text:
    MABEL CLARK, Appellant, v. WILLIAM CANDEE, Respondent.

      Practice — commission to examine a party in his own behalf— not allowed if the court has reason to believe the application is not made in good faith— Code of Civil Procedure, secs. 887, 888, 889.
    Appeal from an order made March 6, 1882, by the county judge of Onondaga county, denying an application for an order granting a commission to take the testimony of the plaintiff in the State of New Jersey, with leave to renew.
    The action is brought to recover for the conversion of personal property.
    The court at General Term said: “ Since the amendment of section 887 of the Code of Civil Procedure, power to issue a commission to examine a party has existed. In a proper case the power should be exercised. Sweeney v. Sturgis (24 Hun, 163) discusses power to issue an order for the examination of an- adverse, party, and many of the observations made theré are applicable to a case when a proper application is made for a commission to take the testimony of a party in his own behalf.
    “ The case in hand is within subdivision 5 of section 888 of the Code of Civil Procedure, and it is also to be governed by section 889 of the Code of Civil Procedure. That section declares such an application £ must be granted upon satisfactory proof of the facts .authorizing it, unless the court or judge has reason to believe that the application is not made in good faith. * * * ’
    “ In opposition to the motion, the defendant read an affidavit, in which he stated his readiness to stipulate .a reference of the action, and that the evidence of the plaintiff be taken before the referee without delay and at the plaintiff’s home in. New Jersey, and that the sole object of examining her in New Jersey on commission is to keep her from before the court which is to hear and determine this .action, and- to gain an undue advantage .herein by the person or persons who surround her, over-persuading and unduly influencing her.
    “ Inasmuch as such an affidavit was used and not replied to, and inasmuch' as the plaintiff has appealed from the order made instead •of replying to such affidavit, in papers renewing his motion, we are to consider whether; under the particular language of the statute we have quoted from section 889, the judge had ‘ reason to believe that the aijpellant’s application’ was not made in good faith. We must assume he did so believe when he denied .the motion, and we ■cannot say he was wholly without reason so to believe. We ought not, therefore, to reverse his order. To, do so would, be to say that he abused his discretion, and that he had no reason to believe the .af>plication was not made in good faith. We do not think so.
    ■ “ Possibly the learned county judge supposed that he had a right to require the plaintiff to consent to a reference. We are of the ■opinion that the action is not referable per se, as it is for conversion, and according to the allegations of the complaint, stands as an ordinary action of trovér. Such an action is not referable. (Townsend v. Hendricks, 40 How., 143; Welsh v. Darragh, 52 N. Y., 590; Yerplanck v. Kendall, 45 N. Y. Supr. Ot. [13 J. & S.], 525; damp v. Ingersoll, 86 N. Y., 435.)
    “ However, upon the first ground stated in this opinion, the order should be affirmed.”
    Order affirmed, without costs.

      Bliss <& Schley, for the appellant.

      Riscoch, Qifford <& JDoheney, for the respondent.
   Opinion by

Hardin, J.;

Baricer, J., concurred; Smith, P. J., dissented.

Order affirmed, without costsl


source: Caselaw Access Project

license: Public Domain

text:
    William Wright, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.

   — Conviction and judgment reversed, and proceedings remitted to the Court of Sessions of Onondaga county for a new trial. Opinion by Smith, P. J.


text:
    The People of the State of New York, Respondents, v. John Welch, Appellant.
   Judgment and conviction affirmed, and proceedings remitted to the Herkimer Oyer and Terminer to proceed therein. Opinion by Hardin, J.


text:
    Miles B. Riggs, as Administrator, etc., Respondent, v. The American Tract Society, Appellant.

   — New trial denied, and judgment ordered for the plaintiff on the verdict. Opinion by Smith, P. J.


text:
    Mary J. Fredenburgh, Respondent, v. Russell B. Biddlecome and others, Executors, etc., Appellants.

   — Order confirming report of referee and the judgment thereon affirmed, with costs of this appeal, payable out of the estate, and so much of said order as awards costs to the plaintiff reversed, with leave to apply at Special Term for an order adjudging costs against the defendants.


text:
    Same v. Same.
   Order denying motion to set aside taxation of costs reversed, without prejudice to a motion for an award of costs, and without prejudice to a retaxation, with ten dollars costs and disbursements to defendants. Opinion by Hardin, J.


text:
    Charles Wager and others, Appellants, v. Eliza H. Wager, Respondent, Impleaded, with others.
   — -Judgment reversed and new trial ordered, costs to-abide the final award of costs. Opinion by Hardin, J.


text:
    The People of the State of New York, Respondents, v. George W. Robinson, Appellant.

   — Judgment and conviction reversed,, and case remitted to Court of Sessions of Erie county for a new trial. Opinion by Smith, P. J.


text:
    Edward Haley, Appellant, v. Patrick Connell, Respondent.
   Judgment affirmed. Opinion by Hardin, J.


text:
    William Zoller, Respondent, v. Alanson Young, Appellant.
   Judgment reversed and new trial ordered, costs to abide event. Opinion by Hardin, J.; dissenting opinion by Smith, P. J.


text:
    William E. Taylor, Appellant, v. Robert B. McNeil and another, Respondents.

   — Judgment and order affirmed. Opinions by Smith, P. J., and Hardin, J.


text:
    Harlan H. Sackrider and another, Respondents, v. Josiah P. Cooke, Appellant.
   Judgment affirmed. Opinion by Haight, J.


text:
    Alexander B. Williams, Respondent, v. Belle McIntyre, as Executrix, etc., Appellant.

   — Judgment reversed and new trial ordered, costs to abide event. Opinion by Haight, J.


text:
    The People of the State of New York ex rel. Henry Richardson, Appellant, v. Thomas H. Cost, Supervisor, etc., and others.

   . Judgment affirmed, with costs against the relator not to exceed fifty dollars, on opinion of Dwight, J., at Special Term.

Smith,. P. J., not sitting.


text:
    Ann Eliza Slosson and others, as Executrices, Respondents, v. The Trustees of the Baptist Church of Lindley, Appellants.

   Judgment affirmed. Mem. by Haight, J.


text:
    Andrew Harpending, as Administrator, etc., Respondent, v. Stephen T. Arnot and others, as Executors, etc., and another, Appellants.

   — Judgment reversed and a new trial ordered, costs of this appeal to abide the final award of costs in the action. Opinion by Smith, P. J.


text:
    Lyman H. Granger, Appellant, v. Henry H. Craig and others, Respondents.

   — Judgment modified by increasing the amounts due on the notes and mortgage in the sum of sixty-eight dollars and eighty cents, and as so modified affirmed, with costs of this appeal to the respondents. Opinion by Haight, J.


text:
    James Dempsey, Appellant, v. Mary Dempsey, as Executrix, etc., Respondent.

   Judgment affirmed, with costs. Opinion by Haight, J.


text:
    John P. Read and others, Appellants, v. John A. Miller and others, Respondents.

   — Judginent and order affirmed, on opinion of Daniels, J., at Special Term.


text:
    Peter Garrity, Appellant, v. The Syracuse, Binghamton and New York Railroad Company, Respondents.

   — Judgment affirmed. Opinion by Haight, J.


text:
    Thomas McKeon, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.

   — Conviction and judgment reversed, and proceedings remitted to the Court of Sessions of Wyoming county for a new trial in that court. Opinion by Haight, J.


text:
    John C. Derby, Appellant, v. Justus Yale and others, Respondents.

   — Judgment affirmed, with costs. Opinion by Smith, P. J.


text:
    M. Cornelia Brown, Appellant, v. Benjamin F. Van Camp, Respondent, Impleaded, with others.
   — Reargument ordered.


text:
    Lemuel L. Crocker, Appellant, v. Emmet Fairbanks, Respondent.

   Judgment and order affirmed, with costs. Opinion by Haight, J.


text:
    The First Reformed Presbyterian Church of York, Respondent, v. John L. Scott, Samuel Bowden and others, Appellants.

   — Order affirmed, with ten dollars costs and disbursements, to be paid by the appellants. Opinion by Smith, P. J.


text:
    Alonzo Bradner, Respondent, v. Lester B. Faulkner, Appellant.

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


text:
    Frank Castleman, Respondent, v. Joseph M. Simpson and another, Appellants.

   — Judgment reversed and a new trial ordered before another referee, costs to abide event, unless plaintiff shall stipulate to modify the judgment by making the sum to be paid by the plaintiff to the defendant, J. M. Simpson, fifty-two dollars and eighteen cents, instead of thirty-two dollars and eighteen cents, and in that case the judgment, as so modified, affirmed, with costs to the respondent. Opinion by Smith, P. J.


text:
    Omar Case, Appellant, v. Joseph P. Davis and another, Respondents.

   — Judgment of County Court affirmed. Opinion by Macombee, J.


text:
    Wilhelmina Bitzki, as Administratrix, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment and order reversed and new trial ordered, costs to abide event. Opinion by Haedin, J.


text:
    Edmund R. Harrington, Plaintiff, v. The Erie County Savings Bank, Defendant.

   — New trial denied, and judgment ordered for defendant on the nonsuit. Opinion by Smtth, P. J.


text:
    Emma J. Nicholls, Respondent, v. Phebe L. Wentworth, Appellant.
   Judgment reversed and new trial ordered, costs to abide event. Opinion by Macombee, J.


text:
    Frederick Loomis, as Trustee, etc., Respondent, v. Silence J. White, Appellant, Impleaded, etc.

   — Judgment affirmed, with costs. Opinion by Smith, P. J.


text:
    Rodman Clark and another, Appellants, v. Benjamin F. Angel, Respondent, Impleaded, etc.

   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by Haedin, J.


text:
    Riley Stevens, Respondent, v. Sarah Bushfield and others, Appellants

   — Judgment affirmed. Opinion by Macombee, J.


text:
    The People of the State of New York, Defendants in Error, v. David Augsbury, Plaintiff in Error.

