text:
    Herbert L. Harding, Pl’ff, v. John M. Elliott et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed May 1895.)

    1. Attachment — Choses in action.
    No levy, under a warrant of attachment, can be made on a chose ire action which has been assigned, though the assignment was made to defraud creditors.
    3. Fraudulent conveyances — Nonresident.
    A transfer by a nonresident of property in this state for the purpose of compelling a nonresident creditor to enforce his claim in the state of the debtor’s residence, is not within the statutes preventing an assignment of claims with the intention of hindering, delaying and defrauding creditors.

      Kidder & Melcher, for pl’ffs ; David Murray, for def’t Elliott; George Q. Collins, for def’ts Kountze Bros.
   Ingraham, J.

It seems to me that the plaintiff misconceives the scope of this action. The action is not by a judgment creditor to set aside a transfer made by the defendant Severance to the defendant Elliott in fraud of creditors. The plaintiff has no judgment against the defendant Annie C. Severance, nor has the court any jurisdiction over her, as she has not been served with process within the state. The action is brought under section 655 of the Code, and is to recover certain specified property, which plaintiff alleges is subject to the lien of the attachment served in ■the action brought by Harding against Mrs. Severance. Mrs. Severence is a resident of California, and the action in which the attachment was issued was commenced by the plaintiff against her, and a warrant of attachment obtained which was served upon the defendants Kountze Bros. The summons in that action was served by publication, the defendant not appearing; and the court in that action- could grant no personal judgment against Mrs. Severence, its jurisdiction being limited to property of Mrs. Severence in this state, upon which a lien had been obtained under the attachment. The sole question in this case is whether or not, when the second attachment was served upon Kountze Bros., they were indebted to Mrs. Severence in any sum. If they were, plaintiff, by the service of the attachment, obtained a lien upon the amount due Mrs. Severance. If they were not, no lien was obtained upon anything, and the consequence follows that the judgment obtained in that action was without force. The plaintiff obtained the first attachment against Mrs. Severence in the original action, which attachment was served upon Kountze Bros. I assume that at that time Kountze Bros, had property in their hands belonging to Mrs. Severence, and that by that first attachment a lien was obtained upon the debt due from Kountze Bros, to Mrs. Severence. Subsequent to the granting of that attachment, Mrs. Severence attempted to transfer the fund in the hands of Kountze Bros, to the defendant Elliott. Both Mrs. Severence and Elliott resided in California, and on July 12th a paper was executed by Mrs. Severence as follows :

“To Kountze Bros., New York: Transfer to J. M. Elliott, of Los Angeles, California, fifteen thousand ($15,000) dollars, being the amount on deposit with your bank to the credit of Bank of America, of Los Angeles, California, for the use of Mrs. Annie C. Severence. The undersigned, Annie C. Severence, hereby assigns and transfers said money, for valuable consideration, to said J. M. Elliott.”

And notice of this instrument was sent to Kountze Bros., in New York, and it was accepted without objection by them. Subsequently, and on the same day, Mrs. Severence executed another paper, dated at Los Angeles, Cal., directed to Bank of America, as follows:

“Please transfer to J. M. Elliott the sum of fifteen thousand dollars whenever the attachment therein shall have been released, and all interest therein held by me is hereby transferred to the said J. M. Elliott.”

