text:
    STEPHEN WOLE, Appellant, v. ALBERT JORDAN, Respondent.

      Supplementa/ry proceedings-—cannot he instituted on a justice's judgment for less than $£5.00—0ode of Procedure, § 292.
    Under section 292 of the Code of Procedure, supplementary proceedings cannot be instituted where a transcript of a justice’s judgment for less than $25, exclusive of costs, has been filed, and an execution issued thereon has been returned unsatisfied.

    Appeal from an order vacating an order requiring one Draper to appear before a referee and be examined as to any property of the judgment debtor in his hands.

      A judgment was obtained by the appellant against the respondent before a justice of the peace of the town of Wallldll, Orange-county, on July 26, 1877, for $6.23 damages and $2.45 costs, amounting in all to $8.68. A transcript thereof was filed in the Orange county clerk’s office, January 26, 1880. At the time the execution was issued there was due on the judgment, including costs and interest thereon, $10.21. On February 18,1880, upon the affidavit of the plaintiff that Joshua Draper had property of the judgment debtor, and was indebted to him in an amount exceeding $10, Hon. O. P. Howell, special county judge of Orange county, made an order diiecting the said Draper to appear before a referee to answer concerning the same, and also enjoining the said Draper and the defendant from interfering with the defendant’s property. On February 20, 1880, the said Hon. O. P. Howell made an order requiring the plaintiff to show cause why the former order should not be set aside, and, after hearing argument of counsel, he made an order vacating the original order, from which last order this appeal is taken.

      O. iF. Goldsmith, for the appellant.

      Hemry Low, for the respondent.
   Dykman, J.:

Can proceedings supplementary to execution be instituted when a transcript of a justice’s judgment for less than $25, exclusive of costs, has been filed, and an execution issued thereon has been returned unsatisfied ? The answer to this question is the decision of this appeal. Reason gives a negative answer. The old Court of Chancery in this State refused relief where the matter in dispute did not exceed $100. The reason of this was sometimes said to be that it was beneath the dignity of that court to interpose its jurisdiction for small and trivial amounts, but the true reason doubtless was, that the costs and expenses attending litigation in that court were large, and ought not to be imposed where they would exceed the amount in controversy. The same rule ought to prevail in giving a construction to the language of section 292 of the Code of Procedure: “ When an execution against property of •the judgment debtor, or any one of several debtors in the same judgment issued to' the sheriff of the county where he resides or has a place of business, or, if he do not reside in the State,, to the sheriff of the county where a judgment-roll, or a transcript of a justice’s judgment for $25 or upwards, exclusive of costs,- is filed, is returned unsatisfied in whole or in part, the judgment creditor at any time after such return made is entitled tO' an order, &c.” True it is, that in strictness of language, this $25 provision applies to non-residents of the’ State, but there is no reason why it should not include residents as well. No sound reason can be adduced for their exclusion. It cannot be assumed that the legislature intended discrimination against its own citizens. If a non-resident of the State cannot be subjected to the expense and annoyance of these proceedings on small judgments, certainly a rule equally favorable must prevail in favor of resident citizens.

If the voice of experience be joined to the voice of reason, both will be found harmonious in commendation of this rule.

The position is not without judicial support, although the statute has been amended somewhat since some of the cases were decided. (Butts v. Dickinson, 20 How. Pr., 230; Anonymous, 32 Barb., 201.)

The order appealed from must be affirmed, with costs and disbursements.

Barnard, P. J., concurred.

Present — Barnard, P. L, Gilbert and Dvkman, JJ.

Order affirmed, with costs and disbursements.


source: Caselaw Access Project

author: J)ykman, J.:

license: Public Domain

text:
    WILLIAM DEYERMAND, Executor, &c., of SAMUEL ROBINSON, deceased, Respondent, v. HENRY CHAMBERLIN, Appellant, Impleaded with others.

      Assumption of a mortgage l»j a grantee of land — when the grantee receives the titler only to transfer it to another, he is not liable under such a clause in the deed.

    One Mandeville, being the owner of certain real property, requested the defendant Chamberlain to hold the title thereto for a few days, for his accommodation, promising to hold him harmless. Chamberlin having consented to do so, .Mandeville and his wife conveyed the property to him, and. the samé was two days thereafter by him conveyed, at Mandeville’s request, to one Sarah E. Mandeville. The deed to Chamberlin contained a clause-by which he assumed and agreed to pay two mortgages upon the property. The deed was recorded by Mandeville’s attorney, and Chamberlin never saw it nor did he know that it contained the said clause until more than, ten years after it was executed. He paid nothing upon receiving, and received nothing upon giving the deed.
    In an action by the plaintiff to foreclose one of the mortgages so assumed by' Chamberlin, which had been purchased from the mortgagee after the deed to Chamberlin had been recorded, held, that as Chamberlin had never-agreed to assume or pay the said mortgage, no liability was imposed upon, him by the insertion of the said clause in the deed, and that no personal, judgment for a deficiency could be entered against him.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to foreclose a mortgage for $1,500,. given by John I. Mandeville to Joseph Husson, as collateral to his-bond for the same amount. The mortgage was dated July 1,1868. On April 9, 1869, Husson assigned the bond and mortgage to one Margaret Robinson, and thereafter the title thereto became vested in the plaintiff.
    The plaintiff sought to recover a personal judgjnent against the defendant Chamberlin, a subsequent grantee of the premises, for any deficiency that might arise on the sale, under a covenant contained in the deed to him, by which he assumed and agreed to pay the' same, together with a prior mortgage for $6,000.
    "With reference to this covenant, the justice before whom the: action was tried found as follows :

      “ Shortly before the execution of the deed from John I. Mandeville to Chamberlin, stated in the complaint, Mandeville requested him to let the title pass through his hands and to hold the title for a few days for Mandeville’s accommodation, promising to hold him harmless, to which Chamberlin assented. Chamberlin did not-agree to assume any mortgage, except by taking the deed. There was no other or different agreement between Chamberlin and Mandeville as to the property or deeds. Shortly after, on or about. January 12, 1869, John I. Mandeville and wife signed and acknowledged the deed to Chamberlin, stated in the complaint, containing .a provision that Chamberlin should assume and pay the plaintiff’s ■mortgage. Chamberlin never saw said deed, and did not know -that it contained the mortgage assumption clause, until February, .1879, Said deed was recorded by Culver & Wright, attorneys, by Mandeville’s direction, February 10, 1869. After record he received it back from them, and it has been ever since in his possession down to trial. Chamberlin did not know of the record of said deed. He ■neither paid nor received anything for either deed. On or about February 12, 1869, Mandeville went with a notary to Chamberlin’s house, and presented for execution the deed to Mrs. Mandeville, ¡stated in the complaint, which Chamberlin and his wife then executed and delivered to Mr. Mandeville. Chamberlin did not read •the deed to Mrs. Mandeville, but signed it upon Mr. Mandeville’s presentment. The conveyance to Mrs. Mandeville was in payment of a debt from John I. Mandeville’s firm to her. Chamberlin never before had any real estate transactions; never owned any real estate ; did not know the property in cpiestion, or its value, or whether any mortgage was on it, nor did he know Mrs. Mandeville. He was brother-in-law to John I. Mandeville.”
    From a judgment entered against the defendant Chamberlin, for a deficiency arising on the sale, this appeal was taken.

      Addison Brown, for the appellant.

      JD. P. Barnard, for the respondent.
   J)ykman, J.:

This action is for the foreclosure of a mortgage, and in it a judgment has been entered against the defendant Chamberlin, personally, for a deficiency, on a claim that he assumed the payment of the mortgage. He has appealed from that judgment, and we have now' to determine whether the claim against him is well founded. There exists a difference of opinion respecting the principle upon which the liability of a promisor rests for the payment of an incximbrance mentioned in the assumption clause of a deed of convey,-ance which he accepts, but all agree that it rests either upon the •doctrine of agency or of trusts. If on the' former, the promisor is regarded as the agent of the person for whose benefit the promise is made, and if on the latter, the promisor is regarded as receiving money or other property for the third party. In either case a ,/romise or undertaking is a necessary prerequisite to any personal liability. "Without an agreement to assume the payment of amortgage named in a conveyance, no right of action against the grantee, personally, inures to the holder. Therefore, without the meeting •of the minds of the grantor and grantee in such an agreement, there can be no personal liability. All such responsibility rests upon •contract.

In this case the uncontradicted testimony shows that the defendant Chamberlin consented to take the title of the property in question from John I. Mandeville, for the purpose of passing it, by conveyance, to Sarah E. Mandeville, the aunt of John I. Mandeville. A deed was- made out and executed to Chamberlin by John I. Mandeville and wife, containing a clause by which Chamberlin was made to assume the payment of two mortgages on this jame property, aggregating the sum of $9,000 in -amount, one of •them being the mortgage foreclosed by this action. This deed was placed on record by Mandeville’s lawyer, and was not seen by ■Chamberlin until a long time after its execution. It never was .delivered to him, and he did not know that it contained the assumption clause, and never assented thereto in any way. He did not purchase the property, and did not sign the deed. He never owned the property, and only took the mere naked title for the purpose of passing it to Sarah E. Mandeville, which he did by the execution and delivery of a deed therefor, a few days thereafter, without receiving- any consideration therefor. He derived no personal benefit from the transaction, but consented to take the naked title and transfer it to the aunt of his grantor, for his accommodation, in payment of a debt due to her from his firm. It is entirely clear, therefore, that the assumption clause in the deed to Chamberlin never received his assent. He made no preliminary agreement for the payment of the mortgages, and never consented to the deed as it was drawn.

No principle, enunciated in any of the numerous decisions in our courts on this subject, will secure the personal liability of the-appellant Chamberlin. On the contrary, the doctrine of all the-cases is, that there must be a contract by the party sought to be charged. In the celebrated case of Garnsey v. Rogers (47 N. Y., 240), Judge Rapallo, in speaking of the promise of which a third person could enforce the performance, says: “ To entitle him to an action, the contract must have been made for his benefit. He must be the party intended to be benefited.” In the case of Vrooman v. Turner (69 N. Y., 284), Judge Allen, speaking of the rights of the third party claiming the benefit of an undertaking, says r “ A legal obligation or duty of the promisee to him will so connect him with the transaction as to be a substitute for any privity with the promisor, or the consideration of the promise, the obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a privity by substitution with the promisor.” *

The old idea was, that the ground of liability was that of equitable subrogation or substitution of the creditor, to all securities held by his creditor, the surety of the principal debtor, which the grantee became on agreeing to assume the payment of the debts, and this idea has never been repudiated. If, therefore, there be lie assumption, and consequently no security, theie remains nothing to which the creditor can be substituted.

