text:
    Sarah A. Burtis, Resp’t, v. Thomas V. Dickinson et al., Def’ts. Charles D. Marshall, Resp’t, v. Same, Def’ts. Ludwig Nissen et al., Resp’ts, v. Same, Def’ts. German-American Bank, Resp’t, v. Same, Def’ts. Ludwig Nissen et al., Creditors, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed November 13, 1894.)

    Judgment—Vacation—Who may make motion.
    An attaching creditor, who has not acquired a lien by levy of the attach ment. judgment or execution, cannot move to set aside a sale of the property under a judgjnent previously confessed by the debtor.
    Appeal from an order, made in each case, denying a motion to vacate the judgment therein.

      Martin Clark, for app’lts; George C. Miller, for resp’ts.
   Bradley, J.

The defendants, husband and wife, were engaged on March 27, 1894, as partners in the sale of jewelry at the city of Buffalo. On that day, judgments in the above entitled actions were entered against them upon their confession, and executions upon three of them were issued to the sheriff of Erie county, who levied them upon the stock of goods, etc., in the store occupied by the defendants. On the same day an execution issued upon a judgment recovered by action against them by the .Queen City Bank was also delivered to the sheriff, and by him levied upon the property. The execution upon the judgment of the German-American Bank was delivered to the sheriff March 31, 1894. ■ The property was by him sold, by virtue of the executions, April 3, 1894, for the sum of $15,000. The appellants, Ludwig Nissen & Co., afterwards commenced an action against the same defendants, and on May 3, 1894, a warrant of attachment was issued therein, and delivered to the same sheriff, who declined to levy it upon the property, for the asserted reason that the title to it had, by such execution sale, passed to the purchaser. The appellants founded their motion upon the charges (1) that the statements of confession were defective, and insufficient to support the judgments entered thereon : (2) that the defendant Matilda J". Dickinson, being a married woman, was incapable of making effectual confession of the judgments; (3) that the judgments so entered are fraudulent and void as against the appellants. .

All the judgments were entered in this court, and the validity of the Queen City Bank judgment is not questioned. For the purposes of the question, the motion may have such treatment as an action brought by the appellants for a like purpose would be entitled to. If the attachment had been levied upon the property, it is clear that they would be permitted to defend their asserted right to the lien of it upon the ground of fraud, or for any reason which would tend to support it against the claim of others. Hall v. Stryker, 27 N. Y. 596; Rinchey v. Stryker, 28 N. Y. 45; Thurber v. Blanck, 50 N. Y. 80. The mere lien of attachment before judgment does not support an action by a creditor at large to set aside as fraudulent a prior charge upon, or apparent title to, property ; nor is such remedy essential for the protection of the attaching creditor, because the officer in such case has the custody of the property, and affirmative action is with those asserting title or claim adverse to the lien of' the attachment. In Mechanics & T. Bank v. Dakin, 51 N. Y. 519, the plaintiff had not only the levy of his attachment, but also judgment and execution ; and in People ex rel. Cauffman v. Van Buren, 136 N. Y. 252; 49 St. Rep. 378, the relators had caused attachment to be levied upon the property in question, which had been levied upon and advertised for sale by virtue of executions of judgment creditors. Thereupon, in an action commenced by the relators against the sheriff and such judgment creditors, an injunction order was made and served, restraining them from selling or disposing of the property during the pendency of the action. For proceeding to dispose of the property in violation of the injunction,, they were held to have been in contempt, and subject to a fine in consequence. The court held that an action for such injunctive purpose is maintainable. To create a specific lien by attachment it is essential that it be levied upon property. Van Camp v. Searle, 79 Hun, 134; 61 St. Rep. 349. In the present case the .property in, question was not in the custody of the sheriff at the time the attachment was delivered to him, nor was the attachment levied upon it, nor did the appellants have any judgment against the debtors, and therefore could have no action in aid of an execution. The appellants' counsel cites Falconer v. Freeman, 4 Sandf. Ch. 565, in •support of the purpose of the motion. But the attachment there was issued under the Revised Statutes, and was necessarily for the benefit of all the creditors of the debtor; and there an injunction was issued to enable the plaintiff to have the attachment levied. The injunction was alleged to be necessary to restrain the defendants from disposition of the proceeds of the sale, which was then advertised, of the property. In view of the-situation so presented, the motion to dissolve the injunction was denied, although, as a rule, an action for the other purposes of the relief sought could not generally be maintained before trustees were appointed. Wintringham v. Wintringham, 20 Johns. 296; Fort v. Fort, 9 Wend. 442. At that time the proceeding by attachment was treated as a suit, and the trustees appointed in it were by the statute deemed vested with the estate, real and personal, of the debtor with power to sue, etc. 2 Rev. St. p. 41, §§ 6, 7; Fx parte Brown, 21 Wend. 316. The Falconer case has no necessary application to attachment proceedings under the present statute. The creditor makes use of it for his benefit alone. His right, by virtue of his attachment, to contest adverse claims upon the property, is dependent upon a specific lien acquired by the levy of it thereon; and such levy may be made, although there has been an apparent transfer of it by the debtor. Skinner v. Oettinger, 14 Abb. Pr. 109. Without the consideration of any other question, the conclusion follows that there is no support for the motion,- and the order should be affirmed.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Thomas Larkin, Resp’t, v. Village of Brockport, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed November 13, 1894.)

    1. State—Employe.
    Where it is the province of the state to employ, and the dúty of a village to pay, a person for his services, the village is a proper and necessary . party to an agreement fixing the rate of compensation.

      2. Same.
    Chap. 380 of 1889 has no application, where the work was performed under an implied comtract made prior to the passage of the act.
    3. Same.
    Where an employe, without the knowledge or request of the canal officials, assumes to have his son assist him in doing the work which he had himself agreed to do, he is not entitled to recover an additional compensation for such labor.
    Motion for a new trial on a case containing exceptions, ordered to be heard at the general term m the first instance.

      George P, Decker, for pl’ff; William F. Cogswell, for deft.
   Lewis, J.

The legislature, in the year 1887, upon the solicitation of the citizens of the village of Brockport, passed an act making an appropriation of money for the construction' of a lift bridge over the Brie canal in said village. It was provided in the act that the operation of the bridge should be under the direction of the superintendent of public works, but that the -expense incurred in operating the bridge should be paid by the village of Brockport. The bridge was constructed, and the superintendent of public works, in the spring of 1888, appointed the plaintiff as one of two men' to operate it, they to alternate in the operation of the bridge,, and work 12 hours a day each. The village trustees, by resolution passed at a meeting of the board June 5, 1888, fixed the plaintiff’s compensation at $45 per month. .He was informed of the adoption of the resolution, worked through the season, and accepted payment for his services from the village from month to month at that rate during that season. In the spring of 1889, a few days before the opening of navigation upon the canal (which, that year, was on the 1st of May), the superintendent again appointed the plaintiff to. attend, the bridge. The superintendent testified : “ In the spring of that year I recollect the appointment of Thomas Larkin at bridge-tender at Brockport. He was appointed about the first of May. I could not say just the day. His appointment was to commence or take effect at the opening of navigation. The canal opened that year the first of May, as I remember. * * * No arrangement was made between Larkin and me as to how much he was to receive per day, or what he should be paid for his services. Nothing was said about it, nor as to how long he should continue as bridge-tender.”

On the 30th day of April, 1889, the hoard of trustees of the village passed a resolution fixing the plaintiff’s compensation for the year 1889 at the same rate as for the previous year. The plaintiff testified that: “ Notwithstanding the fact that this was a hard-working bridge, and that I knew all about it, and that I knew that the village" was paying $1.50 per day for the twelve hours’ work, I applied to the superintendent for re-appointment in the spring of 1889. I was desirous of obtaining the job.”

The plaintiff presented to the defendant, during the time he was employed in the year 1889, monthly bills for his services, in conformity to the requirements of the village ordinances, and received his pay monthly. There was stated in the bills the number of days he had worked the preceding month, and the amtiunt of his compensation was computed at $1.50 per day. He duly verified each bill by affidavit to the effect that the items of the account were correct as to services; that they were rendered for the village of Brockport. On the 6th of June, 1889, an act of the legislature was passed, the first section of which is as follows: “ From and after the passage of this act the wages of day laborers employed by the state or any officer thereof shall not be less than $2.00 per day, and for all of such employed otherwise than day laborers at the rate of not less than 25 cents per hour.”

This act was pending in the legislature at the time of plaintiff’s employment in 1889, of which fact he was then aware. Prior to the passage of the act, he had no communication personally witli the board of trustees, nor with any of its members individually, about the rate of wages he was to receive. He testified that after the passage of the act he 'talked with individual members of the trustees about his wages. The particulars of the conversations are not stated in the record. He made no demand upon the board, as such, for the increased wages mentioned in the act, but received his monthly payments, as heretofore stated, at the rate of $45 per month. After the termination of his employment in the year 1889, he presented to the state board of claims a bill against the state for the difference between the amount he had received from the defendant and the wages fixed by the act of 1889. His claim was rejected by said board, as not being a legitimate charge against the state, and he thereafter, in the year 1893, commenced this action against,the defendant, claiming to recover at the rate of 25 cents per hour for 12 hours’ services per day, less the amount paid him by the defendant, and in addition thereto he claimed to recover, as a second cause of action, compensation for the services of his minor son as his assistant in operating the bridge during a part of the year 1889.

