author:
      Dykman, J. :
     Pratt, J.

text:
    ALBERT DAY, Appellant, v. THE TOWN OF NEW LOTS, Respondent.

      Action for money had and received — when it lies against a town for money collected on <m invalid assessment.

    May 3,1872, the plaintiff purchased certain lots in the town of New Lots, the defendant, at a sale under a judgment of foreclosure of a mortgage, which judgment directed that all taxes and assessments should he paid hy the referee, out of the proceeds of the sale. There were then two unpaid assessments, one of $2,874.39 for improving Atlantic avenue, laid under chapter 217 of 1869, and chapter 619 of 1870, and one of $1,499.93, for opening Atlantic avenue. The report of the referee showed a surplus of $2,497.18, which was paid over to the county clerk. February 1, 1874, the collector of the said town collected and received from the said fund the sum of $2,197 82, under a warrant issued hy the hoard of supervisors of Kings county, to collect the aforesaid first mentioned assessment, and the said money was paid over to the county treasurer, who used the same in paying off bonds, issued hy the town of New Lots under a special act passed to pay the cost of the said improvement.
    In 1878 this first assessment was held hy the Court of Appeals to he invalid, because of the jmconstitutionality of the laws under which it was levied. Subsequently the plaintiff was compelled to pay, over and above the price paid to the referee on the foreclosure sale, the amount of the aforesaid second assessment of $1,499.98.

      Held, that he was entitled to recover this latter amount, in an action brought against the town for money had and received. (Pratt, J., dissenting.)
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court, without a jury.
    This action was brought by the plaintiff, who had purchased certain premises in the town of New Lots at a foreclosure sale, on May 3, 1872, to recover from the defendant money alleged to have been received hy it from him, in payment of an invalid assessment. The money was alleged to have been received by the county treasurer from tbe town collector, who took it on February 1, 1874, from the county clerk, under a warrant issued by tbe board of supervisors of Rings county.

      B. O. Chetwood, for tbe appellant

      John H. Bergen, for tbe respondent.
   Dykman, J. :

This is an action for money had and received from the plaintiff for the use of the defendant, under the circumstances now to be specified. The plaintiff became the purchaser of certain premises on Atlantic avenue, in the town of New Lots, at a judicial sale, by a referee, under a judgment in the Supreme Court, in an action to foreclose a mortgage. He paid the purchase-money and received his deed.

The judgment under which the sale was made contained the usual direction for the payment of taxes and assessments out of the purchase-money by the referee. Among the liens on these premises was an assessment of $2,874.39, laid to raise money for the improvement of Atlantic avenue, in pursuance of chapter 217 of the Laws of 1869, and chapter 619 of the Laws of 1870.

The provisions of those laws, for the expenses of regulating and grading the avenue, were declared unconstitutional, and the assessment laid thereunder was declared void by a decision of the Court of Appeals in the case of Stuart v. Palmer (74 N. Y., 183).

To provide for the payment of the expenses of the improvement in anticipation and advance of the collection of the assessments, the bonds of the town of New Lots were issued obedient to the mandate of the legislature in the two special acts referred to above. There was also a valid assessment against the property purchased by the plaintiff for $1,499.93 for the opening of Atlantic avenue.

It is found by the trial court that there was a surplus arising from the sale of $2,497.18, which was deposited by the referee with the clerk of Kings county, and that the collector of taxes of the town of New Lots received therefrom the sum of $2,197.82, under a warrant issued to him by the supervisors of Kings county to satisfy the invalid assessment on the premises purchased by the plaintiff, which sum was applied by the county treasurer to the payment of the bonds theretofore issued by the supervisor of the town of New Lots, as before stated.

The valid assessment of $1,499.93 was for taxes of 1871, and three installments of the assessments for opening Atlantic avenue, and they were, with others, received by the State as security for $51,000, advanced by the State to the county treasurer, and the remainder of the bonds of the town of New Lots were paid with that money so advanced by the State.

In November, 1883, the plaintiff paid to the State comptroller the sum of $1,499.93 for-the taxes and valid assessment against his property above his bid for the property. This, as has been seen, ■was in part payment of the sum of $51,000 advanced by the State, which had been used to retire the bonds of the defendant, so that, in fact, the money paid by the plaintiff went to replace money which had been used to discharge the liability of the town, and •this action is for its recovery. The judgment was adverse to the plaintiff in the trial court, and he has appealed therefrom. It has been seen that the warrant issued to the collector by the supervisors was for the collection of the invalid assessment for regulating and grading Atlantic avenue, through the town of New Lots, and that under it he received the surplus money arising from the sale and deposited with the county clerk by the referee who made the •sale, and, further, that the county treasurer applied these moneys to the payment of the bonds of the town of New Lots. The invalid assessment was therefore paid by the plaintiff, and after-wards he was required to pay the valid assessment.

This action is not for the recovery of the money paid on the valid assessment, but for the money misappropriated to the payment of the invalid assessment, and the sum of $1,499.93 measures the recovery because the plaintiff has been compelled to pay that sum above his bid for the property by reason of the misapplication of the money, and the town has received the money because it was applied to the payment of the town bonds.

The defendant received the benefit of the payment in the reduction of its bonded debt. It is insisted for the defendant that the town bonds paid by the county treasurer were not issued for any town purpose, and that the money applied in their payment was not received by the town, and that its receipt and application by the town and county officers creates no liability against the town, but we cannot yield assent to the proposition. It was within the competence of the legislature of the State to command the town to issue these bonds, and when they were issued they were the obligation of the town. It is referable to the legislative power of taxation, which is unrestrained in this State.

The imposition of taxes is an attribute of sovereignty, and this legislative power of taxation is unlimited and subject to no judicial control or review, either in respect to the object, the burden or the persons or property to sustain the same, or its mode of imposition or collection. (People ex rel. Griffin v. Mayor, etc., 4 Comst., 419; Brewster v. Syracuse, 19 N. Y., 118.) Under such unlimited power a tax may even be imposed to pay an expense incurred under an unconstitutional law. (People v. Haws, 34 Barb., 69.) It matters not that town officers are not agents of their town, nor that the defendant was the enforced agent of the State to make the bonds retired by the plaintiff’s money, nor that the assessment for the improvement was-invalid. (Horn v. Town of New Lots, 83 N. Y., 105.) The bonds were valid though the provisions in the law requiring their issuance was illegal and unconstitutional. (Moore v. The Mayor, 73 N. Y., 238.) The money sought to be recovered was applied in payment of the bonds of the defendant, and they were a debt and charge against the town, and by their payment a liability of the town was discharged and an action may be maintained against the-town-by the plaintiff for money had and received by the town and applied to its use. (Hathaway v. Cincinnatus, 62 N. Y., 434.)

The whole examination discloses the presence of all the elements essential to a cause of action for money had and received. The money sought belonged to the plaintiff and was actually appropriated to the use of the defendant. The amount paid was above the liability of the plaintiff, and was not paid voluntary. Where the fault was is quite immaterial; the plaintiff paid the money and the defendant received the benefit of the payment, and equity réquires the return of the money.

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

Barnard, P. J., concurred.

Pratt, J.

(dissenting):

It was not the fault of the defendant, the Town of New Lots, that the plaintiff was compelled to pay money which he ought not to have paid, or that the surplus arising from the foreclosure sale was not properly disposed of. The money which the plaintiff paid to the comptroller was paid upon a valid assessment, and none of that money went to the town. It does not follow because the surplus was improperly applied that a cause of action arose in favor of this plaintiff. The surplus did not belong to him ; he had an interest that the liens should be extinguished before he took title, and if there was a failure of duty to pay off the liens the plaintiff’s-remedy must be sought against those who failed in .that regard. The only complaint that the plaintiff can make is, that the proceeds-of the sale were not properly applied to the payment of the liens. This was certainly not the fault, of the defendant or any officer . authorized to act for the defendant; but the contention is, that a part of this surplus was applied in the payment of bonds which had been issued by the town, and therefore that the town was-benefited to that extent. But I cannot see upon what principle it follows that a cause of action arises in favor of this plaintiff against the town. The money was surplus, and jprima facie belonged to-the owners of the equity. Again, this surplus instead of being issued to pay off valid assessments, was deposited and was seized upon by the collector of the town, acting not for the town, but acting under a designation by the legislature in pursuance of acts 1869 and 1870, relating to local improvements out of which the liens arose. No part of the money in question was ever received by the town as such, or used by the town, and the mere receipt of it, upon the authority of the statutes before mentioned, does not create any liability on the part of the town. The money for which this suit is brought was paid by the plaintiff upon a valid assessment. The argument is, that he would not have had to pay this-assessment if the plaintiff and the referee had done their duty upon the foreclosure decree; if that is the fact, then his remedy is against those parties. The town as such never authorized its collector to levy upon any of these surplus moneys, and has never ratified any such act and never received any of the money. There is no principle upon which a town may be made an involuntary debtor in any greater respect than an individual. The mere fact that the legislature designated certain town officers as agents to carry out acts of local improvement, did not constitute them agents of the town, or in any respect make the town responsible for any default or malfeasance of those officers in the performance of their duties. This-is not a case where the money of a party has been taken and appropriated, and the party ratifies the taking and seeks to follow the fund as a trust, for the reason that it was not his money that was taken. The proposition is that another person’s money was taken and unlawfully appropriated, by-reason of which he has been obliged to pay a valid assessment which should have been paid by the same money. The parties liable must be those who performed the act by which the plaintiff suffered. From the facts in this case it appears that the surplus moneys were paid over to the clerk of Kings county; one Palmer, then collector of (?he defendant, under a warrant issued by the board of supervisors of Kings county, received those surplus moneys from the clerk and paid the same over to the county treasurer of Kings county. It was not paid over to the county treasurer to discharge any debt of the defendant, or as any part of the defendant’s taxes or assessments for that year, but it was so paid over by Palmer and received by the treasurer under the authority of the special acts of the legislature, chapters 217 of the Laws of 1869 ; 619 of the Laws of 1870, and 56 of the Laws of 1873. The county treasurer afterwards paid and retired certain bonds of the town of New Lots, by paying the money directly to the holders of such bonds. The bonds in question were originally issued by the supervisor of the town under the authority of chapter 619 of the Laws of 1370, and could only be used in payment of the expenses of improvements instituted under the said act, and the assessment was directed to be levied for the purpose of paying them. They were not town bonds in the •exact acceptation of that term, though they were issued by the supervisor in the name of the town. They were issued by direction of* the legislature for a. special purpose and were and could •only be used for that purpose by the terms of the act. They were not issued for any town purpose, nor wei e any of the proceeds used for any purpose of the town. It was a separate and distinct scheme of local improvement to be entirely canned out and completed by the proceeding provided for by the acts above referred to, and with which the town of New Lots had nothing to do, although some of its officers were ex-offioio, used as instruments by the legislature to -carry out the scheme of the act.