As no person can be deprived of his property without due process of law, so there can be no personal liability imposed upon a party without his agreement, express or implied.

As there was no such agreement by the appellant, the judgment against him is erroneous.

The plaintiff occupies the position of an assignee of the mortgage foreclosed, and must abide by all the equities existing in relation thereto. (Schafer v. Reilly, 50 N. Y., 61.)

The judgment appealed from must be reversed, with costs.

Gilbert, J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment and order apjiealed from, so far as it decrees Chamberlin liable for deficiency, reversed, and new trial granted, with costs to abide tbe event.


author: jDtkman, J.:

text:
    DUANE S. EVERSON, Respondent, v. ALBERT F. JOHNSON, Appellant, Impleaded with others.

      Notice of sale of real estate — need not be published in all the editions of the paper issued on the days of publication.

    A sale of real estate, under a decree of foreclosure, will not be set aside because the notice of sale was not published in all the editions of the paper issued on the days on which the notice was published.
    Appeal from an order made at a Special Term, denying a motion for a resale of mortgaged premises belonging to the defendant,. Johnson, under a decree for the foreclosure of a second mortgage thereon.
    The sale was sought to be set aside for a defect in the advertisement of the notice thereof.
    The defendant’s affidavit stated that the notice was only published in what was known as the two o’clock edition of the Brooklyn Eagle; that but few people knew of this edition, and that but few copies of it were sold. That said two o’clock edition is not the newspaper, but only an edition thereof, and not a newspaper. That said two o’clock edition is of very limited circulation, and a notice of sale printed therein would not be publicly advertised, for the reason that said edition of said paper is of very limited circulation and is not publicly exposed or placed on the files of said paper, open to public inspection; and that said notice, though printed in said two o’clock edition for a great number of times, would only be seen by a few persons, and not by the persons who are in the habit of reading said Brooklyn BaATy Eagle. Eor the reason also that the said newspaper is published in three editions daily, to wit: two o’clock, three o’clock, and four o’clock editions; that but very few, if any, of the two o’clock editions are sold or circulated; that the other editions, being the ones from which said notice was omitted, except as aforesaid, are the only editions of said newspaper which are placed on the public files, or placed in the hands of the-. public generally, and an omission from said last two named editions on the day on which it ought, to have appeared therein, would be likely to lead any one who was watching for such sale to think that it had been abandoned. That an edition of said paper is not the paper within the meaning of the law, and that said notice could only be publicly advertised in said paper in accordance with the spirit and letter of the statute by printing in the said paper designated, and on the days designated, the said notice of sale.”

      George JR. Oarrmgton, for the appellant.

      Thomas JEooker, for the respondent.
   jDtkman, J.:

Applications to vacate and set aside judicial sales and for resales under judgments and executions are not infrequent, and are ad■dressed to the sound discretion of the court. It is not intended by this that they are addressed to that discretion which cannot be governed by any fixed principles or rules, nor to the arbitrary will of the judge, but to “ a legal discretion to be exercised in discerning the course prescribed by law,” not to give effect to the will of the judge, but to that of the law.

The discretion is exercised, and the power of the court is interposed where there has been fraud or misconduct in any person connected with the sale, or accident, misapprehension or surprise, caused by the conduct of the purchaser or inadequacy of price, with other sufficient circumstances. These are reasons which have been held sufficient, and others will doubtless be held adequate as they arise. The great end and aim being, in all cases, the prevention of wrong and injustice.'

Within no reason heretofore recognized by the courts, can the present application be granted. There is here no complaint of any inadequacy of price, nor of any misapprehension or misconduct, but the motion seems to be founded on the allegation that notice of sale was not published in all the editions of • the paper issued on the days when the notice was published. Unless this omission was followed by some injurious results, it is not sufficient of itself to set aside the sale. If notice of a judicial sale is published in a proper newspaper for tbe requisite time, tbe end of tbe law is answered, and tbe number of copies to be printed and issued is not prescribed; no complaint is made of tbe attendance at tbe sale, nor that any were prevented from attending by want of notice. Tbe defendant wbo makes tbis motion bad ample notice, and was present; certainly be can make no complaint of tbe treatment be bas received from tbe plaintiff since tbe commencement of tbe action. A spirit of fairness bas pervaded tbe whole proceedings, and there is not sufficient reason for ordering a’resale.

Tbe order appealed from must be affirmed, with costs and disbursements.

Barnard, P. J., and Gilbert, J., concurred.

Order affirmed, with costs and disbursements.


author: Hvkman, J.:

text:
    HANNAH DUBOIS and another, Administrators, &c., Appellants, v. THE CITY OF POUGHKEEPSIE, Respondent, Impleaded, &c.

      Charter of Poughlceepsie, chapter 497 of 1874, as amended hy chapter 215 of 1876 — power of city to sell for taxes under — as to notice to he giren to mortgagees — it may sell for State and county taxes — rate of interest it ma/y collect— within what time sale must he made — fees of city attorney for selling, how fixed.

      Under the amended charter oí the city oí Poughkeepsie, the purchasers at tax sales made thereunder are not required to serve notices thereof upon those holding mortgages upon the premises, unless’the statement required by chapter 387 of 1840, as amended by chapter 266 of 1844, has been filed.
    Under the amended charter, the city has power to sell lands for unpaid State and county taxes, as well as for unpaid city taxes, and is entitled to collect interest at the rate of one per cent, per month upon all of the said taxes.
    Under section 8 of chapter 497 of 1874, providing that the city attorney, shall, upon maldDg a sale, have “such fee as the common council may fix,’ the common council may fix the attorneys’fees for all future sales in one resolution.
    The charter, provided that every tax should be a lien upon the real estate charged with the payment thereof for two years, from the signing of the warrant for its collection.

      Held, that the sale must be made before the expiration of the two years, and that it was not enough that all the preliminary proceedings had been taken, and the advertisement commenced within that period, where the sale took place a few days after the expiration thereof.
    Appeal from a judgment entered upon the trial of this action by the court without a jury, directing the foreclosure of a mortgage owned by the plaintiff, and determining and establishing the validity of certain tax sales of the mortgaged premises, and establishing the rights and interest of the defendant, the city of Poughkeepsie, in the premises affected thereby.
    The city of Poughkeepsie claimed to be entitled to the possession ■of the mortgaged premises, under four alleged sales for unpaid city, ■county and State taxes, one made on January 18, 1877, for $50.39, one on December 27, 1877, for $55.98, one on January 8, 1879, for |)53.50, and one on January 21, 1880, for $52.02.
    These amounts were made up as follows:
    1st sale,
    2d “
    3d “
    éth “
    City Taxes.
    $8.18
    6.70
    6.56
    6.05
    County and State Taxes.
    $3.80
    3.80
    3.60
    2.82
    Penalty and Interese.
    tj[)3.43
    2.98
    2.02
    1.88
    Expenses of JSale.
    $35.00
    42.60
    41.32
    41.32
    On each sale tlie property was struck off to the city “ for a term of fifty years, which was the shortest period for which any person at the time of such sale offered to take the said premises and pay the amount ” for which the sale was made. No declaration of sale Pad been issued thereon.
    It was found by the court that each sale was made for an amount in excess of the sum legally due at the time of sale,"and also that the first, third and fourth sales were in part for, and were void as to, taxes which had ceased to be a lien at the time when the sales were had, as follows:
    1st sale,
    2d “
    3d “
    4th “
    Por taxes not a lien.
    $4.24
    3.79
    2.95
    Excessive fees.
    $3.81
    3.67
    3.08
    j)4.24
    3.81
    746
    6.03

      ■but tbe excesses were held not to affect tbe purchaser's rights under ■the sales.
    It was found by the judge that on the 16th day of August, 1875, The then common council of the city, by resolution, adopted orders ■for the sale by the then city attorney of the said city, of three parcels of land in the said city, for alleged unpaid city taxes or assessments, and. by the same resolution provided as follows:
    “ The common council fixes the fee of the attorney at ten dollars for each parcel, in case of payment before sale, and at twenty «dollars for each parcel that shall be actually sold.”
    That the said city attorney went out of office on the 31st day of December, 1875, and that the said office has since been filled and ■held by other persons.
    That no action had since been had by any common council of the said city as to fixing a fee to the city attorney of said city in cases -of sales for taxes.
    He also found, among other conclusions of law that the first, Third, and fourth tax sales were, and are each void as to county and State taxes, by reason of each having been made for an amount which included, and was in part made up of county and State Taxes, with interest and percentage thereon, which, in each case, had •ceased to be a lien at the time of sale.
    That the second, third, and fourth of said sales were each made Tor an amount which included excessive and illegal publication fees.
    That the city attorney’s fee of $20 was duly fixed for each of -said sales.
    That the city of Poughkeepsie was not required to notify the plaintiffs of either of the said sales.
    That the city of Poughkeepsie was entitled to be paid, from the proceeds of the sale of the premises in this action, and next after The payment of taxes heretofore directed to be made by the ref-eree, but prior to the plaintiffs’ costs, the amounts due on the said -sales after deducting the aforesaid illegal charges.

      O. B. M. Baker, for the appellants.
    Under section 8 of -chapter 497 of 1874, each sale is a separate proceeding, and the -charter contemplates that the council ordering the sale shall, as a part of the proceeding, definitely fix the fee of the city attorney in. that case. The order of August 16, 1875, is no more an authority for the $20 fee in these cases than it is for making these sales.
    On the findings as they stand, each sale is void, for having been made for an amount in excess of the sum lawfully due at the time of sale. {Athms v. Kerncm, 20 Wend. 211-219 ; Slump v. Spew, 4-Hill, 76; Kubbell v. Wetdon, H. & D. Supp., 139-115; Burmer v. Eastmiom, 50 Barb., 639 ; Cruger v. Dougherty, 13 N. Y., 107— 121; Ritter' v. Worth, 1 N. Y. S. 0., 106; Williams v. Payton,. 4 Wheat., 77; Thatcher v. Powell, 6 Id., 119 ; Stead v. Course, 4-Oranch, 403; Mason v. Eecm'son, 9 How. U. S., 248; McQuesten v. Swopes, 12 Kan., 32; Mardenburgh v. Kidd, 10 Oal., 402;. Buclmall v. Story, 38 Oal., 67; Treadwell v. Patterson, 51 Oal.,. 637 [1877] ; Cooley on Taxation, 311. See Blackwell’s Tax Titles,. 437, etseg.)