At the close of the evidence, the defendant’s counsel asked for a nonsuit upon the ground, among others, “ that plaintiff’s services were rendered under an implied contract to work for $45 per month, which could not be increased by chapter 380 of the Laws of 1889.” The court denied defendant’s motion as to the first cause of action, and granted a nonsuit as to the second cause of action. The defendant duly excepted to the court’s refusal to grant a nonsuit as to the first cause of action, and requested the court to direct a verdict for the defendant on the first cause of action, which was denied, and an exception duly taken. Plaintiff’s counsel thereupon asked the court to direct a verdict for the plaintiff for the sum of $279.30, which motion was denied, and the defendant’s counsel thereupon asked to go to the jury upon the question of waiver. The plaintiff’s counsel objected to the court entertaining the motion, on the ground that the defendant had waived its right to go to the jury by asking for a direction of á verdict in its favor. The objection was overruled. r The court thereupon charged the jury. At the close of the charge, the defendant’s counsel—“Asked the court to charge the jury that if they find that the plaintiff performed the services under and in pursuance of the resolution' of the board of trustees fixing the amount of wages of bridge tenders at forty-five dollars per month, and presented his bills therefor to the trustees for payment, stating the amount due him at the rate fixed by said resolution, and said bills were paid in full for the time he worked, it constituted an implied contract on his part which could not be affected by the subsequent act of the legislature. By the Court: I decline to vary my charge upon that point. The defendant duly7 excepted.”

Nothing had, in fact, been said in the charge upon the question of an implied contract. Defendant’s counsel again requested the court to charge the jury that, if they find the facts as stated in the foregoing request to find—“ It is for them to say whether the plaintiff did not work under an implied contract, and, if they find that he did, he cannot recover. The Court: If you find from the evidence that he worked or agreed to work for forty-five dollars per month, and that was all he was to receive, then he cannot recover any sum beyond that amount. The defendant excepted to the refusal to charge as requested.”

It being the province of the state to employ the plaintiff, and the duty of the defendant to pay him for his services, the defendant was a proper and necessary party to an agreement with the plaintiff fixing the rate of his compensation. It might be either an express or an implied agreement. There was evidence tending to show that there was an implied contract that plaintiff’s compensation for the year 1889 was to be at the rate of forty-five dollars a month. The question of an implied contract should have been submitted to the jury, unless the defendant waived the right to go to the jury by the request made by its counsel to go to the jury upon the question of waiver, which request was made previous to the charge to the jury, and after his ineffectual effort to secure a direction of a verdict for the defendant upon the first cause of action stated in the complaint. The request to go to the jury upon the question of waiver was objected to by the plaintiff’s counsel, as stated, and the objection was overruled. It does not appear from the record that the defendant’s counsel asked to have any other question submitted to the jury previous to the charge; but, after the conclusion of the charge, he made the requests to charge heretofore stated. The question of waiver pud the requests to charge probably covered the same ground, but, if -not, the refusal to charge as requested was not placed upon the ground that the defendant was estopped by the former request from having any other question submitted. Whether there was an implied contract was an important and controlling question, and it should, we think, have been submitted to the jury. If the work performed was under an implied contract that he should receive forty-five dollars a month, the law of 1889 had no application to the case. Clark v. State, 142 N. Y. 101; 58 St. Rep. 444. The verdict for the plaintiff was for the sum of $>278.30, being the difference between .the amount of the services at twenty-five cents per hour and the amount received by the plaintiff from the defendant.

bTo employment of the infant son of the plaintiff for the year 1889 by the superintendent was proven. That official seems to have insisted that the work of operating the bridge should be performed without an assistant, and when the plaintiff declined to do the work without the aid of an assistant he was discharged. The superintendent testified that he only appointed two men to operate the bridge. The plaintiff having assumed to have his son assist him in doing the work he had himself agreed to do, and that, so far as appears, without the knowledge, and, as stated, without the request, of the canal officials, who were the only persons having-authority to employ laborers on the canal, the trial court, we think, correctly held that he was not entitled to recover for his son’s labor. The defendant did not employ the boy. The plaintiff testified that he talked with the president of the village-about the necessity for a helper, but he does not say that the president authorized him to employ the boy. It does not appear that that officer had any authority to make such a contract.

Defendant’s motion for a new trial should be granted, with costs to abide the event, and plaintiff’s motion for a new trial denied. All concur.


author: Bradley, J.

text:
    Mary O’Connell, Resp’t, v. Morris Samuel et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed November 13, 1894.)

    1. Appeal—Cueing error.
    Error in refusing to dismiss the complaint, at the close of plaintiff’s case, for want of evidence is obviated, where the deficiency is afterwards supplied by defendant’s evidence.

      2. Master and servant—Assault and battery.
    Where a collector, while acting within the scope of his employment, commits an assault and battery upon the plaintiff in retaking certain prop-. erty sold to her under,a conditional sale, the'fact that he deviated from his instructions in proceeding to get possession of the property, does not necessarily relieve the employer from the consequences of such conduct.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      S. D. Bentley, for app’lts; B. Keeler, for resp’t.
   Bradley, J.

The action is founded upon the charge that in October, 1893, the defendant Beechler made an assault upon the plaintiff, and beat her; that he was then engaged in the service of the other defendants; and that, by reason of such relation, they are chargeable with the injurious consequences suffered by her. The defendants Samuel (carrying on business in the name of the People’s Credit Company,' in the city of Rochester), by written contract to that effect, leased to the plaintiff a baby carriage, at the weekly rental of one dollar, title to pass to her on payment of $13.50; in the meantime, title to remain in the company, with the right, on default in payment, to retake the property. The plaintiff, having paid nine dollars, defaulted in payment. And at the time in question the defendant Beechler called at the residence of the plaintiff, to obtain payment or the possession of the carriage. He was informed by her that she was not prepared to pay, and he expressed his purpose to take it. To this she did not consent. And the evidence on the part of the plaintiff tended to prove that she resisted his effort to enter the house; that he overcame her resistance and entered, and that in doing so, he assaulted her, tearing her dress, and inflicting upon her some bodily injury. There was some conflict in the testimony of the parties in that respect. But the question of fact may be deemed disposed of by the verdict of the jury in favor of the plaintiff. At the close of the evidence on the part of the plaintiff, and before any was introduced on the defense, motion made in behalf of the defendants Samuel for dismissal of the complaint as to them was denied, and exception taken. It is urged that there was error, because there was no evidence to support the action against them. There may have been some force in the exception on this review, if nothing further had appeared to charge them. But, as evidence afterwards given, tended to prove their relation to the other defendant in the business in which he was engaged at the time in question, the objection was obviated. Painton v. Northern Central Railway Co., 83 N. Y. 7.

It is also insisted that the assault made by the defendant Beechler upon the plaintiff was beyond the scope of his employment, and, therefore, that the other defendants are not chargeable with its consequences. He was in the service of the People’s Credit Company, in making collections of money due for such property so leased by the company, with instructions to retake the property from those who were in arrears, and supposed tv intend not to pay. The defendant Beechler had unsuccessfully called upon the plaintiff for payment, several times before this occasion. And then he may have had some reason to suppose that any further effort for that purpose would be futile. He, of course, was not instructed to use forcible means to enter houses, or to do acts of personal violence to get possession of the goods. But when he proceeded to take the property he was acting in the business of his employers, and in that sense in the scope of his employment; and, although his action to accomplish such purpose may have been or become willful on his part, his employers were not, for that reason, necessarily relieved from the consequences of his conduct while so engaged, prejudicial to others, for which he would be personally liable. In the present case, the conclusion was warranted by the evidence that, although the defendant Beechler may have deviated from the instructions of his employers in proceeding to get possession of the property, he did not depart from his purpose of reclaiming the property for them, and consequently may, throughout, have acted within the scope of his employment. Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129; Mott v. Consumers' Ice Co., 73 id. 543; Quinn v. Power, 87 id. 535; Palmeri v. Man. Railway Co., 133 id. 261; 44 St. Rep. 894. The cases cited by the defendants’ counsel, where it was held that the injuries complained of were not inflicted by the servants while acting in the scope of their employment, are distinguishable from the case at bar, and the dicta in some of them are not sustained by the latter cases on the subject. The charge of the court to the jury in that respect was that, if they found that Beechler willfully assaulted the plaintiff, he alone was liable, and the other defendants were not liable for the assault, “ unless the assault was committed while he was carrying out the purpose for which he was sent there, and while he was endeavoring to do what he believed to be within the scope of his authority in taking the carriage.” The defendants were not entitled to a more favorable submission of the question to the jury. Although the matter of the belief of the deféndant Beechler that he was acting within the scope of his employment does not go in support of .the fact that he was doing so, it bears upon his good faith only in executing the purpose mentioned in the proposition, to which it added nothing prejudicial to the defendants.

- In charging, as a legal'proposition, that if the jury found that Beechler entered the house without the plaintiff’s objection, and there committed an assault on her, he was a trespasser from the beginningj the court erred. That rule is applicable when a party enters under authority given by law, and not if he does so by license or permission of a person authorized to grant it. Allen v. Crofoot, 5 Wend. 506; Dumont v. Smith, 4 Denio, 319. This part of the charge was followed immediately by the instruction: “That is to say, if he entered her house upon her invitation, and, after he got in there, committed an unlawful assault, he is in the same position, so far as his responsibility for the assault is concerned, as if he had entered the house in the first instance without her permission.”

This was well enough, in view of the fact that the action was not treated as one for trespass upon the premises.

