text:
    RICHARD H. LEE and JAMES APPLE, Plaintiffs, v. EUGENE A. HOMER, Defendant.

      Sureties upon an undertaking for an attachment— they aA'e liable for costs awarded’ to the defendant, although the attachment be not formally vacated — Code of Gwil. Procedure, sec. 640.
    The sureties upon an undertaking, given upon the issuing of an attachment, are Hable for the costs of the action, awarded to the defendant upon the dismissal of the complaint, even though the attachment itself ho never formally vacated.
    Section 640 of the Code of Civil Procedure provides that “ the judge before granting the warrant must require a written undertaking on the part of the plaintiff, with sufficient sureties, to the effect that if the defendant recovers judgment, or if the warrant is vacated, the plaintiff will pay all costs which, may bo awarded to the defendant, and all damages which he may sustain by-reason of the attachment, not exceeding the sum specified in the undertaking; ” the words, “which he may sustain by reason of the attachment,” apply only to the word “ damages ” and not to the words “costs which may be awarded to-the defendant.”
    OoNtroveRST submitted without action.

      Bolles, Waring <& Bolles, for tbe plaintiffs.

      0. 8. Gary, for the defendant.'
   Smith, P. J.:

The facts of this case, as submitted, are that one ‘W’ickwire being-about to commence an action in the Supreme Court against the-plaintiffs herein, non-residents of the State, applied for a warrant of attachment against their property, and on said application presented to the judge to whom the same was made, the bond or undertaking on which the present controversy is based, executed by Homer, the defendant herein, alone, and entitled to said action, by which, after the usual and proper recital, said Homer undertook “that if the defendants in said action should recover judgment, or if the said warrant of attachment was vacated, the plaintiff would pay all costs which might be awarded to the said defendants Lee and Apple, and all damages which they might sustain by reason of the said attachment, not exceeding two hundred and fifty dollars.” Thereupon the warrant of attachment was issued and property of Lee and Apple was attached thereunder. Summons in the action was issued and served upon the defendants therein personally. Defendants answered; the case, being at issue, was placed apon the circuit ealendar for trial, and the plaintiff not appearing when the case was called, the complaint was dismissed with costs, on motion by defendants, and judgment accordingly entered in their favor for $126.14, as and for their costs and disbursements of defending the action. Execution was issued against Wickwire, the plaintiff in the action, and returned wholly unsatisfied. No application or motion was made by Lee and Apple to vacate the attachment. The costs and disbursements included in said judgment were made up only of the items allowed by law in an action iu which issue was joined without reference to the attachment, and were the same as if no attachment had been issued.

The plaintiffs herein contend that Homer, the surety on said undertaking for attachment, is liable to them for the amount of said judgment for costs and disbursements; while Homer denies such liability, he claiming that his undertaking covers only costs arising by reason of the attachment, and not the ordinary costs of suit. The undertaking, by its terms, complies with the provisions of section 640 of the Code, and th’e decision of the controversy depends upon the construction of that section, the language of which, so far as it affects the question, is as follows: “ The judge before granting the warrant, must require a written undertaking, on the part of the plaintiff, with.sufScient sureties, to the effect, that if the defendant recovers judgment, or if the warrant is vacated, the plaintiff will pay all costs, wbicb may be awarded to tbe defendant and all damages, wbicb be may sustain by reason of tbe attachment, not exceeding tbe sum specified in the undertaking, wbicb must be at least two hundred and fifty dollars.” There are two conditions on tbe happening of either of wbicb tbe undertaking becomes obligatory, namely, the recovery of judgment by tbe defendant in tbe action, and tbe vacating of tbe warrant of attachment. Either may happen without tbe other, that is to say, tbe defendant may recover judgment without tbe attachment being vacated except by tbe necessary effect and operation of tbe judgment in tbe defendant’s favor, no motion being made for a vacatur, or tbe attachment may be vacated on motion, notwithstanding the plaintiff may recover in the action. In tbe latter case, tbe parties executing the undertaking clearly would not be liable by force of it for the costs of tbe action, because none would be' awarded to tbe defendant, while in tbe former case, tbe costs of the action would be awarded to tbe defendant, but none would be awarded him “by reason of tbe attachment.” Strictly speaking no costs can be awarded to a defendant by reason of tbe attachment; in any case the expenses incurred by him for the fees of attorney and counsel in moving to vacate tbe attachment being included in the term “ damages.” (Currie v. Riley, 14 N. Y., Weekly Dig., 407.) In that respect tbe case is analogous to that of an injunction, in wbicb latter case it is well settied that tbe taxable costs of the defendant, necessary to obtain a dissolution of tbe injunction, may .properly be considered as damages so as to enable the defendant to recover them of tbe sureties in tbe injunction bond if he is unable to collect them of the plaintiffs in tbe suit. (Edwards v. Bodine, 11 Paige, 223; Aldrich v. Reynolds, 1 Barb. Ch., 613; Andrews v. The Glenville Woolen Co., 50 N. Y., 282; Hovey v. The Rubber Tip Pencil Co., Id., 335; Rose v. Post, 56 id., 603.)

Recurring to tbe section of tbe Code under consideration we are of tbe opinion that tbe words, which be may sustain by reason of tbe attachment,” apply to tbe “ damages ” only and not to tbe “ costs which may be awarded to tbe defendant; ” tbe costs thus referred to being those of tbe action, and not those incurred in a motion to vacate tbe attachment, wbicb are regarded as damages.

This construction makes tbe liability created by an undertaking in an attachment case analogous to that of an undertaking upon an order of arrest. (Code, § 559.) Tbroop’s note to section 639 states that it was so framed as to correspond with section 559.

Note. — The balance of the cases decided at this term of the court will he found in (38 Hun) the next volume.— [Rep.

We think the construction contended for by the plaintiffs is correct and that they are entitled to judgment for the sum of $126.14, with interest from 28th May, 1884, the amount agreed upon in the case, with the costs allowed by statute.

BARKER and Bradley, JJ., concurred.*

Judgment ordered for plaintiffs for $126.14, with interest from 28th of May, 1884, the amount agreed upon in the case, with costs allowed by statute.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    Fifth Department,
    June Term, 1885.
    George E. Jennings and others, Respondents, v. Edward Bayer and others, Appellants.
   Order appealed from reversed and judgment permitted to be modified as indicated m the opinion, with ten dollars costs and disbursements to appellants. Opinion by

Bradley, J.


author: Smith, P. J.

text:
    Bridget Grier. Respondent, v. The City of Lockport, Appellant.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Smith, P. J.


author: Haight, J.

text:
    The People of the State of New York, Respondent, v. William Thomas Murphy. Appellant.
   Judgment and conviction affirmed and. proceedings remitted to the Court of Sessions of Monroe coitnty. Opinion by

Haight, J.


text:
    Pametta Mullen, an Infant by Guardian. Respondent, v. Asbury Christian, Appellant, Impleaded, etc.
   — Judgment and order affirmed. Opinion by

Bradley.J.


text:
    In the Matter of the Judicial Settlement of the Accounts of Dorothy H. Huntington, Executrix, etc., of Wales H. Huntington. Deceased.
   Decree affirmed, with the costs of this appeal to be paid by the appellant. Opinion by

Haight, J.


text:
    Hiram Smith and others, Respondents, v. The City of Rochester, Appellant.
   —Judgment affirmed, with costs, on the opinion of Rum-sey, J.. at Special Term. Dissenting opinion by

Haight, J.


author: Barker, J

text:
    John S. Brown, Appellant, v. Fannie Twist, Respondent
   —Judgment reversed and a new trial ordered, with costs to abide the event. Opinion by

Barker, J


text:
    John Pendergast v. The Johnson Harvester Company.
   — New trial granted, with costs to abide the event. Opinion by

Smith, P. J.


author: Barker, J.

text:
    Theressa C. Loewengath, as Administratrix, etc., Appellant, v. Charles Hutte, Respondent.
   — Judgment affirmed, with costs to respondent, with leave to him to submit the question to the Special Term, to determine whether the plaintiff shall be charged personally with the costs. Opinion by

Barker, J.


text:
    Frank F. Stevens, Appellant, v. Charles S. Butler and another, Respondents.
   — Judgment affirmed, on the opinion of Haight. J., in the former case, (Laing v. Butler, reported ante. p. 144.)


text:
    P. Henry Grace, Respondent, v. William Bentley and others, Appellants.
   Judgment and order affirmed. Opinion by

Bradley, J.


author: Smith, P. J.;

text:
    John W. Brigham and others, Respondents, v. William T. Fish, Appellant.
   — Order affirmed. Opinion by

Smith, P. J.;

Haight, J., not sitting.


text:
    John Arnot, Jr., Respondent, v. Harriot Whitcomb, as Executrix, etc., Appellant.
   — Judgment affirmed, with costs. Opinion by

Barker, J.


text:
    In the Matter of Ellen A. Bangs, as General Guardian, etc.
   — Decree of the surrogate reversed and new hearing ordered, unless the respondent stipulates within twenty days to reduce the balance on the accounting to the sum of $612 97, as of 20th December, 18 43, in which case the decree, as so modified, is affirmed, without costs of this appeal to either party. Opinion by

Bradley, J.


author: Lewis, J., at circuit.

text:
    Edward F. Lathrop and another, Appellants, v. Jonas J. Blake and others, Respondents.
   Order granting new trial affirmed, with costs to abiue the event, on the opinion by

Lewis, J., at circuit.


text:
    Mary Tompkins, Respondent, v. Charles E Haight. Appellant.
   — Order affirmed, on opinion of Lewis, J., at circuit.


text:
    William L. Hunt, Respondent, v. The Buffalo, N. Y. and P. R. R. Co., Appellant.
   — Judgment affirmed. Opinion by

Bradley, J.


text:
    Charles S. Hall, Appellant, v. Benjamin M. Baker, Respondent.
   — Judgment affirmed. Opinion by

Smith, P. J.


author: Haiglit, J.

text:
    August Siegrist, Respondent, v. John A. Holloway and others, Appellants.
   Order affirmed. Opinion by

Haiglit, J.


text:
    Mary A. B. Swan v. Van Buren Wheat and others.
   — Motion ior a new trial denied and judgment ordered for the plaintiff on the verdict. Opinion by

Smith, P. J.


text:
    Frank Dawson, Respondent, v. Albert Wells by Guardian ad litem, Appellant.
   Judgment and order affirmed. Opinion by

Haight, J.


text:
    Albert Wells, by Guardian, Appellant, v. Frank Dawson and others, Respondents.
   — Order affirmed, with costs to abide the event.


text:
    Isaac B Ellsworth and others, Respondents, v. The Etna Insurance Company.
   — Order affirmed. Opinion by

Smith, P. J.;

Barker, J., not sitting.


author: Baker, J.

text:
    In the Matter of the General Assignment of Isaac Lawdauer to Louis Adler.
   — Order appealed from reversed, without costs. Opinion by

Baker, J.


text:
    James H. Hooker, Respondent, v. George W. Dakin and others, Appellants.
   — Judgment modified by deducting therefrom the sum of $117.40, as of December 23, 1882, and as so modified affirmed.with costs,on i lie opinion of the referee.