      WilUam Morgcm Lee and William J. Thorn, for the respondent..
   Hvkman, J.:

The statutes involved in this case have received a most careful examination, and we find that they received a proper construction and application by the trial court, and the judgment is affirmed, with costs, on the opinion of the Special Term, as follows :

“Barnard, J.: — No notice is required to be served upon mortgagees by the purchasers at the tax sales, under section 13 of title-5 of the charter of the city of Poughkeepsie. Chapter 387 of the-Laws of 1840 was amended by chapter 266 of the Laws of 1844. By this amendment only such mortgagees were required to be notified as should file a statement with the comptroller of the amount, of the mortgage, and of the place where the premises were situated. The city charter which requires a notice according to the provision of the law of 1810, only requires notice when by that law, as. amended in 1844, notice is provided, although the charter is-silent as to the amendment. The law of 1810 and the amendment of 1844 must be read together, and as passed entirely in 1810-No such notice by the mortgagees was filed in this case. The city has power to sell lands for unpaid county and State taxes. The original charter did not give this power. It made the city treasurer collector of these taxes, and gave for that purpose the powers and. made him subject to the duties of town collectors, as provided by law. It would have been the treasurer’s duty, if the charter so remained, to return delinquents to the county treasurer, and for that official to return the same to the comptroller of the State. By chapter 215, Laws of 1876, the charter was amended, so that it was-provided that the city treasurer should collect city, county and State taxes; that every tax should be a lien for two years after the signing of the warrant for its collection, and that the treasurer should collect city, cotmty and State taxes without any percentage-for collection during thirty days, upon all unpaid taxes ; after sixty days, one per cent, per month was added. Section 8 of title 5 of the city charter was amended, and by the amendment, provided as follows: And if any tax or assessment or any part thereof, for city or for county and State purposes, or for either city or county and State purposes, shall be returned as unpaid by any officer-authorized to collect the same, the common council of said, city shall direct the city attorney to advertise and sell such real estate.”'

The city treasurer is required by the charter to make oath to-all 'unpaid taxes, and file the same with the city chambei-lain. The city chamberlain is the clerk of the common council. The-meaning of this amendment is obvious. The city was to collect all taxes, and was made the State agent to sell the lands of the delinquents. All laws conflicting with this purpose are impliedly repealed. There is a return to the common council, and upon this-the common council must act. There is no further need of a return to the comptroller, as he cannot sell. I think the effect of tlieamendment was to make the interest at the rate of one per cent, per month run on all taxes, as well city as county and State. The-city collects the county and State tax without reward, and it is just that the city should receive such interest in excess of the legal rate-as is collected of delinquents. There is, therefore, no excess of interest charged. The common council may fix the attorney’s fees-for all future sales in one resolution. The resolution of August,, 1875, was designed to have that effect, and has been so considered in all subsequent sales. The overcharges for printers’ fees do not vitiate the sales. The tax was good. The printers’ fees and the ■attorneys’ fees are mere incidents of collection, and can be remedied by tender of the tax and legal fees. The plaintiff has the right to •deduct the overcharges for printing, and that must be done. The ■attorney had the right to sell separately for as many defaults as •existed. He was, it is true, bound to do so “ immediately after the return of any tax as unpaidbut the lien continued for two years from the date of the warrant, and it does not lie with the delinquent taxpayers to avoid a sale by reason of this neglect. I think ■the sales made after the expiration of the two years are void. The ■.advertisements had been commenced within the two years, but the •sales were made a few days after the period of two years had expired. It is claimed by the city that the lien is preserved if the proceedings are commenced within the two years, and the sale made afterwards. This view does not seem to be sustained by authority. 'The mechanic’s lien law provided for a lien for one year. It was held that when an honest effort was made to procure a judgment •under it which was not obtained in the year’, it did not extend the lien beyond the year. (Freeman, v. Cram, 3 N. Y., 305; Benton v. Wickwire, 54 Id., 226; Em. Ind. Sav. Bank v. Goldman, 75 N. Y., 127.) All amounts for county and state taxes levied before the amendment to the charter in 1876, when the sales were made within the time of the lien, are to be deducted, otherwise those sales ,-are good.

The title to the city being paramount to the mortgage, the city is not a proper party to the foreclosure suit. (75 N. Y., 127.) No •objection is made upon that account, but, on the contrary, a decision upon the validity of its claim is asked herein; the decree must •therefore provide that upon payment to the city of the amounts •due for taxes and expenses as herein provided, the claim of the city upon the premises for taxes and sales prior to the judgment be absolutely destroyed and extinguished. The attorney for the city is .•also entitled to costs out of the fund.”

Gilbert, J., concurred; Barnard, P. J., not sitting.

•Judgment affirmed, with costs.


author: Barnard, P. J.;

text:
    JAMES EATON, Appellant, v. WILLIAM H. WELLS, Respondent, Impleaded with MARTHA JANE CROSS and others.

      Tender after the commencement of am, action, must include costs incurred — when no findings need he made on a ti’ial hy the court.

    Appeal from an order made on May 8, 1880, vacating the judgment entered herein, on the ground that no decision was filed.
    The action was brought to foreclose a mortgage upon premises situated in Brooklyn. The complaint is in the usual form, setting forth the bond and mortgage, and alleging a breach of their conditions, whereby the principal sum became due.
    All the defendants were in default, except the respondent, W ells, who interposed an answer, denying in substance the breach of condition, and alleging affirmatively a tender of the amount due on the mortgage (without costs) after action brought.
    The cause was noticed and placed on the Special Term calendar for March, and, upon the call of the case the plaintiff moved for judgment upon the pleadings as against the defendant, Wells, and upon the usual affidavits showing default, as against the other defendants. The motion was granted upon the argument, and thereupon an order and decision was filed and entered on March 31, 1880, reciting the proceedings, and directing judgment against all the defendants. On April 2, 1880, the decree of foreclosure and sale was signed, and on April 3 was filed. It recites the proceedings already had, refers to the foregoing order, and directs the-sale of the mortgaged premises. On April 20, the respondent, Wells, obtained an order requiring plaintiff to show cause why the judgment of foreclosure and sale should not be vacated and set aside, “ because no findings or decisions have been made herein.” This is the only irregularity • specified in the motion papers. The object of Wells in making the motion is, set forth in the affidavit of his attorney, Mr. Ingraham, viz.: “ Deponent further says, that the defendant Wells has instructed him to appeal from the judgment herein.” “ That by reason of tire plaintiff’s failure to obtain findings, deponent is unable to file exceptions on which to base the appeal, and is fearful that without exceptions the appeal might be dismissed.” This application of Wells to vacate the judgment was granted, with costs of the motion against the plaintiff.
    The court, at General Term, said : “ I think the order appealed from should be reversed. The action was for the foreclosure of a mortgage. William H. Wells, one of the defendants, answered, setting up a tender after suit brought. There was no issue tried. There was no evidence given. The tender after suit brought without a tender of costs, and without an order permitting a tender without costs, made out no defense.
    “ There could be no findings of fact. There was no place for a written decision as if upon a trial. Upon the pleadings the court ordered a judgment, and this order, recited the history of this trial so far as there was a trial, fully. An appeal from the judgment would bring up for review this order, if stated in the notice of appeal.
    “ Order reversed, with costs and disbursements.”

      JErastus New, for the appellant.

      Wm. M. Ingraham, for the respondent.
   Opinion by

Barnard, P. J.;

Dykman, J., concurred; Gilbert, J., not sitting.

Order reversed, with costs and disbursments.


author: Bteman, J.;

text:
    MELVILLE KELSEY, Respondent, v. ROBERT C. DARROW, Appellant.

      Arbitration^-faihure of the arbitrator to be sworn — what a waiver of.

    Appeal from a judgment, in favor of the plaintiff, entered in the County Court 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.
    This action was on an award of arbitrators. The court at General ‘Term said: “ The bond of submission was that the award should be in writing under the hands of the arbitrators, or any two of them, and ready to be delivered to the parties on a certain day, •and it was so made and ready. The point relied upon by the defendant on the trial, was that the arbitrators were not sworn in pursuance of the requirements of the Revised Statutes, and it is undenied that they were not so sworn. Both parties were present before the arbitrators, and made no request to have them sworn, .and proceeded to the trial before them, with full knowledge that no oath had been taken. This conduct of the parties .must be construed as a waiver of the oath. The jurisdiction of the arbitrators is derived from the submission, and the absence of an oath is an .irregularity merely. (Howard v. Sexton, 1 Benio, 440; S. <91, 4 Comst., 157; Day v. Harnmond, 57 N. Y., 479.)”
    Judgment affirmed, with costs.

      H. D. Bwdsall, for the appellant.

      Fisher, JBhvrd <& Voltz, for the respondent.
   Opinion by

Bteman, J.;

Barnard, P. J., and Gilbert, J., concurred.

Judgment of County Court and order denying new trial affirmed, with costs.


author: Dykman, J.;

text:
    HENRY WIGGINS and JANE ELIZABETH WIGGINS, his wife, Plaintiffs, v. CLARISSA R. HOWARD, SUSAN POSTEN, WILLIAM POSTEN and JULIA A. SCHENCK, Defendants.

      Referee to sell in action for partition — duty of, as to securities to be taken for' the purchase price — what acts of the beneficiaries amount to a ratification of his act vi taking an unauthorized security instead of cash.