The court further charged the jury that: “If you find that he tried to effect an entrance upon those premises without her permission, or having, upon her permission, entered the house, and ¡that he then committed an assault upon her, then I charge you that whatever he did in defending himself from the force she used he did unlawfully, and he is liable for the assault.”

Also charged them that: “You are to determine whether he entered lawfully or unlawfully upon the premises, but you are not at liberty to bring in any damages whatsoever for the trespass upon the land, for his unlawfully entering into the house of the plaintiff. The sole question here is whether there was an assault committed upon her person or not; but, in determining whether there was such an assault, it may become necessary for you to consider whether he was a trespasser when he entered upon the premises.”

These last two propositions, in relation to the erroneous one before mentioned, apparently seem to give some force to the exception taken to the latter, and thus arises a question not free from difficulty. But in view of the evidence, and of the charge as a whole, it is evident that the defendants were not prejudiced by that specific portion of it. The court charged the jury that if the plaintiff made an attack on Beechler, without any attempt on his-part to crowd his way into the house, or to enter it against her permission, he had the right to defend himself from an assault, made upon him by her. The instruction to the jury was to the effect that the plaintiff was not justified in using force against Beechler, unless he unlawfully, and by force, sought to enter the house without her consent, or made an assault upon her after he had entered it. If, after he entered the house, he made an unlawful assault upon the plaintiff, it cannot well be insisted that she had not the right to use force to expel him from the house, and that resistance on his part to such attempt would not have been justified. It is not held to the contrary in People v. Gulich, Labor Supp. 229. In the view taken of the case, there was no error prejudicial to the defendants in any of the rulings on the trial. The judgment and order should be affirmed.

All concur.


text:
    William Kiernan, Individually and as Executor, etc., et al., App’lts, v. The Agricultural Insurance Company of Watertown, N. Y., et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed November 13, 1894.)

    Ihsubanob—Fobteiítuhe-^Divisible contbact.
    Under a policy, for separate amounts, on a house and the furniture therein, providing that the “ entire ” policy shall be void if the property, real or personal, should be encumbered, the lien of a judgment on the house does not avoid the policy as to the furniture.
    Re-argument.

      R. D. Nortkrup, for app’lts; A. H. Sawyer, for resp’ts.
   Bradley, J.

By the policy in question the defendant insured the plaintiff against loss by fire on a dwelling house, $2,000, and on certain personal property therein, $300 ; also, on other personal property, specified amounts. The house and its contents were destroyed by fire. The trial court determined that the insurance on the property covered by it was indivisible, for the purposes of relief, and that the incumbrance placed upon such other personal property, and the lien by judgment created upon the real property, subsequent to the inception of the policy, rendered it entirely void. The judgment for the defendant was affirmed. 72 Hun, 519; 55 St. Rep. 219. Since then the affirmance by the court of appeals of the decision in Knowles v. Am. Ins. Co., 66 Hun, 220; 49 St. Rep. 7; Id. 142 N. Y. 641; 60 St. Rep. 866, has furnished a reason for the reconsideration of this case. There the divisibility of the insurance was held available to render it effectual as to a part of the property, although it was void as to the other portion of the property covered by it. By the policy in that case the insurance on a crop of hops of 1889 was $1,200, and on that of 1890, $800. It provided that the entire policy should be void “if the subject of the insurance be personal property, and it be or become incumbered by a chattel mortgage.” There was such a mortgage upon the drop of 1889. Both crops were in the same hop house, and destroyed by fire. It was held that the policy was void as to the crop of 1889, and valid as to the other. The question here is wether, in view of the doctrine of the Knowles Case, the trial court erred in dismissing the complaint. The contract of insurance contains the condition that the entire policy shall be void, unless otherwise provided, “if the subject of insurance be personal property, and be or become incumbered by chattel mortgage; ” also, that “if the property, real or personal, covered by this policy, be or become incumbered by a mortgage, trust deed, judgment, or otherwise, the entire policy shall be void, unless otherwise provided,” etc. The former of these two provisions corresponds with that in question in the Knowles Case. It was there construed to mean that the entire policy should be void as to the property so incumbered. The application of that rule of interpretation to the policy in the1 present case would seem to lead to the conclusion that it remained valid as to the insurance of $300 on the personal property in the dwelling house. It is true that the condition last before mentioned is somewhat broader than the other, as it relates to both real and personal property, and is applied to the policy in question. And while it may be so interpreted as to import that an incumbrance upon the real' property would render the policy, as á whole, void, it is not, in view of the construction given to the other provision in the Knowles Case, necessarily entitled to such effect. But by it, as well as by the other, the policy may be deemed vitiated only as to the incumbered property covered by it; that is to say, if the real property is incumbered, the policy,'as to that, is void, and the same as to the personal property, or so much of it as is incumbered in the manner therein mentioned, in violation of the condition. And thus the language employed does not take the contract out of the rule of construction applied to the policy in Merrill v. Agri. Ins. Co., 73 N. Y. 452. This meaning given to the term “ entire policy” was obviated in Smith v. Agri. Ins. Co., 118 N.Y. 518; 29 St. Rep. 810, by the more definite provision of the policy that “if the property, either real or personal, or any part thereof shall be incumbered, * * * the entire policy, and every part thereof, shall be void.” Upon the authority of the Knowles Case, the judgment should be reversed, and a new trial granted ; costs to abide the event.

All concur.


text:
    Charles S. Laney, App'lt, v. The Rochester Railway Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed November 13, 1894.)

    1. Appeal—Stay oe proceedings—Where made.
    An order to stay proceedings upon a judgment, during the pendency of an appeal to the court of appeals, may be made by a justice of the supreme court at chambers. e
    2. Same—Waiter—Stipulation.
    A stipulation that a temporary injunction should he vacated, the issues be referred and, if they he finally determined in favor of the plaintiff, the defendant should institute condemnation proceedings, does not preclude an appeal from the referee's determination.
    Appeal from an order denying a motion to vacate a chamber order staying proceedings.

      Quincy Van Voorhis, for app’lt; Charles >7 Bissell, for resp’t.
   Bradley, J.

The main purpose of the action is to restrain the defendant from constructing a railroad in Elm street, in front of plaintiff's premises, in the city of Rochester. In the outset of the action a temporary injunction was Obtained.' This was pursuant to stipulation of the parties, afterwards vacated; and the issues were tried before a referee, who directed judgment for the plaintiff, which was affirmed by the general term. Thereupon the defendant appealed to the court of appeals, and, upon the application of the defendant, an order was made by a justice of this court staying proceedings on the part of the plaintiff to enforce the injunction awarded by the judgment. The motion to vacate that order was denied by the order appealed from. The plaintiff’s counsel insists (1) that it was not within the jiower of a justice at chambers to make ex parte the order staying proceedings ; (2) that the defendant is precluded by the stipulation of the parties from taking an appeal to the court of appeals.

Au order to stay proceedings upon a judgment appealed from may be made by a judge out of court, and such stay may be operative during the- pendency of the appeal. Code Civ. Proc. § 775; Hull v. Hart, 27 Hun, 21. The judgment being in this court, no reason appears why the order may not have been granted by the judge who made it, although an appeal had been taken to the court of appeals. Judson v. Gray, 17 How. Pr. 289.

The other proposition is founded upon the stipulation of the' parties, made before the trial, by which it was stipulated that the temporary injunction should be vacated; that the issues be referred to a referee named ; that, if the issues be finally determined in favor of the plaintiff, the defendant should, within 30 days from such final determination, institute condemnation proceed-, ings ; and that the defendant should give bond conditioned that it would so institute such proceedings, and pay the amount of damages awarded in them. The reference was perfected, the bond given, and the trial had, as before mentioned. The view urged on the part of the plaintiff is that the issues were finally determined, within the meaning of the stipulation, when judgment was entered upon the report of the referee, and therefore the defendant was required to acquiesce in that judgment, and proceed to exercise the right of eminent domain. If that had been the mutual understanding or purpose of the parties, it could have been so expressed as to limit the determination to that which the referee should direct. It is a final judgment, as distinguished from an interlocutory one; and, until the appeal was taken, it was a final determination, and, if affirmed, it" w-ill remain such. But, when appeal is taken from a judgment, the issues are not deemed finally determined until a result of the review is reached. The controversy of the parties arising upon the issues continues on the review, and the determination of it finally by adjudication is that of the issues. It would seem to follow that the use of the word “issues” does not give to the stipulation the restricted meaning sought to be applied to it, and that the substantial import of it would have been no different if the word “ action ” in place of “issues” had been used. The intent of the parties in making the stipulation must be treated as that which its terms import. The order staying proceedings may be so dealt with by the court that it shall not become oppressive to the plaintiff, or prejudicial to his rights. If the defendant fail to proceed with reasonable diligence to permit the appeal to be heard and determined, the plaintiff may by order be relieved from it; and the court will, if occasion requires, direct that the defendant give such further security as may be deemed necessary for the protection of the plaintiff in his remedy for relief. These questions do not arise on this appeal.

The order should be affirmed.

All concur.


text:
    Charles L. Eastman, Resp’t, v. Emily H. Gray, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed November 13, 1894.)

    Costs—Defendants.
    Where judgment is rendered in favor of one, but against the other defendant, the former is not entitled to costs of course.
    Appeal from an order striking from the judgment the award of costs to defendant.

      John T. Knox, for app’lt; William H. Fiero, for resp’t.
   Bradley, J.

