text:
    WILLIAM B. DINSMORE, as President of the Adams Express Company, Respondent, v. EMIL AUGUSTUS NERESHEIMER and Others, Appellants. SAME, Respondent, v. MOSES G. BALDWIN and Others, Appellants.

      Injunction — when it will he granted to restrain the prosecution of actions brought in another State.

    The defendant, a resident of the State of New York, commenced two actions against an express company in the Supreme Court of the District of Columbia, to recover the value of two packages, one of which was to have been delivered in Philadelphia and the other in Chicago. By the terms of the receipts the liability of the company upon the first was .fixed at fifty dollars, no specific valuation being placed upon it by tlie sender ; its liability upon the second was fixed at $300, it having been valued at that amount. In the actions brought in the District of Columbia $4,000 was claimed in one, and $7,000 in the other action; the packages being alleged to have been worth $3,000 and $3,695.91, respectively. The actions were brought in the District of Columbia in order to avoid the decision of the Court of Appeals of this State, sustaining the validity of the provisions in the receipts limiting the company’s liability, and to take advantage of a decision to the contrary made by the Supreme ('ourt of the District of Columbia. Before the commencement of this action the company tendered and offered to pay the amounts for which it was liable by the terms of the receipts.

      Held, that the company could maintain an action in this State to restrain the defendant from prosecuting the actions brought in the District of Columbia.
    Appeal from an order made at a Special Term, continuing an injunction granted in this action.

      John O. Agar and Louis FT. Fulton, for the appellants.

      Charles M: Da Costa and C. A. Seward, for the respondent.
   Daniels, J.:

The injunction restrained the prosecution by the defendants of two suits, commenced by them against the Adams Express Company, in the Supreme Court of the District of Columbia. Each of the suits was brought to recover the value of a package which had been delivered to the express company, one of which was to be carried to and delivered at the city of Philadelphia, and the other carried to and delivered at Chicago. By the terms of the receipt and contract for the package'received from the defendants to be delivered in Philadelphia, the liability of the company was expressly limited, in case of loss, to the sum of fifty dollars, as no specific valuation of the package was stated in the instrument. In the other, a valuation was placed upon it of two hundred dollars, which by the terms of the agreement would be the extent of the earner’s liability for the loss of the package; while in the other it would not exceed the sum of fifty dollars.

These contracts have been so construed and sustained by the highest court of this State (Magnin v. Dinsmore, 70 N. Y., 410), and the amounts payable according to this construction have been tendered and offered by the company to the defendants. Before this tender and before the commencement of this action, the defendants commenced two suits against the express company in the District of- Columbia to recover for the loss of these packages, claiming in the statements made of their causes of action to recover the sum of $4,000 for one of the packages and $7,000 for the other, and it is stated that the actual value of one of these packages which were lost was the sum of $2,000, and of the other the sum of $3,695.91.

By a decision of the Supreme Court of the District of Columbia, that tribunal, for the reasons stated in its opinion, has declined to sustain the limitation placed upon the liability of the company in case of loss by the terms of an agreement similar to those delivered, for the carriage of these packages, to the defendants. This was held in the case of Galt v. Adams Express Company (reported in the Washington Law Reporter), and it was probably to obtain the advantage of this ruling and to recover the full value of the packages themselves, notwithstanding the limitation placed by the contract upon the. defendants’ liability, that the actions were instituted in the Supreme Court of the District of Columbia. And it was to prevent the attainment of the same result, that this action was brought to restrain the prosecution of these suits, The defendants by informing the company of the value of their packages and paying a corresponding increase for the risk of their carriage on delivering them, might have secured a complete right of indemnity against the company for their loss. But they omitted to do that and delivered one of the packages without any-valuation whatever, and the other at the low valuation of $200. And to allow them to avoid the restraint of the contracts upon this subject and hold the defendant liable for the full value of the articles, in plain- violation of their language, would be to perpetrate a successful fraud upon the company, as the facts have been made to appear, and it was to prevent the success of this attempt that the injunction in this case was issued and continued by the court.

In support of the appeal it has been urged that this injunction was improper, and that upon the facts as they have been disclosed the law does not sanction the issuing of an injunction by the courts of one State to restrain the prosecution of actions in another State or in the District of Columbia. But it is the province of a court of equity to prevent one party from taking ain unconscionable advantage of another, and when that may be attemptéd, to interpose ■and restrain the success of the áct, by means of an injunction, and when that advantage is sought through the instrumentality of a leg'al action to restrain its'prosecution and subordinate the controversy to the'control and determination of equitable principles. This view was taken and enforced by a comprehensive and able opinion of Lawrence, J., in Glaffin v. Hamlin (62 How., 284); and he also considered it in Reinach v. Meyer (55 id., 283). In the Erie Railroad Company v. Ramsey (45 N. Y., 637) the same subject was before the Court of Appeals for its consideration and it was determined that in a proper case, where equity required it should be done, that an injunction might regularly issue from one court to restrain proceedings carried oh in another. It is true the precise point presented by'this appeal was not then directly before the court, but the principle on which its decision proceeded included a controversy of the nature of the present one. The principle has been regarded and' stated as elementary in its character, that a court of equity ■should interfere when sufficient equitable reasons are presented for doing so, to restrain the prosecution of an unconscionable action, ■although it may be pending in the courts of another State or country. (Story’s' Eq. Jur., § 899.) This may be done without interfering with the proceedings themselves,'by controlling the conduct of the parties when they are subject to the jurisdiction of the court so interposing for the prevention of injustice. The power so to interfere was carefully considered in Carron Iron Company v. Maclaren (35 English Law and Equity, 37). It is true the action which was there restrained was commenced after legal proceedings had been begun in one of the English tribunals. But that can make no substantial difference with the application of the principle. For, if the litigation to be restrained is inequitable and unconscionable, the same principle will require the interposition of a court of equity for that purpose, whether the action in the foreign tribunal be commenced before of after a domestic tribunal may hare acquired jurisdiction over-it. ■ The principle which will justify the issuing of an injunction in one ease will equally sustain it in the other, and in the ease last mentioned,' which was the determination of the house of lords, the English' authorities upon this subject were carefully examined and considered, and CbaNWORth, Lord Chancellor, stated tlié rulé which in his' judgment was to be deduced from them to be that there is no doubt as to the power of the Court of Chancery to restrain pérsons within its jurisdiction from instituting or prosecuting suits in foreign courts, wherever the circumstances of the case make such an interposition necessary or expedient.” “ Where, therefore, pending a litigation here in which complete relief may be had, a party to the suit institutes proceedings abroad, the Court of Chancery in general considers that act as a vexatious harassing of the opposite party and restrains the foreign proceedings.” • (Id., 49.) “If a-person within the jurisdiction of the Court of Chancery is instituting proceedings in a foreign court, the instituting of which is contrary to equity and good conscience, the court will, on a bill filed here, restrain the prosecution of such foreign suit.” (Id., 50.)

This principle is peculiarly applicable to the present case. The suits in the District of Columbia were commenced against the company by resident citizens of this State, to enforce a measure of liability which under the facts as they have been made to appear, would be inequitable and oppressive and in violation of the restraints contained in the contracts voluntarily entered into and accepted, one of whose purposes was to declare the extent of the liability of the carrier for default in the performance of the agreements. This general subject was very thoroughly examined in Dehon v. Foster (4 Allen, 545), and the general principle was held to be “ founded on the clear authority vested in courts of equity over persons within the limits of their jurisdiction and amenable to process, to restain them from doing acts which will work wrong and injury to others and are therefore contrary to equity and good conscience.” (Id., 550.) And as the result of the application of this general principle that court restrained the prosecution by the defendants of certain legal proceedings which they had instituted by attachment in the State of Pennsylvania, and the right to interpose was reasserted in Dehon v. Foster (7 Allen, 57). The principle was also made the subject of examination in Bank of Bellows Falls v. Rutland, etc., Railroad Company (28 Vt., 470), where it was held that an injunction would regularly issue to restrain the prosecution of an action in the courts of another State or country, where there was some peculiar equitable reason for .interfering in that manner.

These authorities are very decisive in support of the power exercised by the court in issuing this injunction, so much so as to fender it unnecessary to make any special 'reference to those relied upon in support of the appeal. For while they lend some countenance to the position taken by the defendant’s counsel, as their facts vary so widely from those now appearing, they are still in entire harmony with the authorities to which reference has already been made.

These authorities bear directly and explicitly upon the precise point presented for consideration and sustain the jurisdiction of the court as well as the propriety of extending it over the defendants in the action.

It would be extremely unjust as well as inequitable and oppressive to allow the defendants to enforce the contracts of the company against it in the manner in which they have attempted to do that by their action in the Supreme Court of the District of Columbia. In the sense of a Court of Equity, as this term is understood, it would be a fraud, which it is one of the objects of equitable .tribunals to. prevent from being successfully perpetrated. The interposition of the court in this matter was inquired by the facts which were made to appear, and are substantially undisputed. The order from .which the appeal has been taken should be affirmed, with the usual costs and disbursements.

William B. Dinsmore, President, respondent, v. Moses G. Baldwin and others, appellants, is similar in its facts. No valuation whatever was placed upon the package delivered to the company, and by the terms of the agreement made, the defendants were consequently restricted to the sum of fifty dollars in case of loss; and yet by their action in the Supreme Court of the District of Columbia, they claimed the package which was delivered to the plaintiff to be carried by it to be of the value of $1,044.31, and to recover that amount.