   — Judgment and conviction reversed, and proceedings remitted to the Court of Sessions of Jefferson county, with directions for a new trial.' Opinion by Haedin, J.


text:
    John Gillette, Jr., Respondent, v. Asbury Christian, Appellant, Impleaded, etc.
   Judgment affirmed. Opinion by Haedin, J.;

Smith, P. J., not sitting.


text:
    Charles E. Beard, Respondent, v. Daniel S. Cridler, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Macombee, J.


text:
    In the Matter of the New York, West Shore and Buffalo Railway Company, to Acquire Title to Certain Real Estate of the Syracuse, Chenango and New York Railroad Company, and others.
   Order affirmed, with ten dollars costs and ~ disbursements.


text:
    Cynthia A. Tolman, as Administratrix, etc., Respondent, v. The Syracuse, Binghamton and New York Railroad Company, Appellant.

   — Order affirmed on opinion of Mr. Justice Churchill at Special Term, with ten dollars costs and disbursements.


text:
    Frank Sibley and James Holmwood, Appellants, v. James T. Hastings, Respondent.

   — Judgment affirmed. Opinion by Smith, P. J.


text:
    Michael Cummins, Respondent, v. The City of Syracuse, Appellant.
   Judgment affirmed. Opinion by Maoomber, J.


text:
    In the Matter of William H. Silvernail, an Attorney, etc.
   Order of Special Term affirmed on opinion of Mr. Justice Rumsey, with ten dollars costs and disbursements, to be paid by the appellant.


text:
    Ruth P. Dimmick, Appellant, v. Elizabeth M. Cooley, Appellants. Jonah D. Decker (formerly plaintiffs attorney), Respondent.

   — So much of the order appealed from as directs a reference reversed and the remainder of the order affirmed, without costs to either party. Opinion by Bareer, J.


text:
    William G. Milligan, as Administrator, etc., Appellant, v. William H. Robinson and another, Respondents.

   — Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by Bareer, J.;

Hardin, J., not sitting.


text:
    The First National Bank of Utica, Respondent, v. The National Bank of Norwich, Appellant.

   — Judgment affirmed on opinion delivered by Mr. Justice Merwin at the circuit;

Hardin, J., not sitting.


text:
    Lucinda Simmons, Respondent, v. John H. Osgoodby, Appellant.
   Judgment and order affirmed. Opinion by Hardin, J.


text:
    The People of the State of New York, Respondent, v. Henry B Burton, Appellant.

   — Judgment and conviction reversed and a new trial ordered in the Court of Sessions of Onondaga county, to which court the case is remitteil. Opinion by Smith, P. J.


text:
    Monroe M. Kelly, Respondent, v. Nancy Bruce and others, Appellants.

   — Judgment reversed and new trial ordered before another referee, costs to abide event, unless plaintiff stipulates to modify the judgment by deducting therefrom the sum of $322.36, in which case the judgment as so modified is affirmed, without costs of this appeal to either party. Opinion by Hardin, J.


text:
    John Sheaf, Respondent, v. William S. Waterbury and others, Appellants.

   — Judgment affirmed, with costs. Opinion by Smith, P. J.


text:
    William A. Sweet, Respondent, v. Edmund Merry and others, Appellants.

   — Judgment and order reversed and new trial ordered, costs to abide event. Opinion by Bareer, J.


text:
    Joseph Fraley, Appellant, v. Samuel Starr, Respondent.
   Judgment affirmed. Opinion by Smith, P. J.


text:
    Louis Bejus, Respondent, v. The Syracuse, Binghamton and New York Railroad Company, Appellant.

   — Judgment and order reversed and new trial ordered, costs to abide event. Opinion by Barker, J.


text:
    Franklin Warren, Respondent, v. John Chadwick, Appellant.

   — Judgment affimed, unless the defendant within ten days after .service of the order to be entered herein, deposits the promissory note mentioned in the opinion with the clerk of Niagara county to be delivered to the plaintiff; if such deposit is made, the . judgment reversed and new trial ordered before another referee, costs to abide event, unless the plaintiff stipulates to reduce the judgment by deducting from it the sum of seventy-five dollars, in which case the judgment as so reduced is affhmed, without costs of this appeal to either party. Opinion by Smith, P. J., and Hardin, J.


text:
    Jacob E. Fox, Respondent v. William H. Abbott, Appellant.
   Judgment affirmed. Opinion by Smith, P. J.;

Hardin, J., not sitting.


text:
    Harvey Robinson, Respondent, v. William P. Sabey, Appellant.
   Judgment affirmed. Opinion by Smith, P. J.


text:
    Jonathan L. Booth, Respondent, v. Charles E. Patrick, Appellant.

   — Judgment affirmed. Opinion by Hardin, J.


text:
    Lewis N. Putnam, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   — Judgment and order affirmed. Opinion by Barker, J.


text:
    Edward B. Van Dusen, Respondent, v. Nathaniel N. Smith, Appellant.

   — Order appealed from reversed, with ten dollars costs and disbursements.


text:
    George N. Gilbert, Respondent, v. Shadrach Groff, as Administrator, etc., Appellant.

   — Motion for leave to appeal to the Court of Appeals denied.


text:
    Ebenezer Williams, Appellant, v. George L. Davis, as Executor, etc., Respondent.

   — Judgment reversed and new trial ordered before another referee, costs to. abide event. Opinion by Hardin, J., and dissenting opinion by Haight, J.


text:
    Ira L. Otis and others, Respondents, v. George Keith and others, Appellants.

   — Order reversed, with ten dollars costs and disbursements, with leave to defendant to renew the motion.


text:
    Edward P. Stuart, as Trustee, etc., Respondent, v. Thomas J. Patterson and others, Appellants.

   — Orders appealed- from affirmed, with ten dollars costs and disbursements in one case.


text:
    In the Matter of the Application of De Witt C. Luce, Administrator.
   Order appealed -from reversed, with ten dollars costs and disbursements, to -be paid by the administrator out of the estate, and proceedings remitted to the Surrogates’ Court.


text:
    William A. Jenkins, Appellant, v. John N. Welch, Respondent.

   ■— Motion denied, without costs.


text:
    The Woodville Baptist Church, Appellant, v. The Same, Respondent.

   — The like order in all respects.


text:
    The People of the State of New York ex rel. Thomas Rutherford v. The Village of Holley, etc.
   — Motion for reargument denied."


author: Learned, P. J.:

text:
    WILLIAM OGDEN, as Receiver, etc., of WILLIAM H. GREGG & CO., Respondent, v. STEPHEN T. ARNOT, Appellant.
    Pa/rtnership— is dissolved by an insolvent pa/rtner making a gmercd, assignment — the solvent pa/rtner may close up the business and give a chattel mortgage to a firm creditor — temporary receiver of firm assets — powers of — the insolvent partner should, together with his assignee, be made a party to an action to wind up the firm.

    Where one of the members of a firm becomes insolvent and makes a general assignment of all his property for the payment of his debts, the partnership is thereby dissolved and the solvent partner has the right to manage and close up the business.
    In so closing up the business he may execute, in the firm name, a chattel mortgage upon all the stock of goods of the firm and the fixtures in the store, to a creditor of the firm to secure the payment to him, within three months, of an amount due to him for money loaned and goods sold to the firm.
    A temporary receiver of the firm property, appointed in an action brought by the solvent partner to have the firm dissolved and its affairs settled, has not such a title to the firm assets as will authorize him to bring an action against a creditor, to whom a chattel mortgage has been so given, to recover the goods he has taken by virtue of it.
    The insolvent partner as well as his assignee should be made parties to an action brought to procure a dissolution of the firm and a settlement of its accounts.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      The firm of "William H. Gregg & Co. was composed, of William H. Gregg, who conducted the business, and Henry W. Beadle, who was a private banker. On the 22d of March, 1878, Beadle, being insolvent, made an assignment of all his property of every nature to Hall & Gillett, in trust for the payment of his debts. His individual property was insufficient to pay his individual debts.
    On the 26th of March, 1878,-William H. Gregg, in the firm name, executed a chattel mortgage to the defendant Arnot, upon all the stock of goods of the firm and the fixtures in their store, to secure $8,070.61 and interest within three months, the mortgage containing a covenant to pay that sum at that time. This sum was for money loaned to the firm and for goods sold to it. The firm was then indebted to persons other than Arnot.
    The inventory and schedule of the assignees were filed about April 21, 1878, and do not include the interest of Beadle in the said firm.
    In April, 1878, Gregg commenced an action against Hall & Git lett, assignees, alleging the partnership aforesaid, and the assign ment by Beadle to them, and asking a dissolution of the partnership, the taking of an account, and the appointment of a receiver. Hall & Gillett, assigness, appeared, and by consent of parties, without making Beadle a party, an order was entered May 11,1878, appointing the present plaintiff, Ogden, receiver of the partnership property of the firm, with the usual powers.
    On the 16th of April, 1878, Arnot had taken possession of certain whisky belonging to said firm, by virtue of his chattel mortgage, and had sold the same.
    On the 12th of May, 1878, the Receiver took possession of the stock other than the whisky, and while he was inventorying it on the 22d of May, 1878, Arnot took the same under his chattel mortgage and sold it. Thereupon the plaintiff Ogden, the Receiver, in September, 1878, commenced this action against Arnot, Hall & Gillett, asking for relief of various kinds, but substantially seeking to recover for the property taken by Arnot under his chattel mortgage.
    Subsequently, on the 10th of January, 1881, upon a stipulation . of Beadle appearing by attorney, and on motion of Ogden, the Receiver, without, so far as appears, any consent of Gregg, the plaintiff in the action, an order was made in the action brought by Gregg against Hall & Gillett, assignees, making Beadle a party defendant therein, and amending the summons and complaint by naming him as a party defendant and amending the order appointing the receiver by adding Beadle’s name as defendant.
    Thereafter, on the 10th of May, 1881,.the referee, before whom the present action was tried, reported in favor of the plaintiff Ogden against Arnot for $3,437.16 and interest, the value of the stock (not the whisky) taken by Arno-1 On such report judgment was entered and the defendant Arnot appeals.

      J. McGuire, for the appellant.

      Erasteis P. Hart, for the respondent.
   Learned, P. J.:

It is not necessary to consider the transaction on which the debts to Arnot arose. Because it is plain that they were valid debts, owing by the firm to him. Nor is it of any consequence that the mortgage was not recorded.