The action was brought against David G. Gray, as maker, and the defendant Emily H. Gray, as indorser, of a promissory note. The latter alone defended. Judgment by default was taken against the maker, with costs. The issue made by the answer of the other defendant was tried, and verdict was directed in her favor, upon which, without any direction of the court, judgment was entered for her costs, adjusted by the clerk. The question is whether she was, as of course, entitled to costs. The right of a party to costs is dependent upon the statute. The plaintiff was entitled to recover costs against the defendant, David G. Gray, the maker of the note. Code Civ. Pro. § 3228. By the next section it is provided that the defendant is entitled to costs of course upon the rendition of judgment in an action specified in the preceding section, unless the plaintiff is entitled to costs ; “ but where in such an action against two or more defendants, the plaintiff is entitled to costs against one or more, but not against all of them, none of the defendants are entitled to costs of course.” Id. § 3229. The latter section takes the place of §§ 305 and 306 of the C.ode of Procedure, which, since 1880, has been superseded by- the Code of Civil Procedure. No substantial change has been made by it in the construction and effect of those two sections as they existed after 1851. Prior to that time the right of a plaintiff to costs on recovery against some, only, of the defendants in an action at law, did not deny to the successful defendant in the same action the right as of course to recover them. Daniels v. Lyon, 9 N. Y. 549. In that year, § 306 of the Code of Procedure was so amended as not to entitle him of course, in such case, to recover costs. Allis v. Wheeler, 56 N. Y. 50; Royce v. Jones, 23 Hun, 453. The provisions of those sections (305 and 306) are embraced in § 3229 of the present Code, and the latter section is entitled to the like construction, as its terms quite clearly import. Yamato Trading Co. v. Hoexter, 44 Hun, 491; 9 St. Rep. 379. It would seem reasonable to give one of two or more defendants, who alone and successfully defend, the same advantages as to costs that he who is a single defendant has in an action at law; but, in all actions where the plaintiff is entitled of course to recover costs, the statute referred to has made the right of a successful defendant in the same action to costs dependent upon the discretion of the court. As defined by the statute, “ the party prosecuting a civil action is styled the plaintiff, the adverse party is styled the defendant.” Code Civ. Pro. § 3338. It is not seen that one of two or more defendants brought into court, who alone defends, can be treated as the only defendant in the action. Both or all of them are made adverse parties by the process and its service upon them. That relation thus created does not cease to exist as to those who default, or continue alone as to those who defend. The right to judgment then arises as against the former, and, as respects the latter, the result of the issue is postponed. The view, therefore, is that the appellant is not entitled, as of course, to costs.

The order should be affirmed. All concur.


text:
    Mary A. Knope, Resp’t, v. Joseph Nunn, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed. November 13, 1894.)

    Principal and agent—Liability.
    A tenant in common, who, upon delivering a deed executed by all the joint owners, takes the purchase money bond in his own name without the consent of his cotenants, is liable to them for their shares, though the bond has not been paid by the purchaser.
    Appeal from a judgment, entered on a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.

      Patrick McIntyre, for app’lt; John A. Bernhard, for resp’t.
   Bradley, J.

The purpose of the action is to recover an amount of the alleged proceeds of the sale of certain real estate, to which, prior to the sale, the parties had the title as tenants in common, and of which the plaintiff was the owner of an undivided third part. They united in a deed of conveyance to one Hirschfield, of date June 5, 1889, for the consideration of $5,000. The deed so executed was then taken by the defendant for delivery to the grantee named in it when the transaction of the sale should be completed. He afterwards, on July 17, 1889, delivered the deed to such grantee, who executed and delivered to the defendant his bond with mortgage on the premises, payable to him alone, to secure $4,000 of the purchase money in four years, and interest semi-annually. The defendant paid to the plaintiff $1,250 on account of her interest in the proceeds of the sale. As only $1,000 of the principal sum secured by the bond and mortgage had been paid, it is insisted by the defendant’s counsel that the plaintiff was not entitled to recover. But the evidence on the part of the plaintiff is to the effect that credit was given to the purchaser, and the bond and mortgage for the purchase money taken by the defendant in his name without her knowledge or consent. This was a controverted question of fact at the trial, upon which the jury found with the plaintiff, and she recovered the amount of the residue of her portion of the purchase money. This was permitted by the evidence. The parties had an interest in common in the proceeds of the sale, and the plaintiff was at liberty to treat the action of the defendant in taking the security in his name alone, without her consent, as the appropriation of it for his own benefit, and therefore as liable to her for the share of the proceeds of the sale to which she was entitled. Coles v. Coles, 15 Johns. 159. While it' is true, as urged on the part of the defendant, that the taking of security for it was not the receipt of the purchase money, the appropriation to himself of the securities so taken by him, without the consent of the plaintiff, enabled her to charge him with the purchase money as effectually as if it had been actually paid to and received by him. The conclusion of fact, as found by the jury, that the plaintiff neither consented to the taking by him the securities nor in any manner ratified it, was warranted by the evidence. While she may have elected to treat the plaintiff, to the extent of her interest in the purchase money, as holder of the bond and mortgage as trustee in her behalf, and enforced the trust accordingly,- she was not required to do so. As represented by the plaintiff’s evidence, the defendant never offered to transfer to her any interest in the bond and mortgage, nor ever advised her that he had taken them, nor did she learn that he had taken them until this action was commenced. Therefore, inasmuch as the plaintiff had, by the terms of the securities, no apparent interest in them, the defendant is not in a situation to effectually assert as a defense that she in fact had any Their terms import that they were taken for himself alone, and she elects to so treat them; and this, in view of the facts found she is at liberty to do. Floyd v. Day, 3 Mass. 403; Beardsley v. Root, 11 Johns. 464; Chappell v. Dann, 21 Barb. 17; Allen v. Brown, 51 Barb, 86, 92; 44 N. Y. 228. Although, as between the defendant and the grantee, the giving of the bond and mortgage is not payment of the consideration (Cumming v. Hackley, 8 Johns. 156), it is in the obligation of the latter so secured, and the defendant, as against the plaintiff, cannot effectually assert that the remedy is other than his alone, upon those instruments, to recover, collect and receive the purchase money. In Corlies v. Cumming, 6 Cow. 181, the question arose between a factor, who had advanced money, and his principal. The factor in such cnse is the nominal party dealing with goods consigned to him for sale on commission. He is not required to disclose the name of his principal. He may sue in his own name. He in that manner represents his"principal in making contracts of sale within the power conferred upon him. This is peculiar to that class of agency. Ladd v. Arkell, 37 N. Y. Supr. Ct. R. 35; 40 N. Y. Supr. Ct. R. 150. It is unnecessary to inquire whether a demand of the money was requisite, as no such question was raised at the trial.

There was no error in the refusal of the court to direct a verdict for the defendant, or a verdict in his favor, for the sum of $689.96, as requested; and whether the defendant was entitled to recover, or have allowed to him, any or what sum on account of rents of premises of which the father of the parties died- seized, collected or received by the plaintiff, was a question of fact upon the evidence. Ho request was made for the submission of such question to the jury, nor was any exception specifically taken to the dismissal of it from their consideration. It is therefore deemed unnecessary, and, under the circumstances of the case, not desirable, to consider the question whether or not the court was correct in the view taken,— that the alleged counterclaim for such rent was necessarily subject-matter involved in the issues of another action pending between the parties for an accounting. Ormes v. Dauchy, 82 N. Y. 443; Kirtz v. Peck, 113 N. Y. 222; 22 St. Rep. 733. Sufficient appears to indicate that it is properly the subject of an action for that purpose, and the evidence does not clearly show a basis for recovery by the defendant of a specific sum. for rents which .came to the plaintiff’s hands during the lifetime of the mother of the parties. The deed of conveyance was made by them shortly after her death. Ho other question requires consideration. The judgment should be affirmed.

All concur.


text:
    The People ex rel. Charles Young, App’lt, v. James C. Stout, as Agent and Warden, etc., Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed November 13, 1894.)

    1. Extradition—Conviction on crime not specified.
    A person extradicted, under the treaty between the United States and Great Britain, for assault with intent to murder, cannot be convicted of an assau.lt with an intent to do great bodily harm.
    3. Same—Remedy.
    Relief, in such case, can be had by habeas corpus.

    Application for a writ of habeas corpus to inquire into the cause of relator’s detention.