    Appeal from an order made at Special Term, denying a motion to confirm the report of a referee made herein.
    This action was brought for the partition of certain land, and resulted in a sale thereof for a large sum, under the direction of James P. Pierce, a referee appointed for that purpose. The sale was had on-July 8,1868, and the proceeds were received and disbursed by one oí the plaintiffs’ attorneys instead of by the referee. Susan Posten, one-of the defendants in the action, had a dower right and life interest in the premises, estimated at $30,621.61, which belonged to her daughter, the defendant Julia A. Schenck. General Orook, one of the plaintiffs’ attorneys, was the counsel of these two defendants,, and, in pursuance of a provision in the judgment, mortgages were taken from purchasers for $16,811.50 to the referee, and assigned to the county treasurer, and for the purpose of making up the-remainder of the $30,621.61, General Crook executed a bond and mortgage on his own property to the county treasurer for $13,-780.11. All of these bonds and mortgages were received by the county treasurer on November 28, 1873, and down to this time the interest on Mrs. Posten’s share was paid to her daughter by General Orook. On November 25, 1873, Susan Posten and Julia A. Schenck conveyed the fund of $30,621.61 to Abraham Y. Schenck,. the husband of Julia A. Schenck, in trust for their benefit, and on the first day of December thereafter he presented a petition to the court, setting out the assignment to him and asking for an order that tho county treasurer deliver the said bond to him. On December 5 an order was made at Special Term, directing the county treasurer to assign the bonds and mortgages to Miv Scbenck, and all of them were so assigned and delivered to him,, including tbe bond and mortgage from General Crook. From that, time down to September, 1876, Mr. Scbenck collected tbe interest and tben extended tbe time for tbe payment of tbe Crook mortgage for two years,, On March 18, 1878, Mr. Scbenck resigned bis position as trustee and transferred tbe estate to Ms wife, wbo was-thereupon appointed trastee in bis place. Thereafter tMs application was made to compel tbe referee to pay over the sum of $13,780.11 for wMcb tbe Crook mortgage was taken, and a referee appointed to examine tbe matter reported in favor of granting the petition; but tbe court at Special Term refused to confirm tbe report and denied the application.
    Tbe court, at General Term, said: “ It was tbe duty of tbe referee on tbe sale of the premises to receive tbe purchase-money therefor or purchase-money mortgages, in pursuance of tbe provisions of tbe judgment in that behalf, and tbe defendants, Mrs. Posten and Mrs. Scbenck, were in a position to require tbe full performance of such duty. Instead of doing'so, however, they relied upon General Crook, wbo was their counsel, to receive this particular fund and invest tbe same, and for more than five years after tbe sale they received tbe interest thereon from him, under the full belief that it bad been invested by him. Tben in 1873 they found precisely bow tbe fund was invested, and instituted proceedings to have all tbe bonds and mortgages delivered up to their trustee by tbe county treasurer, and they were so delivered and held until March, 1878, during all of which time tbe interest was paid on tbe Crook bond and mortgage by Mm. It matters not that neither tbe referee nor tbe county treasurer bad the right in tbe first instance to receive the Crook bond and mortgage in place of cash. If tbe conduct of tbe beneficiaries of tbe fund ‘ bad been such in relation thereto as fairly to indicate a ratification thereof, that is equal to an original authority. Have we evidence of such ratification ? For ten years after tbe sale tbe interest on tbe fund was received from General Crook, and for tbe last five years it was so received with tbe full knowledge that bis bond and mortgage -was tlie only security therefor; not only so, but when the same became due and payment might have been demanded and urged, -the time for such payment was extended instead by the trustee, who was the husband of one of the beneficiaries and the son-in-law •of the other. During all this time no word was said and no act was done indicating any intention to look towards the legal responsibility of the referee. On the contrary, every act indicated the full intention of the beneficiaries and their trustee to rely entirely upon their bond and mortgage.
    “ The only rational interpretation of the act of the beneficiaries, .and their trustee, in procuring the assignment of this bond and mortgage to him, is that they intended thereby to adopt and ratify the acceptance of the same by the county treasurer. Certainly then, if never before, they were called upon to repudiate this bond and mortgage and call upon the referee, if ever they intended so to do. 'Then all the facts stood disclosed, and they not only accepted the' bond and mortgage, but when it came due extended the time for its payment. It is now too late to avoid that election, and they must be held to have accepted the bond and mortgage, and adopted .and ratified the act of the county treasurer in taking the same in place of the money. ”

      Morris & Pearsall, for the defendants, Julia A. Schenck, and Susan Posten, appellants.

      Edgar M. Cullen, for J ames P. Pierce, referee.
   Opinion by

Dykman, J.;

Gilbert, J., concurred; Barnard, P. .J., not sitting.

Order affirmed, with costs.


author: Dtkman, J.;

text:
    HENRY M. PECK, Trustee, &c., Plaintiff and Respondent, v. THE NEW JERSEY & NEW YORK RAILWAY COMPANY, Defendant. ISAAC C. DEMAREST, Trustee, &c., Plaintiff and Respondent, v. THE NEW JERSEY & NEW YORK RAILWAY COMPANY, Defendant. In the Matter of the Petition of JEFFERSON M. LEVY, Appellant.

      Foreclosure of railroad mortgage — when, a sale, had under a decree in, will not he set aside.

    Appeal from an order made at Special Term, denying a motion made by Jefferson M. Levy, to set aside a judgment of foreclosure ■and a sale had thereunder.
    The plaintiffs in these actions are trustees for the holders of eer-tain mortgage bonds issued by the defendant, and a company to whose rights and obligations it has succeeded. These actions were ■brought to foreclose the mortgages made to secure the bonds, and proceeded to a sale. Mr. Levy,' a holder of several of these bonds, moved at Special Term to set aside the sale, and presented "three grounds to the consideration of the court: 1st. Error of law by the referee to compute, whereby an excessive amount was reported due. 2d. Inadequacy of price. 3d. Surprise or mistake, ■preventing his presence at the sale.
    The court, at General Term, said: “ A number of the bonds were pledged as collateral to debts of the company, by it, before their regular issue. These were included in the referee’s computation. 'The appellant contends that these never had a legal inception. The respondent’s answer is, 'that the company having failed to pay, the pledgees have sold, and the liability of the company become fixed. That this is true of some is shown by the appellant’s petition, showing title to a part of his bonds thus gained. Such an eventual ■disposition of all bonds pledged was natural, and properly provided for.

      “ The appellant had an order staying the sale. This was vacated' on the day of the sale, and he pleads that, relying on this order, he-made no preparations to attend the sale, and, learning the stay had' been vacated too late, he was not present. The order vacating was-an adjudication that the stay should not have been granted in the first instance. This court will not interfere to throw the loss on, the party improperly restrained, and give the appellant advantage of his wrong. (.La Forge v. Von Wagenen, 11 How. Pr., 51.)
    “We do not think inadequacy of consideration established, but, if it were, the disposition we have made of the other points would leave it standing alone, and would require such inadequacy as would shock the conscience, and amount in itself to conclusive and decisive-evidence of fraud.’ (Story Eq. Juris., § 216.)”

      Gla/rkson N. Potter, for the appellant.

      G. B. Alexander and F. A. Brewster, for the respondent.
   Opinion by

Dtkman, J.;

Gilbert, J., concurred; Barnard, P, J., not sitting.

Order affirmed, with costs and disbursements.


author: Gilbert, J.,

text:
    LEWIS E. CARR, Respondent, v. ROBERT H. BERDELL and CHARLES P. BERDELL, Appellants.

      Action by an attorney for professional services — when it involves the examination of a long account — when it may be referred, to an attorney to hear and determine.

    Appeal from an order of reference made at the Orange Circuit-during the progress of the trial of the action.
    The action was brought to recover for professional services rendered, and disbursements made, by the plaintiff for the defendants. The answer, although admitting the rendition of services by the plaintiff for the defendants, did not admit that the services sued for had been rendered. The answer also put in issue the value of the services, and set up payment of all tbe services rendered were worth. The trial was commenced at the Orange Circuit in January, 1880, and after some testimony had been taken, the trial justice of his own motion referred the case, on the ground that it was apparent to him that the trial would involve the examination of a long account.
    The court, at General Term, said : “ There may have been occasions calling for the remarks in some of the cases cited by the appellant, deprecating references to attorneys of actions by attorneys for professional services. But no occasion for such remarks exists in this case, it being conceded by both parties, that the referee selected is unexceptionable. Nor can we assent to a sweeping condemnation, of attorneys as referees in any class of cases. If, in a. particular case the power of selecting a referee should be abused, the court has the power of removing him, and it must be presumed, would unhesitatingly exercise the power. It seems to us to be quite evident that the trial of this action will involve the examination of a long account, namely, an account for the services and disbursements of the plaintiff as an attorney and counselor duiing a period of more than two years, on which it is claimed numerous payments have been made. Nor will the trial require the decision of any difficult question of law. It is said that the plaintiff may recover as upon an account stated. But the complaint contains no averment warranting such a recovery.
    “ The stipulation to admit the rendering and value of the plaintiff’s services, being conditional upon a favorable decision of this appeal, cannot be allowed.”

      W. J. Groo, for the appellants.

      Lewis E. Gwrr, respondent, in person.
   Opinion by

Gilbert, J.,

Dteman, J., concurred; Barnard, P. J., not sitting.

Order referring action affirmed, with costs and disbursements.


author: Gilbert, J.

text:
    MARY A. DURKIN, as Administratrix, &c., Appellant, v. THOMAS R. SHARP, as Receiver of the Long Island Railroad Company, Respondent.

      Reference — when it cannot 1)6 ordered without the consent of the parties — the right to order one is not affected ly the fact that one of the parties is a receiver.

    Appeal by tbe plaintiff from an order made at Special Term, referring tbe action to Hon. Josiah Sutherland, as a referee, to hear and determine.
    Tbe action was commenced by tbe leave of tbis court against tbe •defendant as a receiver, to recover damages for tbe death of tbe plaintiff’s intestate, caused by tbe derailment of tbe train of which be was engineer.
    The' order was made upon an affidavit made by one of tbe defendant’s attorneys, alleging that, prior to tbe commencement of Ibis action, an action bad been brought against tbis defendant by ione John H. Brown, a passenger upon tbe same train, for injuries sustained in tbe same accident. That action was referred to Hon. Josiah Sutherland by consent of tbe parties, was tried before him, and resulted in a report in favor of Brown for $1,500. Tbe same counsel who appear in tbis case appeared in and tried that action .•on behalf of both parties. In tbe action of John II. Brown, a ■great mass of testimony was adduced, tbe taking of which neces.sarily occupied much time, and occasioned heavy expense. Tbe stenographer’s fees alone amounted to over $600. Tbe issues in tbis action are precisely similar to those in the case of Brown, and involve going over tbe same ground ; except that some additional testimony will be admissible in tbis case on account of tbo deceased having been an employee of tbe defendant.
    Upon -proof of these facts tbe court ordered a reference of tbis action to tbe same referee before whom tbe Brown case was tried, and provided in tbe order that the testimony taken in that case might be read by either party to tbis action, and if so read, should be considered as having- been taken in tbis action; limited tbo deiendant in bis defense, and required him to pay without recourse the referee’s fees and also the stenographer’s charges for all additional testimony.
    The court at General Term said: “ It is very clear that the court is not authorized to order a reference of an ordinary action of this kind without consent. Nor can the order appealed from be sustained as a proceeding to reach or affect a fund in court. There is no fund in court, and the action is one to recover damages for a breach of duty by one who is operating a railroad, by the order of the corut. The plaintiff having obtained leave to sue him, she is entitled to prosecute her action in the mode which the law has provided. Her rights in that respect are the same as if the plaintiff were seeking to enforce a personal instead of an official liability. For it is obviously the duty of the court to afford the usual and appropriate means of obtaining justice* to a party who applies in a regular manner for the enforcement or protection of his rights. The other provisions of the order are also unwarrantable.”