Bradley, J., not sitting.


author: Bradley, J

text:
    Abigail Gliddon, Appellant, v. Alonzo Langdon, Respondent, Impleaded,etc.
   — Order affirmed. Opinion by

Bradley, J


text:
    Annie Grapp, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   — Order affirmed. Opinion by

Haight, J.


author: Dwight. J.,

text:
    Lyman Bickford and another, Appellants, v. Isaac H. Sutherland, Respondent.
   — Order affirmed, with costs to abide the event, on the opinion of

Dwight. J.,

at circuit.


text:
    William Stephen and another, Appellants, v. James H. Hughes, Respondent.
   —Judgment reversed and a new trial ordered before another referee, with costs to abide the event. Opinion by

Smith, P. J.


text:
    Daniel Sourwine, Respondent, v. Patrick Lynch, Appellant.
   — Judgment affirmed. Opinion by

Smith, P. J.


text:
    Sally M. Jeffers and others, Appellants, v. Robert M. Jeffers, Respondent.
   —.Judgment modified as indicated in the opinion, and as modified affirmed, with costs. Judgment to be settled by Barker, J. Opinion by

Barker, J.


author: Haight, J.;

text:
    The Mercantile Trust Company, Respondent, v. The Rochester and Ontario Belt Railroad Company, Respondent, and The Rochester and Windsor Beach Railroad Company, Appellant.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Haight, J.;

Barker, J., not voting.


author: Macomber, J.,

text:
    Philander G. Crittenden, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed on opinion of

Macomber, J.,

at Special Term.


text:
    William J. Prussia, as Overseer of the Poor, Respondent, v. George Guenther, Appellant.
   —Judgment affirmed on the opinion of the county judge.

Haight, J., not Bitting.


author: Bradley, J.;

text:
    Charles R. Hinton and others, Appellants, v. Burton Wilson, Respondent.
   — J udgment and order reversed and new trial ordered, with costs to abide the event. Opinion by

Bradley, J.;

Haight, J., not sitting.


text:
    Robert Mattison, Appellant, v. Hiland Hill Wheeler and others, Respondents.
   — Judgment affirmed, with costs. Opinion by

Smith, P. J.;

Haight, J., not fitting.


text:
    Edward F. Lowhouse, Respondent, v. The City of Buffalo, Appellant.
   Order affirmed. Opinion by

Barker, J.


text:
    Joseph H. Berry and others, Respondents, v. Andrew Brown, Appellant.
   — Judgment and order affirmed. Opinion by

Haight, J.


text:
    Almer H. Buckland, as Administrator, etc., Appellant, v. William Gallup, Respondent.
   Judgment affirmed, with costs. Opinion by

Smith, P. J.


text:
    Claudius D. B. Barse and others, Respondents, v. Henry C. Crawford and others, Appellants.
   — Judgment affirmed.


author: Haight. J.

text:
    John Burlingame, Respondent, v. William H. Manderville, Appellant.
   .Judgmentand order affirmed. Opinion by

Haight. J.


author: tímith, P. J.;

text:
    James F. Brooks, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   — Judgment ami order affirmed. Opinión by

tímith, P. J.;

Bradley, J., not pitting.


text:
    Joseph Diebolt, Respondent, v. Hugh J. Jewett, as Receiver, etc., Appellant.
   Judgment and order affirmed. Opinion by

Bradley, J.;

Barker, J., not sitting.


text:
    Wilhelm Boening and others, Appellants, v. F. Albert Kammerer and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Haight, J.


text:
    The Canadian Bank of Commerce, Appellant, v. Uriel R. Torrey and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Smith, P. J.;

Haight, J., not voting.


text:
    Caroine Marsielje, Respondent, v. Cyrus T. Cooke, Appellant, Impleaded, etc.
   — Judgment affirmed, with costs. Opinion by

Bradley, J.;

Barker, J., not sitting.


author: Barker, J.;

text:
    Horace B. Claflin and others, Respondents, v. Wesley Milspaw, Appellant
   —Judgment affirmed. Opinion by

Barker, J.;

Haight, J., not voting.


text:
    Mary Shaw, as Administratrix, etc., v. Charles L. Sheldon and others.
   — Hew trial denied and judgment ordered for the plaintiff on the verdict. Opinion by

Smith, P. J.;

Haight, J., not sitting.


text:
    Benjamin W. Payne and others, Appellants, v. George Batterson, Respondent.
   Judgment reversed and a new trial ordered, with costs to abide the event. Opinion by

Haight, J.;

Bradley, J., not sitting.


text:
    Samuel Thayer, Respondent, v. George W. Finton, Appellant.
   — J udgment reversed and anew trial ordered, with costs to abide the event Opinion by

Haight, J.


text:
    In the Matter of the Application of the Attorney General, Respondent, v. The Western New York Life Insurance Company, Appellant.
   — Judgment affirmed, no costs of appeal awarded.

Haight, J., not sitting.


text:
    In the Matter of the Probate of the last Will and Testament of Charles A. Gardiner, deceased.
   — Appellant’s motion for leave to file exception nunc pro tunc granted. Decree of the surrogate affirmed, with costs.


text:
    Louis J.Goddard, as Receiver, etc., Appellant, v. Stephen Stiles, Respondent.
   —Order affirmed, with ten dollars costs and disbursements.

Smith, P. J., not sitting.


text:
    In the Matter of the Application of the New York Central and Hudson River Railroad Company, Appellant to appraise lands of John Moran and others, Respondents.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    Henry K. Stevens, Appellant, v. Marcus L. Comstock and another, Respondents.
   — Order affirmed, with ten dollars costs and disbursements. Held, that as the principal object of the action is to obtain equitable relief, with an incideudal claim for damages, the action is not one for the recovery of money only, within the meaning of section 636 of the Code.


text:
    Christopher Willover, Respondent, v. John W. Alexander, Appellant.
   — Order reversed and motion to vacate granted, with ten dollars costs and disbursements, on the authority of Cribben v. Schillinger (30 Hun. 248).


text:
    Emily M. Goodrich, Respondent, v. William J. Goodrich and another, Appellant.
   — Memorandum of decision of March term so modified as to direct that if a reference is taken as suggested in the opinion, the defendant be allowed interest upon the amounts paid for taxes from the time it shall appear th • payments were made. The amount of such payments to be a lion upon the premises as against the plaimiff, suoordinaie to the Burt mortgage.


text:
    Sherman, Respondent, v. Reitz, Appellant.
   Motion granted, without costs.


text:
    Hall v. Miller.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    Howland and others, Respondents, v. Dewey, Appellant.
   Ordered, that the memorandum of decision made at the last term be set aside, and that the judgment herein be modified by inserting after the words or any part thereof,” the words “ the following is a description of the mortgaged premises,” the words “ but this judgment is not to affect the rights of the defendant Mary D. S. Dewey, under her lease.” Neither party to have costs of this appeal from said judgment or of this motion. The motion for reargument denied, without costs.


text:
    Harding, Respondent, v. The New York, Lake Erie and Western R. R. Co., Appellant.
   Motion for veargmnont deni d.


text:
    Lane, Respondent, v. Wheeler and others, Commissioners, etc., Appellants.
   — Motion for leave to appeal to the Court of Appeals granted.


text:
    Charles Schier, Respondent, v. The City of Buffalo, Appellant.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    Byron Alford and another v. Eugene Cobb and another.
   Order denying motion for restitution vacated and motion granted as to the plaintiffs, with ten dollars costs of motion to be paid by the plaintiffs and denied as to the plaintiffs’ attorney, Mr. Bolles, with ten dollars costs to him to be paid by the defend-


text:
    Thomas Rutherford, Appellant, v. The Village of Holly Respondent.
   — Motion for re-argument denied.


author: Bradley, J.

text:
    In the Matter of the Claim of Betsy B. Wilber, Respondent, v. The Estate of Enos Warren, deceased, Appellant.
   — Decree of the surrogate reversed without costs. Opinion by

Bradley, J.


text:
    Fourth Department,
    September Term, 1885.
    George A. Fisher v. George Dougherty.
   Motion dented, without costs.


text:
    Daniel Ackerman v. Isaac P. Powers.
   — Leave granted to appeal to the Court of Appeals on the ground that a question of law is involved which ought to be reviewed by that court.


text:
    Charles S. Biddlecom v. Loren F. Shed.
   Motion denied.


text:
    Lawrence Ryan v. Edward Klock.
   — Motions denied, with ten dollars costs.


text:
    Joel E Phelps, Appellant, v. James Denmoree, Respondent.
   — Motion granted by default.


text:
    Joab L. Cleft, as Survivor, v. George Barrow.
   — Leave granted to appeal to the Court of Appeals on the ground that a question of law is involved which ought to be reviewed by that court.


text:
    Elias Walter v. William C. Gould.
   — Motion for leave to appeal to the Court of Appeais denied.


text:
    Ellis R. Williams, Respondent, v. The Delaware, Lackawana and Western Railroad Company, Appellant.
   — Re-argument ordered.


text:
    Jane A. Sherman, Respondent, v. Thomas P. Sherman, Appellant.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    Anglo-American Roofing Company, Appellant, v. The New York, West Shore and Buffalo Railroad Company and others, Respondents.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    Wilber S. Peck and others, Respondents, v. George Rosenberg, Appellant.
   — Order affirmed, with ten dollars costs and disbursements


author: Boardman. J.

text:
    Mary J. C. Smith, Respondent, v. George W. Pier and others, Appellants.
   —Judgment and order reversed and a new trial ordered upon payment by defendants of the costs of the former trial. Costs of this appeal to abide the event. Opinion by

Boardman. J.


author: Follett, J.

text:
    John P. Simcoe, Respondent, v. George W. Simcoe, appellant.
   — Judgment of the Uounty Courtof Chemung county affirmed,with costs. Opinion by