This instrument was delivered to the Bank of America, and held by it. On July 21st an order was entered vacating the first attachment obtained by the plaintiff under which the interest or property of Mrs. Severence in the hands of Kountze Bros., or any indebtedness of Kountze Bros, to her, has been seized. Immediately after the vacating of that attachment, the plaintiff in that action obtained the second attachment, which on the same day was served upon the firm of Kountze Bros. In the meantime the instrument before referred to had been executed and delivered, and it is claimed now that, at the time the second attachment was obtained and served, Mrs. Severence had no property in the hands of Kountze Bros.; that Kountze Bros, were not her debtors, but had become the debtors of Elliott; and that plaintiff obtained no lien upon any property by the service of the second attachment. I do not consider the intent with which this transfer was made to Elliott as at all material. It is well settled that an executed transfer of property passes the title, even if made with intent to hinder, delay, and defraud creditors; and the transferee has a good title until the same is impeached by a creditor in an action brought for that purpose. See Gibson v. Bank, 98 N. Y. 97. Thus, on the acceptance of the notice to Kountze Bros, of the assignment from Mrs. Severence to Elliott, and without objection by them, Elliott became their debtor; and it is clear that they were authorized, under that transfer, to pay the money to Elliott, and Mrs. Severence would have had no cause of action against them. That transfer was subject to the lien of the first attachment that had been granted against Mrs. Severence, and Kountze1 Bros, were entitled to hold that money to protect themselves as against that attachment; but, upon that attachment having been vacated, the right to the possession of the money became vested in Elliott, as between himself and Mrs. Severence and Kountze Bros., and Elliott could have maintained an action against Kountze Bros, to recover it. There can be no doubt of the intention of Mrs. Severence to transfer the money on deposit with Kountze Bros, to Elliott. And, even assuming that that transfer was voluntary and without consideration, it was still good, as between the parties, and divested Mrs. Severance of any title to the money so depositea. By section 641 of the Code, the warrant directs the sheriff to attach, and safely keep, so much of the property within his county which the defendant has, or which he may have at any time before final judgment in the action, as will satisfy the plaintiff’s demands. The Code then provides for the levying of the attachment. And by subdivision 3 of section 649 a levy is to be made personal property not capable of manual delivery by leaving a certified copy of the warrant, and a notice showing the property, with the person holding the same, or, if it consists of a demand, with the person against whom it exists. Before there can be a levy under this subdivision, there must be a demand in favor of the defendant in the attachment suit against a person who is served with a copy of the warrant of attachment; and if, before such service, the defendant in the attachment suit has transferred the demand existing in favor of a person in this state to another, by a transfer valid between the parties, it seems to me clear that'there can be no levy of the attachment under this section of the Code. Subdivision 2 of section 655 of the Code, under which this action is brought, provides that the sheriff is authorized, in aid of such attachment, to maintain an action against the attachment debtor, or any other person or persons, to compel the discovery of any thing in action or other property belonging to the attachment debtor. The section also provides that the sheriff may maintain any other action against the attachment debtor, and any other person or persons, which may now be maintained by a judgment creditor in a court of equity, either before the return of execution in aid thereof, or after the return of an execution unsatisfied. Under this provision, it would appear as if a creditor's bill could be maintained by the sheriff to set aside a transfer made in fraud of creditors, but to maintain such an action it would be necessary to allege and prove the facts necessary to sustain such creditor’s action. It must be based upon a judgment against the persons making the fraudulent transfer. It must appear that the defendant is insolvent, or that the transfer was made in comtemplation of insolvency. In this case the plaintiff has no judgment against the defendant, and the undisputed evidence is that Mrs. - Severance is worth upwards of $250,000. It is alleged that she transferred this claim with the intention of defeating this plaintiff’s right to levy upon this fund upon obtaining a new attachment in this state, so as to compel the plaintiff to enforce his claim in the state of California, where defendant resides ; and I think the evidence would fairly, justify a finding that that was the intent with which this transfer was made. But I know of no authority that holds that an attempt by a person against whom a claim is made to compel the enforcement of that claim in the courts of her own ■domicile, rather than that of a foreign state, is fraudulent and void. Plaintiff is not a resident of this state, and comes here to enforce his claim against a resident of California. The principal question is whether this claim should be enforced in Hew York, or in California ; and I do not think that a transfer by this defendant of property in this state for the purpose of compelling a creditor not a resident of this state to enforce his claim in California is within the statutes preventing an assignment of claims with, the intention of hindering, delaying, and defrauding creditors. I think, therefore, there should be judgment dismissing the complaint, with costs.


source: Caselaw Access Project

author: Beekman, J.

license: Public Domain

text:
    Henry M. Whitehead, Pl’ff, v. Sylvester J. O’Sullivan, as Receiver, etc., Def’t.

      (Supreme Court, New York, Special Term,

      Filed May, 1895.)

    1. Lien — Equitable.
    Where the property of a corporation is turned over by the temporary receiver to the directors under an agreement between plaintiff, the directors and the receiver, whereby the directors assume the receiver’s liability to plaintiff for services as counsel and agree that plaintiff shall have a lien on such property, an equitable lien is created on such property, which is enforceable against it in the hands of the permanent receiver, thereafter appointed.
    3. Same.
    The claim under such lien is measured by, and limited to, the identified proceeds of the sale of the particular assets which are so affected by the lien when enforced.
    Action by Henry M. Whitehead against Sylvester J. O’Sullivan, as receiver of Amasa Lyon & Co.