Upon principle, I cannot see that the town of New Lots is liable for the acts of the collector of taxes in collecting and receiving the money deposited as surplus and paying it to the county treasurer, or how it is liable for any act of the county treasurer in appropriating such money to the payment of the bonds in questions. (Swift v. City of Poughkeepsie, 37 N. Y., 511.) In what the collector and county treasurer did they acted under those special statutes, and did not perform any function in their official capacity for the town, but they received and paid out the money in the performance of their duties as agents of the State, to carry out those local improvements, and the town, as such, never received any part of the money. (Lorillard v. Town of Monroe, 11 N. Y., 392; People ex rel. Van. Keuren v. Board of Town Auditors, 74 id., 311.)

Upon no ground can this action be sustained.

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


source: Caselaw Access Project

author: Pratt, J.:

license: Public Domain

text:
    SAMUEL KUGELMAN, Respondent, v. ABRAHAM D. RHODES, Appellant.

      County Court — orders resting in its discretion cure not remewdble at General Term.

    An order made in a County Court, refusing to set aside an inquest and to permit the defendant to answer, is not reviewable by the General' Term, as the granting or refusal of such an order rests in the discretion of the County Court, and the discretionary decisions of one tribunal are not reviewable by another.

      Btebbins v. Cowles (30 Hun, 523) followed.
    Appeal by the defendant from an order made by the County Court of Queens county.

      W. J. Stanford, for the appellant.

      Isaac Kugelmcm, for the respondent.
   Pratt, J.:

This is an appeal from an order made by the County Court in Queens county, refusing to set aside an inquest and permit the defendant to answer. Aside from any question of the merits of the application, we think this case falls within the principle laid down in the case of Stebbins v. Cowles (30 Hun, 523). It was discretionary with the County Court whether to grant the order or not. The rule is, that the decisions of one tribunal resting in discretion are not reviewable by another.

There is a broad distinction between an appeal seeking to review the discretion of the County Court and a discretion exercised at a Special Term of the Supreme Court. In the latter case the discretion of the Special Term is reviewable by the General Term, but the County Court being an independent tribunal, this court cannot interfere with the exercise of its discretionary powers. But upon the merits we are unable to say there was any abuse of discretion in the County Court, as the defendant was guilty of very great laches.

The order should be affirmed, with costs and disbursements.

Present — Barnard, P. J., Dykman and Pratt, JS.

Order affirmed, with costs and disbursements.


text:
    THE CITY OF POUGHKEEPSIE, Respondent, v. ABRAHAM WILTSIE, Appellant.

      City of Poughkeepsie — duty of the treasurer as to the collection of taxes — he com receive no compensation in addition to sala/ry — 1876, chav. 215.
    The charter of the city of Poughkeepsie made it the duty of the treasurer of the city to collect “all taxes and assessments to be collected within the limits of the city,” and to deposit all moneys received in such banks as might be designated by the common council of the city. For his services he was to receive such sum as the common council should direct, not exceeding $1,500 a year, and he was not to receive for his services “ any other fee or reward whatever.”
    The charter further provided that the per centage on taxes in arrear “in all cases, when collected, shall go and belong to the city.”

      Held, that it was the duty of the treasurer to pay over to the city all fees and interest collected by the treasurer upon the State and county, as well as those collected upon the city taxes, and that the question as to whether the city was entitled to retain the fees or interest as regards the county was one which did not concern the treasurer.
    Appeal by the defendant from a judgment, entered upon the trial of this action by the court without a jury.

      O. D. M. Baker and R. A. Nelson for tho appellant.

      Robert F. Wilkmson, for the respondent.
   Pratt, J.:

The defendant was the treasurer of the city of Poughkeepsie. His duty was to collect “ all taxes and assessments to be collected within the limits of the city.” It was therefore as much his duty to collect the State and county tax as it was the city tax or an assessment for a local improvement. (See. 1, chap. 215, Laws of 1876.) For those services his compensation was fixed. It was to be such sum as the common council shall direct, not exceeding $1,500 in each year; ” and it is further provided that he shall not receive for his services any other fee or reward whatever.” (Sec. 2, same Act.) ' It is impossible to construe these sections as referring solely to his compensation for collecting the city taxes and performing the other duties of city treasurer. The legislature has created the office and fixed its duties and compensation. It is not in terms prescribed that the treasurer shall collect the State and county tax, but it is prescribed that he shall collect “ all taxes to be •collected within the limits of the city.” This includes the State .and county tax, and the duty of collecting it therefore belongs to the office. For this duty there is to be no extra compensation, but the services are paid for by the salary fixed by the common council; and all other fees are forbidden. The fees to be added to the taxes ■“ shall go and belong to the city.” (Sec. 1.) It is clear, therefore, that as to the fees collected on the State and county taxes the defendant has no claim to them; they belong to the city. As to the interest collected, it is unnecessary to decide here whether it belongs to the city or to the county. It was the defendant’s duty to pay it over to the city. The city is made the agent for the collection of the tax ; whether it owns the interest collected itself, or whether it received it only as the agent of the county, is immaterial. The defendant must pay it to the city, and on his failing so to do, the city may sue for it.

As to the item of $201 shortage upon the city tax, I think the defendant is liable for it. There is no evidence in the case that would justify a finding that Daniels embezzled this money. The deficiency exists between the amount collected and the amount deposited. In the absence of any evidence showing how the deficiency arose, the defendant must make it good. The presumption is, that it was paid to him and he has failed to pay it to the city.

There is, however, an apparent error in the amount of the judgr • ment. The per eentages are stated to amount to $619.84. The amount stated at folios 39 and 40 of the case, and again repeated at folios 71, 72, 73 and 74, foot up to $519.84, an apparent error of $100. This error may be in the printed case only, or it may be an error in the original figures. If the latter is tho case, the judgment must be reduced, and as so reduced affirmed, with costs.

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

Judgment affirmed, with costs.


text:
      In the Matter of the NASSAU CABLE COMPANY.

      Report of commissioners deciding as to the necessity of constructing a surface railroad a city street — power of the General Term to send the case hack for a further hearing —1884, chap. 252.
    Where the commissioners appointed under chapter 252 of 1884, to determine whether or not a surface railroad should be constructed in the streets of a city, have reported, as required by section 6 of the said act, to the General Term by which they were appointed, that the road should not he constructed, tha General Term has no power, in the absence of proof of fraud or manifest irregularity, to send the case back for a further hearing, or to appoint new commissioners to rehear the matter.
    If it appears that the commissioners have refused to hear the parties, or to take any evidence, or that the report is such as to show fraud or irregulai-ity, tha General Term may send the matter back to the commissioners for a further hearing; but an erroneous ruling by the commissioners in excluding testimony ¡ or in admitting immaterial or even incompetent or hearsay evidence, will not warrant it in so doing.
    Motion to send back for further action 'the report made by the commissioners appointed to determine whether the railroad proposed to be built by the Nassau Cable Kail way Company of Brooklyn ought to be constructed and operated, or to appoint a new commission to determine the same.

      Homer A. Nelson, for the Nassau Cable Company, petitioner.

      B. B. Silliman cmd others, property owners, opposed.
   Pratt, J.:

This proceeding was instituted under chapter 252 of Laws of 1884. Section 5 of that act provides that a General Term of the Supreme Court shall appoint commissioners who, under section 4 of said act, shall determine whether such road ought to be constructed.

Section 6 thus provides: The said commissioners shall determine, after such public hearing of all parties interested, whether such railroad ought to be constructed and operated, and shall make a report thereon, together with the evidence taken, to said General Term, and their determination that such road ought to be constructed and operated, confirmed by said court, shall be taken in lieu of the consent of the property owners before mentioned.”

There seems to be no occasion for action by the court, except to confirm a favorable report or to refuse confirmation. It is made a condition precedent to a right to construct such railroad for the company, to either obtain the consent of the property owners or a favorable report of commissioners confirmed by the court. 11 is plain, therefore, that there is nothing before the court to be confirmed, as the report is not favorable.