Follett, J.


author: Boardman, J.

text:
    Henry E. Drake and others, Respondents, v. George C. Leonard, Appellant.
   — Judgment and order affirmed, with costs. Opinion by

Boardman, J.


text:
    Merritt Peckham and others, Appellants, v. Silas S. Matteson and others, Respondent.
   Judgment affirmed, with co^ts on opinion of Martin, J., delivered at Special Term.


text:
    John Wetterhahn, Appellant, v. Andrew J. Baltz, Respondent.
   — Judgment of the County Court of Jefferson county affirmed on the opinion of the county judge.


text:
    Erastus S. Penny, Appellant, v. The Rome, Watertown and Ogdensburg Railroad Company, Respondent.
   Judgment and order affirmed, with costs. Opinion by

Boardman, J.


text:
    Lorenzo D. Dutton, Appellant, v. Harriet Monroe, Respondent.
   — Judgment reversed and a new trial ordered before a new referee, costs to abide the event. Opinion by

Follett, J.


text:
    Stephen R. Ryan, as Receiver, etc., Appellant, v. Charles H. Sage, Respondent.
   Judgment of the County Court of Jefferson county affirming justice’s judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Mary J. Ray and others, Appellants, v. John D. Mills and others, Respondents.
   Judgment affirmed, with costs in favor of respondents against appellants, payable out of their shares. Decision as of May first, of April term. Opinion by

Follett, J.


author: Hardin, J.

text:
    William H. Brockway and others, Appellants, v. John Flemming and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Hardin, J.


text:
    Samuel Wells, Respondent, v. Leonard L. Fancher, Appellant.
   — Judgment and order of the County Court of Onondaga county affirmed, . with costs Opinion by

Boardman. J.


text:
    Gordon P. Spencer, Respondent, v. Ellza Wait, Appellant.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Julia E. Blackman, Respondent, v. Eliza Wheeler, Appellant.
   Orders affirmed, with ten dollars costs and disbursements.


text:
    Julia E. Blackman, Respondent, v. Eliza Wheeler, Appellant.
   Default taken in this court on the fifteenth day of September. Opened without costs to either party.


text:
    Julia E. Blackman, Respondent, v. Eliza Wheeler, Appellant.
   In the appeal submitted at this term orders are affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of Michael L. McCarthy, an Attorney and Counselor-at-law.
   — Motion to strike the name of Michael L. McCarthy from the rolls denied; also application to send case back to referee for further proof denied.

Follett, J., not voting.


author: Kennedy, J.,

text:
    Harvey Huyck, Appellant, v. Bloomfield U. Caswell, Respondent.
   Order affirmed, with ten dollars costs aud disbursements, on opinion of

Kennedy, J.,

delivered at Special Term,

Hardin, P. J., not voting.


text:
    Sophia McCarthy, Appellant, v. Moses B. Tice, as Administrator, etc, Respondent.
   Judgment aud order affirmed, with costs. Opinion by

Follett, J.


text:
    The Oneida County Bank, Appellant, v. Arthur S. Herenden and others, Respondents.
   — Order reversed, with ten dollars costs aud disbursements. and motion denied, with teu dollars costs. See opinion of Hardin, P. J., in the Utica Clothes Dryer Manuf'g Co. v. Otis, decided at this term and reported ante, p. • 301.


author: Vann, J.

text:
    Thomas M. Richie, as Survivor, etc., Respondent, v. George C. Bedell, Appellant.
   Order reversed, with ten dollars costs and disbursements, without prejudice to subsequent proceedings. Opinion by

Vann, J.


text:
    Horace B. Pollard, Respondent v. George H. Willis, Appellant.
   Judgment of Oneida County Court affirming justice’s judgmeut affirmed, with costs. Opinion by

Follett, J.


text:
    Albert Hall, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order reversed, and a new trial ordered, with costs to abide the event. Opinion by

Vann, J.


author: Follett, J.;

text:
    Joseph Esmond and others, Appellants, v. Moses L. Abbott, Respondent.
   — Judgment and order affirmed, with costs. Opinion by

Follett, J.;

dissenting opinion by Hardin, P. J.


text:
    Henry F. Myers and others, Respondents, v. Jeremiah Kinnie, Appellant.
   — Judgment of the County Court of Herkimer county and of the Justice’s Court reversed, with costs. Opinion by

Follett, J.;

Vann, J. not sitting.


text:
    Edward Lewis, as Receiver, Appellant, v. The St. Vincent Male Orphan Asylum of Utica and William Kernan, Respondents.
   Judgment affirmed, with one bill of costs in favor of defendant Kernan. Opinion by

Vann, J.


author: Hardin. P. J.

text:
    Thomas Richardson, Appellant, v. Richard English and others, Respondents.
   Judgment affirmed, with costs to respondent. Opinion by

Hardin. P. J.


text: In the Matter of proving the last Will, etc., of Samuel Woolever, deceased.


author: Vann, J

text:
    Ann Swartwood, Appellant, v. Ezra Woolever and others. Respondents.
   Decree of the surrogate of Tompkins county reversed and a new trial ordered at the circuit of Tompkins county, with costs of this appeal to abide the final award of costs by the surrogate. Order may be settled by Justice Vann. Opinion by

Vann, J


author: Hardin, P. J.;

text:
    John T. Wickens, Respondent, v. Thomas Foster, Appellant.
   — Judgment and order reversed and a new trial ordered, with costs to abide the event, opinion by

Hardin, P. J.;

dissenting opinion by Follett, J.


author: Merwin, J.,

text:
    Edwin R. Morse and others, Appellants, v. James L Hill, Respondent.
   — Judgment affirmed, with costs, on opinion of

Merwin, J.,

delivered at Special Term.


text:
    Rosel Barnes, Appellant, v. Dewey L. Walker, Respondent.
   Judgment affirmed, with costs.


text:
    In the Matter of the Contest over the Alleged Will of Frederick Saddlemire. Deceased, Margaret L. Saddlemire, Appellant.
   Decree of the surrogate of Tioga county affirmed, with costs against the appellant. Opinion by

Follett, J.;

Merwin. J., dissenting.


author: Merwin. J.;

text:
    Thomas McCraith, Respondent, v. The National Mohawk Valley Bank, Appellant.
   — Judgment and order affirmed, with costs. Opimou by

Merwin. J.;

Hardin, P. J., not voting.


author: Mer-win, J.

text:
    Henry Mowers, Respondent, v. Emory B. Pottle, Appellant.
   — Judgment reversed and a new trial ordered before a new referee, with costs to.abide the event; appeal f»*om the order dismissed, without costs. Opinion by

Mer-win, J.


text:
    Julia E. Stillman, Appellant, v. George B. Northrup and others, Respondents.
   — Judgment affirmed, with costs. Opinion by

Follett, J.


text:
    Mary Smith, Appellant, v. William Murray, Respondent.
   — J udgment and order affirmed, with costs.


author: Hardin, P. J.

text:
    Wilson J. Abbott, Appellant, v. Gerritt S. Van Hoesen, as Sheriff, etc., Respondent.
   Judg.ment and order affirmed, with costs. Opinion by

Hardin, P. J.


text:
    Philo B. Spaulding, Respondent, v. Chauncey Risley, Appellant.
   — Judgment of County Court affirmed, with costs. Opinion by

Hardin, P. J.;

Vann, J., not voting.


text:
    The People of the State of New York ex rel. The Board of Supervisors of Chenango County, Appellants, v. The Board of State Assessors and Burr B. Andrews, as Supervisor of the Town of Norwich, Respondents.
   —Determination of the board of State asse.-sors modified as stated in the opinion of Hardin, P. J. Order to be settled before him, and as so modified affirmed, with fifty dollars costs and disbursements against appellants. Opinion by

Hardin, P. J.


text:
    The People of the State of New York, Respondent, v. David A. Dishler, Appellant.
   — Judgment and order reversed and a new trial ordered in the Onondaga Court of sessions. Opinion by

Hardin, P. J.


text:
    The People of the State of New York, Respondent, v. James W. Clark, Appellant.
   Judgment and order affirmed and proceedings remitted to the Court of Sessions of Onondaga county with directions to proceed. Opinion by

Hardin, P. J.


author: Landon, J.

text:
    Third Department,
    September Term, 1885.
    John Consalus, Respondent, v. Isaac McConike and John H. Colby, Appellants, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Landon, J.


author: Learned, P. J.

text:
    Julia C. Chapin, Respondent, v. Hopkins H. Meloon and others, Appellants.
   Judgment affirmed, without costs if plaintiff stipulate to deduct $á50 and interest Irom August 30, 1880; otherwi-e reversed, with no costs to either party on appeal, and new trial granted ; referee discharged, other costs to abide event. Opinion by

Learned, P. J.


text:
    John Salisbury, Respondent, v. Schuyler Steam Tow-Boat Line, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Landon, J.


text:
    Michael Tracey, Administrator of John Tracey, Deceased, Appellant, v. The New York.Central and Hudson River Railroad Company, Respondent
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    William H. Doran, an Infant, etc., Respondent, v. The City of Troy, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Landon, J.


author: Landon and Bockes, JJ.,

text:
    In the Matter of the Last Will, etc., of Ebenezer C. Campbell, Deceased.
   Decree reversed. Issue to be tried before jury at Circuit. Order and issue to be settled before Landon, J., costs to abide event. Opinions by

Landon and Bockes, JJ.,

and by Learned, P. J., dissenting.


text:
    Julia Elgie, Respondent, v. The City of Troy, Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    George King v. City of Ogdensburg. Same v. Edward J. Chapin.
   —Follow decision in Piercy v. Averill, reported ante p. 360.


author: Landon and Hockcs. JJ.

text:
    Wilson H. Sherman and others, Respondents, v. The Mechanics and Traders’ Insurance Company of the city of New York, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Opinions by

Landon and Hockcs. JJ.


text:
    Orange R. Young, Appellant, v. Charles H. Davis, Respondent.
   Motion to go to Court of Appeals denied.


text:
    Job Sidebottam v. Julia Donovan.
   Motion to dismiss appeal denied, with ten dollars costs.


text:
    Jacob Deyo and others v. John Roth.
   Action dismissed for failure to continue after death oí pany.


text:
    James Stockwell, as Receiver, etc., Appellant, v. The National Bank of Malone and Nathaniel Rowell, Respondents.
   — Motion to go to the Court of Appeals denied.


text:
    Bertha Klinger, Respondent, v. Michael Bondy and Morris Pollak, Appellants.
   Motion granted, cause certified to court of Appeals.


text:
    David D Acker and others, Appellants, v. Charles E. Leland and others, Respondents. Same v. Same.
   Order affirmed, with costs, except as to the part denying a new trial, and as to that part appeal dismissed, without prejudice to plaintiffs’ right to appeal from final judgment and to review any matters on such appeal. Opinion by

Learned, P. J.


text:
    The People of the State of New York ex rel. Leslie W. Russell and others, Respondents, v. Alfred C. Chapin, Comptroller of the State of New York, Appellant.
   Order affirmed, with, fifty dollars costs and disbursements, on opinion below. See order on file.


text:
    The People of the State of New York ex rel. Edward M. Cole, Respondent, v. Frederick Hill, County Treasurer, etc., Appellant.
   Motion to modify judgment as to costs denied.


text:
    Martin G. Hotaling, Jr., by his Guardian, etc., Respondent, v. Edward McKenzie, Appellant.
   — Orders affirmed, without costs.

west> brook, J., not actiug.


text:
    Elizabeth A. Weeks, Appellant, v. John Wilson and Robert Wilson, Respondents.
   Order affirmed, with ten dollars costs and printing disbursements.