The principle already referred to and applied, equally sustains the injunction which was issued to restrain the prosecution of that action, and the appeal taken from the order in that ease should also be affirmed, with the same costs and disbursements.

Davis, P. J., concurred.

Present — Davis, P. J., and Daniels, J.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: DaNIels, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. AUGUST MULLER, Appellant.

      Obscene photographs — whether or not they a/re obscene is a question for the jury — the pictures or photogra/phs are to be exhibited to the jury — it is no defense to show that they core photographs of pictures publicly exhibited in other countries — Penal Gode, sea. 317.
    The terms obscene and indecent, as used in section 317 of the Penal Code, declaring it to he a misdemeanor for any person “to sell, lend, give away, or offer to give away, or show, or to have in his possession with intent to sell or give away, or show, or advertise, or otherwise offer for loan, gift, sale or distribution, an obscene, or indecent book, writings, paper, picture, drawing or photograph,” include all pictures, drawings and photographs of an indecent and immoral tendency, embracing such as are offensive to chastity, and demoralizing and sensual in their character, by exposing what purity and decency forbid to be shown, and which are productive of libidinous and lewd thoughts or emotions.
    The legislature intended that the drawings, pictures, photographs or writings should be exhibited to and observed by the jury, for them to determine, as a' matter of fact, in the exercise of their good sense and judgment, whether or not they were obscene or indecent.
    Upon the trial of the defendant for selling photographs in violation of the said section, evidence was offered to show that the photographs were taken from pictures publicly exhibited in reputable European places.

      Held, that the evidence was properly rejected, as it would not tend to change the. influence they were calculated to exert, and as the fact that they were tolerated in another country did not show their exhibition here was not a violation of the statute.
    The defendant offered in evidence a number of photographs of a somewhat similar description to those upon which the indictment was founded, for the purpose of showing the manner in which the business of taking and selling photographs of females had been conducted and permitted by the public authorities.

      Held, that the evidence was properly rejected for the reason that the photographs so offered in evidence were not as lewd and indecent as those sold by the defendant, and also because proof of the fact that other people had violated the law would not justify the defendant in doing so.
    Appeal from a judgment of tbe court of Oyer and Terminer of tbe city of New York, convicting tbe defendant of a misdemeanor-

      John D. Townsend, for tbe appellant.

      John Vincent, for the respondents.
   DaNIels, J.:

Tbe defendant was charged by tbe indictment with selling a certain indecent and obscene photograph representing a nnde female in a lewd, obscene, indecent, scandalous and lascivious attitude and posture, and also with having in bis possession divers lewd, scandalous, obscene and indecent photographs representing divers nude female figures in various lewd, indecent, immoral, lascivious, scandalous and obscene attitudes and postures, against the form of the statute in such case made, etc.

This indictment was presented under section 317 of the Penal Code, which has declared it to be a misdemeanor for any person to sell, lend, give away, or offer to give away, or show, or to have in his possession .with intent to sell, or give away, or show, or advertise, or otherwise offer for loan, gift, sale or distribution an obscene or indecent book, writing, paper, picture, drawing, or photograph. Evidence was given upon the trial, under both of these counts of the indictment, showing the sale of card photographs by the defendant, and of his having in his possession or under his control for the general purposes of sale, in the course of his employment, other card photographs of the same description. These photographs were produced in evidence for the inspection anfi observation of the jury, and there was no denial on the part of the defendant that such photographs were kept for sale in the store in which he was a clerk and were there exhibited and sold, as that was desired by customers dealing with him at the store. The statute has not particularly described what, within its intent and purpose, should be considered obscene or indecent. But as these are words of well known signification, it must have been intended by the legislature, in the enactment of this law, to use them in their popular sense and understanding. And they consequently include all pictures, drawings and photographs of an indecent or immoral tendency, intending to include as obscene such as are offensive to chastity, demoralizing and sensual in their character, by exposing what purity and decency forbid to be shown, and productive of libidinous and lewd thoughts, or emotions. The photographs produced upon the trial have been handed up on the argument of the appeal as they had been marked as exhibits upon the trial. They are photographs of nude females in a variety of attitudes and postures which the jury might very well, and naturally would, determine to be both indecent and obscene in their character. Ordinarily they would be so pronounced; although they would not exert the same demoralizing and sensual efEects upon all persons alike, their judgment would be that these photographs and pictures would tend to promote vicious and sensual misconduct and prove injurious to the morals of the community, especially to those whose judgment, and experience were not sufficient to control the impulses of their passions. And as the statute has given this general definition of the character of the acts constituting the offense, it must necessarily have been designed that the drawing, picture, photograph or writing, should be exhibited to and observed by the. jury for them to determine as a matter of fact, in the exercise of their good sense and judgment, whether or not they were obscene and indecent. That was considered the proper course to be pursued in Regina v. Hicklin (L. R., 3 Q. B., 360, 1867, 1868), in which the justice’s order was affirmed upon such action, [t was approved in the Circuit 'Court of the United States in the case of the United States v. Bennett, in an elaborate opinion delivered by Mr. Justice Blatchfoed, and it seems to be the only inode in which the charge made in the indictment could be properly tried, or the law itself vindicated or carried into effect. The question in all these cases ’must be, what is the impression produced upon the mind by perusing or observing the writing or picture referred to in the indictment, and one person is as competent to determine that as another. "Where the impression or conviction would be, in the case of a photograph or picture, that it is meretricious and intended to exhibit the arts of a harlot, or to induce or promote prostitution, or to offend decency and cause loose and shameless thoughts, there would be sufficient grounds to pronounce its sale, possession or exhibition, to be a violation of this section of the statute. The difference between such photographs and pictures and those which avoiding all indecency of position are calculated by their symmetry, beauty or purity, simply to inspire admiration, or produce emotions of chaste pleasure, is striking and apparent to all. In the one case the effect is coarse, demoralizing and sensual, while in the other the • chaste elegance and beauty would not be debasing but refining by the degree of admiration produced by it. While the former class would be debasing and vicious, the latter would be productive of no such effects; and it is in this manner particularly that the photographs produced upon the trial and argument of this case are clearly distinguishable from those productions which are tolerated and commended by the intelligent judgment of the community. This difference is striking and apparent at once from the production itself, and requires no more than the observation of jurors to discover it and to distinguish that which is criminal under the terms of the law from that which may properly be held not to be prohibited by any of its provisions. In this case the jury exercised their judgment by means of the observation and examination of the photographs referred to in the indictment, and determined them to be of the vicious and immoral character prohibited -by the statute. This court cannot say that, they erred in their conclusions, but on the other hand the determination which they made seems to have been well sustained by the nature and character of the photographs themselves.

It was urged upon the trial, and evidence was offered to be given to establish the fact, that the photographs were taken from pictures publicly exhibited in reputable European places. But that proof would not change the nature of the influence they were calculated to exert, and would not relieve the defendant from the charge of violating the provisions, of the statute. If pictures of the same description were exhibited and tolerated elsewhere, that fact would be entitled to no effect in determining whether this statute had, or had not, been violated in their exhibition and sale within the county of New York.

The object of the law was to protect public morals, especially of that class of the community whose character is .not so completely formed as to be proof against the lewd effects of the pictures, photographs and publications prohibited. And where it may be violated that violation would in no sense be relieved by proof that similar acts wer§ tolerated by the public authorities of other States or countries.

The defendant offered in evidence a number of photographs of a somewhat similar description to those produced on the part of the prosecution, but not in such a state, of complete nudity, and they were rejected by the court. This offer was made for the purpose of laying before the jury evidence of the manner in which the, business of taking and selling female photographs had been conducted and permitted by the public authorities, and from them it probably was proposed to be argued that the. defendant had not, so far, exceeded the license to be inferred from this neglect, as to be criminally culpable under this section of the statute. But if these photographs had been received, inasmuch as they differed in their lewd features from those relied upon in support of the prosecution, they could not have been of service to the defendant. For the license or liberty to publish and sell those which were offered in evidence, would fall far short of tolerating the possession, exhibition or sale of those upon which the prosecution was instituted. Still another answer exists to the offer of the evidence, and that is the fact that proving other persons to have violated the law would in no manner tend to the exculpation of the defendant, if his acts were in contravention of its provisions.

The court was not called upon to try the question whether the persons possessing or selling the photographs of the description offered by the defendant had violated the statute or not. No comparison could be required to be made between them and those upon which the issue iu the case depended, for the purpose of determining intelligently whether the defendant was guilty of violating the law or not. There was no view in which this evidence could have been of service to the defendant, or by which he, on account of it, could have been relieved from the consequences of his own acts. The introduction of the photographs would have been of no legal benefit to him, but might have injured his case by convincing the jury that there was great necessity for the interposition of the authorities and the enforcement of the law, to arrest and end this nefarious business. In the same view various copies of the publications known as the National Police Gazette, The Illustrated Police News, and the Weekly Varieties, were offered to be read in evidence upon the trial by the defendant’s counsel, but they were rejected by the court.

If they had been received and entitled to the sanction of the court and jury, they would have afforded no assistance whatever to the defendant, because the photographs he was charged with selling and possessing, were so far in their lewdness in excess of those contained in these publications as to prevent him from shielding himself under the same liberty. If they did not violate the law in any of these publications, it would not follow that he had not been guilty, and if they did, then there was still greater reason for his conviction. For his offense was mnch more aggravated in its character.