      H. J. & W. H. Sullivan for relator; Howard H Widener and H. G. Ailcen for def’t.
   Bradley, J.

By indictment found by the grand jury of Monroe county in June, 1898, containing three counts,- the relator was ' charged (1) with the crime of assault in the first degree, made with a loaded revolver, with intent to kill Herbert Guering; (2) with assault in the second degree, upon the same person, with a loaded revolver, and the infliction of grievous bodily harm; (3) with assault in the second degree, with an instrument likely to produce grievous bodily harm upon the same person. The relator was tried upon the indictment in April, 1894, in the court of sessions of that county, and, by the verdict of the jury, found guilty of assault in the second degree. The judgment of the court thereon was that he be imprisoned in the state prison at Auburn for the term of four years and five months, and he was committed accordingly. After the rendition of the verdict, and before sentence, the relator moved in arrest of judgment that the court had no lawful right or jurisdiction to render" it, for the reason that, having been extradited from England on the specific charge of assault with intent to commit murder, and having been acquitted of such charge, he was entitled to and demanded his liberty, that he might have a reasonable time to return to England, in accordance with the provisions of the treaty existing between Great Britain and the United States. The motion was overruled, and the judgment before mentioned followed. The facts upon which the relator seeks to be relieved from the judgment and imprisonment are that, shortly £ifter the commission of the act constituting the alleged offense, he left this country, and went to England, from where he was extradited, and brought back to the county of Monroe, pursuant to the provisions of a treaty between the two governments whereby it was agreed that the United States and her Britannic majesty should, upon mutual requisitions respectively made, “ deliver up to justice all persons who, being charged with the crime of murder or assault with intent to commit murder, * * * shall seek an asylum or shall be found within the territories of the other.” It also provides for the manner and means of accomplishing its purpose. Treaty of 1842, art. 10. By a further treaty supplementary to that article, it was provided that “ no person surrendered by or to either of the high contracting parties shall be triable or be tried for any crime or offense committed prior to his extradition, other than the offense for which he was surrendered, until he shall have had an opportunity of returning to the country from which he was surrendered.” Treaty of 1889, art. 3. And further provision was made by the federal statute -for accomplishing the purpose of extradition treaties with foreign countries. Rev. St. U. S. tit. 66, §§5270-5279. In the requisition and warrant of the executive of the United States upon which action was taken in England pursuant to the treaty, with a view to the surrender of the relator, the offense with which he was charged was specifically stated as that of “ assault with intent to commit murder,” and the warrant there issued for the surrender of him to the agent commissioned to receive and bring him to the United States in like manner described the alleged offense upon which the extradition proceedings were had.

The question upon the merits is whether the court of sessions ■of Monroe county exceeded its jurisdiction of the person of the relator in the rendition and execution of the judgment which consigned him to imprisonment. He was not extraditable under the treaty upon the charge of the offense of assault in the second degree. The alleged crime upon which the extradition proceedings were taken and had was assault in the first degree, as defined by our statute. Penal Code, § 217. The relator was therefore properly put upon trial and tried under the indictment, but he was convicted of a lesser offense only than that for which he had been extradited, and a lesser offense than that for which he was extraditable by virtue of the treaty between the United States and Great Britain. How,'then, in view of its provisions, could he lawfully be subjected to the judgment pronounced upon the verdict? The treaty is the supreme "law of the land, and of it the court was required to take judicial notice. Const. U. S. art. 6, § 1,'subd. 2. It must be assumed that the relator could not lawfully, by the judgment, of the court, be punished for an offense not extraditable by the treaty until his failure, after opportunity to do so, to return to the country in which he had been surrendered. IT. S. v. Rauscher, 119 U. S. 407. He was not convicted of that offense, but it is urged upon the part of the defendant that, as the court had jurisdiction to try him upon the indictment as for assault in the first degree, it was within the power of the court ±o punish the relator for any lesser degree of the crime of assault' for which he should by the jury be convicted on such trial. It is true that, upon an indictment charging only the higher degree of the crime, a person may be convicted of any lesser degree of if. Penal Code, §§ 10, 35; Code Cr. Proc. §§ 390, 444. This is upon the theory that the lesser is included in the higher degree of the offense. Code Cr. Proc. § 445. But, nevertheless, the minor is not the major offense; and, unless the conviction of an assault less in degree than that with intent to commit murder was within the •contemplation of the extradition treaty, it is not seen that the relation of it to such extraditable charge can bring the lower degree within the purpose or effect of the surrender made pursuant to the treaty. The purpose of the international compact evidently was to continue bs execution to those charged with the graver crimes; and it is entitled to no construction which will justify the trial, conviction, or punishment of a person surrendered pursuant to it of any degree of assault other than that there mentioned. If anything further in that respect had been intended, it may be assumed that such purpose would have been in some manner expressed in the treaty. The effect of the verdict of conviction for assault in the second degree was acquittal of Young on the charge of assault in the first degree. People v. McDonald, 49 Hun, 67; 17 St. Rep. 494; People v. Willson, 109 N. Y. 347; 15 St. Rep. 503. Before the supplemental treaty of 1889 was made, that of 1842 was in many cases so construed as not to permit the - trial of a person delivered up in execution of the treaty for any offense other than that for which he was extradited, while his custody taken by such surrender continued, Com. v. Hawes, 13 Bush. 697; State v. Vanderpool, 39 Ohio St. 273; Ex parte Hibbs, 26 Fed. 421, 431; and such is the import of the federal statute on the subject. Rev. St. U. S. 5272, 5275.

In U. S. v. Rauscher, 119 U. S. 407, 432, decided in 1886, where the court distinctly so held, it was said: “ We do not think the circumstance that the same evidence might be sufficient to convict of the minor offense, which was produced before the committing magistrate to support the graver charge, justifies the departure from the principle of the treaty.”

This construction of the treaty, as well as such effect of it, was, by expression obiter, recognized with approval in People ex rel. Post v. Cross, 135 N. Y. 540; 48 St. Rep. 545. The view expressed by Chief Judge Church in Adriance v. Largrave, 59 N. Y. 110, 115, that there was no treaty provision denying the right to try for any other than the extraditable offense, is not necessarily applicable to the situation afterwards produced by the supplemental provision of the convention of 1889. The limitation of the jurisdiction to try here a person delivered up in a foreign country is dependent upon his surrender pursuant to a treaty having such effect. If he is otherwise taken into custody, and brought into the jurisdiction of our courts, no extradition treaty is violated by the trial of him for any offense, Kerr v. Illinois, 119 U. S. 436; and the same rule would be applicable to the trial of a person voluntarily surrendered by the government of a foreign country without reference to the treaty on that subject between that and this country.

It is.here urged by the defendant’s counsel that the surrender of the relator should be treated as having been so made as not to confine the right of trial to the extraditable offense of the treaty. The reason asserted for such contention is that the indictment was present at the hearing had preliminarily to the surrender, and it should be assumed that he was delivered up for trial on the charge of assault in any of the degrees alleged in the indictment. Nothing appears to justify such inference or conclusion. The proceedings in England, as' they appear by the documentary evidence, were had pursuant to the treaty; and this appears by the warrant there issued, wherein the alleged offense upon which he was surrendered is distinctly stated to be that of assault with intent to commit murder.

The further question is raised whether relief can be had by habeas corpus; and it is insisted that the only remedy available to the relator is in review of the judgment by appeal, and that, at all events, that remedy should first be exhausted. The statute provides that the court before which a person is brought by virtue of the writ of habeas corpus must examine into the facts alleged in the return, and into the cause of the imprisonment, and must make a final order to discharge him therefrom if no lawful cause for the imprisonment is shown (Code Civ. Proc. § 2031); but that, if it appears that he is detained “ by virtue of a final judgment of a competent tribunal of civil or criminal jurisdiction,” he must be remanded. Id. § 2032. Habeas corpus is a common-law writ, and the privilege, of it is preserved by the organic law of the state (Canst, art. 2, § 4); and therefore its legitimate purpose cannot be denied by statute. It is not available to inquire into the-mere legality or justice of a judgment or mandate. 'For that purp )se the remedy of the prisoner is by review. People ex rel, Danziger v. Protestant Episcopal House of Mercy, 128 N. Y. 180; 40 St. Rep. 157; People ex rel. Gunn v. Webster, 75 Hun, 278; 58 St. Rep. 225; Ex parte Fonda, 117 U. S. 516; In re Wood, 140 U. S. 278. But the term “legality ” or “justice,” in the sense so used, is not deemed to include questions of jurisdiction or power; and the want of jurisdiction of the tribunal to pronounce the judgment or mandate by which the prisoner is placed and detained in custody furnishes to him the right to resort to the writ for relief, and that is the only subject of inquiry. People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People ex rel. Frey v. Warden of County Jail, 100 N. Y. 20; People v. Protestant Episcopal House of Mercy, supra. In the present case the jurisdiction of the court of sessions, as respects the person and subject-matter, to try the relator upon the charge of assault with intent to kill, cannot be questioned. This was the oifense alleged in the first count of the indictment. He was therefore properly put upon trial in that court; but by virtue of the supreme law of the land, the custody of the relator was so qualified as not to exist other than for the purposes of his trial upon that specific charge. For any other purpose his person was beyond the legitimate control of the court, excluded from it by force of the international treaty before mentioned. If that charge had been stricken from the bill, the lawful custody and jurisdiction would have ceased,'to enable him to return to the country from which he had been extradited. The like effect followed his acquittal of that offense, which was the result given by the verdict for an assault in a minor degree only. In that view it would seem that the question is no different than it would have been if the indictment upon which he was tried had not contained the count for assault in the first degree. Then he could not have been tried without violation of the treaty pursuant to which he was extradited, and, as held in U. S. v. Rauscher, he was clothed with the right of exemption from trial for any other charge than thé one offense ufitil he had the opportunity to return to the country from which he was taken. It follows that there was no jurisdiction to pronounce the judgment for its execution against the relator; and as said by Judge Allen in the Tweed Case, 60 N. Y. 591: “A party held only by virtue of judgments thus pronounced, and therefore void for want of jurisdiction, or by reason of excess of jurisdiction, is not put to his writ of error (appeal), but may be released by habeas corpus.”

These views lead to the conclusion that the relator is entitled to his discharge from imprisonment.

All concur


author: Dwight, J. Bradley, J.

text:
    Harry Sneck, Resp’t, v. The Travelers’ Insurance Company of Hartford, Connecticut, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed November 13, 1894.)

    Insurance—Accident—Loss op hand.
    The loss of all the fingers on one hand is not a loss of an “entire hand,” within the meaning of an accident policy.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.