Westbrook, J., not acting.


author: Learned, P. J.;

text:
    Cornelius B. Sutton, Respondent, v. Rachel A. Newton, as Administratrix, etc., Appellant.
   Oder reversed without costs, and motion for costs and disbursements denied. Opinion by

Learned, P. J.;

Westbrook, J. not acting.


text:
    Emory A. Chase and others, Appellants, v. William Belden, Respondent.
   — Judgment affirmed, with costs.


text:
    Daniel C. Bradt, Appellant, v. Joseph Hynes, Respondent.
   Order reversed, without costs and without prejudice to an application by defendant to enter the costs in the judgment and then to apply for set-off. Mem. by

Learned, P. J.


author: Learned. P. J.

text:
    Joseph C. Boyce, as Administrator, etc., Respondent, v. Llewellyn Boyce, Appellant.
   Judgment and order affirmed, with costs. Mem. by

Learned. P. J.


author: Learned, P J.

text:
    Hubbard J. Goodrich, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.
   Judgment and order reversed, new trial granted, costs to abide event. Mem. by

Learned, P J.


text:
    The People of the State of New York ex rel. Smith Lent, Respondent, v. Joseph B. Carr, Secretary of State, Appellant.
   Judgment affirmed.


text:
    Eliza A. Hess, Appellant, v. Eliza G. Van Deusen and others, Respondents.
   Judgment affirmed, with costs.


text:
    Horace B. Claflin and others, Appellants, v. Guy W. Clark and others.
   Order affirmed, with ten dollars costs and printing disbursements. Mem. by

Learned, P. J.


text:
    George W. Adams, Appellant, v. The Town of Malta, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    James E. Ostrander, Respondent, v. John Weber, Appellant, Impleaded, etc.
   — Orders affirmed, with ten dollars costs and printing disbursements, to be paid out of fund.

Westbrook, J., not acting.


text:
    Henry H Baker and Lewis Baker, as Executors, etc., Appellants, v. William T. Baker and Martin V. Baker, Respondents.
   Order reversed, with’ten dollars costs and printing disbursements, and motion for re-sale denied', with ten dollars costs. Opinion by

Learned, P. J.


text:
    James Danaher, Appellant, v. Emily Russett and Julius Russett, Respondents.
   — Order affirmed, with ten dollars costs and printing disbursements.


text:
    Mary C. Richardson, Appellant, v. Truman A. Mambert, Respondent.
   Judgment of County Court affirmed, with costs.


text:
    The National Bank of Port Jervis v. Jesse C. Hansee, Appellant, and John Hansee, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Alice Van Wagonen, Respondent, v. The New York Cement Company, Appellant.
   Judgment and order affirmed, with costs.


text:
    Lizzie A. Wood, Respondent, v. Stiles M. Wood, Appellant.
   Judgment, affirmed, with costs.


text:
    Annie Cavanaugh, Respondent, v. Odelle Cary, Appellant.
   Judgment and order affirmed, with costs.


author: Barnard, P. J.

text:
    Second Department,
    September Term, 1885.
    Alfred Tallman, Respondent, v. The Town of Ramapo, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


author: Barnard, P. J.;

text:
    Michael Helwig, Respondent, v. William Buckholz, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman. J., not sitting.


text:
    William E. Smith, Respondent, v. Thomas Nelson and others, Appellants.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    In the Matter of the Estate of Thomas Best, Deceased.
   Order of surrogate refusing to open decree and grant new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Theresa Lynch, Respondent, v. Fannie Reilly, Appellant.
   Order affirmed, with costa and disbursements. Opinion by

Barnard, P. J.


author: Pratt, J.

text:
    The People of the State of New York, Respondent, v. William Brown, Appellant.
   — Judgment and order denying new trial on the ground of newly discovered evidence affirmed. Opinion by

Pratt, J.


author: Pratt, J.;

text:
    Hezekiah Coffin v. Mary Ranus.
   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Charles W. Newman, Respondent, v. Charles H. Van Buren, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    James F. Gillen, Appellant, v. Charles Lohmitz and others, Respondents.
   — Appeal withdrawn.


author: Dykman, J.;

text:
    Charles E. Skinner, Appellant, v. Alexander Smith & Sons' Carpet Company and others, Respondents.
   —Judgment sustaining demurrer to plaintiff’s complaint affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Dykman, J.

text:
    Otis C. Flick, Appellant, v. John Johnson and another, Respondents.
   Judgment affirmed, with costs — Opinion by

Dykman, J.


text:
    Joseph Brophy, Appellant, v. Edward B. Bartlett, Respondent.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.

dissenting.


text:
    Wilbur F. Hubbell, Appellant, v. The Gold and Stock Telegraph Company, Respondents.
   Order affirmed with costs and disbursements. Opinion by

Barnard, P. J.


text:
    Matter of Application to acquire lands by Staten Island Railroad Company of C. H Hamilton’s lands.
   — Order reversed and further hearing directed before the same commission. Opiniou by

Dykman, J.


text:
    Matter of Application to acquire lands by Staten Island Railroad Company, of Greene.
   Appeal withdrawn,


text:
    John Wood, Respondent, v. Francis L. Ludlow, Appellant.
    — Action No. 1.
   Judgmentmodified without co>ts. Orders to be settled by Justice Pratt. Opinion by

Pratt, J.


text:
    John Wood, Respondent, v. Francis L. Ludlow, Appellant.
    Action No. 2.
   Same judgment.


text:
    John A. Husted, Appellant, v. Edward H. Birdsell, Respondent.
   — Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


author: Dykman. J.

text:
    George H. Stetson, Respondent, v. Francis S. Driscoll, Appellant, Impleaded. etc.
   Order substituting a defendant affirmed, with costs and disbursements. Opinion by

Dykman. J.


author: Barnard, P. J., and Pratt, J.

text:
    Abner Mills, Respondent, v Edward Pierson, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinions by

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


author: Barnard, P J.

text:
    William J. Best, Receiver, etc., Appellant, v. Sarah E. Palmer and others. Respondents.
   Order vacating judgment for deficiency reversed, with costs and disbursements; order denying motion for receiver reversed and receiver appointed. Orders to be settled by Barnard. P. J. Opinion by

Barnard, P J.


text:
    Matter of Application of Staten Island Railroad Company to acquire Land of Abigail R. Wilkinson.
   Order vacating appointment of commissioners affirmed, with costs and disbursements Opinion by

Barnard, P. J.;

Pratt, J. not sitting.


text:
    The People of the State of New York, Respondent, v. Paul Bauer, Appellant.
   Order remanding defendant, affirmed. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Andrew Wils v. Conrad Huber.
   — Motion denied.


text:
    Francis Starrs and another, Respondents, v. David J. Tyson, Jr., Appellant.
   Order granting further bill of particulars affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Pratt, J,, not sitting.


text:
    The People of the State of New York ex rel. George W. Payne, Respondent, v. The Board of Education of Union Free School District No. 1, Town of Flushing, Appellant.
   Order ranting mandamus affirmed, with costs and isbursements. Opinion, by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Enos Lee, Executor, etc., v. Amy Horton, Administratrix, etc.
   Motion to vacate leave to go to the Court of Appeals denied, without costs.


text:
    Mary Ann Jackson, Appellant, v. Sarah P. Badger and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Philip Dieffenback, Respondent, v. Jacob Roch, Appellant.
   — Order affirmed, with costs and

disbursements. Opinion by

Pratt, J.


text:
    Lewis Roberts, Appellant, v. Edward B. Cobb, as Executor, etc., Respondent.
   Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Hester J. Todd, Respondent, v. Isaac Nelson, Appellant.
   Keargumeut ordered.


author: Barnard, P. J., and Pratt, J.;

text:
    Sarah G. Ferris, Executrix, etc., v. Benjamin G. Disbrow, Executor, etc.
   Judgment and order denying new trial affirmed, with costs. Order allowing costs affirmed. Opinions by

Barnard, P. J., and Pratt, J.;

Dykman, J., not sitting.


text:
    Henry Tyson and others, Respondents, v. Henry A. V. Post, Appellant, Impleaded, etc.
   Judgment reversed and new trial granted, .costs to abide event. Opinion by

Barnard, P. J.;

Dykman, J., dissenting.


text:
    George G. Dutcher, as Committee, etc.,Respondent, v. Henry A. V. Post, Appellant, Impleaded, etc.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Dykman, J., dissenting.


author: Barnard, P.. J.

text:
    Louis C. D’Homergue, Plaintiff, v. Edward H. Hobbs and others, Defendants.
   — Part of judgment appealed from affirmed, with costs. Opiuion by

Barnard, P.. J.


text:
    Daniel Brice, Respondent, v. Paul Bauer, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion, by

Pratt, J.


text:
    Bridget McNamara, Respondent, v. The Long Island Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    Charles H. Carpenter, Respondent, v. John J. Morris, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinions by

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


text:
    Norman L. Hubbard, Respondent, v. The Long Island Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    Abram Swartwout and another, Respondents, v. Joseph A. Ferris and another, Appellants.
   — Order refusing to vacate order of arrest reversed and order vacated, with costs and disbursements. Opinion by

Pratt, J.;

Barnard, P. J., dissenting.