It may be that some of these publications would be regarded by a jury of intelligent men as too obscene and indecent to be tolerated by even a liberal administration of the law. But whether they would or not is not now required to be even suggested in the disposition of this case. If further prosecutions shall be instituted the circumstances upon which they depend, will after that be more appropriate for the careful consideration of the court. There was. no error in excluding any portion of the evidence offered to be given by the defendant upon the trial. Practically there was no doubt as to what he had done, and it was simply for the jury to say whether the articles he dealt in were obscene and indecent, or not, and that was to be chiefly determined from the appearance of those photographs. The evidence which was offered and rejected would in no. manner, if it had been received, afford the defendant protection against the legal consequences of his acts.

At the close of the case several propositions were presented to fhe court which it was requested should be submitted to the jury, but as they did not involve the point whether these particular photographs were obscene or indecent, it was not necessary that they should be submitted. They were more in the nature of abstract propositions, so far as this prosecution was concerned, than relating to the disposition of the case as it was presented by the evidence. It was not essential to the proper determination of the case that these matters should have been submitted to the jury.

If they had been their submission would have been of no service to the- defendant, for the point would still remain for the consideration of the jury to determine, whether these particular photographs were obscene and indecent. They determined that against the defendant, and that fact, without reference to these general propositions, sufficiently brought the case within the statute to require his conviction.

By the judgment which was pronounced he was subjected to no severe degree of punishment; the object of the court being more especially to arrest and break up a traffic that cannot be carried on without endangering the good morals of the community, and it is probable that if other cases of this description shall be brought before the courts, in which a conviction may follow, that the same degree of leniency cannot be expected. The judgment in the case should be affirmed.

Davis, P. J., concurred.

Present.— Davis, P. J. and Daniels, J.

So ordered.


author: Daniels, J.:

text:
    In the Matter of the Arbitration of HIRAM POOLE, Appellant, v. BARTLETT S. JOHNSTON, Respondent.

      Award — appeal from an order confirming the report of arbitrators, or from the judgment entered thereon — apon what pa/pers it must be heard — no case can be pi'oposed or served.

    An appeal from an order confirming the report of arbitrators, and from the judgment entered thereon, must be heard upon the same papers as were before the court at the time when the order was made and the judgment directed from which the appeal is taken.
    A case forms no part of these papers, and none Jean regularly be proposed or served in any proceeding taken to make or review an application concerning an award.

      The proceeding provided for vacating, modifying or correcting an award is a motion, to support which the affidavits' or papers upon which it is intended to ho founded must accompany the notice of motion, and from the order made thereon an appeal may he taken and heard upon the same papers upon which appeals from orders are heard in other cases.
    MotioN to dismiss an appeal for a failure to serve printed papers, as that has been required by the general rules of this court.
    In the spring of 1883 an appeal was taken in this matter from an order confirming the report of arbitrators and from the judgment entered thereon. At the October General Term a motion was made to dismiss the appeal upon the ground that no papers had been served as required by the general rules. Upon the hearing of this motion an order was made dismissing the appeal unless papers should be served within twenty days. Before the expiration of that time a proposed case was served, which was returned. No other papers having been served this motion was made at the next General Term for an order dismissing the appeal.

      Millet R. Jones, for the appellant.

      Robert L. Harrison, for the respondent.
   Daniels, J.:

In answer to the motion it has been shown that a case has been served containing proceedings before the arbitrators, to which amendments have not been proposed, and which has not been settled. If such a case is a proper proceeding to present the points upon which the appeal may be dependent, then the appellant is not in default; but if a case is not required then the rules of the court have not been complied with. By section 2381 of the Code of Civil Procedure, an appeal has been authorized from an order vacating an award, and from a judgment entered upon it, as from an order or judgment in an action, and the proceedings upon such appeal are declared to be governed by the provisions of chapter 12 of this Code as far as they are applicable. The provisions of section 1353 upon this subject do contemplate a case as one of the ordinary papers upon which a judgment shall be reviewed by way of an appeal. But those relating to and regulating proceedings upon arbitrations do not seem to have been framed with the intention of rendering the making and service of a case an essential step in the way of reviewing an award of arbitrators. By sections 2374, 2375 the causes for which an award may be vacated, modified or corrected have been particularly specified, and they are identical with the law as it was previously contained in the Revised Statutes upon the same subject (3 R. S. [6th ed.], 844-5, §§ 10, 11), with one exception, and that is in the change made in subdivision 3 of section 11, to substitute the report of a referee for a verdict. Neither one of the grounds upon which either application can be made to vacate an award or to modify or correct it, requires the preparation or service of a case. Bor neither has conferred upon the court the authority to review the evidence taken before the arbitrators, or to determine whether or not they may have given to it its appropriate weight or effect. The practice, on the contrary, which was authorized by the Revised Statutes and must have been intended, on account of the identity of its provisions, to be continued by the Code, was to present affidavits as the foundation of the application when the objection designed to be made did not arise upon the submission or the award itself. The objection would ordinarily so arise in applications to modify or correct an award. And so it would, where it might be that the arbitrators exceeded their powers.or had imperfectly executed them.

But where the objection intended to be made is dependent upon the first, second and third subdivisions of section 2374 of the Code or of the same subdivisions of section 10 of this part of the Revised Statutes, these affidavits would become necessary to establish the facts upon which it is destined to be presented. And either of the grounds, upon the authority so given to. vacate the award, would be regularly and completely shown by affidavits. That was the course of practice followed before the re-enactment of these provisions in the Code, and under it the making and service of a case was considered to be improper. (Ketcham v. Woodruff, 24 Barb., 147; Dibble v. Camp, 60 Id., 150.)

And as the provisions of the Code upon those subjects still remain substantially identical with those of the Revised Statutes, it must have been contemplated that the same settled course of practice should still be followed. And that this was the intention of the codification made is also positively evinced by section 2376 of the Code. Bor the proceeding provided to vacate, modify or correct an award is that of a motion, notice of which has been required to be served as prescribed by law for the service of notice of motion, within three months after the award is filed or delivered. This made the proceeding to be taken that of a mere motion conformable in its practice to other non-enumerated motions made in court. And to support such a motion the affidavits or papers upon which it is intended to be founded, are required to accompany the notice. The provisions contained in section 2381 of the Code in no manner enlarge this construction. For they merely allow an appeal to be taken from an order vacating an award or from a judgment entered upon it, and to re view either the order or judgment, a case has not been declared to be necessary. On the other hand, by section 2379, the papers which are to form the judgment roll are enumerated and specified and do not include a case. Neither do these provisions require the motion papers used upon an application to vacate an award to form a portion of the judgment roll. But the affidavit or other papers used upon an application to confirm, modify or correct an award are made a part of the judgment roll. In this respect, the provisions of the Code are not as broad as those contained in the Revised Statutes. For the latter declared that copies of the original affidavits upon which any application in relation to the award should be founded, and of all other affidavits and papers relating to such application, should be annexed to arid form a part of and be returned with the record of the judgment upon any writ of error issued to review the judgment. (3 R. S. [6th ed.], 845, § 17.) But this change was not designed to deprive a party of the right to review an order denying a motion to vacate or set aside an award. The proceedings required to be taken by motion for this purpose would practically be what is called a special proceeding, and from the order entered upon its determination an appeal can be taken under the authority of section 1356 of the Code. Its provisions are clearly broad enough to authorize such an appeal, for by section 1361 they include all special proceedings, except those where it has been prescribed by law that an order cannot be reviewed, and there is no such prohibition made by law concerning such an order. That practice was followed In the Matter of the First National Bank of the Republic and others (30 Hun, 29). It is not probable that in the change effected by the Code it was intended to deprive either party of the substantial right of review before secured over this subject by the Revised Statutes, as-it is clearly essential to the attainment of justice in controversies-of this description. This language of the Code is not only capable of, but requires to be so construed as to obtain the same .end under it, but in a different manner. As section 2381 of the Code has not deprived the parties of this right of review, and it has in effect been given by section 1356, it may well be held in that manner still secured to the parties. Rut as the first step in the proceeding to-obtain relief, where the application is to vacate an award, is that of the service of a notice of motion, the application must in the first instance be made to the Special Term, in which jurisdiction has been vested for the hearing and determination of this class of motions-After the motion has been so heard and determined, then the remedy secured to the party where the application is made .to vacate the award under the first three subdivisions of section 2374 of the Code,, is that of an appeal from the order. But the omission to make that motion will not deprive the party appealing from the right to-review the order confirming the award and the judgment entered upon it. To that extent the appeal has been authorized by section. 2381 of the Code, and it must be heard at the General Term upon the papers on which the motion was made at the Special Term. A case forms no part of these papers, and as none can regularly be proposed or made in any proceeding taken to make or review an application concerning an award, it cannot be proposed or served for the purposes of an appeal. But that must be heard and determined upon the same papers as were before the court at the time when the order was made or the judgment was authorized from which the appeal has been taken. These papers, and only these, should be printed and served under the rule. That has not been done. In that respect the appellant is in default, and the appeal should be dismissed with costs unless within twenty days after notice of the order to be entered the appellant shall print and serve these papers. But as the practice seems to have been misunderstood, no costs will be allowed.

Davis, P. J., and Beady, J., concurred.

So ordered.


author: Beady, J.;

text:
    ELIZABETH HIBBARD, Respondent, v. JAMES Q. DAYTON, Appellant, and Others.