      Salterlee & Taylor, for app’lt; Howard W. Snech, for resp’t.
   Dwight, J.

The defendant insured the plaintiff, in the sum of $10 a week, against loss of time, not exceeding 26 weeks, resulting from bodily injuries received in a manner described, and producing a degree of disability particularly defined, and further, by its policy, undertook that, if loss, by severance, of one entire hand or foot should result from such injuries alone, within 90 days it would pay him one-third of the principal sum of $2,000, named, in the policy, in lieu of such weekly indemnity. By this action, the plaintiff sought to recover under the second alternative of the above provision, and he was permitted to do so, on the theory that he had suffered “ the loss, by severance, of one entire hand.” An exception taken by the defendant to the charge of the court raises the question whether that theory was supported by the evidence in the case, and the motion for a new trial was made on the ground that the verdict of the jury in that-respect was contrary to th.e evidence. The evidence is undisputed. ■ The plaintiff’s hand-was caught in the knives of a planing machine, and was cut off three-fourths of an inch back of the knuckle joints, and just back of the head of the second bone of the thumb. Anatomically the severance was of the phalanges and the heads of the metacarpal bones, leaving the palm of the hand covering the carpal and metacarpal bones, except the heads of the latter, and the middle bone of the thumb, except its head. He retained the joint at the wrist unimpaired, with all the motions it ever had, in all directions. The surgeon who made the amputation, and who was called by the plaintiff, testified: “ The fingers and the heads of all the metacarpal bones were cut off with a planer. * * * A little over half the hand, speaking anatomically, is gone. There are twenty-seven bones in the skeleton of the hand. Thirteen bones are entirely gone, and parts of five more. The parts of the five are simply the heads of the metacarpal bones and [the head of] the middle bone of the thumb.”

The same surgeon testified that the portion of the hand which remains is more useful than if the amputation had been at the wrist; and he illustrated the statement by saying that the plaintiff might use it in pitching hay, grasping the handle of the fork with his right hand, and lifting with his left. The plaintiff himself testifies that his left hand is of considerable use to him. There is no evidence to the contrary of that above given. Upon this evidence, it was, we think, manifest error to submit to the jury the question whether the plaintiff had sustained the loss, by severance, of an entire hand. The loss which he sustained was unquestionably by severance, but it was not of the entire hand. He lost all of his fingers, but he retained part of his thumb, and nearly the whole of the palm of the hand. There seems to be no room for construction of the language of the contract. To bring the case within the provision in question, the loss must be of the entire hand. Of course, this means substantially the entire hand, both in respect to its structure and its use. In this case, upon the undisputed evidence, there was not such a loss in either respect. Structurally, nearly half his hand was saved to the plaintiff: and the testimony both of himself and his surgeon is to the effect that what he retains is of appreciable and substantial use. The argument does not seem to admit of elaboration, nor the citation of authorities. The case stands upon the unequivocal language of the contract and the undisputed evidence as to the extent of the injury. We think the judgment ánd order appealed from must be reversed, and a new trial granted.

All concur, except Bradley, J., dissenting.

So ordered, with costs to abide the event.

Bradley, J.

(dissenting).—The plaintiff was operating a planer when his left hand was severed. The leading question upon the trial was whether the injury suffered by him was loss, by severance, of the entire hand within the meaning of the policy, • because upon the determination of that fact in the affirmative was dependent the plaintiff’s right to recover anything other than a weekly allowance. The description given by the plaintiff of the injury is that his hand was “ cut off from three-quarters of an inch to an inch back of the knuckle joint, and the thumb just back of the head of the bone of the first joint; ” and the portion remaining of the hand was shown to the jury. The description of it as given by the evidence of a surgeon is that the fingers and the heads of all the metacarpal bones were, cut off. The thumb had been pressed back, and the bone cut off obliquely; and he added that a little over half the hand, speaking anatomically, is' gone; that there are 27 bones in a complete hand; 13 of them are entirely gone from the plaintiff’s hand, and parts off 5 more; and that the parts gone of the five are the heads of the metacarpal bones and the middle bone of the thumb. These metacarpal bones are those which 'connect the carpus or wrist with the phalanges or fingers, and constitute what is termed the “ metacarpus,” as the doctor expresses it. He says that the hand commences at the termination of the forearm, and includes the wrist joint. If the removal of the entire hand is essential to the' “loss, )by severance, of one entire hand,” within the meaning of the provisions of the policy, the plaintiff’s recovery cannot be sustained; but it would seem more reasonable in its import to so construe the provision as to confine the application of it to the effect of the loss produced by the severance. Thus interpreted, the right of such indemnity would be given by the defendant’s policy when, by the severance of the hand or foot, the use of it as such is entirely lost

Somewhat analogous is the case of Sheanon v. Ins. Co., 77 Wis. 618, where the question related to the provision of a policy that the company would pay if the insured should “suffer the loss of the entire sight of both eyes, or the loss of two entire hands or two entire feet, or one entire hand and one entire foot.” The court held that the loss by the assured of the use of his feet from accidental cause came within such provision of the policy, and that paralysis of his lower limbs, caused by his being shot in the back, entitled him to recover as for loss of his feet. No defined manner of the loss of the members was made requisite to relief under that policy. Although it is otherwise in the present case, the requirement of physical severence has relation only to the manner in which the injury must be produced, to bring the case within the provisions of the policy for the greater indemnity; and the loss covered by it does not necessarily depend upon the extent of the amputation, but upon the effect of the severance upon the use of the member, and the effect must be the entire loss of the use of it. The view taken is that a construction more favorable than this to the defendant is not required by the terms of the policy; that is the sense in which it is reasonable to suppose it was intended and understood, and such is the interpretation to which it is fairly entitled. Hoffman v. Ætna Ins. Co., 32 N. Y. 405; Herrman v. Merchants’ Ins. Co., 81 id. 184; Darrow v. Family Fund Society, 116 id. 537; 27 St. Rep. 474. This was the view taken by the trial court; and the question whether the plaintiff’s loss by the severance of his hand was the entire use of it was submitted to the jury, with instructions that, if they found that it was not so, the plaintiff was not entitled to recover any portion of the principal sum mentioned in the policy. On the • subject of the effect of the severance of the hand upon the use of what remained of it, evidence was given tending to prove, and it must be assumed, that it was more useful for certain purposes than would have been the condition produced if it had been taken off at the wrist joint; that it could be placed under bodies, and thus used in raising them; and that it could be used to bear upon bodies to steady them while he is lifting them with the other hand; but that he cannot grasp anything with it. Whether it would have given him greater inconvenience, and been less useful, if none of it had remained, is not necessarily the question; but the inquiry is, whether the loss of it as a hand, for its purposes as such, was entire. There remained neither fingers, thumb nor knuckles. The evidence warranted the conclusion that, for the practical purposes to which the use of a hand is adapted, there was an entire loss of the use of it, and the question was properly submitted to the jury.

For these reasons, not adopting the views of a majority of the court, I think the judgment and order should be affirmed.


author: Brown, P. J.

text:
    In the Matter of the Application of William C. Camp for an Accounting by Calvin B. Camp, his Guardian.

      (Supreme Court, General Term, Second Department,

      Filed October 26, 1894.)

    Abatement and revival—Surrogates* courts.
    Section 755 of the Code, as amended in 1891, does not apply to proceedings in surrogates’ courts.
    Appeal from an order, reviving the proceedings against the executor of Calvin B. Camp, who died during its pendency.

      Jennings & Bussell, for petitioner; Wm. G. Beecher, for Kelson Cross, executor.
   Brown, P. J.

During the pendency of the above-entitled proceeding, and after his accounts had been filed, the guardian died. The proceeding was revived against the guardian’s executor, and the order of the surrogate is sought to be sustained, under §§ 755 and 757 of the Code of Civil Procedure. Prior to 1891 there was no authority for continuing a pending undetermined special proceeding in the name of an administrator or executor. In re Palmer, 115 N. Y. 493; 26 St. Rep. 338. The right to revive and continue such proceedings in the name of or against executors or administrators of deceased parties depends entirely upon statutory authority. The sections of the Code referred to do not relate to proceedings in surrogate’s court. Their application is limited by subdivisions 4 and 6 of § 3347 of the Code, which provide that chapter 8, which includes §§ 755 and 757, applies with certain exceptions, not material on this appeal, to actions and special proceedings commenced in the supreme court, a superior city court, the marine court of the city of Kew York, or a county court. The fact that the sections relied upon to support the order were amended in 1891 does not make them applicable to all special proceedings. In their amended form they are still subject to the limitation of § 3347.

The order of the surrogate is not, therefore, supported by any statutory authority, and must be reversed, with costs.


author: Rumsey, J.

text:
    Mary W. Mirick, as Executrix, etc., Pl’ff, v. Sarah J. Hill et al., Def’ts.

      (Supreme Court, Monroe Special Term,

      Filed August 23, 1893.)

    Appeal—Undertaking—Stay of proceedings.
    Upon an appeal from a county court, an undertaking to stay proceedings must be given as on appeal to the court of appeals.
    Motion to compel the respondent to accept an undertaking given to stay proceedings.