text:
    Joseph Eager, Appellant, v. Jonathan Sniffen and others, Commissioners, etc., respondents.
   —Judgment affirmed, with costs. Opinions by

Barnard, P. J., and Pratt, J.;

Dykman, J., not sitting.


author: Dykman and Pratt, JJ.

text:
    Mary J. Dorr, Administratrix, etc., Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.
   — Judgment affirmed, with costs. Opinions by

Dykman and Pratt, JJ.


text:
    Margaret A. Higgins, Administratrix, etc., Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Susan E. Bedell, Administratrix, Respondent, v. The Long Island Railroad Company, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    David S. Miller, Respondent, v. Benjamin Wright and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    The City of Brooklyn, Respondent, v. George Copeland, Appellant.
   —Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    In the Matter of Opening Flushing avenue.
   Order denying motion to vacate order appointing commissioners, affirmed with costs and disbursements. Opinion by

Barnard, P. J.


text:
    William Brady, Respondent, v. Collis P. Huntington and another, Appellants.
   Judgment ana order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    John White, Respondent, v. James Boice, Jr., Appellant, Impleaded, etc.
   — Order 27th February, 1835; order 10th March, 1885; order 4th March, 1885 affirmed, with costs and disbursements of one appeal. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Electus B. Litchfield, Plaintiff, v. Charles R. Flint, Defendant.
   Order overruling demurrer by defendant reversed and demurrer sustained, with costs. Opinion by

Pratt, J.


text:
    Electus B. Litchfield, Plaintiff, v. Charles R. Flint, Defendant.
   — Judgment modified in accordance with opinion order to be settled by Pratt, J. Opinion by

Pratt, J.


text:
    John Francis, Respondent v. The New York and Brooklyn Elevated Railroad Company, Appellant.
   Judgment reversed ana new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    Brice P. Walling, Respondent, v. George W. Miller, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Charles H. Field and others, Appellants, v. Gotlieben Setzer, Executrix, etc., Respondent.
   — Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


author: Barnard, P, J.

text:
    Robert Taylor, Respondent, v. The City of Yonkers, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P, J.


text:
    Matter of Application of James Sheridan to be substituted Attorney in Place of Reilly.
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


author: Barnard, P. J., and Dykman, J.

text:
    Catherine E. Lott, Appellant, v. Abram B. Lott, Respondent
   Order modified by changing the place of trial to Queens county, and otherwise affirmed; no costs on the appeal. Opinions by

Barnard, P. J., and Dykman, J.


text:
    Elizabeth Cross, Respondent, v. John Arnold Cross, Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


author: Dykman, J ;

text:
    The People of the state of New York ex rel. Frank Smith, Appellant, v. The Commissioners of the Department of Fire and Buildings in the City of Brooklyn, Respondents.
   Order quashing writ affirmed, with costs. Opinion, by

Dykman, J ;

Pratt, J., not sitting.


text:
    The People of the State of New York ex rel. Robert Fairchild, Appellant, v. The Same, Respondents.
   Order quashing writ affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    The People of the State of New York ex rel. Isaac W. Peck, Appellant, v. The Same, Respondents.
   Order quashing writ affirmed, with costs. Opinion by

Dykman, J.;

Pratt J., not sitting


text:
    The People of the State of New York ex rel. John McLaughlin, Appellant, v. The Same, Respondents.
   Order quashing writ affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    The People of the State of New York ex rel. John J. Donovan, Appellant, v. The Same, Respondents.
   Order quashing writ affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Peter Wyckoff. Appellant, v. H. M. Sadler and others, Respondents.
   — Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Phebe L. Scovil, Respondent, v. The Mercantile Trust Company, Appellant.
   Appeal withdrawn on settlement.


author: Dykman, J

text:
    John Murray, an Infant, Respondent, v. Henry A. Smith, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J


text:
    Sherburne Shaw v. The New York, Lake Erie and Western Railroad Company.
   Judgment of General Term modified by making it read that the reversal was on a question of law and fact.


text:
    Dubois Bogardus, Respondent, v. The Town of Wappinger, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Patrick Murphy, an infant, Respondent, v. William H. Mairs, Appellant.
   Judgment and order denying new trial reversed and new trial granted, costa to abide event. Opinion by

Barnard, P. J.


text:
    Henry E. Wheeler, Appellant, v. George R. Dutton and another, Respondents
   —Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Essie Tynan, Administratrix, Respondent, v. Henry E. Pierrepont, Jr., and another, Appellants.
   —Judgment and urder denying new trialaffirnied, with costs Opinion by

Pratt, J.


text:
    Mary J. Graeffe, Respondent, v. Norman K. Shears, Appellant, Impleaded, etc.
   Order overruling defendant’s demurrer and judgment thereon, affirmed, with costs Opinion by

Dykman, J.


text:
    The Grand Street and Newtown Railroad Company, Respondent, v. The Long Island Railroad Company, Appellant.
   — Judgment and order denying new trial affirmed,with cost. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Edward E. Darrow and another, Appellants, v. The Fabric Fire Hose Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    John Lilly, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment affirmed,with costs..


text:
    Robert Furey and others, Respondents, v. The Town of Gravesend and others, Appellants.
   — Order granting injunction reversed, with, costs and disbursements, and order denying same affirmed, with costs. Judgment reversed and new trial granted, costs to abide-event. Opinion by

Dykman, J.


text:
    Rowland Brill, Appellant, v. John Brill, Respondent.
   Judgment reversed and new trial granted. Opinion by

Pratt, J.


text:
    In the Matter of the Application of the Staten Island Rapid Transit Company, Respondent, to acquire title to certain real estate of John N. A. Griswold and others, Owners, etc., Appellants.
   — Appeal withdrawn and settled.


text:
    First Department,
    October Term, 1885.

      In the Matter of the Application of Henry B. Laidlaw, late Chamberlain.

       Decision handed down July 17, 1885.

   Motion granted.


author: Daniels, J.

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

Daniels, J.


author: Brady, J.

text:
    John B. Manning, Appellant, v. Bernard Reilly, Respondent.
   Judgment affirmed. Opinion by

Brady, J.


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

text:
    The People of the State of New York, Respondent, v. Miguel Chacon, Appellant.
   — Judgment affirmed. Opinions by

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

and by Brady, J., disseuting.


text:
    Henry W. Sharpless and another. Respondents, v. Walter K Lits and another, Appellants.
   Judgment and order affirmed as to Lite and reversed as to Kitchell and new trial directed, without costs. Opinion by

Daniels, J.


text:
    Joseph Bissicks, Plaintiff, v. Isaac N. Hebbard, Defendant.
   Judgment affirmed, with costs, to abide event of accounting. Opinion by

Brady, J.


text:
    Edward Rowe, Respondent, v. William H. Kelly and another, Administrators, Appellants.
   Judgment reversed,new trial ordered, costs to abide event Opinion by

Daniels, J.


text:
    Jacob J. Banta, Appellant, v. James Naughton, Respondent.
   Order reversed; order entered as directed in opinion, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    David L. Von Moppes v. Philip Leimbach and others. Justin Wertheimer v. The Same. Gustav Kuhn v. The Same.
   Order reversed, motion granted wich ten dollars costs in one case and the disbursements in each. Opinion by

Brady, J.


author: Davis, P J.

text:
    Emigrant Industrial Bank, Respondent, v. Isabella B. Clute, Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Davis, P J.


text:
    John L. Myers, Respondent, v. Charles M. Raymond, Appellant.
   ludgment reversed, new trial ordered before another referee, costs to. abide event. Opinion by

Brady, J.


author: Daniels, J.,

text:
    Augustus B. Debost, Respondent, v. Sarah Hill, Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opiuion by

Daniels, J.,

and by Brady, J., disseuting.


author: Davis, P. J.

text:
    Samuel J. Goodenough, Plaintiff, v. Alice E. De Groot, as Administratrix, etc., Defendant and Appellant.
   — Order reversed, with ten dollars costs and disbursements, but without predj udice to such proceedings as the respondents may be advised after the coming in and confirmation of referee’s report, and without prejudice to any other proceedings against the administratrix. Opinion by

Davis, P. J.


author: Brady and Daniels, JJ.

text:
    Nellie Card and another, Respondents, v. The Manhattan Railway Company, Appellant.
   Judgment affirmed, with costs. Opinions by

Brady and Daniels, JJ.


text:
    Martha W.Leach,Respondent,v.James A. Flack, Appellant.
   — Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    John A. Deraismes. Executor, etc., Respondent, v. Lawrence Ennis, Appellant.
   Judgment affirmed, without costs. Opinion by

Davis, P. J.


text:
    William J. A. Fuller. Respondent, v. Union Electric Manufacturing Company, Appellant.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    Ezekiel Y. Bell, Respondent, v. Edward L. Merrifield, Appellant
   —Judgmentmodified as directed in opinion, and affirmed as modified, without costs to either party. Opinion by

Davis, P. J.


text:
    Samuel P. Hyman, Respondent, v. Jacob Kapp, Appellant
   —Four actions. Orders affirmed, with ten dollars costs of one appeal and the disbursements in all. Opinion by

Daniels, J.


text:
    David Zenner, Respondent, v. Adolph Dessar and others, Appellants.
   Order reversed and order of arrest discharged, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Ida Riccetti, Appellant, v. James H. Mapleson, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


author: Brady, J.,

text:
    Susan Pettit, Respondent, v. Asa Pettit, Appellant.
   Judgment affirmed, without costs. Opinions by

Brady, J.,

and by Davis, P. J., dissenting.


text:
    John B. Gossler, Appellant, v. Lazarus Lissberger, Respondent.
   — Motion for reargument denied, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Malcolm McGregor, Appellant, v. James McGregor and others, Respondents.
   — Judgment affirmed. Opinion by

Brady, J.


text:
    Thomas Scott and others, Respondents, v. Alexander Reed, Jr., Appellant.
   Order reversed and motion granted, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Walter L. Kane, Respondent, v. John Thearl, Appellant.
   — Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    Charles H. Field and others, Appellants, v. The Lehigh Iron Company, Respondent.
   — Judgment and order affirmed. Opinion by

Davis, P. J.


text:
    Abraham Gutman and others, Appellants, v. John C. McNulty, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Peter Bowe, Respondent, v. United States Reflector Company, Appellant.
   Judgment reversed, judgment ordered for defendant, with leave to amend on the usual terms. Opinion by

Daniels, J.


text:
    James Park, Jr., and others, Respondents, v. Harvey R. Preston and others, Appellants.
   Judgment and order affirmed, opinion by