The assignment by Beadle is in terms broad enough to convey all his property. This did not, transfer the corpus of the partnership property; but only his share of what would remain after the debts were paid. (Menagh v. Whitwell, 52 N. Y., 146, at 158.) It does not appear by the appeal papers whether the trust was for the "payment of individual debts, or of all his debts. But that is of little moment, under the principle just cited. (See, in this connection, Wilson v. Robertson, 21 N. Y., 587.)

It does not seem to be disputed, by either party to this controversy, that the act of Beadle in assigning his whole property, including therefore whatever might belqng to him in the partnership, worked a dissolution of the partnership. This must be so; because one partner cannot, against the will of the other,, introduce a new member into the partnership. (Marquand v. New York Manf. Co., 17 Johns., 525 ; Story on Part., § 307, etc.)

Where there is a voluntary dissolution and no agreement as to the settling of the partnership business, it is plain that one partner has the same power as the other in that respect. But where, as in this case, one partner has broken up the partnership by his assignment in insolvency, it is plain that he has not the right to manage the closing np of the business. That right belongs to the other party: subject of cours'e to the control of the court, if the right is ■ abused. (Story Part., 341.) Gregg therefore had the right to go on with the closing up of the business. It would be most unreasonable, if the insolvent partner should, by his insolvency, deprive the solvent partner of the power of closing up the partnership, for the payment of the debts of which he is liable. (Evans v. Evans, 9 Paige, 178; Robbins v. Fuller, 24 N. Y., 570; Van Doren v. Horton, 19 Hun, 7.)

The power to close up the business of the partnership includes necessarily the power to sell the partnership property, to collect the partnership accounts, and to pay the partnership debts. Certainly, then, Gregg could • have sold Arnot the stock of goods and the whisky; could have received the price, arid with the price could have paid any partnership debt. The general principle, except as it may be modified by a bankrupt law, is that a debtor may pay one creditor before he pays another; even that he may pay one creditor to the exclusion of another. And it seems to be settled by decisions that, on the dissolution of the partnership by the death of one partner, or by his insolvent assignment, the' remaining partner may exercise that same preference of one partnership creditor over the other. (Egberts v. Wood, 3 Paige, 517; Loeschigk v. Addison, 4 Abb. Pr. [N. S.], 210.) Certainly that must be so, unless the partnership be insolvent; and such insolvency is not shown in this ease. If, then, the remaining partner, after such a dissolution, may sell the partnership property, and may apply the avails to such partnership debt as he chooses, it follows that he may directly apply the partnership property to the payment of a partnership debt. The equitable right which the insolvent partner has, or which the representatives of a deceased partner have, is that the partnership property be applied to the payment of partnership debts. That is all; and that right is not infringed by the turning but of partnership property to pay a partnership debt.

In this present case, however, Gregg mortgaged the partnership property to Arnot. Now Gregg had the legal title to the property. He could sell, and convey and transfer. Why could he not mortgage? O’f course a mortgage for his individual and antecedent debt might be invalid; because it would be paying his own debt out of partnership property for no new consideration. But I do not see why he may not mortgage partnership property for a partnership debt. The learned referee argues that he cannot mortgage, because he cannot create, or renew, a partnership obligation. For, he says, the partner thus impairs the right of creditors to payment of their debts without delay. But when any debtor mortgages his property to secure a just debt, does he impair the right of other creditors to the payment of their just debts without delay % Of course a creditor may be unable to collect his debt out of mortgaged property, and yet it is lawful for a debtor to mortgage his property for a valid debt, and to make the mortgage payable at a future time. We must remember that this debt to Arnot was a debt of the solvent Gregg, just as much as it was a debt of the insolvent Beadle. All that Beadle could claim — all that the creditors of the partnership could claim — ‘ was that Gregg should use the partnership property to discharge the partnership debts, and not to discharge his individual debts. That he has done.

But it is said that Gregg signed the firm name, and that the mortgage contained a covenant for pay. When Beadle is sued on that covenant, the dissolution of the partnership will be a good defense to the action. But the mortgage is good enough as a transfer of the property, and probably the covenant to pay is binding on Gregg.

I think it not accurate to say, in the language of the learned referee, that on the dissolution Gregg immediately became the trustee-of the firm property for the benefit of the firm creditors, or for Beadle and his assignees. He was not a trustee, but was the owner of the property. Only in paying from its avails the debts which he himself owed, it was his duty first to pay those which he owed as partner with Beadle. When we speak of a man as trustee, who is not strictly a trustee, we are often lead into deductions from the word which may be erroneous. (Pars. on Part., 345.)

It is further argued by the defendant that the plaintiff has no right to bring this action, being merely a receiver pendente Hie in an action to dissolve a partnership. Such seems to be the principle decided in Fincke v. Funke (32 Sup. Ct. [25 Hun], 616). Keeney v. Home Insurance Company (71 N. Y., 396) decides that such a receiver acquires no title to the property ; Foster v. Towns hend (68 N, Y., 206), that he can only bring or defend suits by permission and direct authority of the court. (See the other authorities in the case first cited.)

The plaintiff insists, however, on the provisions of chapter 311, Laws 1858, authorizing executors, etc., to disaffirm acts in fraud of creditors. That act speaks of an “ estate or property so held in trust.” Under the decisions last cited such a receiver as the plaintiff does not hold any estate or property; the court saying that the title remains in those in whom it was vested when the appointment was made. (Keeney v. Home Insurance Company, ut supra.) Nor are we satisfied that the payment of a valid debt can ever be said to be in fraud of other creditors of the debtor, except perhaps under a bankrupt law. There is another question, and that relates to the order made January 10, 1881. We do not know what authority the receiver had to make a motion of that kind; and certainly no such motion could properly be entertained without notice to the plaintiff in the action.

But it may be that the original order appointing the receiver was valid, although Beadle was not a party to the action. There is no doubt, however, that he ought to have been made a party originally.

The judgment must be reversed, new trial granted, referee discharged, costs to abide event.

Present — Learned, P. J., Boaedman and Bockes, JJ ,

So ordered.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EPHRAIM L. VAN AKEN, Overseer of the Poor, etc., Respondents, v. GEORGE MILLHAM and BENJAMIN TURNER, Appellants, Impleaded with WARREN MILLHAM.

      Bond taken in bastardy proceedings, for the appean'ance of the accused — is to be strictly construed in favor of the sureties — when they are discharged by an adjournment.

    Bastardy proceedings instituted against the defendant, Warren Millham, were adjourned from May twenty-eighth to June seventh. On that day the defendant appeared and the hearing proceeded throughout the day. The proceedings were then adjourned by consent to June twenty-sixth. On that day said defendant failed to appear. At the time of the first adjournment a bond with two sureties was given which recited the proceedings and the adjournment to June seventh. It was conditioned to be void if the said Warren Millham should personally be and appear before the justices at the time and place aforesaid, and not depart therefrom without the leave of the justices. At the time of the second adjournment said defendant and one of the sureties were present. It was stated by the counsel for the two parties, in their presence, that the bond was to beheld good'.

      Held, that the sureties were discharged from all liability by the second adjournment.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court upon a trial of this action at the circuit.
    This is an action upon a bond given in bastardy proceedings on the adjournment of the examination. The first hearing had been had on the twenty-eighth day of May. The proceedings were adjourned to June seventh. On that day the hearing proceeded through the whole day, and the defendant therein was present. The hearing was then adjourned by consent to June twenty-sixth, on which day the defendant in the proceedings did not appear. This action is brought for the alleged breach of the bond in failing to appear on that twenty-sixth day of June.
    The bond is with two sureties; is dated May twenty-eighth; recites the proceedings and the determination to adjourn to, June seventh, and is conditioned that if the said Warren Millham shall personally be and appear before the said justices at the time and place aforesaid, and not depart therefrom without the leave of said justice, then, etc.
    At the time of the adjournment on June seventh, one of the sureties was not present. Conversation was had between the counsel on both sides, in the presence of the defendant in the proceedings and the other surety, to the effect that the bond was to hold good.
    Judgment was rendered against the obligors, and the two sureties appeal.

      A. T. Clearwater, for the relator.

      William lounsbury, for the appellants.
   Learned, P. J.:

The conversation in regard to the bond, had between the counsel, cannot affect the liability of the absent surety. Nor can it affect the liability of the surety who was present. He was not a party to the proceeding. The counsel who spoke was not his counsel. Nor could he be required to object to any statements by the counsel, of the legal effect of the bond.

The case of People v. Jayne (27 Barb., 58) holds that a bond conditioned to appear on a certain day and not depart without leave, is valid ; and also that such a bond is broken, it tire accused person departs during that day and before the final decision. It decides nothing on the question whether^ if the justices make another adjoui’nment to a day some three weeks distant, the sureties are bound to produce the accused at that time. So the case of People v. McCoy (39 Barb., 73) decides that a recognizance to a term of the Oyer and Terminer requires the party to be present at any time during that term before his case is disposed of. Such a recognizance, unlike the present bond, requires him to abide the decision of the Court. But the case does not decide-that such recognizance binds him to appear at another term. (People v. Greens, 5 Hill, 647.)

The obligation of these sureties cannot be extended beyond the language of the bond. They bound themselves that their principal should be before the justices on a certain day and should not depart without their leave. He was there that day and the whole of that day, and he departed with their, leave. ' He performed the condition. So in the case of People v. Greene (ut supra), the bond was to the Court of Sessions. The accused party appeared. The Court assumed to continue the bond, and the matter to the next term. It was held that the sureties were not liable.

'If the justices can adjourn a proceeding of this kind and continue the obligation of the sureties, then the sureties are bound to produce the accused at a day on which they never undertook to have him present.

It is said that the leave to depart was conditional. The condition, if any, was' that the accused should promise to appear on the twenty-eighth. But the sureties did not promise to produce him.

The judgment should be reversed, new trial granted, costs to abide event.

Present — Learned, P. J., and Boardman, J.

Judgment reversed, new trial granted, costs to abide event.


text:
    ADALINE R. ROBERTS, Appellant, v. THE OGDENSBURGH AND LAKE CHAMPLAIN RAILROAD COMPANY, Respondent.