The next question relates to the power and propriety of sending the report back for future hearing, or the appointment of other commissioners to rehear the matter, and this question. depends in a large measure upon the nature and duties of the commission appointed by the court.

If these commissioners constitute a judicial tribunal, bound to proceed according to technical rules in hearing the parties, then palpable errors in ruling upon questions of evidence, or refusing to regard the weight of evidence, would be just cause for setting aside the report and sending the matter back to the same or other commissioners. But if the statute was intended to provide for a tribunal like a town meeting or a legislative committee, not bound to regard rules, of evidence strictly, then the objections here raised will not avail to petitioners.

I think the latter view is the correct one. The commissioners can take into consideration all matters material to determine-whether the road ought to be constructed as proposed. They may view the matter, and their eyes and judgment, as men, may testify and furnish grounds upon which to base their determination. But they must give all parties interested an opportunity to be heard as provided in the statute, and conduct the proceedings in a regular and orderly manner.

Inasmuch as their report requires confirm ..tion to give it validity, there is an implied power granted to the court to determine whether the commissioners have performed their dut:es under the statute. In case it should appear that commissioners had refused to hear the parties or to take any evidence, or the report was such as to plainly show fraud or irregularity, to hold that it could not be, sent back would deprive the petitioner of a statutory right. An •erroneous ruling in excluding testimony or in admitting immaterial or even incompetent or hearsay evidence is not sufficient to warrant sending a case back for future hearing. All that the commissioners passed upon was the precise application as made, and all that need be said upon the subject is that they have failed to make a favorable report, and the same is not in any manner impeached for fraud or irregularity. The commission was required to pass upon the petition as a whole and they have done so. Whether it was competent for the commission to decide upon •each street separately we are not now called upon to decide ; all that need be determined is that it has not done so, and that having failed in so doing is not error calling for any action by this court.We do not deem it necessary to advert to the assignment of various ■errors committed by the commissioners, or to discuss the conclusions -of fact which it is claimed ought to have been found.

All we decide is that in our view there is nothing before the ■court calling for any action as the report is not favorable, and no .such fraud or irregularity is shown as to warrant sending the report back.

Motion denied, without costs to either party.

Present — Barnard, P. J\ ; Dykman and Pratt, JJ.

Motion to send back report for further action denied, without costs to either party.


author: Dykman, J.;

text:
    FISK WALLACE, Appellant, v. JOHN DEVLIN and Others, Trustees of School District No. 6, in the Town of Gravesend, Respondents.

      Contract for services — when a renewal of the contract for a like term is presumed from a continuance in the service after the time first agreed upon.

    Appeal from an order of the county judge of Kings county, setting aside a verdict in favor of the plaintiff and granting a new trial.
    The plaintiff in this action was employed to teach the common ■school in school district number six, in the town of Gravesend, in Kings county, for one year from the first day of December, 1879, with a proviso for his discharge at the end of three months if his services proved unsatisfactory. That contract was executed, and the plaintiff taught the school for a year, until December 1,1880, and then, without any new contract being made, he continued to teach the school for another year, and until the seventh day of June, 1882, when he was requested to resign before June fifteenth, and make his resignation effective June thirtieth of the same year. He declined to comply with that request, and claimed, under his contract, that he could not be discharged without cause until the end of the year. Thereupon he was discharged by a written notice from the trustees, which indicated that they deemed it advisable to make a change, because they had received numerous complaints. The salary of the plaintiff was $800 a year, and he was paid each month $66.66 down to June 30,1882. After the expiration of the year the plaintiff commenced this action for the recovery of the damage he sustained by the discharge, and claimed the sum of $333.33, the unpaid portion of the year’s salary. In their answer the defendants set up the incompetence of the plaintiff, and also that he was employed by the month.
    The General Term, after holding that the verdict of the jury, finding that the conduct of the plaintiff had not been such as to justify the trustees in discharging him, was sustained by the evidence, said: “ On these undisputed facts the law determines the rights and obligations of the parties, and the rule is that where one is hired for a year, and continues in the service after his term has expired without any new contract, the first contract is renewed by the acquiescence of the parties for another year. The continuance in the employment of the hirer, with the consent of the latter, after the time specified in the contract being equivalent to a new hiring for the same time on the same terms. ( Vail v. Jersey L. F. Manufacturing Co., 32 Barb., 564; Greer v. The Peoples Telephone, etc., Go., 50 Supr. Ot., 517.)
    Such being the legal attitude of the parties, the plaintiff could only be discharged in June, 1882, for cause, and so the jury was instructed. It follows that after the expiration of the year the plaintiff could recover of tüc defendants the damages he sustained by the wrongful discharge, and they are measured by the amount stipulated to be paid. It is true they may be reduced by showing that the plaintiff obtained employment in the meantime, or that employment might have been found, but that must be affirmatively shown by the defendants. (Oostigem v. The Mohawk Co., 2 Denio, 609; Howard v. Daly, 61 N. Y., 362.) No attempt was made to diminish the damages in that way, and the plaintiff testified that he could find no employment during the remainder of the year, and that he sought it in vain. We therefore reach the conclusion that the trial judge committed no errors on the trial ; that he afforded the proper instructions to the jury, and that the resulting verdict was in accordance with the rules of law and the principles of justice ; but that his order which set aside the verdict and awarded a new trial is erroneous and should be reversed, with costs, and that the plaiutiff should have judgment upon the verdict rendered by the jury, with costs.

      Tunis G. Bergen, for tire appellant.

      T. C. Croni/n, for the respondents.
   Opinion by

Dykman, J.;

Barnard, P. J., and Pratt, J., concurred.

Judgment of County Court granting new trial reversed, and judgment granted plaintiff on the verdict, with costs of this appeal.


author: Daniels, J. : Davis, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HARVEY M. MUNSELL v. THE COURT OF OYER AND TERMINER.

      Misconduct of a juror — when the court cannot punish it as a criminal contempt — Code of Criminal Procedure, secs, ill, 415 — Penal Code. sec. 73— Code of Civil Procedure, sec. 8, sub. 3 — meaning of word “mandate.”
    Upon the trial of one Short for a criminal assault, the jury rendered a verdict of acquittal, which verdict was inconsistent with the evidence as recapitulated in the charge of the judge presiding at the trial. During the trial one of the jurors, without the permission or suggestion of the court, went, during a recess, to the premises where the assault was alleged to have been committed, for the purpose of examining tjiem and so acquiring information not furnished by the evidence submitted to the jury. The judge had not, upon the adjournment of the court, admonished the jury, as required by section 415 of the Code of Criminal Procedure, that it was their duty not to converse among themselves on any subject connected with the trial, or to form or express any opinion thereon, until the case was finally submitted to them.

      Eeld, that although the juror was guilty of a misdemeanor under section 73 of the Penal Code, yet he was not guilty of a criminal contempt for which he could be summarily punished by the court.
    That the word “mandate,” as used in subdivision 3 of section 8 of the Code of Civil Procedure, authorizing the court to punish for a criminal contempt a person guilty of a willful disobedience to “ its lawful mandate,” means only a written direction or order. (Per Daniels, J.)
    That it includes a verbal direction or order. (Per Davis, P. J.)

      Writ of Certiorari to review proceedings of the court by which the relator was directed to be imprisoned for the period of thirty-days, and to pay a fine of $250, for a contempt of court.

      Ira Shafer and John Vincent, for the relator.

      Ambrose R. Purdy, for the respondent.
   Daniels, J. :

The relator was a member of a jury drawn for the trial of an indictment against Richard Short' for a criminal assault. The indictment was tried in the Court of Oyer and Terminer during the-present month, and the trial resulted in the acquittal of the defendant. As the evidence has been recapitulated in the opinion of the learned judge presiding at the trial, the verdict appears to have-been inconsistent with the facts established by it, and that was believed to have been in part brought about by the misconduct of the relator.

During the progress of the trial certain diagrams were used te exhibit the premises where the assault had been committed, and the relator without any liberty or suggestion on the part of the court, repaired to the premises for the purpose of observing them and acquiring information in that manner not supplied by the evidence submitted to the jury. His conduct in this respect was highly reprehensible and deserving of the censure and condemnation-pronounced in the opinion of the justice presiding over the court of Oyef and Terminer. It exhibited the mind of the juror not to-have been in that impartial condition which was necessary to enable him, in compliance with the oath that had been administered to him, to decide the case according to the evidence, and that his disposition was to secure other and additional information apparently for the purpose of officiously aiding him in the disposition of the case. This was a gross violation of duty upon his part and of the spirit and intent of the oath which he had taken, rendering the verdict of the jury irregular and possibly authorizing the court to set it aside. But this misconduct, reprehensible as it was, did not subject him to punishment for a criminal contempt, and that was the punishment imposed, unless some warrant shall be found in the statutes of the State, subjecting him for it to such punishment. Whether statutory authority j including the case as it was presented by the-proofs before the court, can be found which will authorize the imposition of this punishment, was not considered in the discussion of the case by the learned judge presiding at the trial.