      Wm. W. Badger and I)mid Mitchell, for the appellant.

      J$. B. Hinsdale, for the respondent.
   Opinion by

Gilbert, J.

Present — Barnard, P. J., and Gilbert, J.

Order reversed, with costs and disbursements.


author: Dykman, J.

text:
    DAVID S. DUNCOMB and ERASTUS F. MEAD, Trustees, Plaintiffs, v. THE NEW YORK, HOUSATONIC & NORTHERN RAILROAD COMPANY and others, Defendants.

      Trustee of corporation — what contracts made by him with the company will be sustained — when he may enforce,’equally with other bond holders, bonds given by the company to him to secure a debt — he cannot do so when the money for which, the debt was incurred did not go to increase the fund from which the bond holders are

      to be paid — rights of one holding bonds on which the company has not received the face value.

    Appeal from an order made at Special Term, overruling exceptions to, and confirming the report of a referee, appointed by an interlocutory judgment or decree of foreclosure to compute the amount due on account of the bonds and mortgage set forth in the complaint, and of the coupons on the said bonds, and also to take an account of all of the said bonds and coupons now outstanding, whether held by absolute purchasers or as security for the indebtedness of the defendant, The New York, Housatonic and Northern Railroad Company, and of the persons who are the holders thereof respectively, and to ascertain and report the nature and extent of the interest of the several persons in the bonds held by them respectively, and to report the proofs so taken, together with his ©pinion thereon.
    This action was brought to foreclose a mortgage made by the New York and Housatonic Railroad Company, to trustees, to secure its issue of bonds. The referee’s report showed the bonds held by absolute purchasers, and also those held as collateral security for the debts of the company.
    The court, at General Term, said: “L. D. Rucker became the president of the company in July, 1872, and immediately thereafter commenced making advances of cash and securities, and on January 1, 1873, he had advanced about $81,000. As collateral security for the payment of this amount the company gave Mr. Rucker $810,000 of the bonds. In the year 1871, P. P. Shaw advanced to the company $25,000, and took an assignment of $250,000 of the bonds as security for payment. This loan, with the securities, was assigned to the New York Loan and Indemnity Company. Mr. Rucker became security for the payment of this debt, and a judgment was obtained against him and the company, in the settlement of which he paid $1,250, and took an assignment of the judgment and the $250,000 of bonds held as security. In September, 1873, the Bessemer Company entered into a contract with the railroad company for the construction of the road, and while engaged in the performance of the work Mr. Rucker paid the Bessemer Company $27,048 in cash. This payment is not found by the referee and yet the proof of it seems to be uncontradicted. The balance of the bonds proved by Rucker, and amounting to $57,000, were delivered to him as security for this payment. This is the best statement that can be gathered from the case. The testimony is confused and the statements are ■obscure, and mistakes may creep in.
    “ Very important questions arise on this statement of facts. During all the time in which these advances were made by Mr. Rucker ■be was the president of the railroad company, and thus sustained toward it a fiduciary relation. The principle that a trustee can •never be a purchaser of the property held in trust, had its foundation in the indispensable necessity of guarding against the hazard of abuse and removing the trustee from temptation. It had a deep ■and firm foundation in the Roman civil law and the common law •of England, and has been held and enforced with augmented severity by the courts of this country and particularly by those of our Btate. (York Building Co. v. Maókensie, 8 Brown Par. Gas., 42; •Ga/rdner v. Ogden, 22 N. Y., 327.)
    “But the contract is not void ch origine. The beneficiary may affirm or avoid any such purchase of trust property. If he elect to .avoid and prove the trust i elation, and that the property purchased ■was of the trust, the law conclusively presumes the trustee incapable of making the contract and will hear of no defense. Till election to avoid, however, the contract stands and title passes under it. {Bostwiok v. Atkins, 3 N. Y., 53 ; Boerum v. Soheneh, 41 Id., 189.) If the beneficiary elect to avoid, all the price brought to the trust by the deal must be surrendered. (Bmoue v. Fa/nnim,g, :2 Johns. Ch., 252; York Co. v. Maókensie, siopra.) To ask ■equity he must come with clean hands. At bar the beneficiary •asks, and must have avoidance, but the contract brought hard cash to its exchequer, all of which the trustee may lawfully reclaim. May he have it from this fund and share with innocent holders of •like bonds? We think he is entitled to share the fund in equity, because his money went into the property which has produced the fund. The report must be modified to allow Mr. Rucker to prove bonds equal in amount to his cash advances, and the amount actually paid in settlement of the judgment against him. These same principles apply to George W. Mead, and he must be allowed to prove-bonds equal in amount to his actual advances, and so far the report, must be modified. The company owed N. R. Kirkland, its president, $3,500 for salary, and gave him two notes to secure it, and as-collateral seven bonds. No stronger objection can be urged to the-issue of bonds to Mr. Kirkland than to an issue to any officer or director. The same conclusive presumption when availed of avoids-both contracts. Mr. Kirkland still, however, lias the debt and notes, and may enforce them against the company. If the bonds are-proved here payment is in fact made by other bond holders. We compel such payment when the sum for which the bonds were-issued went into the mortgaged property. This cannot be said of Mr. Kirkland’s salary, and this distinction is fatal to his claim.
    “ Respecting the bonds of M. M. N. Smith, the facts are these-The bonds were issued to Thomas Clark and Mead and Clark as collateral security for money actually advanced to the railroad company.. Mead was one of the trustees. Mead and Clark assigned the bonds to Smith, as collateral to a loan by Smith to them. The amount of Smith’s advances to Mead and Clark is immaterial. He could get-only what they had, a right to the money paid to the company if it elected to avoid and retake the bonds issued to Mead and Clark-This right Mead and Clark had, and it was alienable property and passed to Smith by assignment. Smith must be allowed to prove the bonds he holds to the extent of Mead and Clark’s advances to-the company. ...
    “ The appeal of Dwight Studwell attacks the bonds presented by-Joshua 0. Saunders, which were mostly disallowed. These twenty- . seven bonds of $1,000 each were obtained by David S. Duncomb,. a director of the company, pai-tly as a bonus for stock subscription, and partly by purchase at 51 cents on the dollar. Afterwards they were assigned to Saunders as collateral security for a loan to Dun-comb of $1,000, and Saunders had them sold on default of payment and bought them in. Under the rule laid down Saunders is-entitled to prove bonds equal in amouut to the actual cash paid by Duncomb to the company. . . .
    “Daniel II. Temple holds five $1,000 bonds as collateral .seciu-ity for an indebtedness to him of David S. Duncomb, a. trustee. Duncomb could not, having mere possession, hypothecated bonds for his own benefit. They were improperly allowed, and the report must be corrected in that behalf. The claim of Harrison Hall was not disputed. The production of the bonds by him was evidence of ownership, and they were properly allowed,

      John _ZV. Whiting, for Louis D. Rucker, claimant and bondholder, appellant.

      Luke A. Lockwood, for the plaintiffs, trustees, respondents.
   Opinion by

Dykman, J.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order modified in accordance with opinion of Dykman, J., and order to be settled by him.


author: Gilbert, J.;

text:
    JOHN O’SULLIVAN, Respondent, v. THOMAS CONNORS, Appellant.

      Undertaking on appeal — power of the court to amend it on a motion made by one of the sureties.

    Appeal from an order made at a Special Term, allowing an undertaking given in this action to be amended.
    In this proceeding, brought to foreclose a mechanic’s lien, the defendant appealed to the Court of Appeals from a decision of the General Term of this court, and executed and filed an undertaking in. the following form:
    UNDERTAKING ON APPEAL PROM AN ORDER WITH STAY.
    Supreme Court.
    JOHN O. SULLIVAN, Respt. against THOMAS CONNORS, Applt.
    Whereas on the sixth day of January, 1879, a judgment ■oourfr naade-aa- orJer-hereia of tlie General Term of the Supreme Court ■of the 2d Department, was entered in the office of the Clerk of Dutchess County, affirming the judgment entered herein, upon the report of Referee in this action, wherein he found for the plaintiff, ■John 0. Sullivan, and against Thomas Connors, defendant.
    And the said Thomas Connors feeling aggrieved thereby, intends to appeal therefrom to the Court of Appeals, andr-tko eearfe-ítavingmade-aa-erder-dhat-a-ll the proceedfegs-eB-t-he-part -of-t-lie-
    -wlthr«ffiSeie&t--ouretíes-ema-
    Now therefore, we, Alexander 0. Mackay, of the Village of Mat.teawan, Dutchess County, N. Y., by occupation a Fuller, and Alonzo Cole of the Village of "VVappingers Falls, Dutchess County, N. Y., by occupation a Blacksmith, do hereby jointly and severally undertake that the appellant will pay all costs and damages which may be awarded against him on said appeal not exceeding five hun■dred dollars, and do also undertake that if the e^der judgment appealed from or any part thereof is affirmed or the appeal is dismissed, the appellant will pay the sum recovered, or directed to be paid by the affirmance, or the part thereof as to which it is affirmed and all damages which shall be awarded against the appellant upon the appeal by the determination of the Appellate Court.
    Dated October 14th, 1879.
    ALEXANDER C. MACKEY, [l. s.]
    ALONZO COLE. [l- s.]
    Upon the application of the sureties the provision making them liable for the amount of the recovery was stricken out on the ground that it was inserted by mistake, and that it was intended that they should be liable only for the costs of appeal, no stay of proceedings being desired.
    The court, at General Term, said: “"We have no doubt of the power of the court to allow the amendment granted in this case. The undertaking is a proceeding in the action, and the power of amending it in furtherance of justice is expressly granted by sections 721 and 730 of the Code of Civil Pro•cedure. Such power also existed at common law (Graham Pr., 652), and that power was preserved by section 469 of the Code of Procedure. The motion to amend was properly made in this court. (Code Civ. Pro., § 722; Graham Pr., 667.) • The evidence shows very satisfactorily that the undertaking was not given for the purpose of staying proceedings pending the appeal. In the first place, the action was one to foreclose a mechanics lien. The undertaking is not in the form prescribed in order to obtain a stay pending an appeal from a judgment in such an action. (Code Civ. Pro., § 1331.) In the second place, it is proved that the attorney for the appellant struck from the printed blank the usual recital relating to a stay, but omitted to strike therefrom the operative clause requisite to effect a stay, merely by inadvertence and mistake. It would be a reproach to the law if such a mistake could not be corrected by amendment in the usual manner, namely, by motion.”
    Order affirmed, with $10 costs and disbursements.