      Evidence in an action for damages caused by defendant's negligence — a party cannot be compelled to submit her person to the examination of physicians selected by her adversary.

    The plaintiff brought.this action to recover damages for injuries arising from the alleged negligence of the defendant, in moving a train of cars on which she was a passenger. After issue joined, an order was made, upon the defendant’s application, requiring the plaintiff to submit to an examination of her person by three physicians, named in the order and selected by the defendant, under the direction of a referee therein named. It provided that such other physicians as the plaintiff might desire might be present, and that at the examination she should answer such questions as should be put to her touching her then present sensations, by the physicians selected by the defendant.

      Held, that the court had no power to make the order.

      Walsh v. Sayre (52 How., 334); Sha/w v. Van Rensselaer (60 id., 143); Schroeder v. Chicago, Rock Island and Pacific Railroad (47 Iowa [19 Alb. L. J.], 234), criticized and not followed.
    Appeal from an order made at a Special Term directing the plaintiff to submit to an examination of her person by physicians selected by the defendant, under the supervision of a referee, to ascertain whether she was suffering as she alleged from injuries caused by the alleged negligence of the defendant.
    The action was begun November 4,1882. The complaint alleged thatthe plaintiff was injured in July, 1881, while riding as a passenger on the defendant’s railroad by reason of a collision of the car she was in, with other cars, caused by the negligence of the defendant and its employes.
    The defendant claimed that no serious, if any, injury was received by her, and that she was either feigning sickness or was suffering from a disease not caused by the alleged accident.

      K A. Kellogg, for the appellant.

      , Louis Hasbrouok,, for the respondent.
   Learned, P. J.:

This is an action to recover damages for injuries arising from alleged negligence of defendant in moving a train of cars on which plaintiff was a passenger. An issue has been joined by defendant’s-answer, denying the negligence and the injury. Upon .affidavits, the defendant applied for, and obtained, an order that the plaintiff should submit to an examination of her person by three physicians, named in the order and selected by defendant under the direction of a referee therein . named: that such physicians as plaintiff desired might be present: that, at the examination, she should answer such questions as should be put to her touching her then present sensations by the physicians for the defendant. From that order the plaintiff appeals. .

The order is so unusual that we may well inquire upon what authority- of precedent or principle it rests. For precedent the defendant cites, what is called the leading case of Walsh v. Sayre (52 How. Pr., 334). That case was decided by the Special Term of the Superior Court of New Y ork, in 1868, and was reported in 1877. The action was for malpractice and the motion by the defendant was that the plaintiff submit to a personal examination by surgeons.

The opinion states that there is no recorded case of an application for any such discovery having been granted. And the decision is based upon the analogy to discovery in chancery. We see no analogy whatever between the production of books and papers or the examination of a party by a bill of discovery, and the compelling of a party to expose his person to the inspection of physicians.

In Shaw v. Van Rensselaer (60 How. Pr, 143) the application for an inspection of the plaintiff’s person was denied. The Special Term of the Common Pleas however expressed an opinion obiter that it had the power to grant it; and'referred among other cases, to Harrold v. New York Elevated Railroad (21 Hun, 268). But that case- speaks only of the examination of a party as a witness before trial, not of an examination or inspection of Ills person.

In Schroeder v. Chicago, Rock Island and Pacific Railroad (47 Iowa [19 Alb. L. J.], 234), the doctrine contended for by the defendants here was sustained-. The opinion cites no precedent or authority.

A memorandum in 5 Law Bulletin, 8, states that, in the case of Osborn v. Manhattan Railroad Company, the Special Term of the -Common Pleas granted such an order.

These are the only authorities directly sustaining this order.

In Devanbagh v. Devanbagh (5 Paige, 554) in an action for divorce against the wife on the ground of her incurable impotency, the chancellor held that, in such a suit, he had power to compel the parties to submit to a surgical examination; placing the opinion on the ground that,' from the very nature of the case, other proof was impossible. But this is a peculiarity, arising in that class of cases, from the necessity of the case. (2 Bishop Marr., § 590 [250].) "Whatever may be the rule in such actions for divorce, nothing which is there said applies to this case. No such necessity exists. The injuries, if any, suffered by the plaintiff can be proved by ordinary, common law evidence; as similar injuries are proved «very day.

The other instances thought by the defendant to be analogous, are the trial by inspection and the writ de ventre inspieiendo. An examination of 8 Blackstone’s Commentary, 331, will show that the trial by inspection was a trial by the judges, not by a jury, of some single matter, obvious to sight; except in appeals of mayhem, which are matters long obsolete. No analogy exists between those proceedings and the present.

■ The writ de ventre inspieiendo (1 Black Com., 456; taken by the English law from the Roman Dig. 25, 4, 1, 10, and made indecent in the taking), has long become obsolete. If it shows anything in the present case, its disuse shows that such an invasion of the sacredness of the person, as is here proposed, cannot be permitted at this day.

Thus the whole authority for this order rests, in the way of precedent, on the Special Term cases above cited.

On the other hand the General Term of the Superior Court in Ansen v. Tuska (19 Abb., 391) refused to compel a party to submit articles, which were the subject of the controversy, to the inspection of his adversary in order to enable experts the better to testify in respect thereto.

The same view is taken in Miner v. Gardiner (4 Hun, 132), where the court refused to compel an inspection of books, asked for in order that an expert, from their appearance, might testify to the. value of keeping them.

Passing from the subject of precedent to. that of principle, we think this order should not be sustained. That part which requires the plaintiff to answer questions put to her is especially objectionable. It is merely inquisitorial. Her answers are not evidence for herself, but might be used against her. The only mode of taking the testimony of a party before the trial is that prescribed in section 870 of the Code of Civil Procedure and the following sections. This proceeding is quite different. Here the party is required to answer questions put, not by the opposing party, but by any of three physicians, whether relevant or not. (See § 880.) And instead of the deposition being written and subscribed (same section) it is probably intended that these three physicians shall, on the trial, give, if desired, testimony as to what the plaintiff said on this compulsory questioning. What are called “ fishing excursions ” of parties before a trial have often been, condemned. Nothing could be as bad however as to require a party to answer every question which might be put, with no right, of explanation, and with no obligation on the examining party to make any use whatever of the examination.

But again, passing over such cases as that of Devanbagh v. Devanbagh, we know of no right which this court has to compel a party to submit to any bodily examination. In a common law action like-this, the jury are to pass on the. issues of fact. And they are entitled to see and hear for themselves the evidence. It is of the very essence of the common law system that the evidence shall be produced before the jury. Exceptions to this rule (and not desirable exceptions) are those cases in which evidence is, previously reduced to writing, and then read to the jury. Now if a party is entitled to the compulsory exhibition of the body of his opponent, it would seem to follow that he might have such exhibition made before the jury. And the court might require the plaintiff, on the trial and before the jury, to submit to the same examination as is required by this order.

It is undoubtedly true that not unfrequently plaintiffs, suing for bodily injuries, do exhibit in court the injured part. Nor do we know of any reason why they should not do this; notwithstanding the exhibition may excite sympathy. And, on the other hand, all unreasonable concealment of an injured part (not justified by any •dictate of modesty or otherwise) may excite a doubt in the mind of the jury as to the genuineness or extent of the alleged injury. But we cannot admit the principle that, either in the presence of the jury, or in the presence of a referee, a party can compel his opponent to exhibit his body in order to enable physicians to examine and question and testify.

Section 834 of the Code, forbidding a physician to testify to information obtained while attending a patient, necessary to enable him to act, is not strictly applicable to the question now under consideration. But, if the law will not permit a physician, voluntarily consulted, to reveal what he has learned, can it be that the law will compel a party to reveal, by exposure of the body and by answers to questions, facts to a physician, to which he may afterwards testify in court?

There may be danger that in actions of this nature plaintiffs will exaggerate. the injuries they.hav.e received; and that defendants may be at a disadvantage in ascertaining the exact truth. But this evil is far less than the adoption of a system of bodily, and perhaps immodest, examinations, which might deter many, especially women, from ever commencing actions, however great the injuries they had sustained.

The order is reversed with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.

Present — Learned, P. J., Boaedman and. Bocees, JJ.

Ordey reversed with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.


author: By the Court :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. MARCIA E. PECK v. THE CANAL BOARD OF THE STATE OF NEW YORK.

      Certiorari — the court can only consider jurisdictional questions in reviewing proceedings before the canal board — form of the latter's decision — effect of, on an application for a rehearing— 1829, chap. 368; 1868, chap. 579.
    In reviewing upon a certiora/ii the decision of the canal board, made upon an appeal from a decision of the canal appraisers, the court can only inquire whether those bodies have kept within the limits of the jurisdiction given them by law. It cannot consider the merits or any alleged irregularities, not jurisdictional, occurring in the proceedings.
    The addition of the words “appeal dismissed,” to a decision of the canal board affirming a decision of the cañal appraisers, does not destroy or impair the right of the claimant to apply for a rehearing under the law.
    Ceetiobari to review a decision of tlie canal board affirming an award made by the canal appraisers.

      Edwin S. Butterfield, for the relator.

      Leslie W. Bussell, for the respondent.
   By the Court :

The claim of the relator was presented to the canal auditors for damages alleged to have been caused by the officers of the State in opening the gates of an aqueduct to save the bants of the canal. It was one of the ordinary cases which by provision of statute may be heard by the canal appraisers. It was 'heard by the canal appraisers and they refused to award anything to the relator, holding that no legal liability was proved against the State and that the damages complained of were not caused by any negligence on the part of the State.

The relator thereupon appealed to the canal board, by which body the award of the canal appraisers was affirmed and the appeal dismissed. ' .

Hpon the application of the relator a writ of certiorari has been allowed to bring up for review the decision of the canal board, and it is now claimed this court has the right and it is its duty to examine the case upon its merits, and to reverse the decision of the appraisers as well as the canal board if any error is discovered in the proceedings.

