author: Potter, - J.:

text:
    JOHN J. MOORE and others, Executors, etc., of HENRY BARCLAY, Deceased, Respondents, v. JAMES E. SHAW, Impleaded with others, Appellant.

      Referee's report of deficiency on sale— when it isimneeessary to have it confirmed.

      Semble, thpi, where a judgment in an action to foreclose a mortgage provides “ that if the proceeds of sale be insufficient to pay the amount so reported to be due to the plaintiff, the said referee specify the amount of such deficiency in his report of sale, and that the defendant pay the same to the plaintiff,” it is unnecessary to apply to the court for an order confirming the report of tbe referee, before issuing execution against the defendant for the amount of the deficiency, nor is it necessary to enter any further judgment upon the filing of the said report.

      Semble, that it may be necessary to have the report confirmed, in order to nerfect the title, as between the mortgagor and purchaser.
    Appeal from an order denying a motion to set aside as irregular a judgment for deficiency, upon a sale of the mortgaged premises sold under the decree in this action: no order confirming the report of sale having been made.

      Aaron Pennington Whitehead, for the respondents.

      John Q. Shaw, for the appellant.
   Potter, - J.:

This is an appeal from an order denying a motion to set aside a judgment for deficiency, upon a sale in the foreclosure of a mortgage, for irregularity. The irregularities specified in the notice of motion are, that no order was entered to confirm the referee’s report of sale, no notice of filing same was served on defendant’s attorney, and that said judgment was entered within eight days after date of filing the report. The decree and the sale under it are regular, and there is no allegation of error in the amount of said judgment for deficiency. The irregularities are purely technical, and relate only to the time and manner of doing those things which are required to be done, and which are conceded to ■ have been correctly done.

It is contended that the report of sale should have been confirmed. That was doubtless rh > practice formerly in chancery, under section 152, article 6, title ? chapter 1, part 3 of the Revised Statutes. (2 R. S., 191, § 152.) But that practice was the result of a rule of chancery practice, ana of any requirement of the statutes referred to. The statute simpV provided, that upon the coming in of the report of sale, the court shall also have power to decree and direct the payment of the deficiency by the mortgagor, etc.

The language and the theory of that statute were, that upon the coming in of the report, the court were to make an additional or further decree for the payment of the deficiency. The report of sale showing a deficiency and its amount, formed the only basis of this further decree, and prove the propriety, if not necessity, of the chancery rule for a consideration, if not for a confirmation of the referee’s report of sale. But the Legislature of 1863 adopted a different provision upon this subject by the amendment of section 167 of the Code, one more in consonance with the changed organization of the court in the administration < f law and equity in the same court. That amendment provide i, that in actions to foreclose mortgages, the court shall have p nver to adjudge and direct the payment of any residue of the ' rortgage debt, that may remain unsatisfied after a sale of the j .ortgaged premises, not only as against the mortgagor, accord .ng to the Revised Statutes (supra), but also against any other person liable for the debt. Thus the equitable action to foreclose a mortgage, by virtue of these statutes, becomes also a legal action to recover payment of the debt out of property other than the mortgaged property.

The nature and form of the judgment were changed and adapted to this new condition of law, and the judgment of foreclosure was made to contain both a degree of foreclosure and an ordinary money-judgment for the deficiency, in place of obtaining a second or further decree for deficiency based upon the referee’s report of sale. With this change, there was no longer occasion for the precedent so long contained in the chancery rules. The present rules of the Supreme Court contain nothing upon the subject. The judgments now entered contain ample provision for the contingency of a deficiency. The judgment in this case provided “ that if the proceeds of sale be insufficient to pay the amount so reported to be due the plaintiff, the said referee specify the amount of such deficiency in his report of sale, and that the defendant, ■James E. Shaw, pay the same to the plaintiff.” The referee made his report of sale, specifying the deficiency just in accordance with the provision of the judgment. There is, under such a judgment, no further occasion for the intervention of the court, except, perhaps, to see that the referee has correctly performed the process of subtracting one sum from another, any more than when a sheriff has sold property under an ordinary money-judgment and made return of the amount made by the sale, and subsequently another execution is issued to recover the balance of the judgment. Indeed the sheriff may as well be, and outside of the cities is generally, appointed by the court to sell the mortgaged premises. Whether done by referee or sheriff, the duty is the same, and is purely ministerial in the execution of the judgment. (People ex rel. Day v. Bergen, 53 N. Y., 404.) Hence the referee to sell mortgaged premises and to report deficiency has no judicial or other duties than a sheriff appointed to make the sale, and is not embraced in the class of referees provided for in rule thirty; and the ma'ehincry specified in that rule, in relation to filing exceptions to, and confirming his report, has no application to the class of cases under consideration.

This entire proceeding, from the time of the entry of the judgment of foieclosure and sale and for deficiency, is simply an execution of that judgment. The judgment in this case, as we have seen, provided for all contingencies, and was final in character and effect. (Morris v. Morange, 38 N. Y., 172.) If the report in this case, so far as the judgment for deficiency and issuing execution to collect it, did not require confirmation, then it follows that no notice of filing was required to be given, and no rule of delay of eight days after filing, and before issuing execution, apply to this case. The defendant was not entitled to notice of the steps in execution of the judgment, and the notice to the clerk to enter judgment for deficiency was an idle ceremony, and any entry of such a judgment, if it was made, was as unauthorized as unnecessary.

I am not unaware that the above conclusions may seem not in harmony with some reported cases, where, in the consideration of some other question than the one involved here, the court has assumed rather than decided that rule thirtieth is applicable to this class of referees. The question we have been discussing relates simply to the mode of executing the judgment, and the necessity of notices to the defendants of the progress of its execution. It may well be that for the purpose of giving a deed to the purchaser, and perfecting the title as between mortgagee and purchaser, that confirmation of the referee’s report is proper or necessary; but with that question we arc not now concerned. Wo are simply to consider the right of the defendant in the judgment. But suppose the views above presented are Avrong, and that the ' regular practice required notice to the defendant of the filing of the referee’s report, and the confirmation of the referee’s report of sale, and a judgment for the deficiency, and that defendant had but six days’ notice of the filing of the referee’s report, and that judgment for deficiency was entered in six instead of eight days after filing report, and that there is no formal order of confirmation. They are but irregularities, and are supplied and cured by subdivision 12 of section 721 of the Code of Civil Procedure, unless the adverse party, the appellant, has been prejudiced.

There is nothing in appellant’s case to shoAV that he has been prejudiced. The moving affidavits do not sIioav that any execution has been issued, or that appellant had any personal property liable to bo seized upon the execution, if one Avero to be issued, or any real estate to be affected by the lien of the judgment. Besides, the appellant has been guilty of inexcusable delay in moving to set aside these proceedings.

The moving affidavits are significantly silent as to when these irregularities were discovered, and it is shown by the opposing affidavits that the appellant must have been aware of them as early as the 6th January, 1877, and the motion was not made till the 1st Monday of December, 1877.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Ingalls, P. J., concurred.

Present — Ingalls, P. J., and Potter, J.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Potter, J.r

license: Public Domain

text:
    FREDERICK H. GREER, Respondent, v. THOMAS ALLEN, Appellant.

      Code of Civil Procedure, § 870 — order for examination under — requisites of affidavit — right to examination not absolute.

    In order to authorize an order for the examination of the defendant, at the instance of the plaintiff, under section 870 of the Code of Civil Procedure, an affidavit must be presented showing the nature of the action, the substance of the cause of action, and of the judgment demanded, and after answer the nature of the defense, and also the facts showing that the testimony is material and necessai-y for the party making the examination.
    An affidavit stating that the action “is brought upon a contract, and that the judgment demanded is for the sum of six hundred and ninety dollars, with interest; that the answer of the defendant is a general denial,” and that “ the examination of the defendant is necessary,” and also stating the matters as to which the examination is desired, is not sufficient ,
    Where the facts and circumstances stated are not sufficient to satisfy the judge, he is not bound to grant the order but should refuse the same.
    Appeal from an order denying a motion to vacate an order requiring the defendant to appear and be examined. The complaint alleged that the plaintiff was the publisher of a book called the American Biography, and that he had agreed to print and publish a sketch of the life of the defendant for $850, alleged performance on his part and sought to recover therefor. The answer contained a general denial and a special defense.

      This action being at issue upon the complaint and. answer, the plaintiff, on the 22d day of October, 1877, applied to and obtained from Judge Donahoe an order, returnable on the 8th November, 1877, for the examination of the defendant as a party before trial. This order was based on the following affidavit:
    “ Being duly sworn, says that he is the plaintiff in the above entitled action, and resides at No. 340 Fourth avenue, in said city ; that the said action is at issue upon the complaint and answer therein, and untried ; that the same is brought to recover upon a contract, and that the judgment demanded is for the sum of six hundred and ninety dollars, with interest; that the answer of the defendant is a. general denial; that the examination of the defendant, Thomas Allen, before trial and pursuant to the Code of Civil Procedure, is necessary in order to enable plaintiff to properly prepare for the trial of this action ; that the plaintiff desires such examination as to matters material to the issue, to wit: as to knowledge regarding goods sent by express to St. Louis, which he denies were tendered, and also information in regard to correcting some printing sent him for his approval; that the said defendant, Thomas Allen, resides in the city of St. Louis, State of Missouri, but is now sojourning in the city of New York, and deponent believes he will soon depart therefrom — beyond the jurisdiction of this court; that the said defendant has appeared in this action by Alexander1 & Green, Esqrs., his attorneys, whose office addresses No. 120 Broadway, in the city of New York.”
    On the return-day of said order, the defendant moved before* Mi’. Justice Lawrence to vacate the .same, upon the ground that, the affidavit upon which the said order was based did not comply with the requirements of section 872 of the Code of Civil Procedure. Judge Lawrence denied defendant’s motion on the. ground that the right of examination was absolute. A reargument having been had before him, he adhered to liis former decision. On the 9th day of January, 1878, an order was mad© denying defendant’s motion to vacate the order for the examination of the defendant, from which order the defendant appealed to this court.