      Thompson, Weeks cB Town, for the appellant.

      Bernm'd J. Tvrmey, for the respondent.
   Opinion by

Gilbert, J.;

Dykman, J., concurred; Barnard, P. J., not sitting.

Order affirmed, with costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ELIZA VOGLER, Landlord, v. ANDREW WALSH, Police Justice of the City of Brooklyn, and HORATIO S. STEWART, Tenant, Respondents.

      Summary proceedings by owner of tea-lease to recover land — what facts must be proved by him — 1873, ch. 863, tit. 8, §§ 0, 10— service of a notice to redeem is not proved by the affidavit of the party serving the same.

    Certiorari to review a decision of the respondent, a police justice of the city of Brooklyn, dismissing summary proceedings instituted by the relator to recover the possession of certain premises described in her complaint.
    The relator claimed to be entitled to the possession of the said premises by virtue of a lease thereof to her by the city of Brooklyn, made upon a sale of the premises for unpaid taxes.
    The court, at General Term, said: “The sole authority for the proceeding before Justice Walsh is the charter of the city of Brooklyn. The relator, for the purpose of proving her case, started with the assessment roll. But the charter requires several preliminary proceedings to be taken before the assessors acquire authority to make out the assessment. We think the omission of the relator to give proof of the facts -on which the jurisdiction of the assessors depended was fatal to her right to recover. For it is a fundamental rule that a man cannot be divested of his property for the non-payment of a tax without proof of a strict compliance with all the material provisions of the statute which authorized the imposition of the tax. I have been unable to find any provision of the charter which makes any act or thing presumptive evidence of the regularity of the proceedings, antecedent to the assessment roll, and none has been pointed out. The provision of section 10 of title 8 of the act of 1873, chapter 863, relates only to the proceedings had for the sale. We think also that it was incumbent on the relator to prove the service of the written notice of the sale provided for by section 6 of title 8 of said act of 1873. The time to redeem would begin to run upon filing the requisite affidavit of -such service, provided the notice was in fact served, but not otherwise. The affidavit was not legal proof of such service.”

      Charles IT. Otis, for the relator.

      Wm. Sullwcm for Horatio S. Stewart, the tenant, respondent.
   Opinion by

Gilbert, J.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment and proceedings affirmed, with costs.


author: Barnard, P. J.

text:
    SIDNEY A. ACKLEY, Respondent, v. SIDNEY L. SEAMAN and others, Appellants.
   Judgment reversed and order of reference vacated, and new trial granted at Circuit.

Opinion by

Barnard, P. J.


text:
    JAMES BIGLER and others, Respondents, v. WILLIAM PINKNEY, Survivor, &c., Appellant.
   Judgment affirmed, with costs.

Opinion by

Gilbert, J.


text:
    MARY WRIGHT, Appellant, v. GEORGE M. TERRY and others, Respondents.
   Exception overruled, and judgment for the- defendant.

Opinion by

Dykman, J.


text:
    ADALINE KILLMER, Appellant, v. JOHN A. COON, Respondent.
   Order of February 7, 1880, affirmed,with costs and disbursements. 'Order of April 3, 1880, affirmed, with costs and disbursements.

Opinion by

Dykman, J.


text:
    HARRIET B. BERDELL v. ROBERT H. BERDELL.
   Order affirmed, with costs and disbursements.

Opinion by

Dykman, J.


text:
    JOHN L. BERGEN and wife, Respondents, v. MARY WYCKOFF and others, Defendants, Impleaded with FRANK CROOKE, Purchaser and Appellant.
   Order affirmed, with costs and disbursements, except as to that part of order which directs attachment, which part is' stricken out.

Opinion by

Barnard, P. J.


text:
    JAMES H. WELLES, Respondent, v. OLIVER DOWNS, Executor, &c., Appellant.
   Order granting costs reversed, with costs and disbursements.

Opinion by

Dykman, J.


text:
    GEORGE S. WRIGHT, Appellant, v. ABBIE J. FLEMING and others, Respondents.
   Order affirmed, with costs and disbursements.

Opinion by

Gilbert, J.


text:
    JOHN P. HAWKINS, Respondent, v. DANIEL H. TERRELL and ALMERON WHITEHEAD, Appellants.
   Order of April 5, 1880 ; order of April 16, 1880; order of April-22, 1880, affirmed, with costs and disbursements as of one appeal.

Opinion by

Dykman, J.


text:
    HORACE SEAMAN, Respondent, v. JACOB BALDWIN, Appellant.
   Order affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.


text:
    TITUS B. ELDRIDGE, Respondent, v. THE NEW YORK & BRIGHTON BEACH RAILWAY COMPANY, Appellant.
   Order affirmed, witb costs.


text:
    ABRAHAM LOTT, Administrator, &c., Respondent, v. FRANK CROOKE, Executor, &c., Appellant.
   Judgment and order confirming report of referee affirmed, witb costs.

Opinion by

Barnard, P. J.


text:
    THE CITY NATIONAL BANK OF POUGHKEEPSIE, Appellant, v. WILLIAM PHELPS, Respondent.
   Judgment affirmed, with costs.

Opinion by

Gilbert, J.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE COMMISSIONERS OF CHARITIES OF THE COUNTY OF KINGS, Respondents, v. JACOB MEINZER, Appellant.
   Judgment reversed, without costs.

Opinion by

Barnard, P. J.


text:
    BENJAMIN WOOLLEY, as Executor, &c., Appellant, v. SARAH E. WOOLLEY and MINOR ONDERDONK, Respondents.
   Decree of surrogate affirmed, with costs to both parties out of the estate.

Opinion by

Barnard, P. J.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ELIZABETH F. FLOYD and SARAH A. VINGAT v. ROBERT L. PETTY and others, Highway Commissioners, &c., Respondents.
   Order affirmed, with costs.

Opinion by

Dykman, J.


author: Barnard,' P. J.

text:
    DARIUS C. DAVISON, Plaintiff, v. OLIVER BRISBIN, Defendant.
   Judgment for defendant,upon submitted case, with costs.

Opinion by

Barnard,' P. J.


text:
    SARAH A. PARISH, Executrix, &c., Respondent, v. DANIEL W. SMITH, Appellant.
   Order granting new trial reversed, with costs, and judgment for defendant lor $1,436, with costs.

Opinion by

Dykman, J.


text:
    EBENEZER KELLUM, as Supervisor, &c., Respondent, v. JOSEPH W. CLARK, JAMES WHALEY and WILLIAM McFARLAND, Appellants.
   Judgment affirmed, with costs.

Opinion by

Gilbert, J.


text:
    THE KNICKERBOCKER LIFE INSURANCE COMPANY, Respondent, v. JEREMIAH WINTRINGHAM, as Receiver of the Loaners’ Bank, Appellant, Impleaded with LIVINGSTON M. GUTHRIE and others.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    PHILIP H. REID, Plaintiff, v. THE BROOKLYN & ROCKAWAY BEACH RAILROAD COMPANY and DEWITT C. LITTLEJOHN, Defendants.
   Exceptions sustained and judgment reversed, and new trial granted, costs to abide event.

Opinion by

Dykman, J.


author: Dykman, J,

text:
    JOHN ASHCROFT, Respondent, v. EDWARD H. ASHCROFT, Appellant.
   Judgment affirmed, with costs.

Opinion by

Dykman, J,


text:
    SOLOMON WELCH v. ELIZABETH M. MILLS.
   Appeal dismissed, with costs.

Opinion by

Barnard, P. J.


text:
    WILHELMINA MAESEL, as Executrix, &c., Respondent, v. ANNA M. SCHROEDER and others, Appellants.
   Judgment reversed, and new trial granted at Special Term, costs to abide event.

Opinion by

Gilbert, J.


text:
    JOHN H. BROWN, Respondent, v. THOMAS R. SHARP, as Receiver of the Long Island Railroad Company, Appellant.
   Judgment reversed, and new trial granted at Circuit, costs to abide event; order of reference vacated.

Opinion by

Gilbert, J.


text:
    PERRIN H. SUMNER, Respondent, v. HENRY HOSFORD, Appellant, Impleaded with CORRA OSBORN.
   Judgment and order denying new trial reversed, and new trial granted, costs to abide event.

Opinion by

Dykman, J.


text:
    JOHN W. MILLER and others, Appellants, v. E. ELLERY ANDERSON and FREDERICK H. MAN, Impleaded with WILLIAM H. HALLOCK, Respondents.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    JOHN H. GARRISON, Appellant, v. THE KNICKERBOCKER ICE COMPANY, Respondents.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Gilbert, J.,

Dykman, J., dissenting.


text:
    NEBAT D. NICHOLS, Appellant, v. ERNEST HENKEN, Respondent.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Dykman, J.


text:
    PATRICK J. HENNESSY, Appellant, v. CHARLES J. PATTERSON, as Receiver, &c., Respondent.
   Judgment affirmed, with costs.

Opinion by

Gilbert, J.


text:
    Matter of Petition of ELIZABETH McGUIRE, v. JOHN LINSKY, an Attorney.
   Motion to disbar Linsky, as an attorney of this court, denied.

Opinion by

Barnard, P. J.


author: Barnard, B. J.

text:
    THE BOARD OF EDUCATION OF UNION FREE SCHOOLS, DISTRICT No. 2, OF THE TOWN OF NEW LOTS, Respondent, v. PHILIP H. REID, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, B. J.


text:
    MYRON K. BETTES, Respondent, v. ANDREW SHAMPNOY and PETER U. FOWLER, Appellants.
   Judgment of county court and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    WILLIAM B. SCOTT and ALBERT E. SCOTT, Appellants, v. CHARLES MORGAN, Respondent.
   Judgment affirmed, with costs.

Opinion, by

Gilbert, J.


text:
    JANE M. VAN BRUNT v. EDWARD P. DAY and others.
   Motion denied, without costs.


author: Per Curiam :

text:
    ANNA C. CENTER, by her Guardian, &c., Appellant, v. MARTIN V. B. FINCH, as Administrator, and HARRIET I. SPROAT, as Administratrix, &c., of HENRY SPROAT, Deceased, Respondents.