It was rather assumed, as it plausibly might be, that the authority existed because of the misconduct of the juror and the necessity for its correction by summary punishment. It was deemed proper, therefore, to apply it to his case, not only adequately to punish his-own misconduct, but to protect the administration of justice from miscarriage by means of similar or other misconduct of jurors in other cases. The punishment pronounced upon the relator was the extreme sentence provided by section 9 of the Code of Civil Procedure, for the punishment of a criminal contempt, and the point to be determined' now is whether it was established by the proof produced before the court that this offense had been committed by the juror. It has been urged, that it was so committed, for the reason that he had no right to proceed to view these premises without the liberty of the court, and none to receive any communication- or information relative to the matter pending before him, except according to the regular course of proceeding upon the trial. These restraints upon jurors have been provided by section 411 of the Code of Criminal Procedure and section 78 of the Penal Code. But it has not been declared in either section that a violation of the restraints so provided for by a juror should constitute a contempt of the court in which he may at the time be serving. The section first referred to prescribes no punishment whatever for violating its implied prohibition, that the juror shall not view the premises without the direction or assent of the court; and for violating the section secondly referred to, it has been declared that the juror shall be guilty of a misdemeanor, and that is the only consequence declared to result from his irregular and unlawful conduct in the violation of this section. It has also been provided by section 415 of the Code of Criminal Procedure that the jurors shall be admonished at every adjournment not to converse among themselves on any subject connected with the trial, or to form or express-any opinion thereon until the cause is finally submitted. But this section has not declared that jurors who may contravene its provisions shall be liable to be punished in proceedings by way of criminal contempt. The duty imposed by each of these sections is exceedingly important for the preservation of the impartial state of the juror’s mind during the progress of a criminal trial, and too much care cannot be taken to ensure the observance of the directions contained in these provisions of the statutes.

But it has been the policy of the legislature of the State for many years to clearly define the cases in which persons may be punished for criminal contempts. In civil eases, where misconduct has been made the subject of punishment by way of contempt, the provisions of the law have not been so explicit, but they have placed the courts at liberty, in cases not expressly provided for, to award such punishment where it has been usually adopted and practiced in a court of record to enforce a civil remedy of a party to an action or special proceeding, and where it may be required to protect the right of a party. (Code Civ. “Proc., § 14, sub. 8.) But this extended right of proceeding has been expressly confined to such misconduct as may defeat, impair, impede or prejudice a right or remedy of a j>arty to a civil action or special proceeding, and it excludes cases of misconduct arising in the course of criminal proceedings which are to be punished as criminal contempts. That misconduct has been otherwise provided for by section S of the Code of Civil Procedure, and by that it has been declared that “ a court of record has power to punish for a criminal contempt a person guilty of either of the following acts, and no others.”

This language has been made use of to include the class of cases in which misconduct may be punished as a criminal contempt, and to exclude all other classes of misconduct from the range of such punishment, and such is its effect with the exception of cases after-wards added by the provisions of the Code of Criminal Procedure.

These provisions are contained in sections 243, 350 and 619; but they include no other proceedings or cases than may be made out for the punishment of misconduct of a grand juror, or of a party obtaining an order staying proceedings from one judge, after an application for it has been denied by another, or of a witness for disobeying a subpoena or refusing to be sworn or testify in a criminal ease. Neither of these sections includes the case of the relator, or of misconduct of the nature of that charged against him in the course of these proceeding;. Hut the sole and only authority for proceeding against and punishing him criminally for viewing the premises without tlie leave of the court, is contained, if it exists at all, in subdivision 3, section 8 of the Code of Civil Procedure, already mentioned. This section consists of six subdivisions, but the third is the only one having any possible relation to the misconduct of this juror, and that subjects a person to punishment by the court for a criminal contempt “ for willful disobedience to its lawful mandate.” This word mandate is of quite recent introduction into the' laws of the State, and came into use by the enactment of the Code •of Civil Procedure, and a definition of it has been given by subdivision 2 of section 3343. By this definition it has been declared •that “ the word ‘ mandate ’ includes a writ, process or other written ■direction issued pursuant to law out of a court, or made pursuant to law, by a court, or a judge, or a person acting as a judicial officer, •and commanding a court, board or other body, or an officer or other person named or otherwise designated therein, to do or refrain from doing an act therein specified.” By this definition the word includes only such commands or directions as may be made in writing. For the writ or process mentioned in it must necessarily be in writing, and the other directions included are mentioned as written 'directions. And that this subdivision is to be so understood and construed is manifest from the first paragraph of the section containing it. For by that it has been declared that “in construing this act the following rules must be observed, except where a contrary intent is expressly declared in the provisions to be construed, or plainly apparent from the context thereof.”

And one of the rules so referred to, is that which has already been mentioned defining the signification of this word “ mandate.” No contrary intent within this language concerning the meaning ■has been declared in any portion of section 8 of the Code of Civil Procedure. Neither is the existence of any such intent apparent from that section, or subdivision 3, or any section preceding or following it, and the result accordingly is that the mandate mentioned in subdivision 3 of section 8, will include no more than a writ or process, or some other direction made in writing, and no such direction was given by the court to the jury requiring them to abstain from, or avoid, viewing these premises, and there accordingly could be no willful disobedience to any lawful mandate of the 'court upon this subject by what was done by this juror. There was no such mandate as the subdivision includes, and it is elear accordingly that it could not have been violated by the juror. That the violation of the other sections of the Code of Criminal Procedure, and of the Penal Code which have been mentioned, could not subject the misconduct of the juror to punishment, under subdivision 3 of section 8 of the Code of Civil Procedure, is equally as clear. Por that subdivision has not been made, or so defined, as-to subject the juror to punishment by proceedings for a criminal contempt, for a failure to comply with or observe the directions contained in these other sections. Por neither of these sections is a writ, process or other written direction within the language employed in subdivision 2 of section 3313 of the Code of Civil Procedure. But they stand entirely independent of this subdivision, prescribing the authority to be exercised, the duty to'be observed and the legal consequences of a failure to comply with their directions, so far as that .was deemed to be necessary by the body enacting the statute’s.

But if it should be assumed that a verbal direction not to visit or view the place in which the crime was charged to have been committed, or to avoid receiving information or evidence concerning the case, would bring the misconduct of the juror within subdivision 3 of section 8 of the Code of Civil Procedure, the case-against him would still be unsustained, for there was not only no evidence produced upon the application to punish him, of such a verbal direction having been given by the court to the jury, but beyond that it has ^een stated positively, without any denial of the statement that no direction whatever was given to the jury upon this subject. And without such a direction, either in writing or in words, there certainly could be no mandate for the jurors to disobey. And as there was none, a case of criminal contempt was not made out against this juror under the provisions of the law declaring and defining the power to be exei’cised by the court over the subject of criminal contempts.

It may well be held that the misconduct of this juror not only deserved condemnation, but beyond that an adequate degree of punishment. But only that punishment could be inflicted upon him which the law may have provided for a case of this description. TJpon the subject of punishment for offenses and punishable misconduct, the statutes of the State have endeavored to define the cases in which it may be imposed, and the course of legal proceedings which shall precede its imposition. The cases of criminal contempts form no exception to this rule, and care has been taken to avoid the exercise of arbitrary authority by defining and declaring, in clear language, the misconduct for which a person may be so punished. And it is only in the cases which have been prescribed by the legislature as proper subjects for such punishment that it can be imposed upon an offender. The case made against this juror was not one of the cases so defined and prescribed, and while his misconduct well deserved adequate punishment, as long as it was not within the-provisions of the law declaratory of cases of willful contempt, it could not be made the subject of punishment as it has been under these provisions.

The proceedings taken for the release of the juror by means of the writ of habeas corpus do not require special consideration. They have been practically superseded by the more extended range-of examination permitted under the authority of the writ of certiorari, issued to review the proceedings of the court. The habeas corpus may accordingly be dismissed, and as no case was-made out against the juror subjecting him to punishment for a criminal contempt, the order or judgment pronounced by the court, adjudging him guilty of such a contempt and directing his punishment for it, should be reversed, and as it is in substance conceded that no stronger case can be proved against him on a further hearing before the court, he should be discharged.

Davis, P. J.:

The restrictive character of section 8 of the Code of Civil Procedure may be such as to require the reversal of the order of the court of Oyer and Terminer in this case, but I am not able to-concur with my brother Daniels in the limitation his construction of that section imposes on the power of the courts to punish for criminal contempts.

The third subdivision of section 8 is the one brought into consid oration in this proceeding. It is, when read in connection with the first clause of the section, in these words: “A court of record has-power to punish for a criminal contempt a person guilty of either ■of the following acts and no others. * * * 3. Willful disobedience to its lawful mandate.”

The second subdivision of section 3343 of the same Code, declares that “ the word mandate includes a writ, process or other written ■direction issued pursuant to law, out of a court, or made pursuant to law, by a court or a judge, or a person actiug as a judicial officer, or other person named or otherwise designated therein, to do or refrain from doing an act therein specified.”