      Frederic R. Coudert, for pl’ff; Morris J. Hirsch, for def’t.
   Beekman, J.

In September, 1891, a petition was filed by Amasa Lyon & Co., a corporation, for its dissolution, and one Andrew J. Hutting was appointed temporary receiver. The plaintiff, who had been the legal adviser of the corporation, assumed that relation to the receiver, and rendered professional services to him for which he made a charge of $5,000. The receiver havingbrought the affairs of the corporation into some degree of order, and the creditors having extended the time for the payment of their claims, the court, considering that the corporation was again solvent, dismissed the petion for its dissolution, and discharged the receiver. Before this could be done, however, it was necessary that some arrange-. ment should be made with the latter in respect to his fees and certain liabilities, including the charges of plaintiff, which he had incurred in the administration of his office. A few days before the final order was made, a conference was held between the plaintiff, the receiver, and the three persons who then constituted the entire board of trustees, looking to a settlement of the question. The amount of the plaintiff’s claim was stated, and the receiver expressed his willingness to turn over the assets of the corporation to the trustees, provided the latter would assume this and the other liabilities he had incurred. To this the plaintiff assented, with the qualification that he should also have a lien upon the assets so transferred, as security for the discharge of his claim, it being urged that such a lien, in effect at least, existed in the right which the receiver undoubtedly possessed to have his lawful charges and expenses allowed out of the property in his hands before he should be required to turn it back to the corporation. The trustees assented to these propositions, and, in pursuance of the arrangement, the final order was made which dismissed the petition, discharged the receiver, and directed him to surrender to the trustees the property in his hands belonging to the corporation. This direction he immediately obeyed, and the corporation, thus rehabilitated, resumed its business. It continued in active operation until August, 1893, when it again became embarrassed, and proceedings were again instituted for its dissolution, which resulted in a final order dissolving the corporation and appointing the defendant permanent receiver. Prior to the discharge of Nutting, the first receiver, the plaintiff had received on account of his services the sum of $600, and subsequently the corporation, at various times, made further payments, aggregating $1,250, so that at the time when the last petition was filed there was due to him on account of his claim the sum of $3,150. The defendant has realized upon all of the assets of the corporation, and now has in his. hands the sum of $9,000, applicable to the payment of its debts, which amounted to about $100,000. Against this the plaintiff sets up his lien, and claiming payment in full of the balance of the amount so due out of the fund, asks the judgment of this court declaring the charge, and, requiring the receiver to satisfy it out of the money in his hands.

The effect of the agreement made between the first receiver, the plaintiff, and the trustees above mentioned, followed, as it. was, by complete performance on the part of the two former, was sufficient to create an equitable lien in favor of the plaintiff in respect to the identical property which was turned over by the receiver to the corporation. Possession is not necessary to-the existence of such a lien; on the contrary, an essential distinction between common-law and equitable liens is that the latter arise in respect to property which still remains in the possession, and under the dominion and control of the owner. 3 Pom. Eq. Jur. § 1233. Nor does there seem to have been anything illegal or inequitable in the arrangement that was made. The-possession of the property was essential to the corporation to enable it to resume its business. The receiver had a right to retain the-assets in his hands until he had accounted, and to apply so much, as might be necessary towards the payment of his fees and disbursements allowed by the court He was not only entitled, but it was his duty, to seek legal advice in aid of his function, and, if he had insisted ypon the adjustment of his accounts and the: payment of the charges incurred by him in respect to the plaintiff, there can be no little doubt upon the proofs that the court would have so directed, and the corporation would have received under the final order only the residuum of the property after the plaintiff’s claim had been discharged. The corporation thus lost nothing by the agreement, but, on the contrary, gained the advantage which followed the forbearance of the plaintiff in enforcing his claim, and the control and use of the property which otherwise would have been appropriated, perhaps at a considerable sacrifice, to the immediate liquidation of the debt. The whole transaction seems to have been entirely fair and reasonable. It resulted in the corporation obtaining possession of its property unaffected by any greater burden than that to which it was subject in the hands of the receiver, while the plaintiff, in promoting that end, has radically changed his position, surrendering the personal liability of the receiver Hutting and the means of payment through him out of the assets in his hands, and accepting in its place the agreement of the corporation to secure and ultimately to discharge the debt.