The position of the relator cannot be sustained. The State may not be sued or brought into court by a claimant except in pursuance of such permissive laws as the State through its legislature has passed. (People v. Dennison., 84 N. Y., 272, 281.) It has provided that the class of claims, of which relator’s is one, may be presented to and passed upon by the board of canal appraisers. If the claimant is not satisfied with the decision of that board an appeal may be taken to the canal board. (Chap. 368, Laws of 1829; chap. 579, Laws of 1868.) By the provisions of such laws the decision of the canal board shall be final and conclusive; that is a limitation of the right of a claimant to pursue his remedy against the State if the respective boards have kept within their jurisdiction. (People ex rel. Seymour v. Canal Board, 7 Lans., 220; People ex rel. Benedict v. Dennison, 28 Hun, 328.)

We have the right to inquire whether these boards have kept within the jurisdiction given them by law, but we cannot consider the merits or any alleged irregularities not jurisdictional occurring in the proceedings. Nothing is shown from which we can say that the respective boards did not have at all times competent jurisdiction to investigate the subject-matter, to make the awards and decisions in the present case.

The dismissal of the appeal by the canal board, after affirming the award of the auditors, in no respect destroyed or impaired the relator’s right to apply for a rehearing under the law. The affirmance of the award was in legal effect a dismissal of the appeal whether so stated or not, but the canal board still retained the power in a proper case to grant a rehearing. The affirmance of the award as a decision would be just as effectual to prevent a rehearing as the added words, “appeal dismissed.” Neither of them prevents the exercise of the power given the board.

The writ of certiorari must be dismissed with fifty dollars costs and disbursements against the relator, under section 2143 of the Code of Civil Procedure.

Present — Learned, P. J., Bookes and Boardman, JJ.

Writ dismissed, with fifty dollars costs against relator, under section 2143, Code of Civil Procedure.


author: Boardman, J.:

text:
    THOMAS S. SUTHERLAND, Appellant, v. JOHN J. OLCOTT and DUDLEY OLCOTT, as Executors, etc., of THOMAS W. OLCOTT, Deceased, Respondents.

      Manufactwring corporation — fixing the amount of its capital stock — individual liability of its stockholders — failure of the county clerk to record certificate — a creditor by suing on notes bars himself from resorting to the original consideration.
    Chapter 401 oí 1867, creating a manufacturing corporation, provided that its capital stock should be $300,000, and authorized it “ to increase the same from time to time as its business may require, and a majority of the directors should so determine, to a sum not exceeding one million dollars.” This act made the stockholders individually liable to the creditors of the company to an amount equal to the amount of stock held by them. ¿September 11,1872, a resolution was unanimously adopted by the directors increasing the capital stock of the company to $600,000. Prior to May 10, 1875, subscriptions for this stock to the amount of $489,500 had been procured and fully paid in. Chapter 203 of 1873, amending the act of 1867, changed the name of the company and released the stockholders from liability after “the whole amount of the capital stock fixed and limited by such company shall have jieen paid in.” May 10, 1875, the directors resolved that the capital stock of the company “be fixed and limited • at $489,500,” and that a certificate to that effect be duly prepared and filed in the county clerk’s office. Such a certificate was so prepared and filed in July, 1875.

      Held, that the resolution óf May 10,1875, was a lawful and valid one.
    That it fixed and limited the capital stock at the amount therein named.

      Held, further, that although the general manufacturing act (chap. 40 of 1848) required the president and a majority of the trustees to sign a certificate showing that the capital stock was paid in, and to “ record the same in the office of the county clerk,” yet that the filing of the said certificate relieved the stockholders from all personal liability, and that the failure of the county clerk to properly record the same did not affect or prejudice their rights.
    The plaintiff recovered a judgment against the company upon notes given in October, 1875, for services alleged to have ’been rendered prior to the filing of the certificate. In this action, brought by him to enforce an alleged individual liability of the stockholders:

      Held, that the recovery of the judgment upon the notes estopped him from resorting to the original consideration in order to charge the stockholders with the payment of the debt.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    The action was brought by the plaintiff against the defendants’testator to recover a debt owing to tbe plaintiff from The Olcott Iron Manufacturing Company. The plaintiff had recovered a judgment against the company upon notes given by it to him to secure the same indebtedness in October, 1875, for services alleged to have been rendered to it in pursuance of a contract made in May of that year.
    The company was incorporated by chapter 401 of 1867. The second section of that act provided that: “ The capital stock of said company shall be three hundred thousand dollars, with power to said company to increase the same from time to time as its business may require, and a majority of the directors for the time being should so determine, to a sum not exceeding one million dollars.”
    Section 6 of the act declared: “ The stockholders of the company incorporated under this act shall be severally individually liable to the creditoi's of the company in which they are stockholders to an amount equal to the amount of stock held by them, respectively, for all acts and contracts made by such company. The corporation hereby created is subject to all the restrictions and liabilities contained in the eighteenth chapter of the first part of the Bevised Statutes.”
    On September 11, 1872, at a meeting of the directors of the corporation, a resolution was adopted increasing the capital stock to $600,000. Efforts were made to raise the said $600,000, and some subscriptions obtained and the money was paid in, but no amount over or above $489,500 was ever subscribed or paid in; and all that was subscribed was fully paid in.
    Afterwards, and by chapter 203 of the Laws of 1873, it was enacted: ‘‘ The company now known as The Albany Iron Manufacturing Company, incorporated by virtue of chapter four hundred and one of Laws of 1867, shall hereafter be known and distinguished as The Olcott Iron Manufacturing Company, and the stockholders thereof shall be jointly and severally individually liable for all debts that may be due and owing to all their laborers, servants and apprentices for services performed for such company, and shall be severally individually liable to the other creditors of the company to an amount equal to the amount of stock held by them, respectively, for all debts and contracts made by such company until the whole amount of capital stock fixed and limited by such company shall have been paid in, such liability being in accordance with the provisions of sections ten and eighteen of the act entitled ‘An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes, passed February 17, 1848;’ and the provisions of section twenty-four of said act shall also apply to the stockholders of said company.” x
    The second section of the act of 1873, just referred to, also repealed “ all acts or parts of acts inconsistent with the provisions ” thereof.
    On the 10th day of May, 1875, the directors at a meeting passed the following preamble and resolution:
    “ Whereas, The stockholders at a meeting held May 8, 1875, unanimously resolved that the capital stock of the company be fixed and limited in accordance with the act of incorporation at $489,500, and a certificate thereof filed in the office of the county clerk, therefore,

      “Resolved, That the capital stock of The Albany Iron Manufacturing Company be fixed and limited at $489,500, and that a certificate to that effect be properly prepared and sworn and filed in the office of the county clerk,'as required by the general manufacturing law.

      •“Resol/oed, That any and all resolutions heretofore adopted fixing or limiting the capital stock of this company be and hereby are rescinded.”
    A certificate of paid-up capital was duly made and executed as required by law and filed for record in the clerk’s office of Albany county on the 15th day of July, 1875, and before the incurring of the indebtedness by the corporation to the plaintiff in this action.
    According to the practice of the county clerk’s office the certificate, duly executed and acknowledged, was placed in a box with others of a similar character, and when a sufficient number had accumulated to make a volume they were bound firmly together.
    The plaintiff claimed that the resolution fixing the capital stock at $489,500 instead of $600,000 was, in effect, a reduction of the capital stock and unlawful.

      Olin A. Martm, for the appellant. ■

      S. O. Shepard and G. L. Stedmcm, for the respondents
   Boardman, J.:

We concur with the learned justice who tried this action that the 'plaintiff is not entitled to recover. The attempt of the Albany Iron Manufacturing Company to increase its capital stock to $600,000 was a failure. It was never in fact increased to such amount nor was any amount in excess of $489,500 ever subscribed for. It having become evident that such excess could not be procured, the attempt was abandoned and the stockholders and directors, of the company, in May, 1875, took such action as rescinded the resolution to increase the stock to $600,000 and “fixed and limited” (in the language of the act of 1873, chap. 203) the capital stock at $489,500, which amount was about that time fully paid up. By the act of 1873 the Albany Iron Manufacturing ©ompany became the Olcott Iron Manufacturing Company, and on the 12th of July, 1875, the latter company made its certificate, fixing and limiting the capital stock at $489,500, and further certifying that said sum had been fully paid up and certificates for full paid stock had been- issued and delivered to the stockholders of said company, naming them and the number of shares held by each. This certificate was filed on the next day in the proper clerk’s office.

Under the act of 1867 (chap. 401) the old company had the power to increase its capital from $300,000 to $1,000,000. The act of 1873 gave the new company the power to fix and limit its capital stock. It seems to have been a just exercise of that power in naming a sum already subscribed for or capable of being realized and excluding stock not subscribed for and not attainable. The reduction of the capital stock from the nominal sum of $600,000 to $489,500 was not unlawful under the eighteenth chapter of part-1, 1 Revised Statutes (Eds. ed.), 559, *601. It was not a division, withdrawal or payment to stockholders of any part of its capital stock nor was it a reduction of its actual stock. The excess rejected was not and never had been any part of the actual capital stock of either company. Its rejection took away no assets of the company to the possible detriment of its creditors, because it disposed of nothing which the company owned and possessed. Hence we think the capital stock was legally fixed at $489,500.

Under the Laws of 1848 (chap. 40, §§ 10 and 11) the liabilities of stockholders for the debts of the company to an amount equal to the amount of stock held by them severally exist until the whole capital stock, fixed and limited by the company, shall be paid in. And the president and trustees shall, within thirty days after the last installment of capital stock shall have been paid in-, file a certificate of the amount of capital stock so fixed and paid in, which certificate shall be signed, by them and recorded in the proper clerk’s office.

The evidence does not show when the last payment was made upon the stock, making it fully paid up. Hence we cannot say that the certificate required to be made and recorded within thirty days thereafter was not so made and filed in time. It is quite possible that the stock was not fully paid up until July, 1875, in which case the certificate was made and deposited in the clerk’s office in due time. (Chase v. Lord, 6 Abb. N. C., 258, n.)

The failure of the clerk to do his duty by making a record of the certificate cannot prejudice stockholders or trustees who have done all that the law requires of them or that they have the power to do. (Boynton v. Hatch, 47 N. Y., 225.)