      A judgment against an executor is not a lien upon the real estate of the deceased,— when debts are charged upon the real estate by the will — when such a lien may be ■enforced against the proceeds arising from the sale of land of the deceased in an ■action for partition.

    Appeal from an order made at a Special Term overruling excép-tions to a referee’s report, and confirming the same.
    This action was brought by the plaintiff, as one of the heirs at-law of Gertrude Crossman, for the partition or sale of certain lands in the city of New York of which Gertrude Crossman died seized. Morgan A. Dayton was an heir-at-law and also the owner of a judgment for $13,257.40 recovered by him against John A. Grossman, the executor of the deceased, for a debt due by the testatrix arising from services rendered to her. Dayton was made a party to the ■action. He set up these facts in his answer, and asked that by the judgment or decree to be rendered herein his debt be directed to be paid out of the sale of the premises sought to be partitioned in this action, in case the sale should be decreed, before the distribution of such proceeds among the heirs." Such proceedings were then had that the premises were directed to be sold and the proceeds deposited-in court; and the matter of the claim of Dayton, and whether the judgment obtained by him was a lien upon the proceeds superior to the claims of the heirs-at-law, and, therefore, entitled to be first paid, was referred to a referee to take the evidence and report the facts, with his opinion thereon, to this court. Dayton also alleged that by the account of the defendant executor, rendered to the surrogate of the county of New York, it appeared that the assets of Gertrude Orossman had been wholly administered, and that nothing remained to satisfy the debt owing to him, and that the assets were not sufficient in this State or elsewhere to pay the testatrix’s debts.
    Upon the investigation thus ordered, the existence of the debt was established by the evidence of the defendant Dayton. The judgment was shown to have been obtained, and also that a proceeding had been initiated before the surrogate for the purpose of obtaining a sale of the real estate of the testatrix for the payment of the judgment, there being no personal estate out of which it could be paid. The referee held, and so reported, that the judgment was not a lien upon the property or its proceeds, and that Dayton was not entitled by law to be paid the amount thereof in this action. Exceptions were duly taken to the referee’s report, which were overruled, and the defendant Dayton duly appealed.
    The court at General Term, after holding that the referee and the court below had properly held that no lien upon the property, or the proceeds of its sale, was acquired under the judgment, said: “This conclusion necessarily disposes of all propositions resting upon the effect of the judgment as a lien upon the real estate arising from its own force. The question is whether there exists in the case any element or legal principle which may be‘ invoked for the defendant’s protection. There are, it is said, about 110 persons interested in this estate, heirs-at-law, comparatively few of whom have appeared in the action, and therefore those who did not appear have had no notice of the claim of the appellant and no opportunity to contest it. The complaint as filed makes no mention of the claim, and hence no notice was given to the heirs who did not appear, and it would seem from the statements made in open court that as to the heii’s who did appear the answer was not served upon them, that paper having been served upon the plaintiff’s attorney only. It may be justly said from this circumstance, that all the parties interested and to be affected by the assertion and maintenance of the claim of the defendant Dayton are not in court in this proceeding and cannot, therefore, be deprived of any portion of their inheritance by any order, judgment or decree to be made on this appeal, even assuming that the referee was in error in declaring that the judgment was not a lien upon the real estate.

      “ It may be, nevertheless, that the defendant Dayton. is not remediless. In the pursuit of the element or principle of law suggested, by which the defendant Dayton’s rights may be protected, the will of the testatrix has been examined and it appears that the second paragraph is as follows: ‘I will and direct that my just debts and personal expenses shall be paid out of my estate by my said ■executors, as soon as convenient may be, after my decease.’
    “ ‘ The settled doctrine now,’ as said by Story (see 2 Story’s Eq. Jur., § 1216), ‘ is that the debts in all such cases constitute, by implication, a cnarge on the real estate, for whether the direction be in the introduction, or in any other part of the will, that all the debts of the testator shall be paid, or the devise be of his real estate after the payment of all his debts, it is deemed equally clear that he intends that all his debts shall be paid; which, in case of a deficiency of his personal assets, can be done only by charging his real estate. The testator is thas deemed to intend to perform an act of justice before he does an act of generosity. This course of decision has undoubtedly been produced by a strong desire on the part of courts of equity to prevent gross injustice to creditors, and to compel debtors to do that which is morally right and just; or, as'it has been expressively said, that men may not sin in their graves.’

      “ Assuming this to be the law which is to govern the appellant’s claim, then under the provisions of the will the debt due to Mr. Dayton, whatever it may be, was a charge upon the real estate, ■subject to which the heirs-at-law must receive their respective portions. This is an equitable action, and it cannot be contested that in ■equitable actions the court will administer its relief ex aguo et bono, according to its own notions of justice and equity, between the parties, and will adjust all the equitable rights of the parties interested in the premises.
    “It is not restrained, as a court of law is, to a mere partition of the lands between the parties according to their interests in the same, and having a regard to the true value thereof. (Green v. Putnam, 1 Barb. [S. C.], 509; Palsied v. Halstead, 55 N. Y. 412.) For these reasons we think the defendant Dayton should be afforded a reasonable opportunity to commence such proceedings as may be necessary to enforce his claim against the proceeds of the real estate deposited to the credit of this action. Such a course would seem to be indispensably necessaiy for the reason already suggested, namely, that the numerous heirs-at-law have not been advised of the claim, and in reference to his protection, for the reason that he should not be required, his lien existing to the extent already suggested, to pursue the heirs after they shall have received, by distribution or the order of the court, the amounts to which they may be respectively entitled.' The lien existing under the will, prima facie by the recovery of a judgment, should be preserved until there shall be a determination, properly made, as to the validity of the defendant Dayton’s claim.”
    “An order to this effect must be entered herein, allowing the defendant thirty days after the entry and service thereof for the institution of such proceedings as the defendant Dayton may be advised to take.”

      Ira Shafer, for the appellant.

      Hackett, Williams and others, for the respondent.
   Opinion by

Beady, J.;

Davis, P. J. concurred.

Present —Davis, P. J., and Beady, J.

Ordered to be entered as directed by opinion if the appellant eo elect.


text:
    In the Matter of the ATTORNEY GENERAL v. THE CONTINENTAL LIFE INSURANCE COMPANY.

      Secemr of an insolvent insurance company —full commissions a/re not allowed to a second receiver upon funds collected and turned over to him by his predecessor.

    A.ppeal from certain portions of an order of the Special Term, confirming the report of Howland D. Perine, referee.
    John P. O’Neil, who was the receiver of the Continental Life Insurance Company, died on the 23d of February, 1883, while there was pending an accounting of the affairs of his receivership, and Mr. A. Barton Hepburn was appointed receiver in his place and assumed the management of the trust. The new receiver presented his accounts to the 31st of August, 1883, covering the period of the first six months of his receivership. By an order duly made, Mr. Perine was appointed referee to take and state these accounts, which he proceeded to do. His report was duly filed, exceptions duly taken, and after a proper hearing, an order was made confirming the report, with a single unimportant exception. From some parts of the order this appeal is taken.
    The court at General Term, after overruling certain- objections made to the report, said: “ The real question on the appeal, if indeed it be of any serious import, is the objection made to the allowance of five per cent on $92,700.15. The objection to this is that two and one-half per cent only should have been allowed upon that sum, and two and one-half per cent on the sum of $29,495.01. And this seems to be predicated of the condition of the assets at the time of the death of O'Neil and the addition to such sum resulting from the receipt of moneys by the present receiver, that is to say, the amount of the assets which came into the hands of O’Neil and remained at the time of the appointment of.the present receiver was $274,152.09, which was increased $29,495.01, and which latter sum it is claimed the receiver received by virtue of his office; in other words, the bulk of the assets having come into the hands of Mr. O’Neil they were in custodia legis, and the present receiver had only to disburse them, therefore, and succeeded to their possession only for that purpose. The proposition may be stated in another form, namely, that Mr. Hepburn was a continuing and not an independent receiver.
    “This proposition seems to be correct, for when the present receiver was-appointed to succeed Mr: O’Neil, the fund upon which a full commission was allowed to the present receiver had been paid and it was in his official hands at the time of his decease. It necessarily passed directly to the present receiver on his appointment. It should not again be subjected, therefore, to a similar burden, from the mere fact that the present receiver has acquired it by virtue of his office. It must be said that that is not such a receiving of the fund as the law contemplates to make it chargeable with commissions. It is the service or duty of collecting or gathering together the fund which subjects it to a charge for commissions, and not for succeeding to its possession after it has been thus gathered together. It must be said further that the law contemplates but one commission, which is the entire compensation provided for collecting. Inasmuch, therefore, as the court had possession of tbis fund and it was, as already suggested, in custodia legis, the present receiver is entitled to be compensated only, as to tbe fund which had been collected or received by the late receiver, for paying it out. In that respect and to that extent the order should be modified.”
    Ordered acccordingly.

      Raphael J. Moses¡ for the policyholders, appellants.

      Edward H. Ilobls, for the receiver, respondent, and D. O’Brien, attorney general, for The People, respondents.
   Opinion by

Beady, J.;

Davis, P. J., and Daniels, J., concurred.

Attorney’s charges modified as directed in memorandum.


author: Daniels, J.;

text:
    JOSEPH ANDRADE, EMANUEL HOFFMAN and RACHEL BENRIMO, Administrators, etc., Appellants, v. SAMUEL M. COHEN, Administrator, etc., of ESTELLA COHEN and Others, Respondents.