      Thomas W. Pittman, attorney for the respondent.

      Charles B. Alexander, for the appellant.
    The sections in question are not intended to create a new remedy, but to take the place of the old bill of discovery; and in such cases the court always exercised a broad and liberal discretion. (Qlenney v Stedwell, 64 N. Y., 120; 1 Abb. [N. C.] and note, 332-341; Phoenix v. Dwpuy, 2 Abb. [N. C.], 146; Carry. Great West. Ins. Co., 3 Daly, 160; Wigyin v. Cans, 4 Sandf., 647; King v. Leighton, 58 N. Y., 383; Hynes v. McDermott, Com. Pleas General Term, March 4th, 1878.) To adopt the rule as laid down in this case would compel the court, as a matter of absolute right to a plaintiff, to subject a defendant to discover matter which might subject him to a criminal prosecution, a penalty, or a forfeiture or the like. (Hare on Discovery, part 3, chap. 1, § 1; Wigram on Discovery, 60, § 83-94; Caxton v. Douglass, 19 Yes., 226; Bailey v. Dean, 5 Barb., 303; Phoenix v. Dupuy, 2 Abb. [N. C.], 146.) There is nothing in the statute preventing the order from being vacated. Such a power is in analogy with the universal practice of the courts, and has uniformly been exercised, and the same point has been raised and ruled as we contend it should be in this case. (In re Kip, 1 Paige, 601; Patin y. Westervelt, 5 How.' Pr., 399.)
   Potter, J.r

This is an appeal from an order refusing to vacate an order for the examination of the defendant, at the instance of the plaintiff, under section 870 of the Code of Civil Procedure. The motion was made upon the ground that the affidavit upon which the order for the examination was made was defective. The court denied the motion, upon the ground that the right of a party to examine his adversary was absolute. The denial having been placed upon this ground alone, it is to be inferred that the court held the affidavit in this case sufficient to sustain the order. We entertain a different opinion, both in respect to the sufficiency of the affidavit upon which the order in question was granted, and the absolute ' right to such an order.

This examination is had for the purpose of discovery, in plaee of the former bill of discovery. (Phœnix v. Dupuy, 2 Abb. [N. C.], 146; Glenney v. Stedwell, 64 N. Y., 120; Carr v. G’t Western Ins. Co., 3 Daly, 160.) The rule in a bill of discovery required the pleader to set out so much of the pleadings as would enable the court to see that the facts alleged in the bill, and of which he claims discovery, are material. (Bailey v. Dean, 5 Barb., 297.) Tested by this rule, the affidavit in question is plainly defective. We think the provisions of the Code are based upon the same principle as the bill of discovery. Section 872 prescribes the requisites of the affidavit upon which the order for the examination is to be granted. Subdivision two: the affidavit must set forth the nature of the action, and the substance of the cause of action, and of the judgment demanded. Subdivision four, and that the testimony is material and necessary. These were the requisites of a bill of discovery. Why should these matters bo set forth unless the judicial mind is to be exercised upon them ? Why require anything more than the statement under the advice of counsel in the affidavit, that the testimony is necessary and material? Section 388 of the former Code was also a part of the means, or one of the modes resorted to, to obtain information and a discovery. That was effected by a petition. The petition under that section must set forth the absence of other available proof, and that the proof is indispensably necessary, and the facts and circumstances showing the necessity, etc. ( Woods v. De Figaniere, 25 How., 522; Wilkie Moore, 17 id., 480.) See rule nineteen of the rules of 1870 upon this subject. There is equal reason at least that the facts and circumstances should show the nature of, and the cause of action, together with the materiality and necessity of the testimony when a party is to be examined, as when his books and papers are to be inspected. If a mere statement in the affidavit that the testimony is necessary and material are to suffice for the procuring of such an order, I can see no occasion for the statement of the nature of the action,, and the substance of the cause of action and of the judgment demanded. The convention of justices to form the rules have interpreted; this section in accordance with the views above presented. Rule 89 provides the affidavit shall specify the facts and circumstances which show, in conformity with subdivision 4 of section 872, that the examination of the person is material and necessary. Assuming that the language of the section in question is equivocal, the construction given to it by that body of jurists is authoritative and controlling. The facts and circumstances, therefore, showing the necessity and materiality, together with an affidavit specifying the nature of the action and the cause of action, must be submitted to the judicial discretion of the judge to whom the application is made, and he must decide upon their sufficiency. If the facts and circumstances are sufficient, he must grant the order for the examination: but if they fail to satisfy the judicial mind, the judge is not bound to grant the order, but should refuse the same.

The affidavit in the case under consideration we think is defective. It does not show the facts and circumstances making the testimony necessary and material. It nowhere states or shows that the testimony is material, nor that the testimony is necessary. It states that the examination is necessary. From the omission to state the cause of action, it is impossible to see how the facts stated in the affidavit are material or pertinent. It is for the purpose of determining from the facts and circumstances whether or not the testimony is necessary and material that the applicant should state the cause of action.

The affidavit in question is radically defective. For this reason, and for the reason that the court at Special Term held, the judge had no ’discretion in deciding to grant or refuse the order, the order of the Special Term should be reversed, with ten dollars costs and disbursements. (Foote v. People, 56 N. Y., 325; Russell v. Conn., 20 id., 81,)

Ingalls, P. J., concurred.

Present — Ingalls. P. J. and Potter, J.

Order reversed, with ten dollars costs and disbursements.


author: Potter, J.:

text:
    GUSTAVUS ABBOTT, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Obtaining goods by false pretences — evidence admissible on atrial therefor — ■ Jurisdiction of United States Courts, over offenses created by United States Statutes — how far exclusive.

    Upon the trial of the plaintiff in error, upon an indictment for obtaining goods by false pretences, on or about September 1st, sworn schedules filed by the plaintiff in proceedings in bankruptcy commenced in the November following, were admitted in evidence on behalf of the people to show his financial condition at the time of obtaining the goods. Held, that this was proper.
    Subdivision 9 of section 5132 of the Bankrupt Act provides, that whoever “within three months before the commencement of proceedings in bankruptcy, under the false color and pretense of carrying on business and dealing in the ordinary course of trade, obtains on credit, from any person, any goods or chattels, with intent to defraud,” shall be punishable by imprisonment.

      Held, that conceding that the United States courts have exclusive jurisdiction over offenses created by United States statutes, the passage of this section did not deprive the courts of this State of their jurisdiction over the general offense of obtaining goods by false pretenses.
    Writ of Error to the Court of General Sessions of New York, to review the conviction and sentence of the plaintiff iu error of the crime of obtaining goods by false pretences. Proceedings in bankruptcy were commenced against him within three months from the time of making the alleged false pretences. His counsel claimed that his offense was therefore within the ninth subdivision of section 513 2 of the United States Revised Statutes, providing, that whoever “within three months before the commencement of proceedings in bankruptcy, under the false color and pretence of carrying on business and dealing in the ordinary course of trade, obtains on credit, “from any person, any goods or chattels, with intent to defraud, * * * shall be punishable by imprisonment, with or without hard labor, for not more than three years,” and that, being a violation of an offense created by an United States statute, the courts of the United States alone had jurisdiction over it.

      William F. Kintzing and Sidney H. Stuart, for the plaintiff in error.

      Benjamin K. Phelps, for the defendant in error.
   Potter, J.:

This is a writ of error to reverse a conviction of the plaintiff in error of the crime of obtaining goods by false pretences. The trial and conviction were had in the court of General Sessions in July, 1878, and plaintiff was sentenced to imprisonment in the State prison for three years. The false pretences alleged in the indictment are that the plaintiff in error stated, on or about the first of September, 1875, to Frederick D. Blake, on the occasion of buying some goods of Blake; that he had begun business with $30,000 capital, and that capital had not been impaired; and that he did not at that time owe more than thirty to thirty-five thousand dollars. It cannot need the citation of authority to show that such representations were material, and of a character and tendency to induce a credit upon the purchase of goods.

The evidence given upon the trial was amply sufficient to warrant the jury in finding that the representations were believed, and principally if not wholly relied upon by Blake, who upon such belief sold and delivered the goods, and that the representations were false to the knowledge of plaintiff in error, and that he made them with an intent to and did obtain the goods by means of them, “and with the intent to cheat and defraud Blake. The sworn schedules of plaintiff filed in proceedings in bankruptcy, commenced in November following this purchase in September, were introduced in evidence to show the condition of his capital, his assets and debts and liabilities on the first or second of September, the date of making the pretences and obtaining the goods. These schedules were objected to, but no authority is cited or sufficient reason given against the introduction of this evidence, and I can conceive of none.” They are the sworn declarations made and signed by the plaintiff' in the course of judicial proceedings, the object of which was to ascertain each particular claim or liability, its date, amount and consideration, as well as to ascertain each particular asset, its nature and value. Moreover, the plaintiff was introduced as a witness in his own behalf, with the opportunity of correcting and explaining the statements in the schedules. It would seem that declarations made under such circumstances must be unexceptional evidence against the declarant. Prom those schedules it would appear that his liabilities were, on the first of September, when the pretences were made ,some $96,000, and which had been increased to December first, or when the schedules were made up, to $150,000, and the assets amounted to about $30,000.

A somewhat novel demonstration or proceeding took place in the course of the trial. At the close of the evidence upon the plea of not guilty, the plaintiff in error offered a special plea to the jurisdiction of the court, upon the ground that the United States had exclusive jurisdiction over the offence. It is doubtful whether that plea is in the case, so as to be considered. The court was, however, requested to charge upon that subject. I do not think even if the general principle is as claimed by the counsel for the plaintiff in error, viz. : That whore the United States declares a certain act criminal, its jurisdiction over that crime is exclusive, that this case is at all subject to that rule. The United States only declares a false pretence “of carrying on business and dealing in the ordinary course of trade” is a criminal offence. That was not the false pretence set forth in the indictment in this case. The State statute is general, while the United States statute relates to but a single and specific false pretence. It is not necessary to discuss what would be the effect, if the sole pretence, charged in an indictment under the State law, was the precise pretence specified in the United States statute. I do not think the principle decided in People v. Miller (2 Parker’s Criminal R., 197, and cited by the plaintiff in error) at all applicable to this case.' The nature of the charge in this case is entirely unlike that in the case referred to. Upon the whole, I think the plaintiff in error was justly convicted, and no errors committed upon the trial.