It is not necessary to follow the argument of the learned counsel for the defendant that the lien, so called, of the receiver for the payment of the indebtedness he had incurred to the plaintiff was not assignable. The plaintiff’s right does not rest upon any such foundation. His claim to a lien upon the assets of the corporation is an original and not a derivative one. It arose out of the agreement with the corporation, and is quite distinct from that which the receiver possessed, although it is true that the two are closely related, the one having been the reason for the other, and the equity of the plaintiff’s claim under the agreement being supported and reinforced by a similar charge in respect to the same indebtedness which had existed in favor of the receiver. The elements which should exist to confer the right of equitable lien are well defined in 3 Pom. Bq. Jur. § 1235. It is there said:

“The doctrine may be stated, in its most general form, that every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described or identified, a security for a debt or other obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforceable against the property in the hands not only of the original contractor, but of his heirs, administrators, executors, voluntary assignees, and purchasers or incumbrancers with notice. Under like circumstances, a merely verbal agreement may create a similar lien upon personal property. * * * In order, however, that a lien may arise in pursuance of this doctrine, the agreement must deal with some particular property, either by identifying it, or by so describing it that it can be identified, and must indicate with sufficient clearness an intent that the property so described or rendered capable of identification is to be held, given or transferred, as security for the obligation.’’

See, also, Hovey v. Elliott, 118 N. Y. 124; 28 St. Rep. 761, and cases, there cited.

The case at bar seems to respond to this test. The property affected by the lien created in favor of the plaintiff was definite, and capable of exact ascertainment, but it was over and in reference to this,and not future acquired property,that the lien extended. The. agreement was that the assets transferred by Nutting to the company should be subject to the charge, and the burden of proof is with the plaintiff to show that the defendant received into his possession assets or identified proceeds of assets originally subject to the charge in question. The proportion of the amount now in the receiver’s hands which the plaintiff is entitled to have specially applied on account of his claim must be measured by and limited to the identified proceeds of the sale of the particular assets which were so affected by such lien. The evidence discloses that the only property thus susceptible of identification which came into the hands of the receiver was the machinery and fixtures. The other property was used in the business of the corporation, new materials were purchased, the old debts of the corporation, amounting to $45,000 or $46,000, were paid, new debts were incurred in the prosecution of the business, a portion of which, to the extent of $13,000, was borrowed money,, so that it is utterly impossible to say or rationally to infer that the ultimate residuum of $9,000 includes the proceeds of any portion of the original assets beyond the machinery and fixtures. Even in the case where equity will follow misappropriated trust funds through the transmutations following upon their absorption in other properties, the rule is well settled that the property-finally impounded must be the specific product of the misappropriation. “ The right of following the trust property in the new form which has been given to it, or in the property substituted for it, ceases only when the means of ascertainment fail, which, of course, is the case when the subject matter is turned into money, and mixed and confounded in a general mass of property of the same description.” 2 Story, Eq. Jur. § 1259, and note 4; Ferris v. Van Vechten, 73 N. Y. 113, at page 120; Cavin v. Gleason, 105 N. Y. 256; 7 St. Rep. 13; American Sugar Refining Co. v. Fancher, 145 N. Y. 552 ; 65 St. Rep. 506. The principle involved in these cases is' equally applicable to such a one as this. In each case the thing sought to be impressed with the charge must be the identified representative of the property to which the right invaded or impaired had originally attached. In the present case, it is quite plain that the residuum of $9,000 in the receiver’s hands includes the proceeds of the sale of the machinery and fixtures which came into the hands of the corporation at the time the agreement with the plaintiff was made. The evidence shows that this property passed to the defendant, and was sold by him for the sum of $1,442.16. The lien which affected the property followed it into the hands of the defendant, and upon the sale attached to the proceeds, which now, in legal contemplation form a part of the funds in the receiver’s -hands. There is some evidence showing that the furniture and fixtures: account upon the books of the corporation is charged with the sum of $698, said to represent an aggregate of expenditures between the two receiverships for tools and repairs. There is, however, no proof giving any details from which it could be determined how much' was expended for each. It is clear the defendant would not be entitled to claim any deduction as against the • plaintiff from the proceeds of any article originally subject to his lien on account of money expended upon it for repairs. So far as the item may indicate the purchase of additional tools, to which the plaintiff’s lien did not attach, it is sufficient to say that it does not afford proof that the machinery and fixtures sold by the receiver embraced any such articles; nor if they did, would the cost, rather than the price they brought, measure the extent of the deduction. The proof broadly identifies the machinery and fixtures sold as the same as that to which the plaintiff’s lien attached, and the claim in reference to the above item appearing on the books of the corporation is too uncertain and indefinite to afford any basis for the allowance or deduction demanded.