It is assumed and argued, that this provision has the effect to so ■define and limit the words “ lawful mandate,” as used in the subdivision. of section 8 above quoted, that there can be no punishment under it for criminal contempt, except for violation of such written ■orders or directions as are therein particularly mentioned. I think this is an erroneous construction of the provision. As my brother Daniels says, the word mandate ” is one newly introduced in this connection by the codifiers and it is frequently used in the Code. It was, therefore, to declare, not what it should signify, but that it should when used in the Code, include certain specified things, some of which it might otherwise be held.were not included, that ■the subdivision of section 3343 ivas enacted. The provision that these things shall be included in the word are by no means an exclusion of anything else properly within its signification. The things mentioned in subdivision 2 of section 8, had other legal or commonly accepted names, and for that reason might have.been held not to be included in the word mandate, and to prevent that result it was enacted that they should be so included. A statute of inclusion in such a case is not one of exclusion. This is amply illustrated by other subdivisions of section 3343. As for instance, subdivision 11: “ The word affidavit includes a verified pleading in an action, or a verified petition or answer in a special proceeding.” It will hardly be argued that such pleading, petition or answer are the only affidavits known to the Code. Subdivision IT: “ The word territory, when aq>plied to a portion of the United States without the State, includes the District of Columbia,” but it would be absurd to hold that by force of this section there are no territories except the District of Columbia. These are simply illustrations of the intent of the. legislature in enacting the numerous provisions of inclusion in the section, not to exclude whatever else is properly embraced in a word or phrase. Other subdivisions, which are intended to define or limit the meaning of a word or phrase, are couched in different language, as for instance, in the twenty-fourth subdivision “the word folio signifies one hundred words, counting as a word each figure necessarily employed.” We are, therefore, I think, in determining what is meant by the words “lawful mandate” in section 8 of the Code, to look elsewhere as well as to the provision declaring that certain specified writs, processes and orders in writing are included in it. A court of record has power to make lawful mandates which are not included in writs, processes or written orders. In some casos^ it is expressly enjoined that the courts shall do so. Section 415 of the Code of Criminal Procedure requires that the court shall direct the jury at the time of each adjournment during the trial that it is their duty not to converse among themselves on any subject connected with the trial, or to form or express any opinion thereon until the case is finally submitted to them. I entertain no doubt "whatever that such an instruction is a “lawful mandate,” to be obeyed as such by each one of the jurors, and that its willful disobedience may be punished as a criminal contempt when properly proven before the court. The word mandate has a well known signification. Webster defines it to he “an official or authoritative command; an order or injunction; a commission or judicial precept; and, by the canon law, a rescript of the Pope issued for certain purposes ; ” and by Scot’s law, “ a contract by which one emplo3rs another to manage any business for him,” which, by Roman law, must have been gratuitous. So there is no difficuhy, when we find authority in the law for the making of an order or direction by a court in the progress of a trial, in holding that the making of it, whether in writing or orally, in the presence of and to the person or persons affected by it, is a lawful mandate of the court. A willful disobedience of such a lawful mandate is a criminal act. If committed in the presence of the court it may be summarily punished on the spot. If shown to have been willfully committed elsewhere, it may be punished by the court, after conviction on a proper hearing of the accused, as a willful contempt. There can be, I think, no sound reason to doubt that where a court expressly directs or commands an officer of the court, or a juror engaged in a trial to refrain from doing any act forbidden by statute or law, and especially where the law condemns the act itself as criminal, the willful doing of the act after such command or direction is the violation of a lawful mandate, which the court may punish as a criminal contempt. As, for instance, where an officer is directed to keep the jury together during recesses or adjournments, and the court, for greater caution adds to the requirements of the law its express command to perform this duty, his willful neglect of that duty in permitting the jury to separate, or others to associate and converse with them, may be punished as a criminal contempt. And so, if a jury about to retire for the consideration of their verdict, is expressly commanded by the court not to introduce or allow intoxicating liquors into their room, and the command is willfully violated by any of their number, whereby any of the jury become unfitted for their duties by intoxication, the court may summarily punish the guilty parties. There is no necessity that mandates of this kind be put in the form of writs or processes, or written orders, and served on the persons affected. Their presence when the order is made, and the hearing of it as a part of the oral proceedings of the court, is abundant notice of a lawful mandate to attach the obligation of obedience and liability for a willful violation. These things are inherent in the very nature and constitution of courts, and may be regarded as injunctions of the law, and there could be no security for the orderly procedure of trials in courts of justice if the power did not exist to enforce them summarily. It is no answer to say that the guilty persons may be indicted for misdemeanor. That is not an effectual remedy, and it is one seldom enforced and little respected. Suppose, in an important trial of an influential and powerful party, the jury, upon an adjournment, shall willfully separate, going whither they choose and refuse to return, and thus break up and defeat the trial, or shall openly, out of court, receive bribes for giving their verdict, is it conceivable that the court is powerless to punish summarily because it has not issued.a written command not to do those things, or entered and served an order in writing to that effect. I am not willing to hold that the Code has codified all virtue out of the judicial authority of courts.

In the case of the relator he committed an act declared to be a misdemeanor under the statute, for which he may be indicted, tried, and if convicted, punished. His act was one, in the event of the conviction of Short, fatal to justice, for it would require the setting aside of the verdict and a new trial. It was a willful act, because he intended to do just what he did do. He was ignorant of the consequences, and probably did not know of the statute which regulates the visiting and inspection of premises where an offense has been committed.

■ The only thing, therefore, that stands in the way of his punishment for criminal contempt is the simple fact that his misconduct was forbidden by statute only, and not by a mandate of the court. If the court had instructed the jury orally or otherwise, that they, or either of them, could not visit the office of O’Donovan, where the orime was charged to have been committed, unless allowed by the court as prescribed by the Code, I have no doubt that the conviction for contempt would be both lawful and just. The inability to •show such a direction seems to be fatal, under the requirements of the third subdivision of the eighth section of the Code. The relator escapes from punishment for contempt, not because he did not do a wrongful act declared criminal by law, but because the learned and able judge who presided at the trial did not anticipate that any intelligent juror could so far forget or disregard his duty, and so did not in advance command him to the contrary.

Beady, J., concurred in the result.

Order reversed and relator discharged.


author: Davis, P. J. ;

text:
    THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Respondent, v. GEORGE W. CARHART and Others, Appellants.

      Order for the examination of a corporate pa/rty before trial — a defaulting defendant map be examined — Code of Civil Procedure, sec. 873.
    Where in an action brought against several defendants, one of which is a national bank, the latter, after appearing by an attorney, fails to serve any answer, this fact does not prevent the plaintiff from procuring an order for the examination of the said bank, or its officers, as provided in section 873 of the Code of Civil' Procedure.

      Sharp v. Hutchinson (16 J. & S., 101) not followed.
    Appeal from an order of the Special Term denying a motion to vacate an order for the examination of a party to an action.

      O. B. Smith, for the appellants.
    Macfarland, Reynolds & Harrison, for the respondent.
   Davis, P. J. ;

It appears by the papers before us that on the 2d of January, 18S5, an order was made by a judge of this court directing that William A. Sherman, cashier of the Produce Exchange Bank, one of the defendant’s herein, be examined and his deposition taken pursuant to section 873 of the Code of Civil Procedure, and for that purpose that he appear on the Sth of January, 1885, and submit to an examination, etc. This order was directed to be served on Sherman on or before the 3d of January, 1S85. Afterwards,, and on the eighth of January, an order was obtained from another justice of the court requiring the plaintiff to show cause at a Special Term, to bo held on the ninth of January, why this order for examination should not be vacated on the ground that no copy of such order or of the affidavits on which the same was founded was served on the defendants George W. Carhart and the Produce Exchange Bank, and that the Produce Exchange Bank, of which Sherman was cashier, had made default in answering the complaint. The affidavit on which this last order was obtained was made by the attorney for the appellants and showed that he appeared as attorney on the eighteenth of December for the defendants in the action, and that the affidavit on which the order for the examination was-founded recited the fact of such appearance, and that no copy of the order or affidavit had been served on the attorney for the said defendants, and that he believed it was the object of the plaintiff to-obtain the deposition of Sherman without the knowledge of deponent to the prejudice of the defendants. The motion upon the; order to show cause was heard at Special Term and denied, withi ten dollars costs. The judge holding the term indorsed upon the papers the following memorandum:

“Assuming that Sharp v. Hutchinson was correctly decided, which seems to me to admit of some doubt, it does not apply to this case. The bank is a mere stakeholder, and has the same interest in the litigation, namely, to see that the right person gets the-money. The objection that the papers were not served has been, removed.”

Section 875 of the Code requires that a copy of the order and of the affidavit upon which it was granted must be 'served upon the-attorney for each party to the action in like manner as a paper in the action, or if the party has not appeared in the action they must be served upon him as directed by the order. At the time the affidavit was made, to wit, on the 7th day of January, 1885, no copy of the order had been served upon the attorney of the appellants, who had appeared in the action, but it would seem from the remark: of the learned judge at Special, Term that such service was'made-subsequently and before the hearing of the motion. So far as we-, can discern from the papers before us, the learned judge disposed; of the motion correctly upon the merits. Although the Produce Exchange Bank had made default in answering the complaint. in the action, we think an examination of it, or its officers, could still be properly had under section 873. If Sharp v. Hutchinson (16 J. & S., 101) holds to the contrary, we are of opinion that the; question was not rightly decided, and for that reason are not inelimed! to follow that decision. But the motion was regulazdy made on the; ground that no copy of the order had been served upon the attorney for the appellants. If that objection were removed at all), which does zzot appear in the paper’s before us, it mzzst have been dozie subsequently to the order to show cause; and while that fact would be sufficient to call for tbe denial of tbe motion, it certainly should have relieved the moving parties from liability for costs of a motion in which they were otherwise entitled to succeed. The costs of the motion were, therefore, improperly imposed on the defendants.

The order should therefore be reversed so far as relates to the costs imposed, and; under the circumstances, we think that should be done, with ten dollars costs and disbursements

Daniels, J., concurred.

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

Order reversed so far as relates to the costs imposed, with ten dollars costs and disbursements.


author: Davis, P. J.:

text:
    SOLOMON MARX and ELIZA GUGGENHEIMER, Respondents, v. CHARLES JONES, Appellant, Impleaded with BERNARD SPAULDING and Others.