The conviction should be affirmed.

Ingalls, P. J., concurred.

Present — Ingalls, P. J., and Pottek, J.

Conviction affirmed.


author: Potter, J.: Ingalls, P. J.:

text:
    THE SOCIETY OF THE NEW YORK HOSPITAL, Respondent, v. MARTHA A. COE, Appellant,

      Leave to discontinue action — right of plaintiff to elect not to do so— right to an additional allowance.

    On plaintiff’s application, it was ordered that he “ have leave to discontinue the action ” upon payment of costs, and that upon payment thereof he might enter an order discontinuing the action. Held, that the plaintiff mig-ht at his election refuse to accept the terms imposed by the order and continue the action. Quwre, as to the right of the defendant to move for an additional allowance of costs, after the entry of an order which provided “ that the plaintiff' have leave to discontinue the above-entitled action upon payment of the defendant’s costs up to the present time, with the costs of this motion, said costs to be adjusted by the clerk of this court,” etc.
    Appeal from an order made at the New York Special Term granting an application made to the plaintiff to vacate a judgment in favor of the defendant for costs and an additional allowance. Upon plaintiff’s application, it was ordered “that the plaintiff have leave to discontinue the above entitled action upon payment of defendant’s costs up to the present time, with the costs of this motion, said costs to be adjusted by the clerk of this court upon two days’ notice to be given by either party. And upon payment of said costs, adjusted as aforesaid, the plaintiff may enter an order discontinuing this action without further costs to either party as against the other, and directing the clerk to strike said action from the calendar of this court.” Subsequently defendant obtained an order granting to her an additional allowance, and upon plaintiff’s thereupon electing to continue the action, she, without application to the court, entered a judgment discontinuing the action, and adjudging that she recover her costs and allowance. From an order vacating this judgment this appeal was taken.

      John JJ. Parsons, for the appellant.
    The practice is well settled, that when a plaintiff obtains leave to discontinue upon the payment of costs, the defendant, if the costs are not paid, may either treat the discontinuance as a nullity, or may enter up judgment for a discontinuance and for the costs. (1 Burrill’sPr., 179, 383, 417: 3 R. S. [5th ecL], 908, §§ 1, 4; Provost v. Johnson, 12 Wench, 289; Sutphen v. Lash, 10 Hun,- 120; Pacific Mail Steamship Go. v. Leuling, 7 Abb. Pr. [N. S.], 37; Crockett v. Smith, 14 Abb. Pr., 62; Folsom v. Van Wagner, 14 Abb. Pr. [N. S.], 44.)

      ETbridge T. Gerry, for the respondent.
   Potter, J.:

This action was brought to recover rent. The answer was a counter-claim for damages sustained by breach of covenants, and also for a reformation of the lease. After issue, the defendant paid the rent for which the action was brought, and thereupon the plaintiff applied, by motion, for leave to discontinue the action without costs. Upon that motion, an order was made that the plaintiff have leave to discontinue upon payment of defendant’s costs up to the present time, said costs to be adjusted by the clerk, and upon said costs being adjusted as aforesaid, the plaintiff may enter an order discontinuing this action without further costs to either party as against the other, etc. This order was made November 5, 1877. The costs were adjusted and tendered defendant’s attorney, who refused to accept them, stating, as a reason therefor, that he was going to make a motion for an extra allowance of costs. Subsequently the defendant made a motion for an extra allowance, upon which an order was made, granting an extra allowance of $200, and “the same is hereby granted to the defendant in addition to costs upon the discontinuance of this action.” Plaintiff thereupon served upon the defendant’s attorney -written notice that plaintiff elected not to discontinue the action. The defendant’s attorney then procured the cost to be adjusted, demanded payment of the same, and the same not having been paid, entered a judgment in the action for the recovery of the costs and extra allowance. Plaintiff moved to set aside said judgment upon this, among other technical grounds, that the defendant had no right to enter the same, and the motion was granted. From the order setting aside the judgment the defendant has appealed.

I think it must be assumed as settled, that after an order granting plaintiff leave to discontinue, upon payment of the adjustable costs, the defendant may apply and obtain an order for an extra allowance, and that' the plaintiff must, if he will discontinue under his order granting leave to discontinue upon payment of costs, also pay the extra allowance. (Moulton v. Beecher, 11 Hun, 192.) Moreover, the order granting the extra allowance in this case expressly provides: “And the same is hereby granted to the defendant, in addition to costs, upon the discontinuar.ee of this action.” The question, therefore, to be determined upon this appeal is whether the plaintiff had a right to elect not to discontinue the action. The language of the order gave him, in terms, leave to discontinue upon payment of the costs of the action. That would signify that plaintiff have permission or liberty to discontinue, upon compliance with the condition of paying the costs of the action. It was for leave to discontinue, and not for an absolute order' of discontinuance, that plaintiff applied to the court. There is a necessity now for an application to the court-before plaintiff can discontinue his action. The reason of such necessity arises from the fact that under the present system the defendant may obtain affirmative relief by setting up, in his answer, counter-claims and equitable defenses.

Formerly these defenses could not be interposed to an action at law, and the only matter to be litigated was the cause of action set forth in the complaint. It followed from that, that the plaintiff had a right to discontinue at his pleasure, by simply paying the defendant’s costs, and hence the plaintiff might enter in the common rule book, of his own motion and without notice to the defendant, a rule of discontinuance, upon payment of defendant’s costs. The only right the defendant then had was his right to costs, and that right was secured to him by such an entry by plaintiff in the rule book. Under the present system the defendant has the right of set-off, counter-claim, and equitable relief in various actions, and the plaintiff -cannot, of his sole will, discontinue such an action regardless of the rights of the defendant. Hence the necessity of application to the court for leave to discontinue such an action, and upon such application the court will decide whether plaintiff may discontinue his action, and the terms of the discontinuance. Those terms will depend upon the nature and character of the defendant’s matters set forth in the answer. It may be that the plaintiff shall not plead the statute of limitations to defendant’s set-off or counter-claim in an action to be brought therefor by defendant, or that the instrument upon which the plaintiff has brought the action shall be reformed; and I see no reason why, upon such an application, the court may not, in a proper case, fix the amount of extra allowance which the plaintiff should pay the defendant as one of the conditions of leave to discontinue.

If the court may determine these and other rights of the defendant, upon a motion by plaintiff for leave to discontinue, and impose them as terms upon the plaintiff, should not the plaintiff have an opportunity of electing whether he will accept and submit to such determination of defendant’s claims against him ? If he cannot elect whether to accept the same or not, he may be in a very perilous condition. If he discontinues, he accepts the order and discontinues — he accepts the terms. If he does not accept the terms, but appeals from the order, he has to submit to having very important matters determined upon a motion, and not by the common modes of trial. I cannot but think, both from the language of the order in question, and the nature and purpose of an application for leave to discontinue in such a case as this, that the plaintiff had the right to elect whether he would discontinue the action or not, and that he made his election not to discontinue in due time and maimer. The points made and the cases cited by the respondents do not conflict with these views. Those were all cases where the order for discontinuance and for payment of costs were absolute, and the sole question was whether the plaintiff having neglected to pay the cost, the defendant might properly enter a judgment for costs.

The order setting aside the judgment should be affirmed, with ten dollars costs , and disbursements.

Ingalls, P. J.:

Without questioning the power of the court to grant an additional allowance, we infer from the terms of the order of Justice Lawrence, that only taxable costs were contemplated at the time the order was granted. The language of such order is, “it is hereby ordered that the plaintiff have leave to discontinue the above entitled action upon payment of the defendant's cost up to the present lime, with costs of this motion • said costs to be adjusted by the cleric of this court upon two days’ notice to be given by either party.” The additional allowance could neither be made nor adjusted by the clerk. We think the defendant was not at liberty to enter a judgment, after notice of plaintiff’s conclusion to continue the action ; without applying to the court for leave to do so. We concur in the opinion of Justice Potter, with the foregoing suggestion.

Present — Ingalls, P. J., and Potter, J.

Order affirmed, with ten dollars costs and disbursements.


author: Per Curiam :

text:
    ELIZABETH DOWN, Appellant, v. GEORGE J. McGOURKEY, JOHN R. FLANAGAN, and EMMA DOWN, as Executors and Executrix of and Trustees under the Will of SAMUEL DOWN, Deceased, and others, Respondents. ELIZABETH DOWN, Respondent, v. SAME, Appellants.

      Additional allowance — amiownt awarded to the stenographer not a part thereof .

    In ascertaining whether the additional allowances granted by the surrogate of New York exceed the limit of §2,000 fixed by section 309 of the Code, an amount awarded to the court stenographer is not to be considered; such amount is a disbursement in the case, and not in the nature of costs.
    Appeal of Elizabeth Down from a decree of the surrogate of New York, admitting the will of Samuel Down to probate,'and also an appeal by George J. McGourkey, John R. Flanagan and Emma Down, as executors and trustees, and Emma Down, Charlotte Jane McGourkey and William H. Down, legatees, from an order granting an additional allowance to the proctor of the contestant.

      John McKeon, for the contestant.

      Osborn E. Bright, for the executors and others.
   Per Curiam :

The will was properly admitted to probate. The evidence established to the satisfaction of the. surrogate, and to our own, that the testator was competent to make the will, and that the same was not made under undue influence. The case presents simply questions of fact, and on the questions considered by him, we concur with the surrogate in his opinion. The decree, therefore, appealed from, admitting the will to probate, should be affirmed.