The plaintiff recovered judgment upon the note given October 25, 1875, months after the fixing of the amount of stock and the making and filing of certificate of amount and its payment in full. At that time there was no liability of stockholders under the law of 1848 by reason that the stock was not fully paid up. The judgment against the corporation - having been recovered upon these notes the present action against the stockholders must be restricted to the claim embraced in the judgment. The original consideration of the note cannot now be resorted to for the purpose of ante-dating the filing of the certificate July 13, 1875. Besides the evidence of such original consideration is too obscure and uncertain to form the basis of a claim prior to July 13, 1875, if otherwise proper.

We think the judgment is right and should be affirmed, with costs.

Bookbs, J., concurred; Learned, P. J., not acting.

Judgment affirmed, with costs.


text:
    THOMAS GREEN, Appellant, v. AUGUSTUS B. SMITH, Respondent.

      Sale procured by fraudulent pretenses — rescission of contract — when it is sufficient for the defendant, upon the trial, to restore what was received by him.

    Tlie defendant was induced by the false and fraudulent pretenses of the plaintiff to sell to him a horse, buggy and harness, for the price of $250.' The price was paid by a promissory note of one Samuel King, of Tioga county, Pennsylvania. There were two persons of that name in that county, one a wealthy farmer, the other an irresponsible, worthless fellow. The note was made by the latter, but the defendant was deceived and believed it was made by the former. On the next day the defendant having discovered the fraud, removed the property from the livery stable where the plaintiff had put it and took possession of it. In this action of replevin brought by the plaintiff, the defendant set up the plaintiff’s fraud, and upon the trial for the first time tendered a return of the note.

      'Held, that under the circumstances of the case the offer to return the note upon the trial was sufficient, and entitled the defendant to rescind the contract and retain the property. (Learned, P. J., concurring, upon the ground that the note was worthless.)
    Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury, and from an order made at a Special Term, denying a motion for a new trial.

      Robert Stephens, for the appellant.

      H. Boardman Smith, for the respondent.
   Boardman, J.:

Taking the verdict of the jury in favor of the defendant to he conclusive upon the facts submitted to it, the case presented is as follows:

On the 27th of August, 1879, the plaintiff by fraud and false pretenses bought of defendant a horse, buggy, harness, etc., for the price of $250, which price was paid in a promissory note of one Samuél King, of Tioga county, Pennsylvania. There were two persons in said county named Samuel King, one a wealthy farmer, and the other, who made the note delivered to defendant, an irresponsible and worthless fellow. The defendant was deceived as to the one who gave the note and delivered the property to the plaintiff.' On the next day the defendant, having discovered the fraud, went and took possession of the property delivered to plaintiff and removed it from the livery stable where plaintiff had put it. The plaintiff thereupon brought replevin.' The defendant answered, setting up the plaintiff’s fraud, and upon the trial for the first time tendered a return of the King note. The only question presented for consideration is the ruling of the court holding that the defendant could return the note upon the trial and thus prevent the recovery by the plaintiff.

In order to rescind a contract for fraud and bring a/n action against the wrong-doer the injured party must restore to the wrongdoer whatever of value he has received upon the contract. This general rule is, however, subject to exceptions, and a return upon the trial of the wrong-doer’s note, or of a worthless security (Nichols v. Michael, 23 N. Y., 264), or any other act which would place the wrong-doer in as good a position as he stood before the contract was made would be sufficient. The cases cited by the learned counsel for the plaintiff were decided under these principles. In nearly-every case the plaintiff was the injured party seeking a remedy by action for the fraud practiced upon him. Those cases do not, therefore, aid us in a case where the injured party is sued by the wrongdoer to secure the benefit of his fraud. In the present case the defendant has secured actual possession of property obtained of him fraudulently by the plaintiff. The latter by action now attempts to enforce his fraudulent act and insists upon his fraudulent title and right to the possession of the property. The defendant is not the actor. He defends his possession. He sets up his legal and equitable rights and on the trial tenders the return of the note, the fraudulent instrument which the plaintiff used to get possession of the property. This would seem to be enough and more even perhaps than the plaintiff under the verdict could justly claim.

From the whole case and from the verdict of the jury it may be inferred that this was a note without consideration and worthless, made expressly as an instrument of fraud, and if so its return at any stage of the affair was needless. The defendant’s right to rescind was not ended when plaintiff’s action was begun. He retained the same right after as before. The tender of the note on the trial was a rescission at that time, and nothing had then occurred to take away the right. The taking of the property was an act indicating a determination to rescind, and the tender of the note on the trial restored the plaintiff to all of his rights.

Such is the doctrine established in Harris v. Equitable Life (3 Hun, 725) by Judge Davis in a well considered opinion. That judgment was affirmed in the Court of Appeals (64 N. Y., 196), holding an offer made by a defrauded party after suit brought by the wrong-doer was sufficient.

The .case as it comes before us shows a defendant innocent of wrong, in possession of property which must be conceded belonged to him. Can it be necessary or proper that courts of justice must return such property to the wrong-doer on his application and turn the defendant over to the same courts for redress in damages or to procure restoration to him of his own property ? If the defendant had not got the possession of his property he could have had his action to recover it. Having possession of it, and being sued therefor by the plaintiff, is he any the less entitled to retain the possession because he was sued before he offered to return the note \ His defense is both legal and equitable. If the plaintiff suffers it is due to his own fraudulent and dishonest act, and courts will not go to the romantic extent of striving to protect a fraudulent purchaser of property from the .consequences of his own dishonest act. It may even be true that á judgment in favor of the plaintiff «under the issues in this case would bar any subsequent action for the wrong conceded, under the verdict, to have been done him.

The rights of the parties have been determined by this judgment in accordance with justice and equity and the result should not be disturbed.

The judgment should be affirmed, with costs.

Bockes, J., concurred.

Learned, P. J., concurred on the ground of the worthlessness of the note.

Judgment and order affirmed, with costs.


author: Boardman, J.: Bockes, J.: Learned, P. J.:

text:
    JAMES LAWRENCE, Respondent, v. GEORGE SPENCE, Appellant.

      ■Seduction — an action by a father for the seduction of his daughter — will lie though the daughter did not consent to the illicit connection.

    In an action by a father to recover damages for the seduction and consequent loss of services of his daughter, it is no defense to show that the illicit connection was had by force and without the consent of the daughter. (Learned, P. J., doubting.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. ¡

      J¿. A. Parmenter, for the appellant.

      Henry A. Merritt, for the respondent.
   Boardman, J.:

This is an action for seduction and consequent loss of services of plaintiff’s daughter. The defendant appeals from the recovery had and insists that the action cannot be maintained where the illicit connection^was had with force and not by the consent of the female.

The authorities are hostile to this position and no reason exists why it should be established. A few of the cases relating to the subject are cited: Furman v. Applegate (3 Zabriskie [N. J.], 28); Kennedy v. Shea (110 Mass., 147)’; Chamberlain v. Hazelwood (5 Mee. & Wels., 515); Lavery v. Crooke (52 Wisc., 612); Reed v. Williams (5 Sneed [Tenn.], 580); Damon v. Moore (5 Lans., 454). From an examination of the cases cited, it is evident the rule is and long has been that sexual intercourse accomplished by force is as much the subject of an action as where it occurs by the consent of the female. Nor can a reason be suggested why such should not be the rule. The gist of the action is the loss of service and damage sustained by the parent. That; in a case like the present, is the same whether the result of force or consent.

The case of Hogan v. Cregan (6 Robt., 138) is cited in hostility to the doctrine above expressed. But the point was not in that case and what is said by the learned judge is obiter and doubtless not upon careful consideration. We cannot, therefore, consider it an authority upon the question now under review, even if not overruled by Damon v. Moore (ante).

The charge of the court was quite too favorable to the defendant, yet the jury found against him. The damages cannot be deemed excessive.

The judgment should be affirmed, with costs.

Bockes, J.:

I. agree for affirmance, although I did not hear argument.

Learned, P. J.:

If the question had been properly raised I should doubt very much whether, in a case where the defendant had committed a rape (as is the testimony here), the jury could take into account, on the question of damages, the plaintiff’s loss of comfort of the daughter “ in whose virtue he can feel no consolation, and his anxiety as the parent of other children whose morals may be corrupted by her example.” There is no bad example, there are no bad morals in the case of a woman upon whom, against her resistance, a rape has been committed. Such a woman has suffered a great wrong and is entitled to sympathy. But it is unjust to say that she could corrupt her father’s family by her example. No exception, however, is taken to the charge on this point.

Judgment and order affirmed, with costs.


text:
    DELOSS E. LANDERS, Plaintiff, v. ALANSON F. BARTLE, Executor, etc., of BENJAMIN LANDERS, Deceased, and Others, Defendants.

      Legacy — when it vests upon the death of the testator, though the time of payment be postponed.

    A testator gave to his wife the use of all his estate, both real and personal, for the term of her natural life, to terminate if she should marry again. The will then proceeded as follows: “At the death of my said wife, or at such time as she shall marry again, I give and bequeath to my son Deloss E. Landers nine hundred dollars and my gold watch, and to my son Dwight O. Landers one thousand dollars.” All the rest and residue of his estate he gave to his daughter.

      Held, that the legacies given to the two sons vested upon the death of the testator, and would not lapse by reason of their deaths during the life of the widow,

      Coniroversy submitted upon an agreed statement of facts, in pursuance of section 1729 of the Code of Civil Procedure.
    The parties sought to obtain a judicial construction of certain portions of the will of the defendant’s testator.
    The will contained the following, among other clauses:
    “ First. After all my lawful debts are paid and discharged, I give, devise and bequeath to Emeline, my wife, the use of all my estate, both real and personal, for the term of her natural life, to terminate, however, at such time, if ever, as she shall marry again.
    “ Second. At the death of my said wife, or at such time as she shall again marry, I give and bequeath to my son Deloss E. Landersnine hundred dollars and my gold watch, and to my son Dwight 0. Landers one thousand dollars.
    “ Third. All the rest, residue and remainder of my estate, both, real and personal, I give, devise and bequeath to my daughter Helen. M. Landers.”

      William H. Hyde, for the plaintiff.