      Release of one of several joint debtors— Code of Oml Procedure, see. 1942.
    Brennan, Jones and Spaulding entered into a joint undertaking to erect six buildings, and contracted, in so doing, an obligation to one Gussow, payment of which was secured by six mortgages, four of which were executed by Spaulding and two by Brennan. These mortgages were subsequently foreclosed and judgments for deficiency were entered against the defendants in each action. In the four actions brought upon the mortgages executed by Spaulding, Brennan was not made a party, nor was Spaulding made a party to .those executed by Brennan, but Jones was made a party to all of the actions.
    After the judgments were entered the partnership was dissolved, and thereafter Brennan made a compromise with Gussow and the latter executed and' delivered a written instrument, acknowledging the receipt of a sum named in full for the release of two judgments against Brennan, and reciting that the .■settlement was in full as to Brennan alone.

      Meld, that an application by Jones to have the judgments recovered against him - .discharged, upon the ground that the release given to Brennan relieved him. •Jones, from liability thereunder, was properly denied.
    Appeal from an order made at the Special Term, denying a motion made on behalf of the appellant Jones, that certain judgments recovered against him be vacated.

      Alex. Thain, for the appellant.

      S. Untermeyer, for the respondents.
   Davis, P. J.:

The motion in this case was made upon the alleged ground that Brennan, Jones and one Spaulding were copartners, and that the judgment recovered against Brennan and Jones were upon copartnership transactions. Brennan had compromised the two judgments against him and Jones by paying and securing $5,500, on doing which a receipt was given him which reads as follows :

“ Received, New York, January 23,1885, from Michael Brennan, certified check for one thousand dollars and a bond and mortgage executed by Margaret A. and Michael Brennan to Randolph Guggenheimer and Solomon Marx for the sum of forty-five hundred ■dollars, being in full for the release of two judgments against Michael Brennan, amounting to $11,460.

“And I hereby agree to deliver said release, executed by both ■parties, by January twenty-fourth, at twelve o’clock.

“ RANDOLPH GHGGENHEIMER.”

“ This settlement to be in full as to Michael Brennan for any interest owned by the parties hereto in the contract with "William Gussow as to M. Brennan alone.

“ January, 23, 3 885. “ R. GUGGENHEIMER,

“ Attorney.”

"Whether any other instrument or any formal release was delivered, •does not appear by the papers.

Brennan, Jones and one Spaulding had entered into a joint undertaking to erect six buildings upon certain lands covered by mortgage and to share the losses and profits equally. They were not copartners generally, but were jointly interested as such in this single undertaking. Spaulding, Brennan and Jones contracted an obligation to Gussow in the course of erecting the said buildings, to secure which Brennan executed two mortgages to Gussow, and Spaulding executed four mortgages to Gussow. These mortgages were afterwards foreclosed by separate actions upon each. In the four actions upon the mortgages executed by Spaulding, Brennan was not made a party, and in the two actions upon the mortgages' executed by Brennan, Spaulding was not made a party, but in all of the suits Jones was made a party. In each of the actions judgment for deficiency was rendered against Spaulding and Jones, or Brennan and Jones, as they respectively w^ere parties thereto. Thecopartnership had been ’dissolved by mutual consent before Brennan compromised for his liability upon the two judgments obtained against him.

It is claimed on the part of the appellant Jones that the fact of the compromise and execution of the receipt or release, as it is called in the papers, is to discharge him from all obligation upon the several judgments, and he asks for an order carrying that claim into effect by discharging the judgment as to him.

By section 1912 of the Code of Civil Procedure it is provided that “a joint debtor may make a separate composition with his-creditor as prescribed in this section. Such a composition discharges the debtor making it and him only. The creditor must execute to the compounding debtor a release of the indebtedness, or other instrument exonerating him therefrom. A member of a partnership cannot thus compound for a partnership debt until the partnership has been dissolved by consent or otherwise. In that case the instrument must release or exonerate him from all liability incurred by reason of his connection with the partnership. An instrument specified in this section does not impair the creditor’s right of action against any other joint debtor or his right to take any proceeding against the latter, unless an intent to release or exonerate him appears affirmatively upon the face thereof.”

The copartnership having been dissolved, no reason is apparent why this section is not applicable to this case. The Code permits joint debtors to compound separately in all cases except where a partnership exists not dissolved by consent or otherwise. It does not require a strict common-law release, but is satisfied by any instrument which exonerates the compounding debtor alone from his liability. It was held in Morgan v. Smith (70 N. Y., 537), before the enactment of this section, that a release by parol (which is any release not under seal) of one joint debtor would not discharge the other, and could be pleaded only by the one to whom it was given. In this case there was no attempt by Brennan to compromise anything except the judgments which were against himself and Jones, and it seems to have been distinctly understood that the release was to affect his liability only. Of course it would operate to diminish Jones’ liability to the extent of Brennan’s portion of the indebtedness. But upon the facts as they appeared, and on the law as it is now established by the Code and by the authority above cited, we see no ground upon which it can •be claimed that Jones by the transaction in respect to this judgment was discharged from any liability upon any of the several judgments against him.

We think the order was right and should be affirmed, with ten dollars costs and disbursements.

Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    CHARLES S. HINE, Respondent, v. THE NEW YORK ELEVATED RAILROAD COMPANY, Appellant.

      Obstruction to light, air and access to land, by an elevated railroad— measure of damages — opinion of a real estate broken' as to such damages.

    ■In this action, brought to recover damages for the obstruction of light, air and access to the plaintiff’s premises by reason of the construction of the defendant’s elevated railroad, the court held, that the plaintiff was entitled to all the advantages of light, air and unobstructed access to his premises that the open street afforded, and that for any interference by the defendant therewith he was entitled to recover as damages an amount equal to the decrease in the value of the property.
    A real estate broker, familiar with the property in question, was called by the defendant and asked: “ What has been the effect, in your opinion, of the elevated railroad upon the value of the property, so far as the items of light, air and access to the premises are concerned ? ” Upon the plaintiff’s objection the question was excluded.

      Held, that this was error.
    Appeal from a judgment, entered upon the verdict of a jury at the New York Circuit, and from an order denying a motion for ■a new trial, made upon the minutes of the justice before whom the action was tried.

      JuUm T. Da/oies and Edward 8. Rapallo, for the appellant.

      William H. Arnoux, for the respondent. •
   Davis, P. J.:

It is not necessary to enter into any general consideration of the numerous questions presented by counsel and discussed in this case, because we have come to the conclusion that whatever may be our opinion as to those questions, a new trial must be granted in this-case, because of the exclusion of proper evidence. The question presented by the court to the jury was one of damages for the obstruction of light, air and access to the plaintiff’s premises by reason of the defendant’s railroad. The court said to the jury in presenting that question: The plaintiff is entitled to all the advantages of light, air and unobstructed access to his premises that the open street affords. These are his legal rights and his-property rights, of which he cannot be deprived by the defendant without compensation. Now you are to determine to what extent the plaintiff has been interfered with in these respects by the-defendant’s structure; and for the amount of damages which he-has sustained from these causes in the diminished value of the property, he is entitled to a verdict at your hands.”

On the part of the defendant, in the course of the trial Jeremiah " Pangburn a witness was called, and gave testimony showing that he was engaged in buying and selling real estate as a broker, and had been for thirty years, in New York; that he had carried on the business of buying and selling real estate generally all over; that he had had experience in reference to property on the lower part of the Bowery; that he was well acquainted with the premises No. 13 Bowery, and knew how they were situated with reference to the elevated railroad; that he had examined the premises-recently with a view to seeing how they are situated, and that the value of the premises at the present time was $37,000; and after other testimony, this question was put to him : “ What has been the effect, in your opinion, of the elevated railroad upon the value of the property, so far as the items of light-, air and access to-the premises are concerned ? ” This question was objected to by the plaintiff’s counsel. The objection was sustained, and the defend* ant’s counsel duly excepted.

We think the answer to this question should have been received, The witness was an expert, and that fact was sufficiently shown to* entitle him to express an opinion on the subject. The opinion called for related to the precise question of damages which, as will be seen above, the court submitted to the jury, and there is no* reason why the opinions of experts are not admissible upon those questions. We are unable, of course, to say how far the answer of this witness might have affected the verdict of the jury; but his answer was something which the defendants were entitled to have laid before the jury for their consideration. No objection was taken on the ground that he was not sufficiently shown to be an expert, nor on the ground that the question went further than the evidence in assuming, amongst other things, that access to the premises had been affected by the defendant’s structure, nor, indeed, upon any ground except the simple question of the admissibility of the opinion of an expert upon the diminished value of the property by reason of the obstruction of light, air and access.

The defendants were deprived of a substantial right by the exclusion of the answer to this question. We are unable to see any ground upon which we can disregard the error of its exclusion.

Some other questions of a similar character might be alluded to, one of which is this: At the close of the charge the defendant’s counsel asked the court to charge that there is no proof in this case of obstruction of access to the plaintiff’s premises. The court declined so to charge and the defendant’s counsel duly excepted. A careful examination of the evidence shows, we think, that no such proof can be found in the case, and the court ought, therefore, to have given the charge as requested, because the charge had previously submitted such obstruction as one element of damage.

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

Brady and Daniels, JJ., concurred.