The surrogate allowed to the proctor for the contestants the sum of 11,500 in lieu of costs. The power of the surrogate to make allowances of this kind is limited by the Code (§ 309), and cannot in any case exceed in the aggregate, to any or ail parties, the sum of $2,000. The aggregate of allowances in this case did exceed that sum; but $500 of the amount was awarded to the stenographer of the court for his services, and is, therefore, not ■ obnoxious to the objection that the allowance was in excess of power. It was a disbursement in the case, and not in the nature of costs to the successful or defeated party. The question of the propriety of the allowance rests altogether in the discretion of this court, when brought before us by appeal, as was held by the Court of Appeals in Noyes v. The Children's Aid Society (70 N. Y., 481).

We have examined this case sufficiently to see that the contest as to the validity of this will was a reasonable one. The property was disposed of in such a manner as to lead, perhaps, to just suspicions that the testator had been affected by undue influence, or by an impairment of mental power by reason of his personal habits; and, under such circumstances, we do not feel called upon to interfere with the exercise of the discretion of the surrogate in making the allowance.

The order should be affirmed, without costs to either party.

■ Present — Davis, P. J., Brady and Ingalls, JJ.

Decree affirmed, without costs. Order affirmed, without costs.


author: Per Ouriam:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. J. EDWARD IRELAND v. CHARLES DONOHUE.

      Judge of Common Pleas— county judge within section 556 of Code of Civil Procediwe.

    A judge of the Court of Common Pleas of the city of New York is a county judge, within the meaning of that term as used in section 556 of the Code of Civil Procedure, and an order of arrest may be granted by him.
    Certiorari to review the decision of Hon. Charles Donohue, one of the justices of the Supreme Court, on the hearing at the return of a writ of habeas corpus, issued to the warden of the New York county jail, in Ludlow street, to inquire into the cause of detention of J. Edward Ireland, held under an order of arrest in a civil action. The order of arrest was granted by a judge of the Court of Common Pleas, and the question was whether he had authority to grant the same under section 556 of the Code of Civil Procedure. The writ of habeas corpus was dismissed by Judge Donohue, and the prisoner was remanded to the custody of the sheriff.

      Joseph D. Fay, for the relator.

      Theodore Sutro, for the respondent.
   Per Ouriam:

•We are of the opinion that a judge of the Court of Common Pleas is a county judge, within the meaning of that term as used in section 556 of the Code of Civil Procedure. We think the question is substantially disposed of by the Court of Appeals, in the Matter of Morgan (56 N. Y., 629). The court below was correct in so holding.

The order of the court below should be affirmed, and the writ quashed, with costs.

, Present — Davis, P. J., Brady and Ingalls,- JJ.

Order affirmed; writ quashed, with costs.


author: Ingalls, P. J.:

text:
    J. E. SMITH, Appellant, v. JAMES McNAMARA, sued herein as JAMES MACK, Respondent.

      Receive)' of corporation — whennot required to pay over money to a judgment-creditor of oné of its creditors.

    The plaintiff recovered a judgment against the defendant, and upon the return of an execution unsatisfied, instituted supplementary proceedings thereon, and procured an order requiring one Lathrop, the receiver of the Central Railroad Company of New Jersey, to appear and be examined as to a debt, owing by the railroad corporation to the defendant, one of its employees. Held, that, although the money was due from the receiver to the defendant, a court (f this State would not make an order requiring him to pay it over to the plaintiff.
    Appeal from an order of the Special Term, refusing to direct a receiver to pay over money to the creditor of a judgment-debtor. Plaintiff obtained judgment against the defendant for $258.93. Defendant being a non-resident, plaintiff had taken proceedings to attach moneys due to him from E. S. Lathrop, as receiver of the Central Railroad of New Jersey. After the issuing and return of the execution, plaintiff obtained an order for the examination of the said receiver as a third person. Under such order, and for the purpose of relieving the receiver from the annoyance and loss of time incident to an examination, certain facts were agreed upon for the purpose of an appeal. Mr. Lathrop, the receiver, had been appointed receiver of the Central Railroad of New Jersey, by order of the Court of Chancery of New Jersey on February 14th, 1877, and in auxiliary pi’oceedings by the Supreme Court of this State, by an order dated February 16, 1877. The defendant had been in the employ of the company prior to the appointment of the receiver, and continued in his employment as track laborer and workman on the company’s road. The Court of Chancery of New Jersey had authorized the receiver to pay defendant and other employees of the road in installments, at various times, as the earnings of the road might permit. It was shown that a large portion of the moneys due defendant, and held under attachment, were earned and were due him more than sixty days prior to the attachment, and that the whole amount was due defendant more than sixty days prior to the issuing of the order for examination. The court refused to make an order requiring the receiver to pay over the money to the plaintiff.

      Benjamin II. Baylis, for the appellant.

      B. W. De Forest, for the receiver.
   Ingalls, P. J.:

We are convinced that the motion was decided correctly. Francis L. Lathrop was appointed by the chancellor of New Jersey receiver of the Central Railroad Company of New Jersey, and qualified as such receiver, and assumed control of the assets and affairs of such company. He was the officer of the court, and the property of such corporation passed to the custody and control of such court. (Van Rensselaer v. Emery et al., 9 How., 136.) Judge Harris remarks, “ as such receiver he is the officer of the court;” or, as he has been aptly called, “the hand of the court.” (1 Barb. Chancery Prac., 658.) “ He is subject to the order and control of the court.” Again, “when the appointment was perfected by giving the requisite security, he became entitled to the partnership effects; the effects thus in his possession are deemed to be in the custody of the court and will not be disposed of, it is to be presumed, without a hearing of all parties who have a right to be heard. To enjoin a receiver, under such circumstances, is but to restrain the court itself from making the proper order for the disposition of the funds which may come into the hands of its officers.” (Curtis v. Leavitt, 1 Abbott, 275; Noe v. Gibson, 7 Paige Chy., 513.) In the case last referred to, property in the hands of a receiver was seized by virtue of a distress warrant for rent, and the chancellor held it a contempt of court, and says “ it is well settled that after a receiver has been appointed, and has taken the rightful possession of the property, it is a contempt of the court for a third person to deprive him of that possession by force, or even by a suit or other proceeding against him without the permission of the court big whom the receiver was appointed.” (2 Vol. Waite’s Practice, page 171.)

Whether the learned judge at Special Term intended to deny the application, on the ground that he had not the power to grant it consistently with established legal principles, or was deterred from making the order out of respect for the tribunal which appointed the receiver, is not stated. Either reason would justify the decision. It would tend to great embarrassment and perplexity, if property of a corporation, which is held by a receiver, should be allowed to be diverted and distributed through the agency of proceedings such as have been instituted in this case. All the parties to these proceedings are' residents of the State of New Jersey, where the railroad is located, and where the services were rendered, the cotopensation for which is sought to be reached through the proceedings complained of by the respondent. It is clearly against the policy of the law to justify such an irregular and vexatious'interference with the orderly and customary method of adjusting and winding up the affairs of a coiporation, after a receiver has been appointed. When a court of competent authority has assumed control in such a case, and possesses a jurisdiction adequate to grant proper relief to all parties interested, such court should be applied to, instead of instituting numerous proceedings before other officers and tribunals, to reach a result which could be attained with less expense and trouble, by a direct application to the court which appointed the receiver. The fact that in conducting the affairs of this receivership, certain of its business must necessarily bo transacted in the city of New York, does not, under the circumstances developed' in this case, in our judgment vary the general rule. If it be assumed that the corporation owed money to such judgment-debtor, and that his creditor had become entitled to it, as between such debtor and creditor, yet the fund sought to be reached remains unchanged in the hands of the receiver, and under the control of the court, and neither the court nor receiver became, in such sense, the debtor of such attaching creditor as to justify an application of any portion of the fund in the hands of the receiver to such claim, except under the direction of the court by which he was appointed.' It becomes unnecessary to express any opinion in regard to the regularity or sufficiency of the attachment- proceedings. The order should be affirmed, with costs.

Daniels and Potter, JJ., concurred.

Order affirmed,- with costs.


text:
    CHARLES H. WARNER, Administrator, etc., of OLIVER BLUSH, Deceased, Plaintiff, v. CHARLES W. DURANT, Executor, etc., of CLARK DURANT, Deceased, Defendant.

      Legacy — when vested.

    A testator bequeathed to his executors the sum of §275,000, then invested in bonds and mortgages, in trust, to reinvest any of the principal paid in, and to pay over to one Blush seven per cent interest on the sum of §15,000, each year, and at the expiration of five years, to pay the principal to the said Blush. • Held, that the legacy vested in Blush, on the death of the testator, and passed to his administrator on his dying before the explication of the five years.
    Case agreed upon, and submitted by the parties, pursuant to section 1279 of the Code of Civil Procedure.

      Amasa A. Bedfield, for the plaintiff.
    Where a testator bequeaths a legacy to a person at a futuro time, and either gives him the intermediate interest, or directs it to be applied for his benefit, the court there considers the disposition of the interest to be an indication of the testator’s intention that the legatee should at all events have the principal; and on this ground hold such legacy to be vested. (Williams on Executors, vol. 2, p. 1233; Roper on Legacies, vol. 1, p. 593; Hone v. Van Schaick, 20 Wend., 564; Burrill v. Shiel, 2 Barb., 457; Van Wych v. Bloodgood, 1 Bradf., 154; Patterson v. Bilis, 11 Wend., 259, 268; Everitt v. Everitt, 29 N. Y., 39.) There is another circumstance which is important in ascertaining the intention of the testator to vest the legacy instanter in the legatee. He has explicitly directed that the legacy should itself be severed instanter from the general estate, and set apart for the benefit of the legatee. (Saunders v. Vautier, 1 Cr. & Ph., 240; Weyman v. Bing old, 1 Bradf., 40; Pearson v. Holman, L. R. [3 Eq.], 315; Burrill v. Shiel, 2 Barb., 457.)

      Carlisle JSTonvood, Jr., for the defendant.
    The intention of the testator that the legacy should not vest until five years from his death is apparent from his having given the legatee a specific legacy of seven per cent per annum on $15,000. (1 Roper on Legacies, 581; Oromeh v. Lurnb, 3 Young & Cole, 565; Balsford v. Iterbell, 3 Yes., 363.)
   Ingalls, P. J.:

This controversy involves the construction of the last will and testament of Clark Durant, late of the city of New York, deceased, which was executed on the 3d day of September, 1873.