      H. D. Tuclcer, for pl’lf; II. J. & W. II Sullivan, for def’ts.
   Rumsey, J.

Before 1890 the Code of Civil Procedure required that upon appeals from an -inferior court to the supreme court, security must be given to perfect the appeal, and such security did not stay proceedings upon the judgment appealed from. Code Civ. Pro. § 1341. In 1890 that section of the Code was so amended that security was not required to be given upon such an appeal to perfect the appeal, but the appeal became effective simply by a service of the notice of appeal. When, therefore, the notice of appeal was served in this action, all that was required to make it effective had been done. But that service did not stay proceedings. If it was desired to do that, security must be given as upon an appeal to the court of appeals from a judgment of the same amount. The security required to stay proceedings upon an appeal to the court of appeals is “ a written undertaking to the effect that if the judgment or order appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the sum recovered or directed to be paid by the judgment or order, or the part thereof as to which it is affirmed.” Code Civ. Pro. § 1327. IE such an undertaking as that is served, it is sufficient to stay proceedings, and the law requires nothing more for that purpose. It follows, I think, necessarily, that the undertaking served by the appellant here was sufficient in form to stay the proceedings upon the judgment. It is especially provided that the undertaking need not be approved. Code Civ. Pro. § 1335. This disposes of both of the respondent’s objections.

The order must be that the respondent must accept the offered undertaking.


author: GrAYNOR, J.

text:
    In the Matter of Wheeler.

      (Supreme Court, Kings Special Term,,

      Tiled October 31, 1894.)

    Election of officers—Ballots.
    A local party which indorses the nominations of any party for state officers, is entitled to have the names of such state nominees printed on its ballots with the names of its local nominees.
    Application for a mandamus to compel the county clerk to print the state ticket on the ballot of a faction.
   GrAYNOR, J.

Section 56 of the election law (Laws 1892, chap. 680) provided that nominations made by a primary or convention, or by a committee appointed thereby, shall be known as “ party nominations.” The nominations in the case before the court fall within this definition. They were made by a county convention composed of delegates duly elected at primaries. The law applies to all organized parties, and it puts a mere local and a isolated party on the same footing as a state party and its local ibranches, sections or connections. It is indisputable that in the case of local party nominations, when the certificate is filed with the county clerk, it is his duty, in the making up of complete ballots, to use such local party nominations as a basis for a complete ballot, and to put them on a ballot with other party nominations, state and local, of the same political kind. This follows from the bare requirement that he provide the ballots for the polling places. Sec. 86. In other words he must put a local party’s nominees on a ballot with the nominees of the state party to which such local party adheres in fact and in good faith, and, therefore, belongs; and he must in the same way associate on the same ballot all kindred party nominations through the various grades, from state down to town. In this way, from state party, nominations down to town party nominations, a ballot is made up of kindred party nominations. What sets of nominations are akin, or whether a particular party’s nominations are akin to any other party nominations, is in every ease a question of fact. Such questions of fact are to be determined by the county clerk, subject to review by this court. Taking any particular party nominations, state or local, as a basis for a ballot, no great difficulty will be encountered as a rule in making up the complete ballot. It seems to me that § 82 contemplates the foregoing construction, for it provides that there shall be as many different ballots as there are different parties represented by filed certificates of nomination; and this means ballots as complete as they can be made by the alliance of kindred nominations, and not skeleton ballots for every party, state or local. The local party now before thq court adheres to democratic party teachings and principles, supports the state democratic party and its nominations, and is of that party, though not in harmony with all local parties in harmony therewith; and it is, therefore, entitled to have its nominations associated on a ballot with the nominations of that party. It is also entitled to have the nominations of local parties through all grades which are in harmony with it on such ballot.

Let the writ of mandamus issue.


author: Ingraham, J.

text:
    James Rogers, Pl’ff, v. The Union Railway Company of New York, Def’t.

      (Supreme Court, New York Special Term,

      Filed October, 1894.)

    Constitutional law—Statute—Local.
    Chapter 598 of 1894 is unconstitutional because it embraces a subject not expressed in the title.
    Demurrer to a separate defense in an answer.

      James A. Jeering (George 6f. Hunger, of counsel), for pl’ff; Edward Lauterbach ( William H. Page, Jr., of counsel), for def’t.
   Ingraham, J.

The action is brought to restrain the defendant from erecting, maintaining or operating a certain railway through One Hundred and Thirty-fifth street in the city of New York, on “ the ground that the defendant is not authorized to build or maintain a railway in such street, and that certain acts under which the defendant corporation claimed to obtain such right are unconstitutional and void. In answer to that complaint the defendant alleges, for a further defense, that, by virtue of the provisions of chapter 598 of the Laws of 1894, all the proceedings taken by the defendant under the act set forth in the complaint have been expressly approved, ratified and confirmed. To this separate defense the plaintiff demurs, on the ground that it is insufficient in law and upon the face thereof, and claims that this act of 1894, so far as it attempts to approve, ratify and confirm the proceedings taken by the defendant, by which it claims to have acquired such right to build said railroad, is unconstitutional and void; and one of the grounds alleged is that the act is in contravention of § 16, art. 3, of the Constitution, which declares that no private or local bill that may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title. The question as to the constitutionality of the various acts under which the defendant claims the right to build this road has been elaborately argued before me, but I do not deem it necessary to express an opinion as to the validity of those acts. It is claimed that they have been upheld by several justices of this court at special term, and I am inclined to think that it should be left to the appellate branch of the court to review those decisions. The question, however, as to whether or not the provision of this law of 1894 is valid, so far as it attempts to ratify and confirm the proceedings taken under the prior acts, is one to be determined upon this demurrer. The title of this act is, “An act to amend chapter 361 of the Laws of 1863, entitled 1 An act to authorize the construction of a railway and tracks in the towns of West Farms and Morrisauia,’ as subsequently amended.” By the first section of the act in question the title of chapter 361 of the Laws of 1863 is amended; and by the second section it is provided: “Any and all proceedings heretofore taken in substantial compliance with the provisions of chapter three hundred and sixty-one of the laws of eighteen hundred and sixty-three, as now amended, are hereby approved, ratified and confirmed.”

This act, therefore, attempts two things : It first amends the act of 1863; it then proceeds to approve, ratify and confirm all proceedings taken in substantial compliance with the provisions of that act. It is claimed by the defendant that this is a provision of law which approves, ratifies, and confirms all the actions of the corporation, botli as to its organization and its right to construct a railroad through the streets of the city, contained in an act with a title which assumes only to amend the act originally incorporating the railroad, and authorizing it to run in certain streets. Would any one, seeing the title of this act, and assuming it to amend an act of 1863, understand that in it was contained a provision approving and ratifying all the acts of the corporation formed under its provisions during the 30 years that had elapsed since the original acts was passed? In Astor v. Arcade R. R. Co., 113 N. Y. 93; 22 St. Rep. 1, Earl, J., delivering the opinion of the court, in discussing the effect of this constitutional prohibition, said : “The title must be such at least as fairly to suggest or give a clue to the subject dealt with in the act, and unless it comes up to this standard it falls below the constitutional requirement.”

And in Re Mayor, etc., of New York, 99 N. Y. 570, Finch, J., says : “Where one reading a proposed bill, with the title in his mind, comes upon provisions which take him by surprise, which he could not reasonably have anticipated, and so both citizen and legislator are misled and thrown off their guard, it is our duty to declare the condemnation of the fundamental law.”

Applying this test to the act in question, it seems to me clear that the act expressly violates this prohibition. No one looking through the title of an act to amend an act of 1863, which authorized the construction of a railroad in the towns of West Farms and Morrisania, would expect to find within the act a provision ratifying and confirming proceedings of another railroad company that had succeeded to the corporation organized under the act of 1863, so as to confirm a right to build a railroad in one of the streets of the city several miles distant from the original place where one was authorized to be constructed. Since the passage of the act of 1868 the defendant claims to have acquired most extensive powers, authorizing it to build many miles of railroad in the city of New York. But the law that confirms it in this right, notwithstanding objections of the most serious character, certainly could not be looked for in an act that merely purports by its title to amend an act passed in 1863. This provision of the constitution has been applied by the courts of this state so as to declare many acts of the legislature void, and a good illustration of the principle upon which the courts have acted is found in the case of People v. O'Brien, 38 N. Y. 193. The act in question in that case was one entitled “An act to enable the board of supervisors of the county of New York to raise money by tax for the use of the corporation of the city of New York, and in relation to the expenditure thereof, and to provide for the auditing and payment of unsettled claims against said city, and in relation to actions at law against said corporation; ” and in that act was inserted a provision amending the charter of the corporation, and in relation to the term of office and the time1 of election of certain municipal officers. Q-rover, J., in delivering the opinion of the court, said: “ The section in question being local, it remains to inquire whether its subject is expressed in the title. A perusal of the title of the act will clearly show that it is not. No one, from reading the title, would have the slightest idea that the term of office of the councilmen of the city of New York was in any way affected. The section must, therefore, be adjudged void upon this ground.”

And this language can be used with the greatest propriety in constructing the act under consideration here. No one, from reading the title of this act of 1894, which was expressed to be an act to amend a certain chapter of the Laws of 1863, would have the slightest idea that it was proposed to confirm to a corporation the right to construct many miles of railroad in New York city. It seems to me that § 2 of the act of 1894 is clearly in contravention of this constitutional prohibition, and is void. The plaintiff, therefore, is entitled to judgment upon the demurrer, with costs, with leave to the defendant to amend the answer within .20 days upon payment of costs.


author: Lawrence, J.

text:
    People’s Bank, Pl’ff, v. Thompson et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed September, 1894.)