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


author: Davis, P. J".:

text:
    HIRAM H. NAZRO, Respondent, v. THE McCALMONT OIL COMPANY, Appellant.

      Contract — when a foreign judgment is deemed to be one— Oode of Oivil Procedure, sec. 635 — right of an assignee of a foreign judgment to sue thereon in this State — ■when a stay granted in a foreign country is operative here,

    A judgment recovered in the courts of another State is a “ contract ” within the meaning of section 635 of the Code of Civil Procedure, providing in what actions attachments may be issued.
    An attachment may be issued in an action brought in this State against a foreign corporation, by the assignee of a judgment recovered against it in another State, by a foreign corporation.
    In an action by the assignee of a judgment recovered against the defendant in Pennsylvania, it appeared that a stay of execution had been granted under a statute of Pennsylvania upon the giving of an instrument, which was filed and made a part of the record of the action and judgment there. At the time of the commencement of this action, the stay granted in Pennsylvania had not expired.

      EM, that regarding the judgment as a contract, its effect should be determined by the laws of Pennsylvania, and that as it was not yet enforceable in that •State, it could not be enforced in this.
    'Appeal from an order of tibíe Special Term, denying a motion to vacate an attachment issued in an action brought upon a judgment recovered in the State of Pennsylvania.

      J. B. Leavitt, for the appellant.

      Robert Mazet, for the respondent.
   Davis, P. J".:

We think a judgment is a contract, “ express or implied,” within the meaning of section 635 of the Code of Civil Procedure. (Humphrey v. Persons, 23 Barb., 318; Donnelly v. Corbett, 7 N. Y., 500; Saddlesvene v. Arms, 32 id., 280.)

The assignment of the judgment in this case by the Mechanics’ National Bank of Pittsburgh to the plaintiff, appears to have been ■sufficient to carry title and to vest the plaintiff with whatever right of action existed upon the judgment. It is altogether probable that it was made to enable a suit to be brought in this State, which the bank, as a foreign corporation, might not have been able to bring against tbe defendant, another foreign corporation, but that fact, if true, does not affect the assignment so far as to prevent its carrying a complete title to the judgment to plaintiff.

The remaining question is a more difficult one. It arises out of the fact that after a judgment was recovered by the bank against the defendant in the State of Pennsylvania, a stay of execution for the term of one year on the judgment was granted under a statute of Pennsylvania, by the giving, of the security required by the ■statute. The security in this case was given apparently in due form of law by an instrument taken, acknowledged and approved by and before one of the judges of the court, and thereupon the same was filed and made a part of the record of the action and of said judgment, whereupon the proceedings upon said judgment to enforce the same in said suit, became stayed until October 6, 1885.

^Regarding the judgment as a contract, it must be held, we think, to be such a contract as the laws of Pennsylvania make it, and that is one not enforceable until the expiration of the stay of execution. The action in this State in which the attachment issues, is based altogether upon the judgment. The recognizance by which the execution is stayed became part' of the record of the judgment, and while it remains in full force and effect the law of Pennsylvania prevents the issuing of any execution to collect the judgment until the expiration of the stay, and this because the stay is a part of the “ contract, express or implied,” upon which the plaintiff has sued out his attachment. It is in its nature a contract not yet due, and for that reason not yet enforceable in this State by attachment against the property of the defendant. We think the attachment should have been vacated on this ground.

The order should be reversed, with ten dollars costs and disbursements, and an order entered vacating the attachment, with ten dollars costs.

Bbadv and Daniels, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and order entered vacating attachment, with ten dollars costs.


text:
    In the Matter of the Judicial Settlement of the Account of ARCHIBALD K. MESEROLE and Others, Trustees under the Will of ABRAHAM MESEROLE, Deceased.

      Commissions of testamentary trustees on their annual accountings.

    Testamentary trustees, upon accounting annually for tlie income of an estate ■which they are required to receive and distribute among the benficiariesdesignated in the will, are entitled to full commissions, that is, to five per cent for receiving and paying out all sums not exceeding $1,000, to two and one-half per cent on the next $9,000, and one per cent on all sums above $10,000.

      Hancox v. MeeJcer (95 N. Y., 528) followed.
    Appeal from a decree of the Surrogate’s Court of the county of New York.

      Joseph A. Burr, Jr., for the trustees, appellants.

      Edward Russell, for the respondents Maria A. Knapp and others-

      Abraham Meserole, for the respondents E. A. Meserole and others-
   Davis, P. J.:

The appellants in this case, as trustees under the last will and: testament of Abraham Meserole, deceased, filed their petition for a judicial settlement of their account for the year ending September-9, 1884, and the parties interested in the estate and entitled to the-income were duly cited to appear on such accounting. The accounts and vouchers were duly filed before the return of the citation, and no objection being presented, a decree was made approving the same, and directing the distribution of the balance of income remaining in the hands of the trustees.

Upon the settlement of the decree the trustees claimed commissions upon the sum of $40,421.72, the amount of income received during the year and accounted for, at the rate of five per cent on the first $1,000, two and a-lialf per cent on the next $9,000, and one per cent on the'residue, amounting to $579.22 for each trustee, or $1,737.66 in the aggregate. The surrogate allowed each trustee one per cent on the said amount, making $404.22 for each, or $1,212.66 in the aggregate, and from this part of the decree the trustees appeal to this court.

The appeal presents the single question: What rate of eommissious are testamentary trustees entitled to receive upon a yearly accounting for the income of an estate which they are required to receive and distribute among beneficiaries designated in the will ? Precisely the same question has been considered by this court at the present term in the matter of Ellen D. Goodrich, as sole acting executrix of John H. Schmidt, deceased. In that case this court «amé to the conclusion that its decision was determined by the decision of the Court of Appeals in Hancox v. Meeker (95 N. Y., 528), which, as we think, adjudicates that in such a case as this the trustees are entitled to the full commissions allowed by law, t'o wit, five per cent for receiving and paying out all sums not exceeding $1,000, and two and a-lialf per cent on the next $9,000, and for all sums above $10,000 one per cent.

Our conclusion in that case must cortrol our action in this case, and leave the final determination of the question to the court of last resort. It cannot be denied but that there are propositions in the opinion of the Court of Appeals in Hancox v. Meeker which sustain the views of the. question as presented by both contestants in this case, and in the case of Goodrich, and both quote from the «pinion with equal confidence as sustaining their antagonistic views. In this case as in the Goodrich case, the sum upon which the commissions were claimed was the income actually received by the trustee in the course of administering the trust and required by the will to be by them distributed and paid out, such income constituted an altogether new fund, upon which no commissions had ever been allowed. It is certainly a harsh rule to limit the compensation of trustees for their services rendered and the responsibility in collecting and distributing such funds to an allowance of one per cent. The full commission in such case is certainly no more than a reasonable compensation. The novelty of the fund ought to be the controlling fact, inasmuch as that fact establishes that it is one upon which no commission has been claimed or allowed.

For the reasons stated in the Goodrich case, we are of opinion that the decree of the surrogate should be modified by making the allowance the full rate of commission.

Brady and Daniels, JJ., concurred.

‘ Decree modified as directed in opinion.

       The following is the opinion delivered in that case:
      Matter of GOODRICH.

        “ Davis, P. J. :
      “ Two questions are presented on this appeal: First. Whether the appellant is entitled to full commissions as trustee on the income for the period covered by the accounting at the rate of five per cent on the first thousand and two and a-half per cent on the remainder. The surrogate allowed her but one per cent on the whole. Second. Whether she is entitled to commissions as executrix on the amount of proceeds of sales of certain real estate in Charleston, S. 0. The surrogate allowed her half commissions as trustee on receipt of such proceeds.
      “ On the second of these questions, we are of opinion that the decision of the surrogate is right.
      As to the first of these questions the surrogate declined to follow the decision of the Court of Appeals in the case of Hancox v. Meeker (95 N. Y., 528), claimed by the appellant to be controlling, on the ground that that case is so far distinguishable from the present as not to be controlling. In this, we think, the learned surrogate was in error. As we understand the decision of the Court of Appeals in Hancox v. Meeker, it determines that where an annual income is required to be paid periodically to a cestui que trust, the trustee has a clear right to retain commissions from the annual income; and that where an account is rendered yearly in compliance with any statute, rule or order of the ,court, or where annual rests are necessary to charge the party accounting with interest on the balance remaining in his hands, such accounting party is entitled to full commissions on each year’s receipts and disbursements. The’ court in that case distinctly declared that ' no sound reason exists why a trustee should not be entitled to receive commissions on the income of an estate which he annually pays over and accounts for.’
      “ If this be so, we see no sound reason why the rule should not apply so as to allow full commissions on receiving and paying out the income, notwithstanding the fact that the trustee has received full commissions on a former accounting for receiving and investing the principal. It is not necessary to express any opinion as to which is the better law — the decision of the Court of Appeals, or the rule laid down by the surrogate in his opinion — because the former is necessarily controlling of our action.
      “ The decree of the learned surrogate must, therefore, be so far modified as to allow full commissions upon the income received and paid out, and with such modification affirmed, without costs to either party.
      “Daniels, J., concurred.”


text:
    In the Matter of the Final Judicial Settlement of the Account of ALICE CLARK, as Administratrix, etc., of MICHAEL CLARK, Deceased.