Some question has been made as to the lack of any action of the trustees in their corporate capacity in respect to the agreement upon which the plaintiff sues. The evidence shows that there were but three trustees, each of whom were actively engaged in promoting the business of the corporation at the same place; that meetings were held informally and irregularly, taking place from time to time, whenever it might seem to be desirable, without the issue of formal notices, and apparently without any of the forms usual in such cases. The minute book of the board does not disclose any meeting of the trustees at which any action was taken in respect to the claim, or in fact any of the liabilities incurred by the receiver Nutting. The evidence, however, of each of the directors confirms that of the plaintiff as to what took place when the conference was had between the trustees, the plaintiff, and the receiver Nutting. All assented to the arrangement, and, as we have seen, the agreement has been fully performed on the part of the plaintiff. It also appears that Amasa Lyon, who was one of the trustees, represented, also, nearly the entire stock of the corporation, and was one of the consenting parties. It is not absolutely essential to the validity of a corporate act that the trustees of a corporation should proceed according to any particular form. If all are present, or have received due notice of the proposed meeting, action taken by them, intended to be a corporate act, although informally expressed, is as valid as if it had been surrounded by all the formalities usual and, it may be said, desirable in such cases. The law looks to the substance rather than to the form of things. Melledge v. Iron Co., 5 Cush. 158; Sheridan Electric Light Co. v. Chatham, Nat. Bank, 52 Hun, 575 ; 24 St. Rep. 622. Here there can be no doubt about the fact that the trustees entered into the agreement in question, all meeting together, and that the 'agreement has been wholly executed by the plaintiff. The corporation has received the full benefit of it, and there should be no difficulty, as thére is none, in finding the action of the trustees sufficient to charge the corporation with the obligations assumed on its behalf under the agreement in question.

It follows, therefore, that the plaintiff has established "his claim to a preferential charge on the funds in the hands of the receiver to the extent of $1,442.16, and that he is entitled to judgment so declaring, and directing the receiver to pay that amount over to him on account of his claim.


author: Mayham, J.

text:
    In the Matter of the Application of Peter Harris, for a Writ of Mandamus, etc.

      (Supreme Court, Schoharie Special Term,

      Filed April, 1895.)

    1. Public lands — Refunding—Limitation.
    The statute of limitations against a claim, under section 6,1R. S. 198, does not begin to run, if at all, until the decision of the comptroller setting aside the sale.
    2. Same — Assignee.
    An assignee of the purchaser of land from the state is, under said statute, entitled to receive the purchase money from the state on failure of title.
    3. Same — Ministerial act.
    The act of the commissioners of the land office, in refusing to direct the repayment of the purchase money in such case, is ministerial.
    Application by Peter Harris for a writ of mandamus to compel the commissioners of the land office to make an order for the refunding of certain money.

      Z. S. Westbrook, for the motion; T. E. Hancock, Atty. Gen., and W. E. Kisselburyh, Dep. Atty. Gen., opposed.
   Mayham, J.

Prior to the 1st day of February, 1882, the state had purchased the land in question on this application on various tax sales; and on that day the state, by the state engineer and surveyor, acting in the usual way, under and pursuant to resolution of, and by authority and direction of, the commissioners of the land office, sold to J. W. Finch such lands, and on such, sale gave him a certificate of sale which1 contained the following statement:

“That J. W. Finch, of Glens Falls, Warren County, N. Y., pur suant to a resolution of the commissioners of the land office passed July 14th, 1881, this day purchased all the interest of the peo. pie of the state of New York in that certain piece or parcel of land distinguished as lot eight (8), subdivisions 4, 5, 6, 7, 8, 9, and 10, Palmer’s purchase, general allotment, Hamilton county, containing 100 acres each, as the same lot has been surveyed and described in the field book and map of said lands filed in the office of the secretary of state, containing in all 700 acres of land, upon which the sum of $6,300 is fully paid.”