      Guardian — power of a surrogate to compel him to account — the surrogate cannot compel the representatives of a deceased guardian to account and pay over a balance found due from him.

    Appeal from an an order and decree of the surrogate of the county of New York, made on the 21st of July, 1880, vacating a preceding decree allowing a guardian to resign and decreeing the payment by his administratrix of an amount adjudged to be due and owing from her intestate, as general guardian of Martha Cohen and others, who were his wards.
    The intestate, Daniel Benrimo, was appointed the general guardian of the minor children of Moses S.' Cohen. He was their uncle, and in that capacity received a personal estate belonging to them exceeding in amount the sum of $25,000. He filed his accounts with the surrogate, stating the securities and moneys held by him for them, and he continued to act from the time, of his appointment which was made in the year 1869, until the fall of 1874, when, upon statements of his accounts made for that purpose, he applied for leave to resign his guardianship of the children still remaining his wards. On that occasion the amounts stated to be in his hands as the guardian of the four remaining minors was shown by his account and he was permitted to resign his guardianship. But for the purpose of still providing for the guardianship of the four minors, his brother, Abraham Benrimo was then appointed guardian in his place and stead. A receipt from the latter, dated on the 3d of December, 1874, was produced by Daniel Benrimo, showing the delivery by him. of the estate of the minors to his brother, the succeeding general guardian. On its production to the surrogate, Daniel Benrimo was discharged from his guardianship and his sureties were declared not to be liable, for any future act, default or misconduct of Daniel Benrimo, on the bonds dated the 15th of December, in the year 1869.
    This receipt was alleged to have been false and fraudulent in its statements, it being claimed that no such surrender of the infants’ estate was made by Daniel Benrimo to his brother Abraham Benrimo. And upon these allegations chiefly, a petition on behalf of the wards was presented to the surrogate, requesting that the decree accepting the resignation of Daniel Benrimo and discharging him from the further care of the minors or their estates, should be revoked. That an account should be taken of the matters of the guardianship of Daniel Benrimo, and his administratrix ordered to pay the amount found due, and in default thereof that these bonds should be prosecuted. Upon this application the sureties, and the succeeding guardian and the administratrix of lfls predecessor, Daniel.Benrimo, were required to appear before the surrogate for the purpose of meeting this application. They did so appear >and contested the right of the petitioners to the relief demanded by them. The controversy was referred to a referee before whom the proofs were taken, and a report of it, together with Ms conclusions were made by him to the surrogate. That report was confirmed and the order and decree was then entered, from which this appeal has been taken.
    The court at General Term, after examining the facts and holding that they justified the surrogate in setting aside the decree discharging the deceased general guardian, said: “ But the residue of the decree by which the surrogate proceeded to adjudge that Daniel Benrimo, as general guardian of his infant wards, was indebted to them in the balances previous to his resignation stated by him, and decreeing sucM balances as an indebtedness against Ms estate, does not appear to have been within his authority. These were contested claims, and for that reason not within the jurisdiction of the surrogate. (McNulty v. Hurd, 72 N. Y., 518.) And being an amount claimed to be due and owing from a deceased general guardian by reason of his mismanagement of the estate of his wards, jurisdiction over an accounting to ascertain its existence and decreeing its payment was not conferred by the statute upon the surrogate. His powers are defined and limited by statutory enactments, and where they are not expressly derived in that manner or by clear implication, he has not been invested with them. No express or implied powers were conferred upon him to investigate and settle the accounts of a deceased guardian. The statute, on the contrary, so far as it related to the subject, in its terms simply empowered the surrogate to require and take an accounting on the part of the guardian himself. (3 R. S. [6th ed.], 171, §§ 82-37.)

      “ By neither language or implication was the power given to him to settle the accounts of the deceased guardian by a proceeding taken before him 'against his administratrix. This point was considered in Farnsworth v. Oliphant (19 Barb., 30), and the provisions of the statute were then so construed by the court, and no authority has been found in any manner conflicting with this view. That portion of the decree, therefore, by which the surrogate directed the payment of the indebtedness by the administratrix of the estate of Daniel Benrimo, and in default thereof that his sureties should be prosecuted on their bonds, cannot be maintained. To that extent the decree should be reversed; but as to the residue setting aside the order or decree accepting the resignation of Daniel Benrimo and discharging him and his sureties, it should be affirmed, but neither party should recover costs on this appeal.”

      A. B. Dyett, for Rachel Benrimo, administratrix, and Emanuel Hoffman, appellants.

      Charles Fdnocurd Souther, for Joseph Andrade, appellant.

      Albert Cardozo, for the respondents.
   Opinion by

Daniels, J.;

Davis, P. J., and Beady, J., concurred.

Decree modified as directed in opinion, and affirmed as modified, without costs to either party.


author: Brady, J.;

text:
    JOSEPH NAYLOR, Appellant v. HENRY NAYLOR, Respondent.

      Bef&t'ence — power of a referee to punish for a contempt — when he may make the order to show cause returnable before the court — duty of the court when the order is so made — Oode of Givil Procedure, secs. 2269, 2272i
    Appeal from an order made at a Special Term, denying tbe plaintiff’s motion to punish the'defendant for a contempt in refusing to obey the order and direction of the referee to whom the whole issues in this action were referred, which order of the referee required the defendant to make and file an account.
    This action was brought by one partner against his copartner for an accounting. All the issues were referred by consent. The plaintiff’s attorney moved upon the pleadings and the referee’s minutes for an order that the defendant account, which motion was granted. The referee thereupon directed the defendant to file an account of the partnership transactions from a date named, which was the date of a settlement conceded by both parties. The defendant refused to file the account, whereupon the plaintiff’s attorney obtained from the referee an order requiring the defendant to show cause, returnable before this court, why he should not be punished for contempt. The court denied the motion upon the ground that the referee had power to proceed in the premises Erom this order the plaintiff appealed.
    The court at General Term said: “ The learned justice in the court below said he thought this was a case in which the referee should determine whether the defendant had been guilty of a contempt ; that he was appointed to hear and determine all the issues, and under section 1018 of the Code, he appeared to possess power to punish for the alleged contempt. The 'learned justice' must therefore be regarded as having declined to pass upon the merits of the motion, and having denied it upon the ground that the subject was within the jurisdiction of the referee and should have been disposed of by him. The learned counsel of the parties have argued many questions on the briefs t'o which some reference will be made, although it is not considered indispensably necessary to consider them all in disposing of this appeal.

      “ The sections of the Code under which the proceedings to punish for contempt were instituted, assuming that they confer upon the referee power for that purpose, give concurrent jurisdiction to the court. It is provided by section 2272 that an order to show cause may be made as prescribed in section 2269 by a referee appointed by the court, where the offense is committed on the trial of an issue referred to him, or consists of witnesses non-attendance, or refusal to be sworn or to'testify before him, and the order or warrant may, in the discretion of the referee, be made returnable before him or before the court. If it is made returnable before him, he has all the power and authority of the court with respect to the motion or special proceeding instituted thereby. It is thus expressly provided for by the section just mentioned. If the order is returnable before the court, of course the court has all the authority necessary to proceed in the premises. Section 2269 provides that the court or judge authorized to punish for the offense, i. e., for a contempt of court, may proceed in the manner directed by that section. (See, also, bearing upon the subject, sections 2266 and 2267.)
    “ It is quite apparent from an examination of these sections that it was the duty of the learned justice sitting in the court below to have considered and passed upon the alleged contempt of the defendant, which he has failed to do. Non constat if he had heard the application upon the merits he would have denied the motion or made some conditional order which would have been satisfactory to the parties. Having failed to do it, it becomes necessary to reverse the order denying the motion. No final disposition was made of the motion except that it was denied, and apparently for the reason that the referee himself should have disposed of it upon its merits. The practice adopted by this court in such cases is to send the case back for a further hearing. Therefore the order in this case must be reversed to accomplish that object, and the proceeding sent back to the court at Special Term to be disposed of there.” * * *

      Luke A. Lockwood, for the appellant.

      Charles E. Crowell, for the respondent. .
   Opinion by

Brady, J.;

Davis, P. J., and Daniels, J., concurred.

Order reversed, application .remanded to the Special Term.


author: DaNiels, J.;

text:
    JOHN H. PLATT, as Assignee in Bankruptcy of the Stuyvesant Bank, Respondent, v. AMAZIAH L. ASHMAN, Appellant, Impleaded, etc.