      Ward — when the value of services rendered by a wa/rd, may be set off against a claim of her guardian for boa/rd — allowance by a surrogate for an additional day occupied on a trial — allowable on a trial before a referee — not for am, adjournment— Code of Oivil Procedure, sec. 2561.
    Where a ward, who boards in the family of her guardian and is charged for board by him, in fact renders valuable services, the value of such services may he allowed in reduction of the charge for board.
    Section 2561 of tbe Code of Oivil Procedure, providing that “where a trial or hearing upon the merits before the surrogate necessarily occupies more than two days, ten dollars for each additional day ” may be allowed as costs, applies to a trial bad before a referee appointed-by the surrogate, as well as to a trial had before the surrogate himself.
    The section does not contemplate or authorize any allowance for days on which an adjournment occurs, without any actual hearing.
    Appeal from a decree of tbe surrogate of tlie city and county of New York.

      Todd & Dayton, for the administratrix, appellant.

      F. W. Diehl, for tlie respondents.
   Davis, P. J.:

Tbe only questions raised on this appeal are:

First. As to tbe propriety of an allowance to Mary E. Farrell of tbe sum of $6S2 on account of services rendered by her; and,

Second. As to tlie award of costs and an allowance to the parties contesting the account of tbe administratrix.

Mary E. Farrell, whose maiden name was Fox, was tbe ward of Michael Clark, who was her general guardian, and lived during ber minority in his family. In the accounts which the guardian rendered she was charged five dollars per week for her'board while so living in bis family. On tbe hearing before tbe referee she was called as a witness in ber own behalf, and, in respect to this item for board, she testified : “ 1 do not think my board bill was right; it is too much, because I worked and sewed for Mrs. Clark when I lived there with her; I ought to have had a credit for my services. Q. What, in your opinion, was board at Mr. Clark’s worth for you at a fair and reasonable figure ? A. Three or three dollars and a-half a week.”

To this testimony no objection was made, and no point was taken before the referee or before the surrogate that the charge for board had not been properly surcharged, or objected to as excessive, and that no claim or demand for services had been interposed on behalf of Mrs. Farrell. It seems too late to raise such objections now, because if they had been made at that time the surrogate might have allowed the proper amendments to have been filed or the claim for services interposed nunc pro tunc. The substance of what took place was a reduction of the charge for board by reason of services rendered, and it does not seem to have been contradicted, that if such services were in fact rendered, they ought to have had the effect of reducing the board. The price of board at five dollars per week is not objected to as not being a fair price, but the claim on the part of Mrs. Farrell was substantially that that price should be reduced because of her services to three dollars and a-half per week. The referee so found, and the surrogate confirmed the finding with a slight modification, deducting for a period of absence from the family when Mrs. Farrell rendered no services. We see no reason why, where a ward boards in the family of her guardian, and is charged for board, and in fact renders services of value, those services should not be allowed as a claim to reduce the charges for board.

The point is made that under section 2561 of the Code of Civil Procedure the ten dollars for each additional day beyond two days, which may be allowed where a trial or a hearing upon the merits before the surrogate necessarily occupies more than two days, is only applicable to a hearing before the surrogate in person and not before a referee appointed by the surrogate. But we think this would be altogether too narrow a construction. The hearing upon the merits before a referee in a case of this kind may be ordered, and in legal contemplation should be considered as a hearing before the surrogate himself. The same services are necessarily rendered, and the end accomplished is the same precisely as though the surrogate sat instead of the referee. It is a proceeding and hearing in his court, and we think in a proper case the ten dollars per day additional may be allowed. In making the allowance in this case the surrogate states for what it is maae in this form :

Allowance for trial before the referee ten days when the case proceeded and six days’adjournments.......... $125 00

Three days before the surrogate..................... 30 00

These items show that in addition to the ten dollars per day for ten •days when the case proceeded, the sum of twenty-five dollars has been •allowed for adjournments. We think the section of the Code does not contemplate or empower any allowance for days on which an adjournment occurred without any actual hearing, and the item for twenty-five dollars ought therefore to be stricken out.

The decree should be modified by deducting that sum, and .affirmed as modified, without costs to either party.

Daniels, J., concurred.

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

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


author: Davis, P. J.: Beady, J.

text:
    JOHN S. DAVENPORT, as Executor, etc., of EMMA SANDLAND, Deceased, Respondent, v. THE BANK FOR SAVINGS, Appellant.

      ■Oosts — when a savings bank refusing to pay a deposit may be changed with the costs of an action brought to recover it —1882, chap. 409, sec. 259.
    The plaintiff’s testatrix, an unmarried woman, of the name of Emma Sandland, deposited with the defendant, a savings hank, a sum of money in the name of Emily Sands. Before bringing this action to recover the amount of the deposit the plaintiff exhibited to the bank the pass-book containing the account, proof of his appointment as executor, and an affidavit showing the identity of his testatrix with the depositor, and that the bank book was found among her effects.

      Meld, that the referee in directing a judgment in favor of the plaintiff, properly1 charged the defendant with the costs of the action. (Brady, J., dissenting.)/
    Section 259 of chapter 409 of 1882, placing the costs in certain actions against, savings banks, in the discretion of the court, only applies to the particular cases distinctly specified in tfie section, yiz., to actions by a husband to recover moneys deposited by his wife in her own name, and to actions to recover money deposited when there are claimants to the fund, other than the plaintiffs, who are not parties to the action.
    Appeal from so much of the judgment, entered upon the report . of a referee, as directs that the respondent recover the costs and disbursements of the action. *

      aStrong d¡ Oadwalader, for the appellant.

      FeUx Jellenile, for the respondent.
   Davis, P. J.:

This action was brought by the plaintiff to recover from the defendant a sum of money deposited with the defendant by the plaintiff’s testatrix. The deposit was made by the testatrix, an unmarried woman, in the name of Emily Sands, her real name being Emma Sandland, and the only question in the case was the identity of the testatrix and the depositor. There does not appear to have been any other claimant to the money, and before bringing this suit the pass-book containing the account was presented to the bank by the plaintiff, with proof of his appointment as executor, and an affidavit showing the identity of his testatrix with the depositor, and that the bank book was found among her effects.

Tlie only question brought up by this appeal is the construction of section 259 of the Laws of 1882, chapter 409. That section is as follows:

“ In all actions in any court of this State against any savings' bank by a husband to recover for moneys deposited by his wife in her own name, or as her own money, the wife may be examined and testify as a witness in like manner as if she were an unmarried woman. And in all actions against any savings bank to recover for moneys on deposit therewith, if there be any person or persons, whether husband or wife, or otherwise, claiming the same fund, who are not parties to the action, the court in which such action is pending may, on the petition of such savings bank, and upon eight days’ notice to the plaintiff and such claimants, make an order | amending the proceedings in said action, by making such claimants parties defendant thereto ; and the said court shall thereupon proceed to hear and determine the rights and interests of the several parties to said action in and to said funds. The said funds or deposits, which are the subject of the said action, may remain with such savings bank, upon the same interest as other deposits of like amount, to the credit of the action, until final judgment therein., and the same shall be paid by such savings bank in accordance with the order of the court, or the deposit in controversy may be paid! into court to await the final determination of the action, and when so paid into court the corporation shall be stricken out as a party to such action, and its liability for such deposit shall cease. The question of the costs in the actions referred to in this section shall, in all cases, be in the discretion of the court, and may be charged upon the fund affected by such action, and the statutes limiting the time within which actions shall be commenced, shall have no application to actions brought by depositors, their representatives or assigns, against savings banks for deposits made therein.”

It is claimed on the part of the appellant that this section provides that costs, in all cases against savings banks to recover moneys deposited, shall be in the discretion of the court, and may be charged upon the fund affected by such action. The learned referee held that the section .only provided for costs in cases distinctly specified in it, to wit, in actions by a husband to recover moneys deposited by his wife in her own name, and in actions to recover for moneys on deposit when there are other claimants to the same fund who are not parties to the action. We have given the section careful consideration, and are of opinion that the construction of the referee is the correct one. It can hardly be doubted, as it seems to us, that if the legislature intended to enact that costs in all suits against savings banks for moneys on deposit shall be in the discretion of the court, and may be charged on the fund on deposit, it would have so declared in clear and explicit terms. We think the manifest intention of the legislature was to provide a rule limited to the cases particularly described in the section, without any intention to> change the general rule of law applicable to actions at law to recover money brought against savings banks. In this case there was no claimant to the fund except the plaintiff. Upon the trial there was no doubt of his right to recover the money, and it appeared that before the suit was brought proof that ought to have been satisfactory, to show that no other persons possessed the passbook except the testatrix in her lifetime, and the plaintiff after her decease, and that she was the person who made the deposit, was furnished to defendant. The case involved no issue other than a simple legal one, triable by a court, and jury, or, by consent, before a referee, and being purely an action at law for the recovery of money, the general and well established rule in respect to costs entitled the plaintiff to the costs awarded by the referee.

The judgment must be affirmed.

Daniels, J., concurred.

Beady, J.

(dissenting):

The bank was justified in demanding, in legal form, proof of the identity of the testatrix. She had deposited her money under an assumed name, her name after her decease being very different. The statute discussed by the presiding justice contemplates two claimants for the fund, which is not a feature of this case, and I think it does not apply. The bank, in protecting its depositors by refusing payment until judgment, was entitled to indemnity. This necessity was caused by the depositor, and her estate should bear the burden. It is proper, therefore, that the plaintiff’s costs should be paid out of the fund, and such should be the order herein. Such a ruling is within the spirit of the case of Bushnell v. Chautauqua County National Bank (74 N. Y., 291).

Judgment affirmed.