      Guardian to sell real estate of inf ant — bond of — when it shouldbe executed — tabees effect from time of its delivery — when an accounting by the guardian need not be had befoi'e suing the sureties on his bond.

    On September 18, 1867, the plaintiff being then an infant about six years old, and being seized of certain real estate, her mother signed and verified a petition asking for leave to sell the same, and proposing the name of M. V. B. Finch as a special guardian, and Henry Sproat and another, as sureties for him. On February 4, 1868, the proposed special guardian and his sureties signed and acknowledged a bond conditioned that the former “ should faithfully perform the trust reposed in him as the guardian of ” the infant. ■ On February SI the petition and bond were presented to the court, by which the bond was approved and the usual order, appointing Finch a guardian, was made. The estate was sold and the proceeds of sale were paid to M. V. B. Finch as special guardian.
    In an action upon the bond, against the sureties thereon,
    Held, that although a bond of the character of the one in question should be executed after, and not before, the granting of the order appointing the guardian, yet it was not necessarily void because signed and acknowledged previously thereto.
    That the delivery of the bond in question appeared by its approval and filing to have occurred after the application had been granted, and that the bond then took effect and became valid.
    Upon the trial of this action it appeared that, upon a petition alleging that the guardian had received and converted to his own use certain moneys of the infant, an order was made requiring him to make a full report of his proceedings and render an account of the funds which he had received, and to show cause why he should not be required to pay into court the moneys found to be in his hands. The petition and order having been personally served on the guardian, and he having failed to appear on the return day thereof, an order was made requiring him to pay into court the amount alleged to be due in the petition. He having failed to comply therewith, this action was, in pursuance of an order of the court, brought upon his bond.

      Held, that a nonsuit, ordered on the ground that there had been no accounting by the guardian before the commencement of the action, was erroneous, and that the judgment entered on such order should be reversed.
    Appeal .from a judgment in favor of the defendants, entered upon a nonsuit directed at the Circuit.
    Prior to September 18, 1867, the plaintiff, Anna C. Milk, then an infant about six years old, was tbe owner of certain real estate in the town of Pittstown, in the county of Rensselaer. On the day above named tbe mother of the said infant signed and verified a petition to the Supreme Court, asking leave to sell the said real estate, and proposing the name of Martin Y. B. Finch, as special guardian of the plaintiff, and Lemuel Finch and Henry Sproat as sureties for such guardian. On February 4, 1868, tbe said M. Y. B. Fincb, with Lemuel Finch and said Sproat as sureties, signed and acknowledged a bond conditioned that the said M. Y. B. Finch “ should faithfully perform the trust reposed in him as the guardian of the above named infant,” and should obey tbe orders of the court, &c. On February 21,1868, tbe petition was presented to the Special Term of this court, and an order was made appointing the said M. Y. B. Fincb a special guardian for the sale of the property “ on his giving his bond in the penal sum of ten thousand dollars, with two sufficient sureties, approved by tbe court.” Tbe bond was also presented to the court, and after having been approved by it, was filed. The usual order of reference was made, and on the coming in of the report of the referee, an order was made that the estate be sold, and that the guardian should have power to. contract for the sale of the same. On February 29, 1868, the special guardian reported that he had contracted to sell the same to George E. Crapo for $8,900. The report was confirmed by the Sjiecial Term, and an order entered providing, among other things, that out of the proceeds of the sale the sum of $2,9.91.31 should be securely invested by the guardian, and that the income, or so much thereof as was necessary, should be applied to the support and education of the said infant. Thereafter the infant, by a petition dated January 30, 1879, alleging that the guardian had received certain moneys and appropriated them to his own use, applied for an order that the guardian report and render an account, and show cause why he should not pay said sum and compound interest thereon into court. An order was thereupon made on February 7, 1879, requiring the guardian to appear at a Special Term at Albany, on the 25th day of that month, to make a full report and render an account of the funds that have ■come into his hands, and show cause why he should not pay the money into court, with compound interest. On the said February 25, 1879, Finch failed to appear at the Special Term, and an order was taken by default, requiring him to pay into court the said sum of $2,991.31, with compound interest.
    On the trial of this action against the representatives of a deceased surety, the defendants moved for a nonsuit on the ground :

      1first. That the bond being executed more than a fortnight before the proceedings for the sale were commenced, was executed without authority of law, and was void, in the absence of proof that the sureties consented to its use after the order was made.

      Second. That this action against the sureties would not lie until after an accounting by the guardian, and a judgment or decree of the court fixing the amount due to his ward.
    The motion was granted.

      Oha/rles E. Patterson, for the appellant.

      Eseh Oowen, for the respondents.
   Per Curiam :

It is, we think, the better practice that a bond of the kind in question, should, be executed after the order is granted, and should refer to it. But a bond is not void because it was signed and acknowledged previously. Undertakings on attachment and appeal are executed before the attachment is issued or the appeal taken. There is nothing in the bond in question which necessarily implies that the guardian had been previously appointed. If the bond had recited that application was about to be made to appoint Finch guardian for the infant, the language of the rest of the bond would not have been inappropriate, as it now stands, “ if he shall faithfully discharge the trust reposed in him,” &c. No one would have insisted that the language must, in that case, be “ which shall be imposed,” &c. The date and acknowledgment are not conclusive evidence as to the time of delivery. The delivery is shown, by the approval and the iiling, to have been after the application had been made and granted. The bond took effect then, and is valid.

Again: the question as to the effect of an accounting by the guardian, so far as the sureties are concerned, is not before us. We have only to inquire whether the guardian, as respects himself, has accounted and been found in arrears, or has failed to obey the order of a court having jurisdiction. A petition was presented alleging that the guardian had received certain moneys and had appropriated them to his own use, and asking that he be required to account, &c. On this an order was granted, requiring him to make a full report of his proceedings and render an account of the funds which had come into his hands, and to show cause why an order should not be made requiring him to pay into court the avails of the sale of real estate, &c. The petition and order were served personally on the guardian. He failed to appear at the return day of the order. This was an admission on his part of the truth of all matters stated in the petition. It was an admission that, to the extent menticned, he had been guilty of violating his trust and of appropriating trust funds to his own use. No further accounting was necessary. The infant had claimed a certain amount to be due her, and the guardian thus admitted this and also admitted that he had appropriated the money. Thereupon he was ordered to pay the amount into court..

What further accounting need be had ? The guardian admits the receipt of so much money. That is enough to charge him; and it is of no consequence whether he received it in one sum or in a dozen. To discharge himself, he admits that he has appropriated this money to his own use. That does not discharge him. The court then orders him to pay this money into court, and he refuses to do so.

The judgment should he reversed, and there should be a new trial, costs to abide the event.

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

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


author: Leajrnbd, P. J.:

text:
    ELIHU B. SMITH and THE FIRST NATIONAL BANK OF ELMIRA, Respondents, v. JOHN T. RATHBUN and NEWTON P. FASSETT, Executors, &c. of SIMEON BENJAMIN, Deceased, and JOHN T. RATHBUN, Appellants.

      Directors of a bank, allowing it to be damaged by wrongful acts of its president— liability of, to the bank and its stockholders — when the president is not a neeessa/ry party to an action to enforce such liability — misjoinder of causes of action.

    This action was brought by a national bank aud one oí its stockholders, against two of its directors, to recover the damages occasioned by the president thereof having, in violation of his duty, lent the money of the bank, without security, and by his having borrowed, taken away and appropriated its money to his own use. The complaint alleged that the defendants knew of those acts and might have prevented them, but negligently permitted and allowed, and aided, countenanced and assisted the president to do them, and concealed the facts from the plaintiff and other stockholders.

      Meld, that the president was not a necessary party to the action.
    The defendants demurred, on the ground, that two causes of action were improperly joined, viz., one for negligence and the other for malfeasance.

      Meld, that the demurrer was properly overruled, as the complaint stated but one cause of action; that it would be impracticable in this case to clearly distinguish between those acts of the defendant which merely permitted and those which aided the president in his wrong-doing. (Wiles v. Buy-dam, 64 N. Y., 178, — distinguished.)
    The amended complaint alleged that the action was originally commenced by Smith, the stockholder, as the sole plaintiff, and that the bank had since been ordered and allowed by the court to be joined as a party plaintiff, and that it was so joined, by the amended complaint.

      Meld, that the validity and propriety of the order allowing the bank to be so joined could not be considered upon a demurrer to the complaint, as -by demurring the defendants admitted the making of the order, and there was nothing to show but that it had been made by consent or affirmed on appeal to the Court of Appeals.
    Ajppeax from an interlocutory judgment entered upon a decision overruling a demurrer interposed to the complaint.
    The amended complaint, to which the demurrer was interposed, alleged that the action “ was originally commenced by Elijah B. Smith, •as sole plaintifE, and that the Eirst National Bank of Elmira has since been adjudged by this court to be a necessary party, and has been •ordered and allowed, by an order of this court, to be joined with the ■said Elijah B. Smith, as a plaintiff in this action, and is, in pursuance •of said order, and of this amended complaint, so added, as a party plaintiff.” That the plaintiff, the Eirst National Bank, was duly incorporated, and that the plaintiff Smith owned fifty shares of its capital stock.
    “Thatfrom the time of the first organization of said bank until in •October, 1867, Samuel R. Yan Campen was its president, Simeon Benjamin its vice-president and a director, and John T. Rathbun was director thereof. That until in or about the month of October, 1869, the business of the said bank was profitable; the said shares ■of stock greatly increased in value, and became and were of the ■market value of one hundred and fifty dollars each. And on information and belief the plaintiffs further say, that in and prior to 1867, the said Yan Campon, in violation of his duty as president •of the said bank, and contrary to law, loaned from the funds of said bank to divers individuals and copartnership firms and to insolvent ■persons, without sufficient security, large sums of money, exceeding :at times to each of such persons and firms one-tenth of the capital .•stock of the bank, whereby the said Eirst National Bank sustained great losses, and was greatly injured; and that the said Y an Campen borrowed or took from the funds of said bank for his own private use, and appropriated to his Own use, large sums of money, varying from one thousand to seventy-five thousand at a time, much of which was never returned or repaid to the bank. That the said! Yan Campen, as the said Simeon Benjamin and John T. Rathbun. at the time well knew, was insolvent at the time, and unable to pay his debts; and that he, as such president, made untrue quarterly reports of the condition and resources of the bank, representing* worthless securities, or securities of little or no value, transferred by himself to the bank, to be other and valuable securities, and ,so reporting the same. And that the said Yan Campen, as such president, was guilty of other acts of misconduct, of all of which each of the plaintiffs was ignorant, and of which, as the plaintiffs are informed and believe, all, or nearly all, of the stockholders except the-defendants in this action were ignorant. Whereby, and by reason of the acts of the said Yan Campen before mentioned, the said banking association sustained great losses, and the said shares of stock became and were of little or no value. And on information and belief, the plaintiffs further say, that in and prior to 1867, the-said Simeon Benjamin and John T. Rathbun, while such officers of said bank, were informed and knew of the doing of said wrongful acts of the said Yan Campen when or about the time of their being-done; and that the said Yan Campen had thus violated, and was thus violating, his duty as such officer of the bank, and might'have prevented thfe same. That they negligently permitted and allowed him to do said acts, and aided and countenanced and assisted him in so doing, and concealed the facts from the plaintiff, Elijah B.. Smith, and other stockholders, and allowed, permitted and assisted the said Yan Campen to so draw and loan, use and waste the funds- and property of the said banking association, and to remain and act as president thereof, and thus defraud and injure the said banking association and the stockholders thereof. Whereby the said banking association sustained damages to the amount of $135,000, including-the share or damage sustained by the plaintiff, Elijah B. Smith, of $6,888.M, with interest from July 27, 1867, when dividends were last paid on said shares of stock.”
    The defendants demurred to the complaint on the ground:
    1. That the court had no jurisdiction of the subject of the¡ action.
    2. That there was a defect of parties plaintiff.