Davis, P. J.


text:
    William T. Brown, Respondent, v. The Mutual Trust Company, Appellant.
   — Judgmentmodi-fied as directed in opinion, and affirmed as modified. Opinion by

Davis, P J.


text:
    Elizabeth C. Buchanan and others. Respondents, v. Mary Millen, Appellant, Impleaded, etc.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    Thomas Swords and others, Respondents, v. The Northern Light Oil Company and others, Appellants.
   Judgment reversed, with leave to defendant to answer on payment of costs. Opinion by

Brady, J.


text:
    Thomas Rafferty and another, Respondents, v. William Lockwood and another, Appellants.
   Judgment reversed, new trial ordered, costs to appellants to abide event. Opinion by

Daniels, J.


text:
    Charles J. Gillis and others, Repondents, v. James T. Swift, Appellant, Impleaded, etc.
   Order modified as directed in opinion, and. affirmed as modified, with costs to abide event. Opinion by

Daniels, J.


text:
    William H. Hollister, Respondent, v. John A. Stewart and others, Appellants.
   Judgment modified as directed in opinion, and affirmed as modified, without- costs to either party. Opinion by

Daniels, J.


text:
    John Merchant v. Horace P. Herdman.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Brady, J.


text:
    James R. Smith, Respondent, v. Edmund Coffin, Jr., Appellant.
   Motion denied.


text:
    Catharine Zapp v. Charles J. Miller.
   — Appeal stricken from calendar, and case directed to be made and settled. Mem. by

Daniels, J.


author: Smith, P. J.:

text:
    THE CONCORD SOCIETY OF STRYKERSVILLE, Plaintiff, v. JOSEPH STANTON and Others, Defendants.

      Title to the office of trustee of a religious corporation — it cannot he decided in an action of ejectment — meeting of members to elect trustees — who is to preside — 1813, chap. 60, sec. 3.
    Where, upon the trial of an action brought to recover the possession of real property, the title to which is vested in a religious corporation formed under the act of 1813, it appears that the plaintiffs and defendants, each claim to ! be the trustees of the corporation, and that the decision of the case turns ! exclusively upon the question, which of the contestants are the rightful trustees, the court should dismiss the complaint, as it has no power to try the title to office in such an action.

      It seems, that vacancies in the offices of trustees of religious corporations, formed under section 3 of the act of 1813, are to be filled at meetings which are to be conducted in the manner specified in section 3 of the said act, for the holding of the first meeting for the election of the first board of trustees of such corporations.

      It seems, that the deacons of congregational churches are not “ elders or church wardens ” within the meaning of those terms as used in the said third section of the act of 1813, which authorizes these' officer's to preside at such meetings; at such meetings of congregational churches two of -the members of the church should be nominated to preside by a majority of the members present.
    Motion by the defendants for a new trial, on exceptions taken at tbe Wyoming Circuit, and ordered to be heard at General Term in the first instance.

      A. J. Lorish, for the plaintiff.

      J. Sam Johnson, for the defendants.
   Smith, P. J.:

This is an action of ejectment to recover possession of a lot of land in the town of Sheldon, in the county of Wyoming, on which are a meeting-house or building for public worship, and other structures. The complaint is in the name of the corporation, The Concord Society of Strykersville,” as plaintiff, and is signed by “A. J. Lorish, plaintiff’s attorney,” who, as appears by the case, was requested and authorized to bring the action by Myron Warner, P. H. Smith, and L. M. Fox, as trustees of said corporation. The defendants also claim to be trustees of said corporation, and claim to hold possession of the property as such trustees. That the title to the property is in the corporation is unquestioned. The controversy as to whether the defendants are entitled to the possession or whether the possessory right is in the three persons who authorized the commencement of the action, turns exclusively upon the question, which of said adverse claimants are the trustees of the corporation ?

The plaintiff was duly incorporated under chapter 60, section 3, of the Laws of 1813 (2 E. L. 212), and is a congregational society in its form of worship and church government. Prior to the 14th day of January, 1884, the said Warner, Smith and Fox were the only trustees of said society, and the term of office of said Fox expired on that day. On that day an annual meeting of said society was held, in pursuance of due notice, for the election of a trustee in place of said Fox. Due notice was also given, in pursuance of the statute, that a resolution would be offered at said meeting to increase the number of trustees of said society from three to six, and that, in ease of the adoption of said resolution, three additional trustees would be elected at said meeting, one for one year, one for two years and one for three years. It appeared from the evidence that on the 14th of January, 1884, 'a number of persons, claiming to be members of said society, assembled at the church building, the said Fox entering first, followed immediately by Warner and one Patrick Hogan, the only deacons of said church, who were followed by the defendant, Stanton, and one-Case. Immediately on entering, Case moved that Stanton be elected chairman, put it to vote, and the same was adopted by a vote of a majority of those voting thereon, and was declared by said Case to be carried, and thereupon the said Stanton assumed to act as chairman of said meeting, and the defendant Rosebrook was thereupon elected clerk of said society, and proceeded to act as such. It also appeared that immediately after the motion of said Case to elect Stanton chairman had been put to vote and declared carried, the said Fox, who was then the clerk of said society and of said board of trustees, proceeded to a table in the building and called the meeting to order, and called upon and requested said Warner and Hogan to take the chair and preside at said meeting and election, and that they took the chair and began to preside, and continued to so act until the meeting presided over by them adjourned. Tellers were immediately appointed, and thereupon the meeting presided over by Warner and Hogan proceeded to elect a trustee in the place of Fox, twenty-two votes being cast, all of which were for said Fox, and he was then and there declared, by said presiding officers, duly elected as such trustee. After calling the meeting to order as aforesaid, the said two meetings acted as separate and independent meetings until closed, the persons acting in one taking no part in the other. At the meeting presided over by Stanton tellers were appointed, and thereupon the meeting proceeded to an election by ballot of a trustee in the place of said Fox; all the ballots cast, thirty-two in number, were for Joseph Stanton, and he was declared duly elected; thereupon a resolution was put and adopted increasing the number of trustees from three to six, and the meeting thereupon elected by ballot the defendant Hiram Paul as trustee for three years, the defendant Benjamin F. Rosebrook as trustee for two years, and the defendant Melancthon Abbott as trustee for one year. Evidence was also given tending to show that the defendants, claiming to act as trustees of plaintiff by virtue of the said election, met at the church building and, after notifying said Warner and Smith to meet with them .as a board of trustees of said society, passed a resolution requesting one of their number, the defendant Benjamin F. Rosebrook, to demand the key of the church building from said Fox, in whose possession it then was, and in case the said key was not delivered to him, then to take off the lock from the door of said church and to put another lock in its place; that in accordance with said direction, Rosebrook demanded the key of Fox, who refused to deliver it to him, and thereupon the defendants, claiming to act as trustees of plaintiff, removed the lock from the door of the church edifice and put another lock on said door, and afterwards the key to the last mentioned lock was kept by one of the defendants, and they refused to deliver the same to the said Warner, Smith and Fox.

It is apparent from this statement that if the defendants are lawful trustees of the corporation, as they claim, they are entitled to the possession of the property in suit, while, on the other hand, if they are not trustees, and the only trustees of the plaintiff are the said Warner, Smith and Fox, the defendants are mere intruders and are not entitled to the possession of the property; so that the case, although in form one for the possession of property, necessarily turns exclusively upon the question, which of the contestants are the rightful trustees of, the corporation ? That question cannot be determined in this action. The title to the office can only be tried in an action brought by the attorney general under section 1948 of the Code of Civil Procedure. The remedy therein provided is exclusive. If we were to treat the question here as an incidental one merely, and decide it for the bare purpose of determining who was entitled to-the possession of the property, our decision upon the question of the title to the office would be of no effect in an action to test it brought under the section of the Code referred to, and thus it might turn out that one of the contesting bodies would be awarded the possession of the property and the other be ultimately adjudged, in a proper action, to be the lawful trustees.

These views are supported by many reported cases, among which are the following: Jackson v. Nestles (3 Johns., 115); Parish of Bellport v. Tooker (29 Barb., 256); S. C., affirmed, 21 N. Y., 261).

The case of Reis v. Rohde (34 Hun, 161), cited by plaintiff’s counsel, is in harmony with those above cited. The substance of the decision made in that case is that while a court of equity will not restrain acting trustees from continuing to act, at the suit of rival claimants out of possession, it has power in its discretion to restrain claimants out of possession from interfering with the property of the corporation in the possession of acting claimants.

In this action we find the defendants in possession, acting as trustees of the corporation. Following the decisions already referred to, we regard them as trustees de facto, and are of the ■opinion, for the reasons already stated, that we have no power to -determine in this action whether they are trustees de jure.

While our views upon this question, if correct, will lead to the granting of a new trial, an expression of our opinion upon the merits of the controversy may possibly lead to an adjustment of it by the action of the parties without further litigation.

The third section of the act under which the plaintifE was incorporated (Laws 1813, chap. 60) provides, in substance, that the election of the first board of trustees of any church, congregation or religious society, to which the said section applies, among which are religious societies of the Congregational denomination, shall be as follows: that on the day of election, of which notice shall have been given as prescribed by said section, “two of the elders or church-wardens, and if there be no such officers, then two of the members of the said church, congregation or society, to be nominated by a majority of the members present, shall preside at such election, receive the votes of the electors, be the judges of the qualifications of such- electors, and the officers to return the names of tbe persons who, by plurality of voices, shall be elected to serve as trustees for the said church, congregation or society.” And the said section, after providing for a certificate to be made by the said returning officers, and to be proved by them and to be recorded, containing, among other things, the names of the persons elected to serve as trustees of such church, congregation or society, and the name or title by which the said trustees and their successors shall forever thereafter be called and known, further provides that “suchtrustees and their successors shall also thereupon,by virtue of this act, be a body corporate by the name or title expressed in such certificate.”

The sixth section of said act provides, in substance, that whenever the office of any of the trustees shall expire, notice shall be given of an election to fill the vacancy in the manner provided by said section, “ and all such subsequent- elections shall be held and conducted by the same persons, and in the manner above directed, and the result thereof certified by them, and such certificate shall entitle the persons elected to act as trustees, and in case any trustee shall die or refuse to act, or remove within the year, notice thereof shall be given by the trustees as aforesaid and a new election appointed and held, and another trustee be elected in his stead, in manner aforesaid.”