      Dissolution of a corporation during the pendency of an action brought by it — the action is not thereby abated — it may be continued, without an order of the court, by the receiver or by an assignee in bankruptcy — 2D. 8. (6 thed.), 892, see. 11 — TT. 8. D. 8., 981, sec. 5047 — Code cf Procedure, sea. 121.
    Appeal from an order directing John H. Platt, as assignee in bankruptcy, to be substituted as plaintiff in the place and stead of the Stuyvesant Bank, and from a judgment directing the recovery by him as such assignee of the amount reported due by a referee upon the hearing and determination of the issues in the action.
    The court at General Term said: “ The action was brought upon two bonds executed and delivered at different times by the defendants in the action, to the Stuyvesant Bank, for the good conduct, honesty, fidelity and ability of the defendant Edwin D. Me Murray, as receiving teller of the bank. It was alleged in the complaint that Murray had not faithfully discharged his duties in that capacity, but had misappropriated the funds of the bank, and the trial mainly involved the truth of these allegations. During the progress of the trial an action was brought against the bank to dissolve it as a corporation on the ground of its alleged insolvency, and a determination to that effect was made in the latter part of the year 1871 and judgment rendered adjudging the charter of the bank to be forfeited and its incorporation to be dissolved. Before that, and in the progress of the suit, Oliver H. P. Archer was appointed receiver of its effects, and entered upon the discharge of his duties as such, and by the judgment he was continued in office as such receiver.
    In January, 1872, proceedings in bankruptcy were commenced under the bankrupt law of the United States against the bank in which it was adjudged a bankrupt, and John H. Platt, the present plaintiff and respondent, was appointed its assignee, and the property and assets of the bank were by an order of the United States District Court assigned to him, and he entered upon the discharge of his duties as assignee.
    No order was at any time made, either while Archer was receiver, or after Platt had been appointed assignee in bankruptcy of the bank, reviving or continuing the action in favor of either of these persons. And after their respective appointments proof of these facts was made' before the referee, who was thereupon requested to discontinue the trial, or to decline receiving evidence under the isues joined in the action. And the objection was on each occasion taken to his power to proceed with the trial. These objections were overruled and the trial proceeded under the assurance of eounse that they were acting, first, under the authority of the receiver and afterwards under that of the assignee. After the evidence had been all taken the same objections were again renewed and the referee was requested to strike out the testimony taken in these intervals. But he declined to do so, and the case was then submitted to him for his decision. After that he made a report in favor of the plaintiff in the action, which had to that point proceeded solely in the name of the bank. After the report was made an application was made to the court for leave to bring in the assignee in bankruptcy as plaintiff by means of a supplemental complaint. Leave was given to serve such a complaint, and issue was joined upon the allegations contained in it. These issues were tried at the Special Term and a judgment rendered in favor of the assignee, substituting him as plaintiff in the action and permitting a final judgment for the recovery of the amount found due and owing by the referee’s report. Exceptions were made to the determination of the court, allowing the recovery and presenting the point whether the referee could lawfully proceed in the action without some order or direction of the court after the dissolution of the bank as a corporation. It has been urged that authority to continue the suit in the name of the corporation after its dissolution was provided by statute, authorizing the referee to proceed as he did. This statute was enacted in the year 1832, and has since been incorporated in- 2 Bevised Statutes (6th ed.), 392, section 11, This section is in the following terms: “ The dissolution of a corporation by a decree of the Court of Chancery, or by the expiration of its charter or otherwise, shall not abate any suit or proceedings in favor of such corparations, which shall have been pending at the time of such dissolution; but all such suits or proceedings may be continued by the receivers, who shall have been appointed for such corporation by the Court of Chancery, or by the trustees on whom the estate and effects of such corporation shall have devolved, in the name of such corporation, or in the names of such receivers or trustees who shall be substituted as plaintiffs under the direction of the court in which the suit shall be pending, and subject to such orderas the court may deem expedient in relation to the payment or security of costs.”.
    This was an action in favor of the corporation within the language of this statute, and by its direct authority it did .not abate by the dissolution of the corporation, and the receiver was entitled to continue its prosecution under the authority which it conferred upon him. This was considered its proper construction in New York Marbled Iron Works v. Smith (4 Duel., 362, 478-9), where it was. held that no special authority from the court to the receiver to continue the .prosecution of the action was necessary. ■ A view somewhat in conflict with this conclusion was suggested in Tabnage v. Pell (9 Paige,410, 414), but as the point was not essential to the determination of the controversy in that case, what was said was a mere dictum and not controlling when the effect required to be given to the language of the statute is considered. For by its latter branch no order or direction seems to have been made requisite unless the receiver himself applied to be substituted as plaintiff in the action, and then it was required to be given as a direction to him as well as for the benefit of the adverse party. Put in this case he did not apply to become a party to the action, but proceeded under the general authority contained in the statute allowing him to continue the action. And that by the evidence he appeared to do by the attorneys previously employed for that purpose by the bant.
    The case of McCulloch v. Norwood (58 N. Y., 562) has also been relied upon as in conflict with this construction of the statute. But that very manifestly should not be considered the effect of the decision, for the judgment which was there held to be void was recovered against the corporation after its dissolution, in an action prosecuted for that purpose in the State of Ohio. It is true that the statutory law of the State of Ohio was for the purposes of the decision assumed to be the same as that of the State of New York, but it was still held to be insufficient to authorize the judgment upon which an action in this State had been maintained. And that determination proceeded upon tlie conclusion that the action actually and for all purposes abated by the dissolution of the corporation. This view was adopted under a’settled principle of the common law applicable to the subject. As to an action against a corporation no statutory provision existed, except that contained in section 121 of the Code of Procedure, which was deemed insufficient to prevent the abatement of the action and to dispense with an order reviving it against the receiver. A very different principle, however, has been adopted for the government of actions in the name of the corporation, by the enactment of the statute of 1832; for it has been declared in that enactment that the dissolution of a corporation by a decree of the Court of Chancery, the forfeiture of its charter, or otherwise, shall not abate any suit or proceedings in favor of the corporation pending .at the time of its dissolution. Under this plain language the action did not at any time abate because tlie corporation had been dissolved, but it continued notwithstanding that fact, as a pending action in its name, which could be carried on and prosecuted by the receiver for the recovery of the demands in controversy.
    The decree in bankruptcy under which the assignee was appointed and the property and assets of the corporation were transferred to him, in no form added any further effect to the judgment previously recovered against the bank adjudging its dissolution. Por it merely provided for a sequestration of its property and the disposition of it under the terms of the bankrupt law, and as this action had not previously abated, this decree in no manner affected the disposition of it. It is true that this statute did not provide for the continued prosecution of tlie action by tlie assignee in bankruptcy, neither did it permit its abatement by reason of his appointment, but under its direct language this action still continued afterwards to be pending. And under the authority of section 121 of the Code of Procedure, which was the law at that time in force, the assignee was entitled to continue it if he chose to do so, in the name of the bank. That section, after providing that no action should abate by tlie death, marriage, or other disability of a party, or the transfer of any interest therein, if the cause of action survived, specially further provided that in case of death, marriage or disability of a party, the court might allow the action to be continued against his representative or successor in interest. But this latter provision was made applicable only to the case of a party against whom tbe action should be prosecuted, who became disabled by death, marriage, or otherwise, permitting the action to be continued against him or his estate. It was not made to include the case of the transfer of the cause of action itself to another party, and did not, therefore, require his or its representative or successor in interest to be brought in as a party in the action. On the contrary, it further provided in plain terms that in case of any other transfer of interest, the action should be continued in the name of the original party, or the court might allow the person to whom the transfer was made to be substituted in the action. The transfer to the assignee in bankruptcy was within this latter clause of the section, and by .its express terms he was not required to substitute himself as plaintiff in the action before he could regularly proceed with its prosecution. He was at liberty, on the contrary, to continue the action in the name of the original party, as he is shown to have done by the evidence which was given upon the trial.
    It is true that this authority was not expressly conferred upon him by the provisions of the bankrupt law relating to actions pending in the name of the bankrupt. For they simply authorized him, if he required it, to be permitted to prosecute the a’ction in his own name in like manner and with like effect as if it had been originally commenced by him. (IJ. S. R. S., 981, § 5047.) This provision made it optional with the assignee whether he would apply to be substituted as the plaintiff and have the action proceed in his name or not. It was by no ■ means mandatory that he should do so, neither did this or any other provision of the bankrupt law forbid him from carrying on the litigation in the name of the bankrupt. And as assignee, in whom by legal proceedings under the bankrupt law, the title to the cause of action had become vested, he had acquired such a transfer of interest as authorized and permitted him, under this section of the Code of Procedure, to continue and proceed with the action in the name of the bankrupt. The objections, therefore, which were presented to the referee and also taken to the decision of the court upon the disposition of the issues joined on the allegations of the supplemental complaint, can neither of them be sustained. But it must be held that the action was regularly tried, and that judgment was afterwards directed upon the report of the referee by virtue of legal authority. * * *

      F. J. Fithian, for the appellant.

      8. K. <& F. JB. Wightmam,, for the respondent.
   Opinion by

DaNiels, J.;

Davis, P. J., and Ready, J., concurred.

Judgment affirmed.


author: Davis, P. J.;

text:
    PIERRE L. SCHELLENS, Respondent, v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Appellant.

      Oom/plaint — motion to make it more definite and certain — allegation that the plaintiff has teen deceived by false representations made by the officers and agents of a defendant corporation — when the names of such officers and agents must be given.

    Appeal from an order of the Special Term denying a motion to make the complaint more definite and certain.
    The court at General Term said: “"We think the motion was correctly disposed of at Special Term, except perhaps, in one single particular. The complaint alleges that the defendant hy its officers cmd agents' made divers representations which the complaint claims to have been false. In strictness this was bad pleading. The allegation should have been that the defendant made the representations under the maxim qui facit per aliwm, facit per se. If the plaintiff chooses to allege that a corporation by its officers and agents makes false representations, we think there is no good reason why he should not declare specifically in the pleadings the particular officers or agents by whom he claims such representations were made.
    “ The defendant in this case undoubtedly employs many hundred, perhaps thousands, of persons who may be designated its officers and agents, and it is no hardship in requiring the plaintiff to state by whom the alleged false representations were made, otherwise it would impose upon the defendant the hardship of going to trial without notice of the particular officer who is chargeable with having been guilty of tbe fraud, but under the necessity of bringing all its officers and agents to meet such an allegation.
    “ A motion for a bill of particulars does not seem to be an efficient remedy. We think that if the plaintiff persists in this form of pleading he should indicate the names of the officers and agents who committed the fraud.’’