      3. That there was a defect of parties defendant.
    4. That several causes of action were improperly united.
    5. That the complaint did not state facts sufficient to constitute a, cause of action.
    The defendants had already interposed demulrers to the original complaint, which were sustained by the General Term, its decison being reported in 66 Barb., 403.
    The bant having then been joined as a party plaintiff, a hearing-was had. before a referee, who allowed an amendment to the complaint, alleging that the defendant’s testator, Benjamin, was a director as well as the vice-president of the bant, and also allowed, the defendants to demur to the complaint as so amended.
    The plaintiffs moved to strike out the demurrer interposed by the defendants, which motion was denied at the Special Term.
    On an appeal taken by the plaintiffs, this order was reversed by the General Term (13 Hun, 47), but affirmed by the Court of Appeals. (75 N. Y., 122.)
    The demurrer was then argued and overruled at the Special Term.

      H. Bocvrdmam Smith, for the appellants.

      George B. Bradley, for the respondents.
   Leajrnbd, P. J.:

This is an action by the First National Bank of Elmira, and by Smith, a stockholder therein, against one of the directors, and against the executors of a deceased director. The complaint avers-that Yan Campen, the president of the bank, in violation of his-duty, lent money of the bank without security, and borrowed, took,, and appropriated money to his own use; and did other acts of misconduct, by which the bank sustained great losses. It avers that-the said director and the said deceased director knew of these acts of the president; might have prevented them ; negligently. permitted and allowed him to do them; aided, countenanced, and. assisted him in them ; concealed the facts from the plaintiff, Smith,, and other stockholders; and allowed, permitted, and assisted said president so to draw, loan, use, and waste the funds and property •of the bank, whereby the bank sustained damage to the amount of $135,000, and the plaintiff, Smith, to the amount of some $7,000. The complaint demands judgment that the defendants be required -to pay the damages, or so much as the damages of the several shareholders may amount to, who may come in and contribute, &c.

The defendants demur.

They insist that Yan Campen should be a party defendant, .and cite Sherman v. Parish (53 N. Y., 483.) But that case is not •exactly like the present. That arose between a cestui que trust •.and a trustee.. And it is plain that the relation between the stockholders of a corporation and the directors is not precisely that of ■cestuis que trust and trustees. The directors are not the legal ■owners of the property of the corporation. And the stockholders are legal owners of their respective shares of stock. To an action hy a stockholder against a director for mismanagement and the like, the corporation must be a party. (Greaves v. Gouge, 69 N. Y., 154.) If the directors were the immediate trustees of the ■stockholders, this could not be necessary.

In another respect Sherman v. Parish is not like the present ■case. The acts of the trustee who was sued, were “ innocent in •themselves and in the orderly course of the matter.” The present ■demurrer admits that the two directors countenanced, allowed, permitted and assisted the president, Yan Campen, to use and waste -the funds. To do that was not innocent, or in the orderly course ■of the matter. Furthermore, the court held that, in that case, the ■trustee sued was not, on the facts, liable at all for the acts of his •co-trustee. Whether a trustee who assists another to waste the trust property, when made to answer, can have recoinpense from the trustee whose wrongful act he has assisted is not decided in that •case.

Yery much of the argument on the part of the defendant rests ■on the assumption that the directors are trustees, and the stockholders cestuis que trust. Thus the defendants urge that Yan •Campen, as director, was trustee, and as stockholder was cestui que .trust / and that a cestui que trust who has participated in the breach of trust must be made a party defendant. Now, while we •often speak of the officers of a corporation as having trusts to dis■charge, we must remember that this phrase does not mean that tthey are trustees, in the accurate sense of holding a legal title to property of which another is the beneficiary. The officers are the .•agents of the corporation. (Smith v. Rathbun, 66 Barb., at 409.)

They insist further that Yan Campen must be a party, because, as a stockholder, the recovery would be for his benefit, and hence he would retain what he had taken, and, besides, would recover, as a stockholder, his ratable proportion from the defendants. "We need not examine here what amount might be recovered in this action from these defendants. But whatever that amount might be, it is plain that, as long as Yan Campen should remain indebted to the bank, he could not share in the recovery without paying what he owed. And to illustrate the incorrectness of the argument, suppose that two stockholders severally owed a bank on their notes, and one of them was insolvent. If the bank sued the solvent debtor, it would not lie with him to insist that the other debtor ought to be a party, on the ground that, if not, he would have the benefit of the recovery, while himself a debtor. The question here is whether the defendants have, by their acts, so injured the corporation that they are liable to it for the injury sustained.

The defendants insist that the other directors should be made parties defendant. To this it may be said that the pleadings do not show that there are other directors. Admitting that the National Bank act requires five, it does not follow that there was that number. And, again, the other directors may not, have aided or countenanced the acts of Yan Campen. , .

The most serious question, however, as it seems to us, arises on the matter of parties plaintiff. The complaint, as amended, alleges that the action was commenced originally by Smith, as sole plainxiif, and that the bank has since been ordered and allowed by the court to be joined as a party plaintiff, and is so joined by the amended complaint.

Now the action could not be maintained by Smith as sole plaintiff, because the right of a stockholder to sue in such cases depends upon the refusal of the corporation to sue. The right of action is’ primarily in the corporation, and it is only when the corporation refuses to sue, and for that reason only, that the stockholder himself-can bring an action. (Greaves v. Gouge, ut supra.) And it is-said there that the refusal of the corporation to sue is an essential element of the cause of action, and the complaint is defective and insufficient without it. It therefore follows that when the action was commenced there was not merely a defect of parties in the non-joinder of the corporation, but there was a defect as to the cause of action in the absence of a request to the corporation to sue, and its refusal. That is to say, Smith had not merely neglected to join all necessary parties (in omitting the bank), but he had not put himself in a position to have a right of action. In such a case tbe court cannot help him by joining to one who has not a right of action another plaintiff who has. This is but common sense, and is established in Davis v. Mayor (14 N. Y., 506). The defendant urges, therefore, that the demurrer should be sustained as to the plaintiff Smith. It may be argued, however, that, after all, the right of action in favor of a stockholder and that in favor of the corporation are not so distinct that the principle of the last case should apply. But we do not think it necessary to pass upon that question, because it seems to us that the validity of the order is not put in issue by the demurrer. If we admit (for the sake of the argument, and on the authority of the case last cited) that the court would have had no right, against the defendant’s objection, to add the bank as plaintiff, still the difficulty is that the demurrer admits that this has been done. For anything that we know the order was made by consent, or it may have been appealed from and affirmed by the Court of Appeals. For the decision in Davis v. Mayor is twenty years old. And therefore we do not think that on the demurrer-we can inquire as to the validity of the order for adding the bank as plaintiff. It must stand as a valid act. And we must, on the consideration of the demurrer, treat the parties plaintiff substantially as if the action had been commenced by both.

The defendants insist that the complaint is demurrable as to the bank because it is filed in behalf of cesfuis que trust, who have concurred in the breach of trust. If that argument is sound, a corporation has no right to recover against any officer for fraud or embezzlement, if that officer is a stockholder; for the reason that ns a stockholder he isa cestui que trust, and therefore has concurred, in his own wrong-doing. "We do not think there is much force in this argument, it could hardly be put forward, except, under the misapplication of the terms trustees and cestuis que trust, above noticed. Neither the corporation nor the directors hold the exact character of trustees, nor the stockholders the exact character of ■cestuis que trust.

The misjoinder of parties plaintiff was not a ground of demurrer when the issue was framed. (People v. Crooks, 53 N. Y., 648.) •So that, if a cause of action is shown, the demurrer cannot be sus • tained, though Smith be an unnecessary party.

The defendants insist that two causes of action are improperly joined; the one for negligence and the other for malfeasance, and they cite the case of Wiles v. Suydam (64 N. Y., 173). The court, in that case, commenting on the language of section 167 of the Code, says that it is impossible to lay down a general rule which will serve as an accurate guide for future cases. In the present case the alleged liability of the defendants arises upon what they did, or failed to do, in respect to Yan Campen’s wrongful acts, in misusing the property of the bank. Now it is plain, on a moment’s thought, that if Yan Campen did thus misuse the property of the bank, it would be almost impossible to draw a distinct line between acts of the defendants which would be only permitting, and those which would be aiding, his wrong-doing. One who permits, when he can prevent, and ought to prevent, assists. In the case of Wiles v. Suydam, there were two entirely distinct acts, charged as grounds of recovery; one a- neglect to lile a certificate that the stock had been paid in; the other a neglect (which could only be predicated of a trustee) to file the annual report. But a culpable neglect to prevent a thief from taking property .left in one’s charge, is an assistance to the theft.

The cpiestion in this case must be, whether there is anything .alleged in the complaint which, if proved on a trial, would authorize any recovery, to any amount, against the defendants. After a consideration of the very extended argument of the defendants, we think that there is; and therefore that the judgment should be affirmed, with costs, with leave to withdraw demurrer and answer over, on payment of costs in twenty days. But in coming to this conclusion we do not pass on the question whether the bank has-been properly made a party plaintiff.

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

Judgment affirmed, with costs, with leave to* withdraw demurrer and answer over on payment of costs in twenty days.