Thus the sixth section makes the provisions of the third section in regard to the election of the first board of trustees applicable to all subsequent elections of such officers to fill vacancies caused by expiration of term or otherwise. The provisions of section three are specific as to who shall preside at a meeting called for the election of trustees. They are to be two of the elders or churchwardens, or, if there be no such officers, then two of the members of the church, congregation or society, to be nominated by a majority of the members present.” The case shows that the plaintiff society had no officers denominated elders or church-wardens. It is true it had officers denominated deacons, whose powers and duties were similar in many respects to those of the officers in churches of other denominations called elders, but deacons are not designated by the statute as officers to preside at meetings for the election of trustees. The section evidently distinguishes between elders and deacons, for it provides that in case of the death or absence of the minister of the church or society, the notice of the time and place of the election of trustees shall be given by one of the elders or deacons, church-wardens or vestrymen thereof, and, for want of such officers, any other person being a member or stated hearer of such church,” while, as we have seen, two of the members of the church may preside in case of the want of elders or church-wardens, deacons not being mentioned. We think, therefore, ás there were no elders or church-wardens, the only persons who could properly preside were two members of the society nominated by a majority of the members present, and the case shows that such has been the practice in this society.

The same provisions as to the persons who shall preside at a meeting for the election of trustees, apply in the case of a meeting to increase or reduce the number of trustees, according to the provisions of section 9 of the act of 1813, as amended by chapter 414 of the Laws of 1866. Such reduction or increase can only be made at an annual meeting. (See Wheaton v. Gates, 18 N. Y., 406, 407.)

The case of The People v. Peck (11 Wend., 604), cited by the plaintiff’s counsel, is not adverse to these views. The two persons who presided at the meeting, which was declared regular in that case, were elected for that purpose; although they were deacons of the church, their qualifications to preside was not put upon that ground, the court having distinctly held that at elections of trustees of churches in all the churches of this State, except the Protestant Episcopal and Reformed Protestant Dutch Church, two of the elders or ehwreh-wardens must preside; if there be no such officers, then two of the members may preside.

Evidence was given on the part of the plaintiff tending to show that Stanton, one of the presiding officers, was not a member of the society, and therefore not eligible to preside. The testimony was conflicting on that question and the case was disposed of at the circuit upon grounds which make a decision of that question unnecessary.

We are, therefore, of the opinion that the meeting at which Fox was elected as his own successor was irregular, it not having been presided over by elders or church-wardens or members duly elected, but without deciding the case on this ground, we hold upon the ground first discussed in this opinion, that thecircuit judge erred in ordering a verdict for the plaintiff, and that there should be a new trial, costs to abide the event.

Barker and Bradley, JJ., concurred.

Motion for new trial granted, costs to abide event.

       Other cases decided at this term will be found in 37 Hun, 537, 637.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY and Others v. THE COMMON COUNCIL OF THE CITY OF DUNKIRK and Others.
    Certiorari — it cannot issue to a body which has lost control of the record to be reviewed —« 1880, chap. 269 —does not apply to assessments for local improvements.

      Certiorari to the common council of the city of Dunkirk and the tax receiver thereof to review a special assessment levied upon the relator, a railroad company, to defray the expense of paving a portion of a street in that city through which its tracks were laid. Upon the hearing it appeared that prior to the issue of the writ the assessment-roll had been delivered to the tax receiver.

      Meld, that as the ron had passed from those officers who had any judicial or guasii judicial control over it, and had been placed in the hands of a mere ministerial officer who had no power to correct errors in it, the writ could accomplish ' nothing and should for that reason be quashed.
    That the defect was not cured or waived by the fact that a return had been made to the writ.
    That the remedy of the relator was by an action against the city to recover any damages it might sustain by reason of the void and illegal proceedings.

      It seems, that chapter 269 of 1880, entitled “An act to provide for the review and correction of illegal, erroneous or unequal assessments,” does not apply to assessments for local improvements, but relates to town, ward, village or city assessments imposed upon the whole body of taxpayers for some general purpose of taxation.
    Oertiobabi to review an assessment.

      Daniel H. McMillan, for the relators.

      Walter D. Holt, for the respondents.
   Smith, P. J.:

This is a proceeding to review the action of the common council and special assessors of the city of Dunkirk, in levying an assessment upon the relator to defray the expense of paving a portion of Third street in said city. The city of Dunkirk is a municipal corporation, the powers and dutes of which are defined and limited by chapter 479 of Laws of 1867, and chapter 19 of Laws of 1880. The relator has its tracks laid upon and along said street, which is 110 feet in width. The portion of the street upon which the paving in question was done consists of a strip about twenty-two feet wide on the south side thereof, between the railroad tracks and the sidewalk, and extending for about 1,800 feet in length.

We are met at the outset by the contention of the respondents that the warrant for the collection of taxes, together with the assessment-roll, having been delivered to the tax receiver, the court had not jurisdiction thereafter to issue the writ, and that the proceeding should be quashed. That the delivery of the warrant to the receiver of taxes preceded the issuing of the writ is undisputed.

It is provided by the Code of Civil Procedure that the writ of certiora/ri, regulated thereby, can be issued in one of the following cases only: First, where the right to the writ is expressly conferred or the issue thereof is expressly authorized by a statute; second, where the writ may be issued at common law by a.court of general jurisdiction, and the right to the writ or the power of the court to issue it is not expressly taken away by a statute.

The writ in this case is not supported by chapter 269 of the Laws of 1880, entitled “An act to provide for the review and correction of illegal, erroneous or unequal assessments.” We apprehend that that statute does not apply to assessments for local improvements, but relates to town, ward, village or city assessments imposed upon the whole body of taxpayers for some general purpose of taxation Nor does the present proceeding purport to be brought under that statute or to comply with its provisions. The question is therefore presented, whether the writ can issue at common law.

In the ease of The People ex rel. Raplee v. Reddy (43 Barb., 539), it was held, that where assessors in their return to a certiorari state that they have delivered the assessment-roll duly certified, to the supervisor of the town, and that the same is not in their possession or control, the court has no power to render any judgment that can affect the assessment-roll or correct any errors, although it is satisfied there was clear error in the proceedings. The court suggested that the only remedy of the person aggrieved under such eircumstances-is by an action against the county to recover the amount of the tax improperly assessed and levied. The writ in that case was directed to the assessors alone, and the court said: “ The writ of certiorari brings up, or is always supposed to bring up, the record of the inferior tribunal to which it is addressed. The judgment to be rendered in this court in such cases is to affirm or reverse, modify or correct the record. It is a judgment upon the record, and if the record were before us we might direct our clerk to correct the roll or send it back to the assessors for correction. When it appeared upon this return that the roll had been delivered to the supervisor, we could have directed a writ of certiora/ri to him or to the board of supervisors, if the roll had been delivered to such board, to bring the same before us. The writ would reach the record and bring it up wherever it might be, until it had passed bevond our power to review the assessment by its delivery to the collector, with the warrant of the board of supervisors annexed, after the extension of the tax for its collection.” This case is cited approvingly in People ex rel. Buffalo amd S. L. R. R. Co. v. Fredericks (48 Barb., 173); People ex rel. Law v. Commissioners (9 Hun, 609); People ex rel. Heiser v. Board of Assessors (16 id., 407). It is true that in the present case the writ was directed to the collector as well as to the common council and assessors, and the collector has returned a sworn copy of the roll and warrant in his hands; but that does not aid the relator. The real difficulty is, that the- roll, having passed from those officers who had any judicial or quasi judicial control over it, and having been placed in the hands of a mere ministerial officer, who had no power to correct errors in it, the writ of certiorari accomplishes nothing under such circumstances. In the case of The People ex rel. Heiser, above cited, the statement of awards had been filed in the finance department before the writ issued; and in the case of The People ex rel. Law, the assessment-roll had been filed in the office of the city comptroller; and although the writ was directed to the comptroller, it was held that a judgment could not be had against him directing him to correct the records existing in his office, as he had no jurisdiction or power over them for that purpose, but was a mere agent of the city and county for the purpose of receiving and preserving the records and taking steps, through the proper officials, for the collection of the taxes.

Nor is the relator aided by the circumstances that a motion to quash the writ had been made at Special Term and denied. That motion was made' simply on the ground that the writ was misdirected andimultifarious. The point above suggested was not considered on that motion.

Nor is the defect above pointed out cured or waived by the fact that return has been made to the writ. The defect is not a mere irregularity, but goes to the very foundation of the writ, and shows it to be a mere nullity.

We are satisfied that the writ cannot be sustained and that if, as the relator’s counsel claimed on the argument before us upon the merits, the assessment proceedings are void, the relator must resort to its remedy by action against the city to recover the damages sustained by the relator by reason of such void and illegal proceedings.

It follows from these views that the writ must be quashed and the proceeding dismissed, with costs and disbursements, not exceeding fifty dollars in all, to the defendant.

Barker and Bradley, JJ\, concurred.

Writ quashed and proceedings dismissed, with costs and disbursements, not exceeding fifty dollars in all, to the defendant.


text:
    GEORGE H. BALL, Respondent, v. THE EVENING POST PUBLISHING COMPANY, Appellant.

      Bill-of particulars — when required of a defendant justifying in an action for libd-~ what should he stated in it — facts and not the evidence of them, required.

    A defendant in an action of libel pleading a justification should be required, in a proper case, to furnish a bill of particulars.

      Orvis v. Dana (1 Abb. N. C., 268) distinguished and not approved.
    The only proper office of a bill of particulars is to give information of the specific-proposition for which the pleader contends, in respect to any material and issuable fact in the case, but not to disclose the evidence relied upon to establish any such proposition.
    To constitute a good answer in justification, in an action of libel, it is not enough to state that the alleged libelous matter complained of is true; the particular facts must be stated which evince the truth of the imputation upon the plaintiff's character, whether the imputation is of a general or specific nature.
    This rule requires only a statement of the necessary facts, and not of the evidence of those facts.
    The rule is the same in respect to pleading mitigating circumstances.
    Appeal from an order made at the Erie Special Term, requiring the defendant to serve a bill of the particulars of its answer.

      John George MiTburn, for the appellant.

      Frank O. Ferguson, for the respondent.
   Smith, P. J.:

This is an action of libel. The plaintiff is a clergyman. The action is founded on certain articles alleged to have been published in the defendant’s newspapers, “The Evening Post” and “The Nation,” during the presidential campaign of 1884, charging the-plaintiff with several different acts derogatory to his character, and among other things, with having invented, published and circulated certain false and scandalous statements of, and concerning, Grover •Cleveland, then a candidate for the presidency.

