ft Order of general term reversed and order of special term affirmed with costs (Ct. App. June, 1884), 5 N. T. Civ. Pro. 391. HFGGINS v. CHRICHTON 2 317 Judgment affirmed with cost, by Court of Appeal, Jany. 20, 1885. HOLSMAN v. ST. JOHN 3 48 Order of general term affirming order of special term reversed (Ct. App. 1882), 90 N. T. 461. HUGHKS v. HUGHES . . . , . . . .2 139 Judgment affirmed, with costs (Sup. Ct. 1 Dept. 188,5), 30 Sun, 349. JAMES >. SHEA . 2 358 Judgment and order affirmed with costs, by Court of Appeals, Jany. 20, 1885. LITTLE v. LYNCH 5 216 Order reversed with costs and disbursements and order granted denying motion (Sup. Ct. 1 Dept. GenL T. Jany. 1885), 6 N. T. Civ. Pro. 418. MeNuLTY v. SCOLLEY 4 250 Order affirmed (Ct. App. March, 1884), 95 N. .T. 243. MANNING v. GOULD 1 216 Judgments of general and special terms reversed and new trial on! ered; costs to abide the event (Ct. App. Oct. 1882), 3 N. 7. Civ. Pro. 58. MARKET NAT'L BANK OP NEW YORK v. PACIFIC NAT*L BANK OP BOSTON 2 380 Order reversed, with costs (Sup. Ct. 1 Dept. Gcn'l T. 1883), 30 Hun, 50. Order of general term reversing order of special term affirmed on opin- ion in llaynor v. Pacific Nat'l Bank, 93 N. T. 871 (Ct. App. Oct. 1883), 93 N. T. 648; MARTIN v. RECTOR . . ... . . .2 184 Order reversed (Sup. Ct. 3 Dep't, Gen'l T. 1883), 28 Hun, 409. METROPOLITAN CONCERT Ca v. ABBEY . 5 26 CASES AFFIRMED, ETC. Reported N. Y. Civ. Pro. B. Vol. Pag Appeal to court of -appeals dismissed, without opinion (Ct. App. Oct. 1883), 93 2f. T. 654. ' MtTRTHA V. C'URLET. ....... 3 86 Order of general term reversed and order of special term affirmed (Ct. App. May, 1883), 3 N. T. Cm. Pro. 206. OKDEN GERMANIA v. DEVENDER. . . . .6 161 Appeal to court of appeals dismissed October 31, 1884. ORSER, ESTATE OF 4 129 Decree of surrogate affirmed, "with costs, against the appellant (Sup. Ct., 2 Dep't, Gen'l T. Dec. 1883) sub nom. Matter of Brown, 31 Hun, 166. PEOPLE ex rel NEGUS . DWYER 1 484 Order affirmed (Sup. Ct., 2 Dep't, Gen'l T., 1883), 27 Hun, 548. Order of general term affirming order of special term, affirmed with costs (Ct. App. Nov. 1882), 2 S. T. Civ. Pro. 379. PEOPLE v. N. Y. CENTRAL & HUDSON RIVER R. R. Go. 2 83 PEOPLE v. N. Y. LAKE ERIE & WESTERN R. R. Co. 3 8a Order reversed with costs and motion granted (Sup. Ct., 1 Dep't, Gen'l T.; Jan'y 1883), 3 N. T. Civ. Pro. 11. PHELFSW. PHELPS. 6 117 Order affirmed (Sup. Ct., 3 Dep't, Gen'l T. May 1884), 32 Hun, 642. PLIMPTON v. BIGELOW. . . . . .3 183 Order of general term reversing order of special term reversed and order of special term affirmed (Ct. App. Nov. 1883), 93 N. Y. 592. PUTNAM v. STEWART 2 173 Judgment affirmed with costs by Court of Appeals, November 25, 1884. RAMSDEN v. RAMSDEN ....... 3 416 Order affirmed without costs (Ct. App. Jany. 1883), 91 N. T. 281. REMINGTON PAPER Co. v. O'DOUGHERTY ... 6 79 Affiimed, without opinion (Ct. App. June 1884), 96 N. Y. 666. ROCKWELL v. DECKER 5 63 Order affirmed with costs and disbursements (Sup. Ct., 2 Dep't., Gen'l T., Sept. 1884), 33 Hun, 343. Ross v. WIGG (note) 6 268 Order affirmed with costs and disbursements CASES AFFIRMED, ETO. Reported N. Y. Civ. Pro. R. Vol. Page (Sup. Ct., 4 Dep't, Gen'l T., June 1884), 6 N. Y. Civ. Pro. 263. SECOND NAT 'L BANK OP OSWEQO v. DUNN . . . 4 878 See First Nat'l Bark of Oswego v. Dunn, tupra. SHERWOOD v. TRAVELERS' Ins. Co. . . . .2 67 Order reversed with costs and disbursements (N. Y. Com. Pleas, Gen'l T., Marcli 1883), 8 N. Y. Civ. Pro. 281. SJSYDER v. SNYDER 4 870 Order affirmed with xiosts and disbursements (Ct. App. May, 1884), 5 -V. Y. Civ. Pro. 267. THOMAS v. UTICA & BLACK RIVER R. R. Co. . .6 858 Order affirmed by general term of supreme court 4th department, October 1884. TIM v. SMITH 3 347 Order affirmed with costs (Ct. App. June, 1883), 3 N. Y. Civ. Pro. 416. TOMPKINS v. SMITH -1 898 Order affirmed ,{N. Y. Super. Ct. Genl. T. 1882), 48 N. Y. Super. (J. & #.) 113; S. C., 4 How. Pr. 499. Order of general term affirmed without opinion (Ct. App. 1888), 89 N. Y. 602. TROW PRINTING-, ETC. Co. v. HART . . . .1 240 Order affirmed (Ct App. 1882), 85 'N. Y. 500. WALLACE . FEELT . . . . . . .1 126 Affirmed without opinion (Ct. App. 1882), 88 N. Y. 646. WILLIAMS . WESTERN UNION TELBGRAFU Co. . 1 84 Order affirmed with costs (N. Y. Super. Ct. Genl. * T. May, 1881), 1 N. Y. Civ. Pro. 294. WHITE v. RINTOCL . 6 259 Order affirmed with costs and disbursements by general term of N. Y. Superior Court, December 1, 1884. WOERISHOFFER v. NORTH RIVER CONSTRUCTION Co. .6 111 Order affirmed with $10 costs and disbursements I by general term of Supreme Court firet depart- f aaent, January 8, 1885.