    Attorney and client—Substitution.
    A substitution of attorneys will not be denied on the ground of a general lien for services, where the original attorney has done nothing but serve a notice of appearance for the defendant, but it will be granted on payment of the sum earned in drawing and serving such notice.
    Motion for the substitution of attorneys.

      Hays c6 Greenbaum,, for motion ; Fromme Bros., opposed.
   Lawrence, J.

In this ease the defendant Thompson desires to substitute Messrs. Hays & Greenbaum for Messrs. Fromme Bros, as her attorneys to defend this action. It does not appear that anything further lias been done on the part of Messrs. Fromme Bros, than the service of a notice of appearance for the defendant Thompson. It does appear, however, that there have been differences of opinion between the members of the firm of Fromme Bros, which have led to the dissolution of the firm. One of the former partners has retired from the firm, and a new copartnership formed under the old name. It is quite evident that the differences which led to the dissolution of the firm have engendered hostile feelings between the members of the late firm. It is claimed that the defendant Thompson owes the late firm for past services a large amount of money. Those services seem, however, to have been rendered in other actions; and, as the only papers served in this action are a summons and a notice of appearance, the right to oppose the substitution moved for on the ground of a general lien for such services is not clear. I think that this motion Should be granted, upon payment of such sum as the new firm may have earned in drawing and serving the notice of appearance. See In re Wilson & Greig, 2 Civ. Proc. R. 343. Settle order on one day’s notice.


author: Bartlett, J.

text:
    Coe Ten Eyck, Pl’ff, v. Town of Warwick et al., Def’ts.

      (Supreme Court, Kings Special Term,

      Filed August, 1894.)

    Stay of proceedings—Non-payment op costs.
    A motion by the plaintiff for leave to enter final judgment, dismissing the complaint, after an order sustaining a demurrer thereto has been affirmed on appeal, will be granted, though costs of previous proceedings have not been paid.
    Motion for leave to enter final judgment dismissing the complaint.

      Clarence C. Ferris, for pl’ff; Henry Bacon and Bacon & Merritt, for def’t town of Warwick.
   Bartlett, J.

This is an application on behalf of the plaintiff for leave to enter final judgment dismissing the complaint, which judgment the defendant the town of Warwick is entitled to enter, but declines to enter. The application is o" nosed on the ground that the plaintiff is in default for the nonpayment of costs heretofore awarded against him in the action ; that defendant relying upon § 779 of the Code, which provides that, where costs are not paid within the time fixed for that purpose, all proceedings on the part of the party required to pay the same, except to review or vacate the order” are stayed, without further direction of the court, until the payment thereof. I think it would be a forced construction of this section to hold that it operates to prevent a litigant from taking steps to compel his adversary to place upon the record of the court in an effective manner a judgment in favor of that adversary and against the applicant. The section could never have been intended to prevent a party from insisting upon the entry of a judgment against himself. It may-very well be that after the entry of such a judgment in favor of the town of Warwick in the present action § 779 will have the effect of staying all proceedings on the part of the plaintiff to review that judgment until the motion costs heretofore awarded tb the defendant shall be paid, but that will be a matter for future consideration. The plaintiff may have leave to enter final judgment herein in accordanee with the directions of the interlocutory judgment, unless such judgment is entered by the defendant within ten days after service of notice of the entry of the order to be made upon this motion.


text:
    Frank R. Abbey, an Infant, etc., Pl’ff, v. Jerome B. Wheeler, Impleaded, etc., Def’t.

      (Supreme Court, New York Special Term,

      Filed October, 1894.)

    1. Tenants'in common—Liability inter sese.
    Where one tenant in common of land removes from the premises a por: tian thereof, he is liable in equity to account to his co-tenant.

      %. Same.
    This rule applies to a case of a lease of premises, with the right in the lessees to work mines and remove minerals.'
    Action for an accounting and for other relief.

      Treadwell Cleveland and Henry W. Hardon, for pl’ff; A. C. Brown, for def’t.
   Ingraham, J.

The complaint demands judgment—First, that the defendant Jerome B. Wheeler account for certain minerals taken and removed from the mine described in the complaint, and for the sale thereof, and that he pay to plaintiff his proportion thereof; and, second, that the rights and interests, if any, of the defendant Daniel Talmage, as executor of the will of Charles F. Abbey, deceased, and of the defendant Anna M. Heath, in the premises, be ascertained and settled. The defendant demurs to the complaint on three grounds: (1) That the court has no jurisdiction ; (2) that two causes of action are improperly united; and (3) that the complaint does not state facts sufficient to constitute a cause of action.

No demurrer is allowed by the Code on the ground that there are t )o many parties to the action, or that, as against some other person than the defendant demurring, no cause of action is alleged ; and whether or not there is any cause of action alleged as against the executor or the other defendant, Heath, it is not necessary for me to determine. The question is, whether there is a good cause of action alleged against this defendant demurring, and whether the court has jurisdiction as to that cause of action. The mere fact that the plaintiff asked for too much relief, or relief that will not be granted in this action, is not a ground for demurrer. If, from the facts alleged, plaintiff is entitled to any of the relief asked, the demurrer must be overruled.

The complaint expressly alleges that at the time of his death, one Abbey was the owner of an undivided fifth part of a piece of land, in the state of Colorado, known as the “ Emma Mining Claim,” and was the owner of an undivided two-thirds of a lease of the remaining four-fifths of the said mining claim, and that one ISTevitt was the owner of the other undivided third part of said lease; that the defendant Wheeler became the owner of the fee of the undivided four-fifths of said mining claim, subject to said lease; and that about May, 1884, by some arrangement with ISTevitt, Wheeler took possession of the mining claim and worked a mine thereon, and took and removed from said mine a large quantity of mineral, of the value of $700,000, and sold the same, and received therefor to the plaintiff’s use upward of $250,000. The plaintiff claims as beneficiary under the will of the said Abbey, who, under this allegation of the complaint (admitted to be true by the defendant), was the owner of an undivided fifth part of the fee of the property, and of an undivided two-thirds of a lease of the remaining four-fifths of the property, and who, being such owner, died in tire city of Hew York. After his death, Wheeler entered upon the premises, and removed the ore therefrom, he being at the time the owner in fee of four-fifths of the mining claim, subject to the lease.

If, under the laws of this state, the tenant in common of either the fee of a mining property or óf a lease thereof is entitled to maintain an action for an accounting as against his cotenant, there is a good cause of action alleged in the complaint. It was held in the case of McCabe v. McCabe, 18 Hun, 154, that where a tenant in common has taken from the property a large quantity of stone, and has sold the same and received the proceeds thereof, such tenant is liable to account to his cotenant for the value of the property taken. I do not find that the decision in that case has been questioned, and it would seem to me to be based entirely upon sound principles, and not at all in conflict with the rule that where one tenant in common occupies the premises held in common, without receiving any benefit from it except the mere fact of occupancy, he cannot be compelled to account to his cotenant for the use and occupation of the premises. It has been long settled that where one tenant in common rents premises held in common and receives the rents and profits thereof, he can be compelled to account; or, if he occupies the premises under an agreement with his cotenant that he will be responsible for the value of the premises, he can be compelled to account; and this liability is based upon the fact that the cotenant has received money for the use of the premises, a part of which belongs to his cotenaut. Applying the same principle, the same rule should govern a case where the tenant in common removes from the premises held in common a portion of the said premises, for which he has received a valuable consideration. It is entirely distinct from mere occupancy where the premises are not deteriorated in value by the use to which they are put, but rather are preserved by the occupancy. But in the case of a tenant in common cutting down the trees, and selling the timber, or removing minerals from the mines on the premises, or carting away the earth or stone upon the premises, and disposing of what is removed for value, the value of the premises themselves are to that extent reduced; and for that deterioration of the value the person who commits the act and receives the benefit is certainly the one to be liable, and the only one that could be liable, for the injury sustained by the tenant in common not in possession because of the acts of his cotenaut; and this would apply, whether the parties.are tenants in common of the fee in the premises, or of a lease of the premises with the right to the lessees to remove minerals or work the mines. In either case I think it clear that an action for an accounting will lie, and also that the court has jurisdiction of the action, whether it is based upon the right of the plaintiff as cotenant of the fee or of the lease. The action is not for tort, is not based upon a wrong committed by one cotenant as against the other, but assumes that the cotenant acted as the agent of his tenant in common, and became thereby a trustee of the property that he disposed of and sold. It is not an action for trespass. The plaintiff, who is a resident of this state, certainly should mot be thrown out of court when he asks a judgment against the defendant, who is also a resident of this state, because the property out of which the demand arises is situated in another state. Nor do I think there are two causes of action alleged in the complaint. There is but one cause of action, and that is for an accounting. The will is alleged, and others are made parties as claiming some interest in the money that will be recovered from the defendant Wheeler, and the court is asked to determine, in this equity action for an accounting, as to the rights of all parties to the action in the money that is due from the defendant. Whether either of the other defendants could demur on the ground that there is no cause of action as against them is not before me for decision. It is sufficient to say that the plaintiff has a cause of action, being entitled to the income and proceeds of the testator’s lands and leases, and, as such, is entitled to make all persons who claim an interest in the subject-matter of the action, or whose presence is necessary for a complete determination of all questions involved in the title to the amount due from Wheeler (if anything should be held to be due), parties to the action. ,

The demurrer, therefore, must be overruled.

Judgment ordered for the plaintiff, with costs, with leave to the defendant to withdraw the demurrer, and answer in twenty days, upon payment of costs.