The following questions are submitted by the parties: Was the legacy vested in Oliver Blush at the time of his death ? And are his representatives entitled to the interest and principal of said legacy ? Or has the said administrator any right to receive any money under the said will, and if so, to what extent ? These questions present substantially one inquiry: whether the legacy of $15,000 to Oliver Blush became vested in his life-time, or lapsed in consequence of his death prior to the period prescribed in the will for the payment thereof.

The determination of this question depends mainly upon the construction to bo given to the thirtieth item of the will, which is as follows, so far as it affects the question which we are considering: “Thirtieth. I give, devise, and bequeath to my said executors, their heirs and assigns, in trust, $275,000 of the moneys belonging to me, and now invested in bond and mortgage on real estate in the city, county, and State of Now York, to have and to hold the same as now invested during the continuance of this trust; and whenever any of the principal sums composing this trust shall be paid, to reinvest the said principal sum in first mortgage railroad bonds that are regularly called at the regular board of stock brokers, in the city of New York; and during the continuance of this trust, and each aiid every year thereof, to pay annually seven per cent interest upon $40,000 to my nephew, Charles W. Durant, * * * and upon $15,000 to Oliver Blush; * * * said payment of interest to commence in the month of January next ensuing after my decease; and at the expiration of five years from my decease, to pay over the principal sums, upon which the interest hereinbefore has been directed to be paid, to the respective parties to whom said interest money is directed to be paid.” ■

Clark Durant, tlie testator* died1 on the.28th day-of February,. 1873. Oliver Blush died on-the 12th day-, of February, 1877, and therefore prior to the time fixed by the will,for--the payment-, of his legacy of $15,000. After a careful examination of said thirtieth item and the other provisions of said will, and after a consideration ■ of all'the facts and" circumstances which bear- upon the question, wo ■conclude -.that: the - legacy, in.quest!on became -vested in Oliver Blush-previous to his death,.andthat .his.personal repre-. séntatives became entitled’thereto, at his decease. First; The sum • of$275,000' of - certain specifiéd securities-is,-by the-terms of saidwill, separated from the body of the estate and devoted.to a particular purpose.. The executors are directed to. keep the - sum invested, and" to pay the interest:, thereof to the-legatees,- and at the -expiration of five years,-.finmithedeath-ofthe testator* to pay to such; legatees- the sums bequeathed to - them respectively.(Weymarts- Fx’rs • v. JRingold,. 1: Bradf.,, 40, 4-2; Fonereau v.’ Fonereau, 3 Atkins, 645; Wheeler, v. Lester, 1 Bradf., 213.) Second. The fact that- the executors are -, directed5 to pay to the legatees- annually the entire interest' up.on, the specific - amount designed for each legatee, is a strong, circumstance in support of the-position that: the testator intended: that the. legacies should vest-at his death, and: not at: the expiration of five years thereafter. (Paterson v. Filis, 11 Wend., 259 ; Iloath v._ Iloath; 2 Brown’s Ch-y., 4.) In this case.the chancellor remarks: “It was impossible now to* contend that-- when the- interest of a legacy is given to the legatee until’the-time of the .payment of the-principal, that-it is not. a vested legacy,” (Burrill v. Shell, 2 Barb., 468, 471; 2 Williams on Executors, 1082 note 1 [5th Am. ed.]; Willard’s Eq. Jun,, 515; Hanson v. Graham, 6 Ves. Jr. [Sum. ed.], 239.) The fact -that, the- bequest'is. to. the -executors in trust? does not prevent-the vesting; of the legacy. (Phipps v. Williams,: 5 Simons, 44; Bland v. Williams, 3 Mylne & Keene 411.)

We deem this.- interpretation fin • harmony-.with - the entire will, and according to the-intention of -thetestator-.as gathered therefrom, (See also, Everitt v. Everitt, 29 N. Y., 39; Tucker v. Bishop, 16 id., 402; Booth v. Booth, 4 Ves, Jr. [Sum. ed.] 399 .) The law favors an interpretation which vests a legacy, when it can be done without violating the clear intention of the testator expressed in, or fairly inferable, from the will.

There must be judgment in favor of the plaintiff’. The costs of the parties should be paid out of the estate.

Barrett, J., concurred.

Present — Ingalls, P. J., and Barrett, J.

Judgment ordered for plaintiff; costs of the parties -to be paid out of the estate.


author: Daniels, J.:

text:
    JOHN G. MEIGGS, Respondent, v. HENRY E. MEIGGS and Others, Infants, Impleaded with JOSEPH S. SPINNEY and Others, Appellants.

      Trust — complete delivery essential to — Principal and, agent.

    A trust once absolutely created by the act of the settlor is irrevocable, as to him, even though the beneficiaries may have had no notice of its existence.
    In order to sustain-a trust, it must be shown that a complete and valid delivery of the subject thereof has been made, and that no power is left in the settlor to revoke or annul such delivery, or to defeat its effect by making any other or different disposition of the property.
    An agent delivered property of his principal to a third person, taking a receipt therefor, in which, without authority from the principal, it was stated that 'it was to be held in trust for the principal’s children. The intention of the principal was that such property should be held for ¡his children, only in the event of his encountering a threatening pecuniary disaster, and he intended still to retain a power over it.

      Held, that the principal might recover such property in an action brought by him against the person to whom it was so delivered.
    Appeal from a judgment in favor of the plaintiff,'entered in the county of New York upon the report of a referee.
    The action was brought to recover certain bonds belonging to the plaintiff deposited with defendants, J. B. Cornell and J. M. Cornell, and which the latter claimed the right to hold, on the ground that they had been deposited with them to hold in trust for plaintiff’s children.

      The referee found, among other things, that, at the times hereinafter mentioned, the plaintiff resided and was engaged in business in the city of Lima, in the Eepublic of Peru, in South America, and the defendant, Joseph S. Spinney, resided and was engaged in business in the city of New York; in the State of New York, and was the business correspondent of the said plaintiff in the city of New York. That the defendants, Henry E. Meiggs, Mary E. Meiggs, William H. Meiggs, Helen C. Meiggs, John C. Meiggs and Prank Meiggs are the children of the plaintiff, all of whom were living at the times hereinafter mentioned, and that all of the said children of the plaintiff are infants. That, at the times hereinafter mentioned, the defendant, Joseph S. Spinner, held in his possession, or under his control, certain funds of the plaintiff, to be applied to such purposes as the plaintiff should direct. That on or about the fifth day of February, 1873, the plaintiff wrote and sent to the said J oseph S. Spinney a letter, of which the following is a copy:
    “ Lima, February 5, 1873.
    “ Joseph S. Spinney, Esq., New York :
    “ Dear sir — On receipt of this, please purchase $100,000 U. S. bonds of six per cent interest, and hand them to Messrs. J. B. & J. M. Cornell, charging the same in general account to me, and oblige, Yours, very truly,
    1 ‘ pp. HENEY MEIGGS,
    “ JOHN G. MEIGGS. •
    “ P. S. Charge the cost of these bonds in account current, as purchased for John G. Meiggs.
    “pp. HENEY MEIGGS, “JOHN G. MEIGGS.”
    That the said letter was duly received by the said J oseph S. Spinney at the city of New York, and that thereupon the said Joseph S. Spinney purchased for the account of the plaintiff, and with his funds, certain United States bonds, of the kind known as five-twenty bonds of ’67 and ’68, of the par value of $100,000. That Spinney divided the same into five lots, and placed them in five different envelopes, and indorsed on each envelope the name of one of the children of the plaintiff, and on or about the 16th day of April, 1873, delivered the said bonds to the defendants, J. B. & J. M. Cornell, and took a receipt for the same, of which the following is a copy ;
    “Nisw York, April 16, 1873.
    “ Received from Joseph S. Spinney, to be held in trust for the children of John G. Meiggs, United States five-twenty (5-20) bonds of ’67 and ’68, amounting to $100,000, par value.
    “ J. B. & J. M. CORNELL.”
    That by the letter of February 5, 1873, Spinney was authorized and directed to purchase said bonds, and to deliver the same to the said J. B. & J. M. Cornell, for the account of the plaintiff, and for no other purpose whatever, and that the plaintiff never authorized, directed or empowered the said Joseph S. Spinney to create any trust in respect to the said bonds, or to deliver them to the said J. B. & J. M. Cornell, to be held in trust for the children of the plaintiff, or any of them. That the words in the said receipt, “ to be held in trust for the children of John G. Meiggs,” were inserted therein by the said J. B. & J. M. Cornell, at the request of Joseph S. Spinney, but that the plaintiff never instructed or authorized him so to request. And he found, as conclusions of law, that no trust was created in respect to the bonds mentioned in the complaint in this action, in favor of the infant defendants therein, or any of them, as against the plaintiff, by the act of Joseph S. Spinney in depositing said bonds in the hands of the defendants, John B. & John M. Cornell, in the names of said infants defendants, and taking the receipts for the same; and that the plaintiff was entitled to judgment.