      G. B. Alexander, for the appellant.

      W. W. Hewitt, for the respondent.
   Opinion by

Davis, P. J.;

Brady, J., concurred.

Present — Davis, P. J., and Beady, J. ■

Order modified as directed in opinion, and affirmed as modified, without costs.


text:
    JOHN W. SALTER, Receiver, etc., Respondent, v. PETER BOWE, Sheriff, etc., Appellant.

      ■Sale under an execution— action against a sheriff to recover the amount due upon a junior execution which is in the sheriff’s hands■ — the sheriff cannot claim to withhold the amount due upon such junior execution, because earlier executions heme been theretofore issued to him, whet'e such ean'lier executions have been returned by him as unsatisfied.

    Appeal from a judgment, entered on the trial of this action before the court.
    The plaintiff was appointed receiver in supplementary proceedings taken by him after the issuing of an execution upon a judgment he had recovered against Ann Eliza Thomas. Preceding executions had been issued to the sheriff against her property and a sale of it took place on the 25th of May, 1880. This sale was held to be irregular, as the property sold was not present at the time of the sale and the sale was set aside. An appeal was taken from this order, but while it was pending another sale was made, the proceedings in which were regularly conducted, and the same purchaser again bought the property for the sum of $5,637.56. Prom that the sheriff disbursed, in payment of his fees and preceding executions, the sum.of $3,783.93. The plaintiff brought this action to recover the difference between this amount, with interest upon it, and the whole amount realized upon the sale, upon the ground that the defendant in the execution was the owner of this difference.
    The court at General Term, after overruling other objections made by the appellant, said: “ After the second sale took place and' the sheriff had applied the larger part of the proceeds upon preceding executions and for the payment of his fees, other executions prior to that issued in favor of the plaintiff still remained in the sheriff’s hands, entitled to be paid, but instead of paying them out of this difference these executions were return ed by the sheriff unsatisfied, and no part of the money was ever, at any time, paid upon them. So far as appears by the case he never has been called upon to pay those executions out of this difference remaining in his hands. For that reason the sheriff could not shield himself under those executions, after they had been returned, by way of defense to the action brought by the plaintiff. This point was considered in Patón v. Westervelt (2 Duer, 362, 388-389), and it was there held that such preceding executions after they had been in fact returned by the sheriff, would not protect him against the right of a junior execution creditor to payment out of the money realized by the sheriff.
    “ Incidentally the same point was considered in Cross v. Williams■ (63 How., 191), and the force of the preceding authority under these circnmstances was conceded by the court. There was no error' in excluding the answer to the question whether the $560, bid upon the first sale, was or was not added to the memorandum of all the sales. The defendant did not offer to prove that this was true as a matter of fact, and there was no probability that it was true; while the evidence which was given very conclusively established the contrary to be the fact.
    Asa receiver, appointed in supplementary proceedings, the plaintiff was entitled to recover the entire difference remaining in the hands of the sheriff although it exceeded the amount due upon the execution which had been issued in his favor. (BostwioJc v. Menolc, 40 N. Y., 383.) Whatever balance may remain in his hands after paying the judgment recovered by him and the expenses of the proceeding will be applicable to the payment of any other legal claims against the debtor in the execution. If no such claims shall be made then such residue will be payable to her.” '
    The judgment in the case should be affirmed.

      Charles F. McLean, for the appellant.

      John Henry Hull, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., concurred.

Present — Davis, P. J., Daniels and Haight, JJ.

Judgment affirmed.


author: Davis, P. J.

text:
    Stafford P. Cruikshank, Respondent, v. Willett Bronson, Appellant.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    Elizabeth A. L. Hyatt, Appellant, v. George W. Tice and another. Respondents.

   Judgment affirmed, with costs. Opinion by

Davis, P. J.


author: Bradt, J.

text:
    In the Matter of Alfred W. Hearn.
   Order reversed, with ten dollars costs and disbursements. Opinion by

Bradt, J.


author: Brady, J.

text:
    Thomas L. Barber, Respondent, v. Benjamin Stearns, Appellant.

   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    Shepperd T. Lippincott, Respondent, v. Fletcher Westray, Appellant.

   Order refusing resettlement affirmed. Opinion by

Davis, P. J.


author: Brady, J., and Davis, P. J.

text:
    Elmore A. Kent, Respondent, v. Sarah H. Popham, Appellant.

   Judgment modified as directed in opinions. Opinions by

Brady, J., and Davis, P. J.


text:
    Joseph J. Kittel, Appellant, v. Nathaniel W. Burtis and others, Respondents.

   J udgment affirmed, with costs, as to respondent Willetts, and reversed as to all other defendants; new trial ordered as to them, with costs to abide event.. Opinion by

Davis, P. J.


author: Daniels, J.

text:
    William H. Coffin, Respondent, v. J. H. Stitt, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Warren C. Dewey, Respondent, v. Harrison S. Vining, Appellant.

   Judgment affirmed. Opinion by

Brady, J.


text:
    Gilman B. Du Bois, Respondent, v. Albert H. Lamson, Appellant.
   Judgment affirmed. Opinion by

Daniels, J.;

Brady, J., dissenting.


text:
    Edward Olmstead and others, Respondents, v. Charles Wehle, Appellant.

   Judgment reversed, with costs to abide event. Opinion by

Brady, J.


text:
    Benjamin C. Mifflin, Respondent, v. Levi L. Brooks, Appellant.

   Judgment modified as directed in opinion. Opinion by

Davis, P. J.


text:
    Rafael Pentlarge and another, Appellants, v. William R. Beeston and another, Respondents.

   Judgment affirmed, without costs. Opinion by

Daniels, J.


text:
    William H. Corbitt, Appellant and Respondent, v. Charles P. Corbit and another, Appellants, James H. McCoon, Respondent.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    Randolph Burt, Respondent, v. Hugh J. Jewett, Receiver, etc., Appellant.

   Judgment affirmed. Opinion by

Davis, P. J.


text:
    Frederick Schultz, Respondent, v. Isaac Harris, Appellant, Impleaded, etc.

   Order affirmed. Opinion by

Brady, J.


text:
    Robert Struthers, Appellant, v. Adolphus Hoffstadt, Respondent

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


author: Daniels, J.,

text:
    William H. O’Dwyer, Respondents, v. Laura D. Mack and another, Appellants.
   Order reversed and motion denied, with ten dollars costs and disbursements in case the stipulation mentioned in opinion be given. Should it be withheld, order affirmed, with like costs and disbursements. Opinion by

Daniels, J.,


author: Per (Juriam.

text:
    The People of the State of New York v. The Knickerbocker Life Insurance Company.
   Order affirmed, without costs. Opinion

Per (Juriam.


text:
    Ferdinand Jung, Appellant, v. Moses May, Respondent.

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Edward Ellsworth, Sole Executor, etc., Plaintiff, v. The New York, Lake Erie and Western Railroad Company, Defendant.

   Judgment entered for plaintiff as directed in the opinion. Opinion by

Davis, P. J.


text:
    The Bowery National Bank, Respondent, v. Catharine Kehoe, Appellant.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    Patrick Fullon, Appellant, v. John Hooper, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    William M. Halstead, Appellant, v. William Culver and others, Respondents.

   Order reversed unless defendant stipulate as directed in opinion, otherwise affirmed, without costs of appeal and with costs of the motion to abide the event. Opinion by

Daniels, J.


text:
    The People of the State of New York, Appellant, v. Ellen E. Peck, Respondent.

   Judgment reversed. Opinion by

Daniels, J.


author: Per CJuriam.

text:
    Sidney P. Nichols, Respondent, v. Charles F. MacLean, Appellant.
   Judgment affirmed, with costs. Opinion

Per CJuriam.


author: Beady, J., and by Daniels, J.,

text:
    Adelle A. States, Appellant, v. Charles T. Cromwell, Respondent.
   Judgment affirmed. Opinions by

Beady, J., and by Daniels, J.,

dissenting.


text:
    Thomas J. Pope, Respondent, v. George A. Porter, Appellant.

   Judgment reversed and new trial ordered, witli costs to appellant to abide event, unless the plaintiff shall stipulate to reduce the judgment as directed in opinion; in which case judgment as so reduced affirmed, without- costs to either party. Opinion by

Davis, P. J.


text:
    George H. Putnam, Appellant, v. Gerald J. Griffin, Respondent.
   Order affirmed, without costs. Opinion by

Davis, P. J.


text:
    James Baker, Executor, etc., v. Marie H. Grilliere.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    James C. Jewett, Appellant, v. James Swann, Respondent.

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Mutual Insurance Company, Plaintiff, v. John L. Blake and others, Appellants.
   Judgment affirmed, without costs. Opinion by

Davis, P. J.


text:
    Margaret Pfeffle, Respondent, v. Second Avenue Railroad Company, Appellant.
   Judgment reversed, new trial ordered, costs to abide event. „ Opinion by

Brady, J.


text:
    Germania Fire Insurance Company, Respondent, v. George R. Francis, Appellant.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    William E. Lucas, Appellant, v. The East Stroudsburg Glass Company, Respondent.