The answer contains a general denial and sets up various matters m justification, and also in mitigation. Among other things, it alleges that on or about 21st July, 1884, and from time to time thereafter, the plaintiff “ and certain other false-minded persons,” confederating together, wickedly and maliciously caused to be published of, and concerning, the said Grover Cleveland, “ divers false .scurrilous, vile and scandalous stories and charges,” etc.; that the said charges were so vile and disgraceful that they could not be published in the reputable newspapers of the country, but were ■circulated by the procurement and aid of the plaintiff in “ disreputable sheets ” and through the mails inclosed to “ ladies and others,” •etc.; and that among other publications so made by the plaintiff was a letter to the “ Boston Journal,” wherin the plaintiff maliciously reiterated such charges and vouched for their truth.

The answer also sets out the particulars of an occurrence with which the plaintiff was connected, which took place at a public meeting for religious worship in Owensville, Indiana, in May, 1881, -and alleges that “ in a public newspaper printed during the ensuing week in said village ” the plaintiff “ was declared to have forfeited the respect of the said community, because of his conduct on the -occasion referred to, as detailed in said answer. Also, that after-wards and after the said publication by the plaintiff of the said -charges against Mr. Cleveland” the “Indianapolis Sentinel,” a reputable newspaper, adverting to said transaction, asserted “ that ■said Ball was once in Owensville, Indiana, and had to depart hastily therefrom owing to an insult to a Ohristian lady.”

The answer also alleges that in the year 1881, the plaintiff was or pretended to be the chairman of an independent political organization, •consisting of a few persons whose names are unknown to the defend.ant, but which he called an independent voter’s club, and that said plaintiff claiming to be connected with said organization, from time to time solicited from “various political parties and people and •candidates for office,” pecuniary subscriptions and received divers sums of money, and among others collected of the Democratic county committee the sum of fifty dolllars.

The answer also alleges that after the publication by the plaintiff of the said charges against Mr. Cleveland, the defendant, having ascertained from “ trustworthy sources ” as it believed, the falsity of said charges, etc., published of and concerning the plaintiff an article as-mentioned in the complaint, a copy of which is set out in the answer.

The answer also alleges that the plaintiff concocted and published a certain campaign story concerning Mr. Cleveland in connection with a visit which he and two or three other lawyers made on one occasion to-the Beaver Island club house on Grand Island in the Niagara river, the details of which story are set out in the answer. In connection therewith, the answer alleges that the defendant being informed “ by credible persons ” of the said transactions of the plaintiff, published an article a copy of which is given in the answer and from which the following is an extract: “ The specimen given in an extract from the Buffalo Courier,’ printed elsewhere, of the way in which the Bev. G. H. Ball of that city concocts his campaign stories is extremely disgusting.” The answer also alleged that the extract from the Buffalo Courier in such article referred to, adverted to such story so concocted by said plaintiff, touching said Beaver Island club, and gave the true facts thereof, etc.

The order appealed from requires the defendant to give the following particulars:

(1.) The names of the “evil minded persons” with whom the plaintiff is charged to have confederated for the purpose of publishing false and scandalous stories respecting Mr. Cleveland, and the times and places of said alleged confederating, and the particulars-of each of the alleged improper acts referred to in that connection.

(2.) The particulars of such “false, vile and scandalous stories and charges,” specifying the dates when and the places where each of the same were published, how published, and the contents of each publication.

(3.) The particulars as to the “ disreputable sheets ” referred to in the answer, the times when and the places where the said sheets were published and circulated, and the names of said sheets with dates and copies of each of said publications.

(4.) The particulars as to the persons “ ladies and others,” to whom the answer alleges that the “disreputable sheets” therein mentioned were mailed, and the names and residences of such persons.

(5.) The particulars as to the letters or publications ascribed to the plaintiff in said answer, when and where each of the same was published, the name or names of any newspapers or other publications in which they appeared, with dates thereof, with copies of each of said letters, articles, charges and publications.

(6.) The names and residences of the persons, political parties and candidates for office from whom the plaintiff is alleged in said answer to have received or solicited subscriptions or sums of money, the dates and amounts of their subscriptions and the other particulars of the charge made in the answer in that connection.

(7.) The particulars as to the sources ” and credible persons ” referred to in the answer, from whom the defendant claims to have ascertained the falsity of plaintiff’s alleged charges, with the names and residences of each of said persons, and times when said information was acquired.

The order also directs that the defendant be precluded from giving any evidence at the trial of any matter, the particulars of which are required by the order and shall not be furnished.

No question was made upon the argument before us as to the power of the court to order a bill of particulars of the claim of either party, in a proper case, in an action of libel. The power probably existed at common law, to the extent above stated, and it seems to have been recognized and affirmed by the last clause of section 158 of the Code of Procedure and of section 531 of the New Code, as construed by the Court of Appeals in the cases of Tilton v. Beecher (59 N. Y., 176) and Dwight v. Life Ins. Co. (84 id., 493). True, neither of those cases was an action of libel, and in the case of Orvis v. Dana (1 Abb. N. C., 268) it was said that there is no precedent in this State for a bill of particulars in a libel suit, and it was there held by the Court of Common Pleas of the city of New York that the power to require particulars from a defendant setting up a justification ought not to be exercised in actions of libel. The decision seems to have been put upon the ground that the plaintiff does not need such remedy, inasmuch as if the answer in justification is not sufficiently particular the plaintiff can move to make it more definite and certain, or he can lie by and object at the trial to the admission of evidence under it. But the first of the remedies suggested is available only where a denial or allegation is so indefinite or uncertain that its precise meaning or application is not apparent. (Code of Civ. Pro., § 546.) The order under review was not made on the ground that the answer is defective in that respect. A pleading may be free from indefiniteness and uncertainty, and yet so general as that the opposite party cannot prepare to meet it at the trial for the want of more particular statements. The common counts in assumpsit are familiar instances of pleadings of that nature. The appropriate remedy, therefore, for a lack of particularity in a pleading is an application to the court to order particulars to be furnished. And for obvious reasons it is better that such remedy be resorted to before the cause comes on for trial, in order to secure a more deliberate consideration of the questions involved than can be given at the circuit. With great respect for the learned court by which Orvis v. Dana was decided, we are not prepared to assent to the conclusion above stated, which was reached in that case, and are of the opinion that a defendant in an action of libel, pleading a justification, should be required, in a proper case, to furnish particulars.

We thus reach the question whether in this case the power has been unduly exercised. There are numerous reported cases relating to the scope and nature of a bill of particulars. Without referring to them in detail, I think it may be laid down, as the result of the adjudications on the subject, that the only proper office of a bill of particulars is to give information of the specific proposition for which the pleader contends, in respect to any material and issuable fact in the case, but not to disclose the evidence relied upon to establish any such proposition. (Drake v. Thayer, 5 Robt. S. C. E., 694; Gee v. Chase Manufacturing Co., 12 Hun, 630; Bangs v. The Ocean National Bank, 53 How. Pr. 51; Orvis v. Dana, supra; Stevens v. Webb, 4 Browne, 64.) To constitute a good answer, in justification, in an action of libel, it is not enough to allege that the alleged libelous matter complained of is true. At common law it is necessary to state the particular facts which evince the truth of the imputation upon the plaintiff’s character, whether the imputation is of a general or specific nature. And as Chitty states the rule, it is necessary, although the bill contains a general imputation upon the plaintiff’s character, that the plea should state specific facts, showing in what particular instances and in what exact manner he has misconducted himself. (Ch. Pl., 494-5.) It was held in Wachter v. Quenzer (29 N. Y., 547), that the substance of that rule was not abolished by the Code. But that rule requires only a statement of the necessary facts, and not of the evidence of those facts. The rule is the same in respect to pleading mitigating circumstances, since only such as are pleaded can be proved. (Old Code, § 165; Willover v. Hill, 72 N. Y., 36; New Code, § 536, and Throop’s note to same.)

Tested by the rules above stated, the order appealed from, in our judgment, properly requires particulars of the alleged “ false, vile and scandalous stories and charges” referred to in the second clause of the order. It is not enough for the pleader thus to characterize the “ stories and charges,” but they should be set out, in order that the plaintiff may be apprised what he is to meet, and to that end the dates and places and manner of their publication, with the contents of eaclTpublication, should be stated. Besides, the publications should be set out, to enable the court to judge of their character, since upon their character depends the sufficiency of the justification. Bor like reasons we affirm the fifth clause of the order respecting the letters or publications ascribed to the plaintiff, and the several particulars specified in said clause. So, also, the sixth clause is affirmed, which requires particulars of the names and residences of the persons, political parties and candidates for office from whom the plaintiff is alleged in the answer to have received or solicited subscriptions or sums of money, and other particulars specified in that clause. All these matters, we conceive, are embraced by the rule above stated as to what an answer in justification should contain.

But the first clause of the order which requires a statement of the names of the “ evil-minded persons ” with whom the plaintiff is charged to have confederated for the purpose of publishing false stories, etc., calls for matters which, if not immaterial, are mere evidence. The material fact in that connection is the publication by the plaintiff of scandalous matter, and it is immaterial whether in causing such publication he acted alone or with confederates, and if in the latter mode, the giving of the names of the confederates would be a mere disclosure of the evidence relied upon to prove the material allegation. So, the “disreputable sheets ” and the particulars connected therewith referred to in the third clause, are but the means of effecting the publication, which is the material and issuable fact alleged in the part of the answer there referred to. The like remark is applicable to the fourth clause, by which the defendant is required to state particulars, including- names and places of residence, of the “'persons, ladies and others,” to whom the said “disreputable sheets” were alleged to have been sent. That requirement relates simply to the method of publication, and possibly to the extent of it, which, however, is immaterial for the purpose of a defense. The requirement in the seventh clause that the defendant state the particulars therein specified respecting the “sources” and “credible persons” from whom he claims to have ascertained the falsity of the plaintiff’s charges, etc., calls for mere evidence in respect to a matter not relating to the plaintiff’s conduct.

The result is that so much of the order as relates to the first, third, fourth and seventh portions of the answer therein referred to should be reversed, and in all other respects the order is affirmed. Neither party to have costs of this appeal, as against the other.

Barker and Bradley, JJ., concurred.

So much of the order as relates to the first, third, fourth and seventh portions of the answer therein referred to reversed, and the remainder of the order affirmed, without costs to either party.