      Wm. Mitchell, Jr., for the appellants.
    A gift or trust is made perfect by delivery, and is irrevocable by the donor. (2 Kent’s Com., 439; Bmh v. Blagrcm, Ambb., 264; Gilchrist v. Stephenson, 9 Barb., 9; Gane v. Leggatt, 25 Barb., 394; see Fellows v. Herman, 4 Lans., 230; 2 Story’s Com. on Eq., §§ 972, 973, [2d ed., 1839], 236; Burr v. Winthrop, 1 Johns. Chy., 336, 337.) Knowledge by the grantee or donee that the grant or gift has been made is not necessary to its completeness and irrevocability. {Sidmouih v. Sidmouth, 2 Beav., 447; [17 Am. Law Reg., 3]; Smith y. Lyne, 2 You. & Col., 345; [17 Am. Law Reg., 73.]; Minor ;v. Rogers, 40 .Conn., ;512; Neilson v. Blight, 1 Johns. Cas., 205; Moses v. Mustgatroyd, 1 .Johns. Chy., 119; Western v. Barker, 12 Johns. Rep., 276; 4 Kent’s Com. [7th ed.], ,320; Kent’s .Opinion, Cumberland v. Carlijigtoy,, 3 Johns..Chy., ,26,1; Hunter v. Hunter, 19 Barb., 631; .Gray ,v. Barton, 55 N. Y., 68; reversing same case, 10 Alb. Law Jqm\, 122; Gvandgiae v. Arden, 10 Jolnxs., ,293 [cited - with approval in 23 N. Y., 504].) It is by no moans necessary that a trust should be declared by .deed; it may be shown to exist by a letter, note or memorandum ,in writing, etc. ,(.10 Law Lib. [Willis on Trustees], 22; see Crake y. Brooking, % Verm, 106; Towney -v. Browther, 3 Bro. .C. C., 161; Horsier v. Hall, 3 Yes., 695; Roberts on Statute of .Frauds, 101,102; ,and.-as to effect of letters, etc. {ExparteDabost, 18 Yes., 143, ete.; Hortesque ,v. Barnet, 3 Mylne & Keen, 36; Taylor v. Kelly, 5 Hun, 115;) The title of the trustees is complete and irrevocable, .and will prevail against the -person creating the trust, .and .all subsequent volunteers claiming under him by devise or otherwise. (Hill on Trustees [4th Am. ed.], 130; Hortesque y. Barnet, 3 Mylixe & Keen, 36; Bolton v. Bolton, 3 -Sw., 414, n.; Seqr y. Ashvjell, 3 id., .411, m; Jeffreys v. Jeffreys, 1 Craig & Phillips, 138.)

      Henry J. Scudder, for the respondent.
    There was here -no complete delivery in the sense necessary,to constitute a valid gift. There was no parting .by the owner with all control-or dominion ove.r ,the subject .of-the gift. {.Little v. TYiiieite, 37 How. Pr., 493, per Tappen, J.; Jones y. Look [L. R.], l -.Ch., ,25; Moot'ey. Moore [L. R.], 18 Eq., 474; Heartley v. Nieholson [L. R.], 19 id,, 233; Coxy. Spiigg, 6 Md., 2,74; Taylor.v. Staples, 8 R. I., 170; Hotteen v. Missing, 1 Madd- -Chy., 176; Harrison y. Mc-Mennomy, 2 Edw. Chy., 251; Neufville v. Thomson, ;3 id., .92; Cook y. Husted, 12 Johns., 188; Taylor v. Hire Department, 1 Edw. Chy., 294; Hink y. Cox, 18 Johns., .145; Smith v. Noble, 2 id., 52; Pearson v. Pearson, 7 id., 26; Gc¡ary y. Page, 9 Bosw.., 29,0.
   Daniels, J.:

The object of this action was the recovery of certain bonds placed by the defendant, Joseph S. Spinney, in the hands of the defendants, J. B. & J. M. Cornell, tobe held by them in trust for .the children of the plaintiff. These bonds were purchased py Spinney under the authority and direction of the plaintiff, and with the funds of the latter ; but, in support of the action, it has been insisted that the trust concerning .them was wholly unauthorized. In the presentation of the .case other and subordinate points have been discussed, but the point made upon the authority .exercised in the disposition of the bonds, is the controlling one in the controversy ; for if the agent was not empowered to .deliver these bonds so as to create such a trust, then, as they were .previous to that act concededly the .plaintiff’s property, they ■must have still continued so, which will entitle him to- recover in the action ; while if there was such a .delivery.authorized, then he must fail, even though .the trust was .not ..known .to, or accepted by, his children. For the rule .now prevailing is, that a trust, when once absolutely created by the act of .the settlor, will be irrevocable as to him, even though the beneficiaries may have had no notice o,f its existence, though it-might be otherwise where the rights qf creditors intervened. (Perry .on Trusts [2d. ed.], § 105, and cases cited in notes.) The point material to be considered, therefore, is whether there ivas such a delivery of -these bonds in this .instance, or whether the authority under which the act -was performed was not ,so far .qualified as to be subject to the plaintiff’s power of revoking the trust. It has been claimed, in support of the position taken on behalf of the plaintiff'’s minor .children, that as Spinney was his .general .agent, that circumstance should be invoked .to confer greater significance .upon his act. But that .position cannot be allowed to prevail, for the reason .that this act was not within the scope of such .general .agency, even if its existence has been satisfactorily shown. .This business was made the subject of special instructions, in no way connected with the existence of any general authority. They were given by letter, and in such terms as indicated the .existence of .an intention that the agent’s acts .should be governed by the authority so expressed. For that reason the agency was special in its nature, and the exercise of the . authority must accord., in substance, with the terms creating -it. The rule might, perhaps, be differently applied in .cases where the rights .of purchasers for value intervenecl; but as to mere donees, this restriction should be placed upon the act and authority of the agent. (Mechanics’ Bank v. N. Y. & N. H. R. R. Co., 3 Kernan, 599, 632-635.) And in order to sustain the gift in their favor, a complete delivery of the sub- | ject of it must appear in the case. (Doty v. Willson, 47 N. Y., 580.) And to render it complete, the control of the donor over the bonds must be entirely divested. No power can be reserved by him to revoke or annul the act of the delivery, or defeat its effect by making any other or different disposition of the property. Fisher v Hall, 41. N. Y., 416; Bryant v. Bryant, 42 id., 11.) In the cases of Gilchrist v. Stevenson (9 Barb., 9), and Fellows v. Heermans (4 Lansing, 230), and those referred to in the opinions as supporting those decisions, the delivery was complete, and no defect existed or was urged as to the efficiency of the authority under which it was made. For that reason they are in no sense in conflict with the rule already mentioned, requiring that there shall be a complete and valid delivery of the subject of the trust in order to effectively create it. Where that appeal’s not to have been the nature of the act, or where a power of revocation has .been reserved over it, there the trust will not become complete by the mere transfer of the subject of it, but it may afterwards be annulled by the exercise of the power. This rule is particularly applicable to cases of voluntary trusts, and it has in repeated instances been extended so far as to sustain the action of the donor for the recovery of the property, even when the intention to retain the power of revocation had to be gathered from somewhat ambiguous circumstances. The cases sustaining this proposition are quite numerous, and they have many of them been stated and cited in the opinion of the chancellor of New Jersey, hi deciding the case of Gamsey v. Munday (24 N. J. Eq. R., 243), which, of itself, is an instructive authority upon this subject. (See, also, Geary v. Page, 9 Bosw., 290.)

When these bonds were purchased and placed in the hands of the defendants, Cornell, the plaintiff was engaged in the construction of railways in the Republic of Peru. His situation was such as to create apprehension concerning his future pecuniary condition. That depended upon his ability to realize the money becoming due to him in the course of these enterprises. It was in so uncer. tain a condition as to be the source of anxiety, and in this condition he became impressed with the necessity of doing something for the protection and future support of his minor children, in case his affairs should be affected by disaster, as he feared they might be. Actuated by that purpose, on the 15th of February, 1873, he wrote three letters from Lima, in Peru; two of which were addressed to, and received by the defendant Spinney. In one of them he directed the recipient, “on receipt of this please purchase $100,000 U. S. bonds of six per cent interest, and hand them to Messrs. J. B. & J. M. Cornell, charging the same in general account to me, and oblige,” etc. In the letter to the defendants Cornell, he stated that, “under this date I have taken the liberty to ask Mr. Spinney to purchase $100,000 U. S. bonds for my account, and deposit them in your hands, please receive them, and this time I promise you they will not be drawn from you except by me in person, or my heirs. If this shall cause you any inconvenience, don’t hesitate to say so to Mr. Spinney, and refuse to receive them. If it shall cause you no inconvenience, please receipt for them in name of firm, and oblige,” etc. Under the same date of February 5th, 1873, the plaintiff wrote the other letter to the defendant Spinney, marked “private,” in which he stated that, “things look a little dusty here owing to a fight between the government and Dreyfus, by which the loan is for the moment postponed, and to prepare myself for the worst, I have used my power of attorney to ask you to purchase $100,000 U. S. bonds for the cubs, if things come to a regular break,” etc. On the 5th of March, 1873, he wrote another letter to the defendant Spinney, in which ho made the remark that for the present he had only to confirm the letters of February 5th and 13th, and if possible strengthen those instructions.

It was clearly the nature of these instructions that the title to the bonds should not be irrevocably placed beyond the plaintiff’s control. At most, he intended only to provide against a disastrous contingency, which might be encountered by his financial affairs on account of the uncertain condition of the public credit of the local government. That is evinced all through this corre- ' spondencc; for in his letter to the defendants Cornell, he does not request that they should receive these bonds solely upon a trust for his children, but merely and only .that they should be deposited in their hands, -not to be drawn from them unless that w.as ..done by himself or his heirs. These terms explicitly rendered the .deppsit subject to the exercise of the plaintiff’s authority over fit subsequently. That the bonds were not ;;to be drawn from the .depositees, except ¡by himself or his heirs, was-a circumstance-that carried with-it,a very decided .implication-that they .might be so .drawn by him; .and there was nothing -in -the .letters, -written at .the same time to Spinney, inconsistent with the existence of .this authority. -In one -he merely idirected 'him to hand the bonds, when.purchased, to ¡J. B. & J. M. .Cornell, without indicating, fin -any way, ;for whom or .on what terms they should hold -thorn; while, .in the other, fit was stated that -they were for the cubs, by which he intended to .designate his children, “if things came to a .•regular break,” which .was in -perfect harmony with the reservation of -the power over the bonds reserved -by him in -his letters ,to -the -Cornells.