   -Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    In the Matter of the Continental Life Insurance Company.
   Order modified as directed in opinion. Opinion by

Brady, J.


text:
    Joseph Hertzfield, v. Charles Parkes and others.
   Stay of proceedings continued, and judgment set aside, without costs, and without prejudice to application by plaintiff to amend complaint and order to be settled by Brady, J. Opinion by

Brady, J.


text:
    James J. Phelan, Appellant, v. Edward Schell, Respondent.
   Judgment affirmed. Opinion by

Davis, P. J.


text:
    Charles E. Fleming, Respondent, v. Elbert L. Burnham, Appellant.

   Order affirmed, without costs. Opinion by

Davis, P. J.


text:
    Thorndike Saunders, Respondent, v. Aves Guano Company, Appellant.

   Order modified as directed in opinion, without costs to either party. Opinion by

Davis, P. J.


text:
    In the Matter of William Tilden.
   Appeal dismissed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Bowery Savings Bank v. John Keenan.
   Order reversed, without costs. Opinion by

Brady, J.


text:
    Susanna H. Dorland, Appellant, v. New York Central Railway Company, Respondent.

   Judgment reversed, new trial ordered, ■ costs to abide event. Opinion by

Brady, J.


text:
    Charles H. Russell, Respondent, v. Henry W. Johnson, Appellant.

   Judgment modified as directed in opinion, without c<5sts. Opinion by

Brady, J.


text:
    In the Matter of William Tilden, Deceased.

   Order reversed, with ten dollars costs and disbursements, and order to be entered as directed. Opinion by

Daniels, J.


text:
    Kate B. Howland, Respondent, v. George H. Mills and others, Appellants.

   Judgment and order affirmed. Opinion by

Daniels, J.


text:
    Stephen V. Moers, Appellant, v. Society for the Protection of Destitute Children, Respondent.

   Judgment affirmed. Opinion by

Daniels, J.


text:
    Charles S. Archer, Respondent, v. New York, New Haven and Hartford Railway Company, Appellant.

   Judgment reversed, new trial ordered, costs to 'abide event. Opinion by

Daniels, J.


text:
    The People of the State of New York, Respondent, v. Edward Petzold, Appellant.

   Judgment affirmed. Opinion by

Brady, J.


text:
    Thomas H. Thorn and another, Respondents, v. James Sutherland and another, Appellants.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Brady, J.


text:
    In the Matter of Joseph Leavy.
   Order affirmed, without costs. Opinion by

Brady, J.


text:
    Edith Allen, Appellant, v. Vanderbilt Allen, Respondent.
   Order modified as directed, and affirmed as modified, without costs to either party. Opinion by

Brady, J.


text:
    In the Matter of Sarah Boston.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    The Attorney General v. The Continental Life Insurance Company.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Harford B. Kirk, Appellant, v. R. Cornell White, Respondent.
   Order reversed, with ten dollars costs and disbursements, to abide event.


text:
    Elias G. Drake, Respondent, v. Henry Youngs, Appellant.

   Order reversed, with ten dollars costs and disbursements, to abide event. Opinion by

Daniels, J.


text:
    Matthew Graham, Respondent, v. Atlantic Hill Gold Mining Company, Respondent.
   Order affirmed, with ten dollars costs and disbursements, to abide event.


text:
    In the Matter of Sarah T. Sands.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The North River Bank of the City of New York v. Victor Hein.
   Order modified by striking out the words “such payments, however, only to be made by authority of this court upon notice to the plaintiffs herein,” and affirmed as modified, with ten dollars costs and disbursements, to abide event.


text:
    Horace B. Claflin, Respondent, v. Emil Hirsch, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    In the Matter of Mary Ann Hutchinson.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


author: Barrett, J.,

text:
    Thomas Kelly, Respondent, v. Emilie W. Kerr, Appellant.

   Order affirmed, with ten dollars costs and disbursements, on the opinion of

Barrett, J.,

in the court below.


text:
    James W. Field, Respondent, v. James M. Allen, Appellant.
   Order reversed, with ten dollars costs and disbursements.


author: Per Curiam.

text:
    Henry A. Gildersleeve, Plaintiff, v. The Mayor, etc., of the City of New York, Defendant.

   Judgment ordered for defendants, without costs; Opinion

Per Curiam.


text:
    Annie L. Linton, Respondent, v. Carrie R. Morse, Appellant.

   Order reversed, with ten dollars costs and disbursements, and an order entered vacating the judgment and proceedings with leave to the plaintiff to proceed and assess damages in accordance w ith the provision of the Code. Opinion

Per Curiam.


author: Donohue, J.

text:
    James McClenahan, Appellant, v. The Mayor, etc., of the City of New York, Respondent.

   Judgment affirmed, with costs, on the opinion of

Donohue, J.


text:
    The Board of Commissioners of Pilots, Respondent, v. John W. Ambrose, Appellant.

   Judgment affirmed.


text:
    In the Matter of William Taylor.
   ' Order affirmed, without costs. Opinion

Per Curiam.


text:
    Moriz Blum, Appellant, v. Ferdinand Kurzman, Respondent.

   Judgment reversed, new trial ordered, costs to abide event. Opinion

Per Curiam.


text:
    The Block-House Coal Company, Respondent, v. The New York Gas-Light Company, Appellant.

   Judgment affirmed. Opinion by

Daniels, J.


text:
    In the Matter of Frederick A. Cushman.
   Decree affirmed, without costs.


text:
    John B. Gossler and others, Appellants, v. Lazarus Lissberger, Respondent.

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    George Ehrat v. Clement A. Auffmodt.
   Order reversed, with;' ten dollars' costs and disbursements and motion denied.


text:
    In the Matter of the Petition of the United States.
   Order affirmed on the opinion of Lawrence, J.


author: Barrett, J.

text:
    In the Matter of the Application of the Officers, Etc., of the A. B. Taylor Company.
   Order affirmed on opinion of

Barrett, J.


text:
    James A. Duston, Appellant, v. John F. Wallace, Respondent.

   Judgment affirmed.


author: Beach, J.

text:
    Mary Bretzfield, Appellant, v. Maria Hayes and others, Respondents.

   Judgment affirmed on opinion of

Beach, J.


text:
    Ezra B. Weston v. Moses Chamberlain.
   Judgment affirmed, on opinion of'referee Bos worth.


text:
    Peter T. Masterson, Respondent, v. The Mayor, etc., of the City of New York, Appellant.

   Order affirmed, with ten dollars costs and disbursements, on opinion of

Barrett, J.


text:
    The People of the State of New York, Respondent, v. Vincenzi Maschke, Appellant.

   Order affirmed. Opinion by

Daniels, J.


text:
    Manly N. Cutter, Respondent, v. Cora Morris, Appellant.

   Order affirmed, with ten dollars costs and disbursements.


text:
    The Gutta Percha Rubber Company v. Martin McMahon and another.
   Judgment affirmed, with costs.


author: per Curiam.

text:
    Samuel Bernstein, Respondent, v. Frederick Gwindler and another, Appellants.

   Judgment affirmed. Opinion

per Curiam.


text:
    David Brooks, Respondent, v. The Western Electric Manufacturing Company, Appellant.

   Order reversed and action referred to Hamilton Odell, according to the agreement of the parties; costs of the motion and appeal to abide event of action.


author: Tan Yorst, J.,

text:
    Peter Bowe v. Douglass Campbell.
   Judgment affirmed on opinion of

Tan Yorst, J.,

and on authority of Flack v. State of New York (29 Hun, 286).


text:
    In the Matter of Aldris L. Waite.
   Order affirmed, with ten dollars costs and disbursements.


text:
    W. W. Norris v. H. D. Norris.
   Motion denied, without costs.


text:
    Ambrose J. Agate v. Ann E. Agate.
   Motion denied,' without costs.


text:
    Margaret J. Wilmerding v. John McKesson.
   Judgment modified as asked for in the motion if the parties can agree on the amount.


text:
    William H. Coffin, Respondent, v. J. W. Still, Appellant.

   Motion for reargument denied, with ten dollars costs.


text:
    Adolph Schalk v. The Brewers and Maltsters’ Insurance Company
   Petition of receiver for leave to pay granted.


text:
    Alfred L. Simonson v. William Elmer.
   Motion denied, with ten dollars costs and disbursements.


text:
    Joseph Andrade v. Samuel Cohen.
   Motion denied, with ten dollars costs. (See Memoranda.)


text:
    Thomas J. Pope v. George A. Potter.
   Motion for reargument denied.


text:
    Mart F. Stoughton v. Henrietta Gerschel.
   Motion denied.


text:
    The People of the State of New York v. The Knickerbocker Life Insurance Company.
   Application of attorney granted.


text:
    Susan Pettit, Respondent, v. Asa Pettit, Appellant.
   Motion denied, without costs.


text:
    The Attorney General v. The Continental Life Insurance Company.
   Receiver’s account filed.


text:
    In the Matter of the New York City and Northern Railroad Company.
   Receiver’s account filed.


text:
    William A. Covert, Appellant, v. Herman Henneberger, Respondent.
   Judgment reversed, new trial ordered, with costs to abide event. Opinion by

Brady, J.


text:
    Patience Gardner, Appellant, v. James Gardner, Respondent.
   Judgment reversed, new trial granted, costs to abide event.' Opinion by

Brady, J.