      Solomon Bundy, for the defendants.
   Boardman, J.:

We are called upon to decide whether a legacy given by the will of defendant’s testator vested at his death. The will gave the testator’s wife the use of all of his property during her life. The next, clause provides as follows: “At the death of my said wife * * *" T give and bequeath” to the plaintiff “nine hundred dollars * * * and to my son Dwight C. Landers $1,000.” The third, clause gives the residue of his estate to testator’s daughter. If the bequest of $1,000 did not vest until the death of Dwight C. Landers’1 mother, then it lapsed by reason of his death before his mother, and in that case it is conceded the plaintiff is now entitled to it. If it did vest at the death of Benjamin Landers, the testator, subject only to the widow’s life estate, then the defendant Nannie E. Landers, as executrix of Dwight C. Landers, deceased, is entitled to the same.

The principles controlling the decision of this case have been very lately considered by the Court of Appeals in Smith v. Edwards (88 N. Y., 92, 103, 105, 108). The vesting of legacies is always to bo sustained, if such construction can fairly be made. (Livingston v. Greene, 52 N. Y., 123.) "When the terms of the bequest import a gift and also a direction to pay at a subsequent time the legacy vests. (Mannice v. Mannice, 43 N. Y., 369.) Judge Folger, in Warner v. Durant (76 N. Y., 136), says: Where the gift is absolute and the time of payment only, postponed, the legacy becomes vested, and it does not lapse though he die before the time fixed for payment.

Judge Finch, in Smith v. Edwards (supra), says of the rule forbidding the vesting of legacies: “ It applies only where, beyond the direction for future distribution, there are no words and no provisions which import a present or vested gift or indicate such an intent. It does not control where the language of the will, while not expressly saying £ I give and bequeath,’ does yet plainly import a present gift intended to vest immediately without reference to the clause of distribution.”

In the case under consideration the language imports an absolute gift: ££ I give and bequeath . * * * to my son Dwight C. Landers $1,000.” The .language which precedes indicates only the time of payment. It is an absolute gift of $1,000, but the possession is postponed until the end of the life estate of his mother, the widow of Benjamin Landers. The meaning of the clause undoubtedly is the same as if it read thus : “ I give to my son Dwight O. Landers $1,000, subject to the life estate hereinbefore given to my wife Emeline.” There was a plain intent to make the gift without reference to the event, the death of his wife Emeline. (Loder v. Hatfield, 4 Hun, 36; affirmed, 71 N. Y., 92; see page 98.) The will also indicates an intent to give all of the testator’s property to his three children, subject to their mother’s life estate. There is nothing to indicate a purpose, that any of the legacies to his children should not vest, in case the legatee should not survive the widow, beyond the language first quoted.

Many authorities could be cited which would go far towards sustaining the views of the plaintiff, but it is believed that the tendencies of the later decisions, especially in our own State, justify the conclusion that the legacy given by this will to Dwight C. Landers vested at the death of his father and so passed by the will of Dwight O. to the defendant Nannie E. Landers under his will.

Judgment is therefore ordered in favor of the defendants, with costs payable out of the estate, and that the defendant Bai’tle, as executor, pay to Nannie E. Landers, as executrix of Dwight 0. Landers, deceased, the amount of said legacy of $1,000, together with such interest as has accrued thereon.

Learned, P. J., and Bocees, J., concurred.

Judgment ordered for defendants, with costs out of estate, and that defendant Bartle, as executor,' pay Nannie, widow of Deloss Landers, $1,000 and interest.


text:
    EDWARD NEESON, Respondent, v. THE CITY OF TROY, Appellant.

      Evidence — a judgment concludes only those uiho are primes to it— the defendant, in an action brought by a husband to recover damages resulting to him from an injury to his wife, is not concluded by the judgment recovwed by the wife for the same injuries.

    The plaintiff brought this action to recover his damages resulting from the loss of his wife’s services, occasioned by an injury sustained by her by reason of the defendant’s negligence. Upon the trial, a judgment-roll in a former action brought by the wife against the defendant, in which she recovered damages for the same injury, was, against the defendant’s objection and exception, received in evidence as conclusively establishing that the wife had been injured through the defendant’s negligence.

      Held, that as the husband was not a privy in blood, representation, estate or law to his wife, the court erred in so admitting the judgment-roll m evidence.
    (Bocees, J., dissenting.)
    Appeal by the defendant from a judgment, entered on the verdict of a jury, and from an order denying a motion to vacate the verdict and for a new trial made upon the minutes of the justice before whom the action was tried.
    Before this action was commenced the plaintiff’s wife, Margaret Neeson, recovered a judgment against the City of Troy for damages for personal injuries' received by her as alleged, February 20, 1874, by falling on an- icy sidewalk in one of the public streets in that city. That judgment was paid. February 26, 1879, the present action was commenced by tbe husband to recover his damages for loss of his wife’s services, etc.,' occasioned by her said injury.
    The plaintiff offered in evidence the judgment-roll in the former .action between his said wife and the city, and under objection by the city attorney it was received in evidence as conclusive of the fact that there was an injury to the plaintiff’s wife and that it hapjiened through the fault and negligence of the city without any negligence on her part.
    The record was then read in evidence and the plaintiff gave no additional testimony as to the cause of his wife’s injury by the fall, but did produce • evidence tending to show the extent and value of the loss he had sustained by reason of her injuries.

      P. A. Pcvrmenter, for the appellant.

      Ja/mes Lansing, for the respondent.
   Learned, P. J.:

The heir is privy in blood to the ancestor; the executor, privy in representation to the deceased; the donee or lessee, privy in •estate to the donor or lessor; the successor by escheat, privy in law to his predecessor. (1 Greenl. on Ev., § 189.)

The husband is not privy to the wife in any of these respects; in blood, representation, estate or law.

The husband did not derive his title to the present cause of action through his wife. It never belonged to her. She could not have, released it. If she had acknowledged full .payment by the •defendant of all damages, before she brought her action, that would not have discharged the defendant from liability to the husband for his loss. If she had sued the defendant and had failed to recover, that would not have barred him.

If the plaintiff’s horse had been injured under similar circumstances, and he had sued for the damage, it would not be properly said that he derived his title to the action from his horse, or that he was privy to his horse; nor is the plaintiff’s right of action in this case derived from his wife, because it never belonged to her and could never have been affected by her acts'.

The defendant’s alleged wrongful acts injured two persons, the husband and the wife; the latter principally by,causing bodily suffering, the former by taking away services to which he was entitled. But the injuries were distinct, though caused by the same act.

The fact that the same evidence to a great extent, may be applicable in this case as was given in the action of the wife; such as proof of defendant’s negligence, etc., does not make the former judgment conclusive in this action. Suppose that A. owned a horse and B. owned the wagon to which it was hárnessed; • and that horse and wagon were injured by defendant’s negligence. If A. sued and recovered, the recovery would be no evidence in B.’s favor. Yet the same evidence might be used and needed'in both caaes.

The reason why judgments bind privies is that*the privies take only what the persons had to whom they succeed, and all that such persons had. But this plaintiff does not take what his wife had but has an independent action of his own.

The judgment should be reversed and new trial granted, costs to abide event.

Bockes, J., dissenting.

Present — Learned, P. J., Boardman and Bocees, JJ.

Judgment reversed, new trial granted, costs to abide event.


author: Bocees, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN McEWAN, Respondent, v. WILLIAM H. KEELER, Appellant.
    Sheriff— common-law powers and duties of, cannot he transferred to an appointed officer— Const,., art. 10, sec. 1 —1882, chap. 251.
    Chapter 251, of 1882, provided that the Albany County Penitentiary should thereafter be the county jail of Albany county, and, required the sheriff to . remove the prisoners from the building then occupied as a jail to the penitentiary. It made the superintendent of the penitentiary, who was appointed by . the Board of Supervisors of Albany County, the jailer; gave him the custody and control of all persons confined therein, and required him to convey them to or from the jail when necessary or when directed by the sheriff. The superintendent was required to give to the sheriff a bond in the sum of $15,000, conditioned for the faithful discharge of his duties as jailer.

      Held, that in so far as the act deprived the sheriff of the custody and control of the jail and the prisoners therein, and gave such custody and control to the superintendent of the penitentiary, it deprived the sheriff of common-law powers and duties pertaining to his office, and violated the provisions of section 1 of article 10 of the Constitution, requiring sheriffs to be chosen by the electors of the respective counties.
    The question as to what duties of an officer, whose election' is provided for by the constitution, may be transferred to another officer, and as to the power of the legislature.to entirely abolish certain powers and duties, considered.
    Appeal from an order made at a Special Term granting a peremptory mandamus requiring the defendant, as sheriff of Albany county, to receive and approve a bond tendered to him by the relator pursuant to chapter 251 of 1882.

      Edwa/rd J. Meegan, for the appellant.

      Peckham cb Rosendale, for the respondent.
   Bocees, J.:

Under the statute passed in 1882 (chap. 251) the relator, who is superintendent of the Albany County Penitentiary, executed, on the 1st day of January, 1883, the bond provided for in section 2 of that act, and had the same approved by the county judge. He then tendered the same to the respondent, the sheriff of Albany county, for his approval and acceptance. The latter refused to approve or accept the same, upon the ground that the statute was unconstitutional. Thereupon the relator obtained an order for a writ of mcmdamus to compel the respondent to accept and approve such bond. No question was made as to the form or sufficiency of the bond, nor was any question made as to the propriety of this remedy if the law was constitutional.

The learned judge who granted the order wrote no opinion. Indeed, it is quite evident that he gave no special consideration to. the subject, as the parties were desirous of reaching a speedy decision in an appellate court.

The question therefore comes to us practically to be considered as an open question in the case, and the only question argued on this appeal has been the constitutionality of that statute. To that we shall therefore confine our attention.