It was under this qualified-authority that the'bonds were purchased and .deposited; but that was not in form preserved by -the terms of the receipt given for the deposit; which was made on •the 16th,of April, 1873. Nor in the receipt, in which it was stated that .the one hundred thousand dollars of-bonds deposited were-to be held .in-trust for .the- children of ¡the plaintiff. This was not conformable ¡to his-instructions, -and so far as itfailed-in that respect the ¡deposit was without authority; and -that it was not afterwards .designed ¡to be confirmed by the plaintiff has been shown by his letter pf May -13, 1873, written to the defendant Spinney; for in that he stated-that he had instructed ‘ ‘ .the Messrs. -Cornell to change to.registered ¡bonds in their name in trust for me.” At that time his financial prospects had undergone a decided improvement, ,and lie doomed ihimself safe in then exercising the power he had previously reserved -over this .deposit, and by f his letter made .use ,of that .authority»

•It -has been urged that -he could -not do this, because -he had been informed by a letter from 'Spinney, written on the fOth of March, that a portion of the -bonds had been secured .and were held-by the writer in-trust for the children, and that his omission to object to that disposition -of them ratified their ¡appropriation in that way. But that inference cannot properly be deduced from this information, and the omission of the plaintiff to object to the creation of such a trust; for in a general sense the bonds were to be held in trust for the children ; but it was, at the same time,- intended to be subordinated to the plaintiff’s- power of revocation, and it was not stated in the letter, that this power was not intended to be preserved. There was an entire absence of any allusion to that subject, and from the omission to object to the terms stated under such circumstances, no confirmation of such a trust could properly, be inferred. On the contrary, the presumption from the letter would be that the bonds were held in trust for the children, in the manner he had instructed that to bo done, and that was subject to his future power of revocation. The letter, of May-13th, by which the change was directed, indicates, that the intention, designed to be embodied in this trustin the outset, had never been changed or abandoned, and there is nothing in the case supporting any different view of these transactions, for a ratification of the unauthorized act of an agent can only be inferred from the omission of the principal to object after he has received full knowledge of the act to be ratified, and no such knowledge was communicated in this case, because ■ it was nowhere intimated that ’the trust for his children had not been rendered subordinate to his -power of drawing the bonds from the hands of the trustee, as his Tetters show that-it was designed to be.

The fact that this disposition of his property may not have been consistent with a proper regard for the rights of the plaintiff’s creditors, is not important in this controversy, for' the bonds are not sought to be held in anyway on their-'account; but simply forth® beneficiaries nominated under the trust; and: as -the trustees cannot hold the bonds for them against the-rightTssertéd by-the plaintiff, the judgment recovered' in his- favor ought to be affirmed.

Ingalls, P. J., and Pottee, J., concurred.

Judgment affirmed.


author: Daniels, J.:.

text:
    EDWARD ROWE and others, Respondents, v. CHARLES L. GUILLEAUME, Appellant.

      Voluntary dischwge by plaintiff of defendant from arrest — when not a satisfaction of the judgment on which the execution issued.

    The defendant was arrested under an execution issued on a judgment, whereupon he noticed a motion to set aside the arrest, on the gi’ound that he had not been arrested on an order before the entry of the judgment. The plaintiff, without waiting for the decision of the motion, consented to his release, upon his agreeing not to bring an action for false imprisonment.

      Seld, that the consent of the plaintiff to his release did not amount to a satisfaction of the judgment.
    Appeal from an order denying a motion to satisfy of record the judgment entered in this action in the county of New York.

      Geo. W. Van Slyck, for the appellant.

      A. It. Dyett, for the respondents.
   Daniels, J.:.

The motion was made to satisfy the judgment because an execution had been issued against the person of the defendant, under which he was arrested and held in custody from the second to the fourth of February, when he was discharged by the direction of the plaintiff’s attorney. There can be no doubt but that this would have satisfied the judgment, and entitled the defendant to the order if it had been all that there was of the case; for an arrest on execution, and a release of the defendant from custody under the authority of the plaintiff, constitutes in law a satisfaction. But this was not a case of that description; for the defendant did not aquiesce in his liability to arrest upon the execution, as he had not been arrested by order before the recovery of the judgment. For that reason a motion was noticed in his behalf to set aside the arrest and release him from custody, and thereupon, without awaiting the action of the court on the motion, the plaintiff’s attorney practically assented to its propriety; and for that reason consented to the defendant’s discharge on the terms the court would probably have exacted on a favorable decision of the motion, which were that no action should be commenced for false imprisonment. The effect of the arrangement was to afford the defendant the same result that he insisted he was entitled to secure by the hearing and decision of the motion, and it should obviously have no other or greater effect. The defendant was allowed to succeed upon his motion without formally making it. As to him, it was a determination in favor of the accuracy of the position taken by him; that the execution had been irregularly issued, because he was not liable to arrest upon it; whether that was strictly the case or not, it is not necessary to decide; the defendant asserted it to be so, and the plaintiffs assented to the correctness of his position. And now, after he has gained his point and secured all the.advantage it can possibly afford him, he should not be permitted to avail himself of the entirely inconsistent claim that the execution was legally issued against him, and for that reason the judgment was satisfied by his custody under it; that would be entirely unfair and unjust, and no authority has been found requiring the position to be .sustained. The discharge may have been erroneously produced, but if that were the case after the defendant has secured the full benefit of the error, he ought not to be allowed-to affirm its existence to the prejudice of the other party. The execution must now be considered as having been irregularly issued, and for that reason the plaintiffs did not have the advantage from it in the way of securing satisfaction of their judgment, which they would have had if they had been entitled to it as proper process upon their judgment; and having been deprived of its benefit by the proceedings of the defendant himself, to which they were induced to accord their assent, ho should not now defeat their judgment by affirming that they have voluntarily abandoned-.the process, through whose. instrumentality actual satisfaction of their demand might otherwise have been secured. Upon, sound legal -principles, the .motion was properly denied. The case is substantially the same as though the discharge had been secured without the plaintiff’s assent, for it was induced by the hostile action of the defendant, and if they had permitted the motion to proqeed to a hearing, .and. the execution had been set aside, it would not, have .prejudiced .their right t'o resort to the usual process against property for the recovery of their debt. (Ginochio v. Figari, 4 E. D. Smith, 227 ; Wesson v. Chamberlain, 3 Comst., 331.) And' the same result should be attended with no other effect when brought about by acquiescence in the propriety of the claim that was. made, that the execution was not authorized by the 'judgment recovered. The order should be affirmed, with tlie usual costs and disbursements.

Ingalls, It' J., and Totter, J., concurred.'

Order affirmed, with $10 costs and disbursements.


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    GEORGE W. BASSETT and GEORGE METCALFE, Appellants, v. CHARLES V. L. PITTS, Respondent.
    Oder-o/ arrests- cause of, must be applicable to all the claims in the complaint.

    The complaint in this action alleged the sale of goods by-the pdaintiffs to -the de- ' fendant; that' the sale of a portion of them was procured by his fraudulent ■ representations, and -that since the contracting of the ‘debts thé defendant had ‘ disposed of his'-propei-ty. with intent to defraud his creditors.' Upon the complaint and affidavits; an order of arrest was granted; on the ground that defendant had disposed of his-property with intent to defraud his creditors. Held, that although; if the order had been granted on account of the fraudulent representations, • it .‘could not be sustained, as the plaintiffs sought'to ■■ recover for the sale of other goods not procured by them; yet ás'it was’granted " for a cause applicable to the whole claim, it was proper,. and should be affirmed.
    Appeal by: tlie plaintiffs frofn an order of" the "New York Special Term, vacating,an order of arrest.
    The amended complaint, in this action, set out a salé of certain gbods,' wares and merchandise to the defendant; • that the salé of a portion of'them wás procured through the false and‘fraudulent représentátióii of" the defendant, and'alleged, that’since the contracting of "the debts tíre defendant has disposed* of'-his propéffiy wiíh" intent tó' ¿¿fraud ’ his creditbss. ' Upon the complaint and affidavits, an order of arrest was granted, which was vacated at the Special Term.

      Stephen B. Brague, for the appellants.

      Win. Linson, for the respondent.
   Ingalls, P. J.:

The order of arrest was granted upon the ground that the defendant had disposed of his property with intent to defraud his creditors. The plaintiffs, in the papers upon which they applied for the order of arrest, stated certain representations made by the defendant in regard to his pecuniary responsibility, which they allege were false; yet that was not the ground upon which the order was granted, as appears by the order itself. This becomes material, in considering the ground upon which the learned judge decided the motion at Special Term, and which is relied upon by the respondent, viz.: that the plaintiffs have included in their complaint a claim for goods sold and delivered to the defendant, as to which it is not claimed by the plaintiffs that any false and fraudulent representations were made-at the time of such sale and delivery; that by inserting such claim, the plaintiffs incorporated a cause of action upon which the defendant was not liable to> arrest, and therefore all right to cause the arrest of the defendant, upon any claim or cause of action stated in the complaint was. waived. If the order of arrest bad been granted upon the ground that the defendant had made false and fraudulent representations in regard to his pecuniary responsibility, and thereby induced the plaintiffs to sell and deliver to him a portion only of the goods, we. could adopt the views entertained by the judge at Special Term. (Ely v. Steigler, 9 Abb. [N. S.], 35; Lambert v. Snow, 17 How. 517; Smith v. Knapp, 30 N. Y., 581, 588; 2 Wait’s Prac., 605; Bowen v. True, 53 N. Y., 640.) We conclude, however, that this objection should not prevail, as the alleged fraudulent disposition of property by the defendant constituted a ground of arrest in regard to the entire cause of action alleged in the complaint. (Toffey v. Williams, 3 Hun, 217.) The fact that the defendant was not required to give bail for the entire amount of the plaintiffs’ cause of action should not be regarded by him as cause of complaint. He is certainly not prejudiced thereby. Section 550 of the Code of Civil Procedure provides, that in an action upon contract, the defendant may be arrested when he ‘1 has since the making of the contract, or in contemplation of making the same, removed or disposed of his property with intent to defraud his creditors,” etc. Upon this ground, the order of arrest was granted, and it applied to the entire cause of action stated in the complaint. In this respect, the case which we are considering is clearly distinguishable from those to which we have above referred. In those cases a cause of action, in regard to which no arrest could be made, was joined with the cause of action as to which an arrest was allowable, and it was held that a party, by uniting such causes of action in the same complaint, waived the right to cause an arrest for any cause of action stated in such complaint. In this case, the entire cause of action is upon contract, and the ground of arrest applies to the entire claim, and not simply to a portion thereof. The opinion delivered at Special Term shows that the merits were not passed upon. The defendant presented no affidavits, and therefore the case made by the plaintiffs in their affidavits was unexplained and unshaken. The counsel for the respondent urged, upon the argument of this appeal, that the affidavits failed to establish a state of facts which justified the granting of the order of arrest, independent of the objection which we have above considered. We are convinced that sufficient is alleged to sustain the order. It is true many of the facts relied upon by the plaintiffs are stated upon information and belief; but the sources of such information are given, and the failure to produce the affidavits of the persons referred to is excused. The affidavits contain far more than mere rumor or gossip, gathered in the neighborhood where the defendant resides. They detail conversations with the defendant in the presence of his brother, to whom the transfer is alleged to have been made by the defendant; also information derived from persons who arc named and shown to have possessed facilities for acquiring knowledge in regard to the defendant, and the manner he has managed and disposed of his property. The order of the Special Term must be reversed, with costs and disbursements, but with leave to tire defendant to move upon affidavit to vacate the order of arrest • upon the merits.