It is claimed by the respondent that the statute is a violation of article 10; section l.of the Constitution, which provides that sheriffs shall be chosen by the electors of their respective counties, and the argument of the respondent is that the statute takes from the sheriff of Albany county and gives the superintendent of the penitentiary (an officer that is not elected) powers and duties which cannot thus be taken away. ■ 1

On the part of the relator, as we understand, it is not disputed that a law which should take away all or practically all of the powers and duties of a sheriff and should give them to some officers not elected by the people would be a violation of the Constitution, even though it should permit the people to elect an officer who should have the name of sheriff, though stripped of all power and duty. And we think this must be so. The Constitution does not permit the legisNture to evade its provisions by taking away the powers and duties of an officer made elective by that instrument and giving them to some appointee, leaving the people the poor privilege of electing an officer who is such only in name.

On the other hand, it is admitted by the respondent that to some extent the legislature may modify and regulate the duties which sheriffs are or were to perform. Perhaps the legislature might even abolish the duties and powers or some of them altogether, as obsolete and no longer needed. But the question here presented is not one of abolishing but of transferring powers and duties. It was even said on the argument that the legislature might require the punishment of convicts to be by confinement in penitentiaries instead of county jails, although %the latter are and the former are not under the control of the sheriff. That would be apart of the punishment of crime as to which the sheriff’s duties might be considered to be incidental.

The question then to determine is whether the present statute is a mere regulation of the sheriff’s duties and powers, permissible under the Constitution, or whether it so transfers his duties and powers to an appointed officer as to infringe the meaning of that instrument.

Let us then, in brief, consider what the statute does. It makes the Albany County Penitentiary the county jail of the county and makes" the superintendent the jailer. It prevents the sheriff hereafter from appointing a jailer. It gives the superintendent the custody and control of all prisoners confined therein as the' sheriff would have had if the law had not been enacted. Thus it will be seen that, as to all persons arrested under, civil or criminal process, it takes away the custody and control and gives it to the superintendent. Notwithstanding that the sheriff is made liable by law for the custody of persons arrested in civil actions, this statute takes them out of his hands and places them in the custody of the superintendent. We need not discuss, but we cannot fail to notice the serious question which may arise as to the sheriff’s liability in the case of an escape. Whether the bond .provided for in the statute would be a sufficient protection will depend upon the amount involved in the orders of arrest which may be issued. Perhaps however this subject touches rather the wisdom than the constitutionality of the law.

The only authority in regard to prisoners left to the sheriff is to direct the superintendent to convey prisoners to and from said jail. The question then is whether the custody and control of the prisoners arrested under civil and criminal process is such a part of the sheriff’s office as it existed at and before the adoption of the constitution, that such control cannot be taken from him and given to an officer elected by the people without a violation of that instrument. Blackstone, in his account of the power and duty, of the sheriff, says that they are either; as a judge, as the keeper of the king’s peace, as a ministerial officer of the Superior Court of Justice, or as the king’s bailiff (1 Bl. Com., 343). He is bound to take all misdoers and commit them to jail for safe custody, and he may command all the people of his county to attend him, which is called the posse comitatus. Jailers are the servants of the sheriff, and he must be responsible for their conduct. (Id. 346.) This general statement is substantially correct now, and need not be enforced by citations. It has been the duty of the sheriff to arrest and confine all persons charged with crime, and to execute the process of the higher courts; and to discharge this duty he may summon the power of the county. A power so great the constitution provided should be intrusted only to an officer chosen by the people, thus returning to the old principles of English law (1 Bl. Com., 339); and those who framed that instrument may well have feared to give that power over the persons of citizens to anyone not chosen by them.

That the sheriff is by common law, and except for this statute, the keeper of the common jail, even when he acts through a jailer, will hardly be questioned. (Becker v. Ten Eyck, 6 Paige 68; Wemple v. Glavin, 57 How., 109, 113.) In the execution of process from the higher courts, such as orders for arrest, process for con-tempts and executions against the body, he is to arrest and confine persons against whom such process is issued, whenever such process is issued," and generally in criminal matters (excepting perhaps the cases of petty offenses and police regulations) he has the custody of persons charged with crime. Let it be considered then that the law. is valid, and let us see what power would remain to him. He might arrest, but might not confine, under civil or criminal process or under proceeding for contempt. He might serve mesne process, and process mesne and final against property, and he might attend courts and summon juries, etc. All control and custody over persons charged with crime or amenable to civil process would be taken away after the act of arrest had been done. It is not necessary to say that the legislature cannot abolish some, or perhaps all of the duties of the sheriff. For instance, the legislature might abolish all imprisonment in civil cases, as well in cases of tort as on contract, and such legislation would destroy a part of the present duties of the sheriff. But the question, as above remarked, is not whether the legislature can abolish, but whether it can retain those powers and duties, and give them to an officer not elected. Upon this point the case of Warren v. People (2 Denio, 242) seems to be conclusive, and the reasoning therein is sound. It may be difficult to draw the line in regard to numerous instances which are suggested by the relator’s counsel, of taking away from sheriffs certain special- duties, and giving them to an appointed officer, and to say, as to each, whether it would be a violation of the constitution, or only a permissible modification of the sheriff’s duties. If any general rule could be laid down, it would probably be that the common-law powers and duties pertaining to the office of sheriff could not' be transferred to an appointed officer, whatever might be done as to powers and duties of another character. (People ex rel. Wood v. Draper, 15 N. Y., 532.) It is enough, however, to consider the present case. For the general doctrine on this question we need only refer to People ex rel. Bolton v. Albertson (55 N. Y., 51) and People v. Raymond (37 id., 428), without quoting from these or similar eases; and in the application of that doctrine we cannot doubt that the custody of the jail and of the prisoners confined therein is one of those powers and duties which, by common law, belonged to the sheriff, and which continued to belong to him down to the adoption of the Constitution. In declaring, therefore, that the sheriff should be elected, the Constitution must have intended an officer who, among other things, should possess that custody. If it be possible to transfer this power to another, and an appointed officer, then other powers in like manner may be transferred to other officers, so that in the end the sheriff may be deprived of every power and duty which the common law gave him. (State v Brunst, 26 Wisc., 414.) We are, therefore, of the opinion that so far as the statute in question takes away custody of the jail and of the prisoners from the sheriff, and gives such custody to the superintendent, it is unconstitutional. It would seem to follow necessarily from this that the sheriff was not bound to accept or approve of the proposed bond.

There is a question remaining which is not before us but to which we may allude: Is that part of the statute valid which declares tliat the penitentiary shall be the county jail ? It does not seem to be controverted that the legislature might declare what building should constitute the county jail; provided the custody of the building, and the prisoners therein, were to remain with the sheriff. And it may be urged that though part of this law be unconstitutional, yet the rest may be valid. This point has not been discussed. It was probably understood by both sides that the statute was a whole, and that if a principal part of it was unconstitutional and void, the rest must necessarily fall with it.

The order must be reversed, with ten dollars costs and printing disbursements, and the motion denied, with fifty dollars costs and disbursements.

Present — Learned, P. J., Boardman and Bockes, JJ.

Order for mandamus reversed, with ten dollars costs and printing disbursements, and motion for mamdamus denied, with fifty dollars costs and disbursements against relator.


author: Learned, P. J.: ■

text:
    ELIZABETH M. BEACH, Appellant, v. SARAH H. BEACH, as Executrix, etc., of ALBERT F. BEACH, Deceased, Respondent.

      Divorce — liability of a husband for alimony awarded by the decree — effect of a discharge in bankruptcy upon such liability — his estate is not liable after his death.

    In 1869 a decree was entered dissolving tbe marriage between tbe plaintiff and tbe defendant’s testator, wbicb required tbe latter to pay tbe plaintiff, during ber lifetime and while sbe remained unmarried, the sum of $365 a year. April 20, 1871, tbe testator was discharged in bankruptcy from debts existing on May 6, 1870. He paid tbe yearly allowance up to tbe time of bis death in October, 1880.

      Held, that whatever might have been tbe liability of tbe husband while living, upon his death tbe only claim against bis estate was for tbe debt created by the judgment or decree, and that that bad been discharged by tbe bankruptcy proceedings. '
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee appointed to hear a disputed claim against the estate of the deceased.
    The referee found that the plaintiff and the defendant’s testator were husband and wife, and on the 13th day of May, 1869, the marriage between them was dissolved at the suit of the plaintiff herein and a decree was entered in the Supreme Court of the State of New York that the defendant pay during the lifetime of the said Elizabeth M. Beach, and- while she remained unmarried, the sum of $365 in each year in quarterly installments; that the said Albert E. Beach was discharged in bankruptcy by the District Court of the United States for the northern district of Illinois on the 20th-day of April, 1871, from all debts existing the 6th of May, 1870; that he died on the 3d of October, 1880, having paid during his lifetime, and subsequent to the discharge in bankruptcy, all the payments falling due during his lifetime; that the installments falling due on the 9th of December, 1880; 9th of March, 1881; 9th of June, 1881, and 9th of September, 1881, amounting in all to $365, are not paid; that the plaintiff had duly demanded payment of such installments after they became due.
    He found as matters of law: .

      First. That the claim under the said decree in the proceedings for divorce was discharged by the discharge granted to the said Albert F. Beach in bankruptcy.

      Second. That the defendant in this action as executrix is not liable for such claim.

      1. 0. Ormsby, for the appellant.

      L. B. Pike, for the respondent.
   Learned, P. J.: ■

It is not necessary to dispute the doctrine, that on a divorce, alimony may be decreed to the wife payable during her life. (Burr v. Burr, 10 Paige, 20.) For the question is not as to the power of the court to make such a decree, but as to the effect of the subsequent discharge in bankruptcy. Inasmuch as there is a continuing duty, resting on the husband, during his life, to support his wife, from which no discharge in bankruptcy would relieve him; it is very possible that the obligation to pay alimony, which, after a divorce, takes the place of the ordinary duty of support, may in like manner be a continuing obligation, from which he is not relieved by his discharge. But that question is not directly involved. For the husband, during his lifetime and after his dischaige, did pay the alimony decreed.

Now the obligation upon his estate, if there be one, must be a mere debt. The ordinary duty of a husband to support his wife has been ended by his death. "Whatever now remains is nothing but the debt created by the judgment, and' that was discharged by the bankruptcy proceedings.

The judgment should be affirmed, with costs.

Present — Learned, P. J., and Boardman, J.; Bocees, J., not acting.

Judgment affirmed, with costs.