Potter, J., concurred.

Present — Ingalls, P. J., and Potter, J.

Order reversed, with costs and disbursements, and with leave to defendant to move on affidavits, to vacate order of arrest on the merits.


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    JULIUS LEWISHON and Others, Appellants, v. WILLIAM H. DREW and Others, Respondents.

      Firm, creditm— right of, to reach equitable assets of firm —judgment and execution against the firm necessai'y.

    A creditor of a firm, who has recovered a judgment against one member thereof, upon his guaranty of a firm debt, and issued an execution thereon, which has been returned unsatisfied, cannot maintain an action, in'the nature of a creditor’s bill, to reach the equitable assets of the firm; a judgment must first be recovered against the firm or the surviving partner thereof, and an execution be issued thereon and returned unsatisfied.
    Appeal from a judgment, entered in the county of New York upon the report of a referee, dismissing the complaint.
    The plaintiff was a creditor of a firm composed of Elizabeth Drew and William H. Drew; Elizabeth died, and the surviving partner formed a partnership with defendant, Challes W. Drew, and they afterwards carried on the business with a considerable portion of the assets and property of the former firm. This action was brought to compel an accounting by the latter firm, and the payment of the plaintiff’s claim, out of any balance due to the former firm.

      Adolph L. Sanger, for the appellants.
    In cases of fraud and trust, a lien or a quasi lien, arises in favor of creditors. They are entitled to relief, notwithstanding the fact that they may have had a remedy at law by levy and sale upon execution. All that is necessary, is to establish the relation of trustee and cestui que trust. (See Chautauqua Bank v. White, 6 N. Y., 252 ; McCartney v. Bostwick, 32 id., 53 ; Everinghamy. Vanderbilt, 19 N. Y. Sup. Ct. R. [12 Hun], 75, 78.) The authority exercised by this court to grant relief in such cases, is a jurisdiction entirely independent of that exercised under the special authority of the statute to grant ancillary relief to judgment-creditors, in aid of their remedy at law. (See authorities above cited, and McElwain v. Willis, 9 Wend., 567.; Long v. Majesire, 1 Johns. Ch., 306; Colt v. Lasnier, 9 Cow., 320 ; Loomis v. Tifft, 16 Barb., 541, 543-544 ; Story’s Eq. Jur., §§ 1265, 350-359, 535 ; Geery v. Geery, 63 N. Y., 254; Lawrence v. Bank of the Republic, 35 id., 320, 321, 322.) The objection that the plaintiffs must first exhaust their remedy at law comes too late. This objection was neither taken at the trial nor by answer. The parties have all submitted to the equitable cognizance of this action, and the proofs have all been taken before the referee upon the merits. The objection is not now available. {Green v. Milbank, 3 Abb. [New Cas.], 149 ; Le Roy v. Rlait, 4‘Paige, 77; Truscott v. King, 6 N. Y., 165 ; Hanley v. Cramer, 4 Cow., 726; Renand v. O'Brien, 35 N. Y., 103.)

      James H. Gilbert, for the respondents.
    A creditor at lai-go cannot maintain an action to reach the equitable assets of his debtor. (Dunleavy v. Tallmage, 32 N. Y., 457, and cases cited ; Ocean Nat. Bank v. Olcott, 46 id., 12; Allyn v. Thurston, 53 id., 627 ; Estes v. Wilcox., 67 id., 264.)
   Daniels, J.:

■ As this case is now presented it appears that the plaintiffs were creditors of the firm of E. Drew for goods sold and delivered. That firm was composed of Elizabeth Drew and the present defendant, William H. Drew. She died, and after her decease the surviving partner formed another partnership with the defendant, Charles W. Drew, and they after that carried on business with a considerable portion of the assets and property of the preceding firm of E. Drew. The plaintiff’s debt had been guaranteed by the defendant, William H, Drew, and a judgment, was recovered by the plaintiffs on that guaranty, on which execution was issued and returned unsatisfied. But no judgment was ever recovered by the plaintiffs against the firm of E. Drew, nor against William H. Drew as the surviving partner. That was an important omission, for upon the judgment recovered on the guaranty, which was merely the individual obligation of the guarantor, only his own property could be appropriated by the execution for its payment; while upon a judgment against him as surviving partner, the assets and property of the firm coidd have been levied upon and sold to satisfy an execution issued upon it; and that might very well have resulted in the payment of the plaintiff’s debt. This was a substantial and probably an adequate remedy for its recovery ; and until it shall have been resorted to and failed, the remedy in equity does not seem to be available. By that remedy the assets and property of the old firm, not capable of being discovered and appropriated to the payment of an execution, could be secured and applied to the payment of the plaintiff’s debt. But until the legal remedy has been exhausted this equitable action cannot be sustained. That is now the well-settled rule applicable to actions of this description. (Dunlevy v. Tallmadge, 32 N. Y., 457; Ocean Bank v. Olcott, 46 id., 12; Allyn v. Thurston, 53, id., 622; Estes v. Wilcox, 67 id., 264.)

The action was commenced and tried upon a somewhat different theory. But that proving unfounded, in part at least, the complaint was amended; and by the amendment it has become an action by the plaintiffs as creditors to reach the assets of their debtors, and in that way to obtain satisfaction of their debt, without first exhausting the remedy provided by law for its recovery by a judgment .upon it, and an execution against the property of their debtor. They have failed in the proceeding taken by them. Whether costs should have been allowed, was a matter which under the circumstances was addressed to the discretion of the referee, and nothing in the case shows this authority to have been unreasonably exercised.

. The judgment should be affirmed.

Ingalls, P. J., and Potter, J., concurred.

Judgment affirmed.


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    NORMAN PECK and LOUIS F. MARTIN, Appellants, v. HERMAN VON KELLER, Respondent.

      Entry in aecount-book — when inadmissible in evidence.

    In an action to recover money alleged to have been advanced to defendant by plaintiffs, one of plaintiffs’ clerks testified that he made in their books the following entry: “Herman Von Keller, on account, $10,000;” that he had no recollection of the facts contained in it, except that it was like a particular check he was told to draw; or of its correctness, except from its being in the book. Held, that the entry was not sufficiently authenticated to render it evidence of anything.
    Appeal from a judgment in favor of the defendant, entered on the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      JElilm Root, for the appellants.

      John A. Mages, for the respondent.
   Daniels, J.:

This action was brought to recover the balance of money alleged to have been advanced by the plaintiffs to the defendant That it was so advanced was denied by him, and whether he was right or not in that denial was the material controversy existing at the trial. The plaintiffs were allowed to read an entry made in their books by one of their clerks who testified to the fact of having made it. The entry was: ‘ ‘ Herman Von Keller, on account, $10,000.” The witness stated that he had no recollection of the facts contained in the entry, beyond the entry itself, except that it was like a particular check he was told to draw. He was asked whether he could state that the entry was correct when it was made, and answered: “Yes sir, by its being there.” The witness does not appear to have had any knowledge whatever as to the agreement or understanding made concerning the transaction. And he remembered no more of the entry than that it was like a particular check he had been told to draw. He knew nothing of. its correctnoss, further than the fact that he found the entry hi the book. Under these circumstances, it was not sufficiently authenticated to render it evidence of anything. (Merrill v. Ithaca & Owego R. R. Co., 16 Wend., 588; Corning v. Ashley, 4 Denio, 355; Gould v. Conway, 59 Barb., 355; Moore v. Meacham, 10 N. Y., 207.) The proof was merely that this entry existed on the plaintiffs’ books, and that it had been made by the witness. But that had no legal tendency to prove that the advance was to the defendant. For that reason the court properly ruled that the jury could not consider it as evidence on that subject.

The entries rejected as not entitled to be read were still less rehablo. For-it only appeared that they were made by the witness on the plaintiffs’ directions. They were simply the recorded statements made by the plaintiffs on this subject, or the result of such statements. Whether they were true or not was only known to the plaintiffs themselves, and their evidence does not, seem to have been given for the purpose of showing that fact, except as they were examined as witnesses generally in the case to prove the transactions on which their right to recover depended.

All that is claimed for the entries is that the fact of their having been made was proper in the case. But if they could prove nothing more, the evidence of their mere existence would be of no service to the plaintiffs. In the case of Moore v. Meacham (supra), the entry was allowed to be read simply for that purpose. And the court held that the plaintiff could not complain of the ruling which permitted it; and the reason for this ruling .is entirely obvious. For when read for that purpose, it could be allowed no possible effect as evidence. Whether received or rejected, it could be of no importance, unless it should be acted upon as some proof of the fact mentioned in the entry. These entries are not claimed to have been entitled even to that degree of consideration, and as they were not, whether they existed in the case or not was. entirely immaterial.

The judgment and order should be affirmed.

Ingalls, P. J., and Potter, J., concurred.

Judgment and order affirmed.