This sum Finch paid into the state treasury, and took therefor the usual and proper receipt of the comptroller and state treasurer, dated February 2, 1882. No deed or patent was ever given by the state to Finch, nor does it appear that any was ever demanded by him. On the 15th of December, 1884, Finch sold and transferred the certificate of sale received by him from the state, engineer and surveyor to Peter Harris, the relator, and indorsed. thereon the following written transfer or assignment: “For value received, I hereby sell, assign, and convey to Peter Harris the within certificate and contract, and all my right, title, and interest of, to, and in the lands therein mentioned.” It also appears: That at the time of the purchase of these lands by Finch of the state, and the receipt of the .state engineer’s certificate therefor, the ■comptroller assigned to him the certificates of tax sales under which the state claimed title, and Finch, on assigning to the relator, also assigned such certificates of tax sales to him. After the purchase by the relator of the certificate of sale from Finch, and the assignment to him of the comptroller’s certificates of tax sales to the state, Harris, the relator, claimed to have discovered that the tax sales to the state were irregular and void ; and he thereupon presented his application to the comptroller, under the provisions of chapter 448 of the laws of 1885, to have the tax sales under which the state claimed title, together with the sales of these lands under the certificates to Finch, of which he was the assignee, set aside and canceled; and such proceedings were had under and pursuant to such application that on the 29th day of March, 1892, the comptroller made his order and determination, in and by which he canceled annulled, and set aside, as wholly illegal, null and void, the tax sales and certificates thereof, and ■each of them, and all the right, title, and interest which the people of the state of New York had, and ever had or acquired therein, in or to said lands. On the 28th of November, 1892, the comptroller refunded to the relator the sum of $398.29, represented by the tax-sale certificates of 1881, with interest on the ■same. That such tax, at the time of the sale, was $244,37, which •deducted from the price paid by Finch, left in the possession of the state, which the relator claims should be paid to him, the sum •of $6,055.63, which he claims, with interest. On the above facts, the relator, by his attorney, applied in writing to the commissioners of the land office for refunding to him the amount due by reason of the failure of the title of the state to the lands, and accompanied such application with a release of all claims against the state by reason of such failure, on the refunding of such amount; and the commissioners of the land office refused to refund the same, or to make an order therefor; and the relator thereupon applies for a writ of peremptory mandamus to compel the commissioners of the land office to make an order for the refunding of such money to him.

It is objected, among other things, on the' part of the respondents: First, that the claim of the relator, as against the state, through the commissioners of the land office, is barred by the statute of limitations ; second, that the claim, if any exists, must be prosecuted by Finch, who paid the money, and cannot be enforced by his assignee, and that the relator, therefore, has no standing in court to enforce this claim ; third, that the commissioners of the land office, in passing upon the claim for refunding, acted judicially, and the court, on an application for mandamus, cannot review or reverse their determination.

In determining the question of the statute of limitations, assuming that the statute runs in favor of the state, it is only necessary to determine when the relator’s right to demand the refunding of this money accrued, as the statute would commence to run, if at all, at that time. The language of the statute under which this claim is made is as follows:

“Whenever the title of the people of this state to lands granted under its authority shall fail, and a legal claim for compensation on account of such failure shall be preferred by any person entitled thereto, it shall be the duty of the commissioners to direct the payment of the original purchase moneys which may have been paid to the state by such persons, with interest at the rate of six per cent, from the time of such payment, to be paid out of the treasury on the warrant of the comptroller.” 1 Eev. St. page 198, section 6.

It is manifest that, under this provision of the statute, repayment of the money paid by Finch for these lands could not be claimed of the state until the title of the state had been, by an order and decision of the comptroller, cancelled, annulled, and set aside, which order was not made until the 29th day of March,, 1892. From that time until the time of commencing these proceedings, the statute of limitations would not be a bar, as between individual citizens of the state ; and, within the provisions of section 14 of article 7 of the state constitution, the state would not, be entitled to avail itself of that defense, as the statute of limitations has not barred such claim.

The second objection to which my attention was directed by the attorney general, on behalf of the defendant, which seems to require examination, is the power of the relator, as the assignee of Finch, to make this motion, or demand and receive payment of the money in question. The validity of the transfer from Finch to the relator is not attacked on these proceedings either for fraud or insufficiency, and, under the proof, must be regarded as transferring to the relator all the title and interest in the subject in controversy to Harris. Upon the papers, therefore, he is the real party in interest, and would were this action between individuals, be the proper party to prosecute the same. But it is insisted that, owing to the peculiar wording of the statute which authorizes the payment of this money, the party who paid the same is only entitled to demand and receive repayment. While it is conceded that this is sr.rictly a statutory remedy, and the statute giving the-same must be strictly pursued, still we think the construction contended for is too restricted to be adhered to in the disposition of this question. Such a construction would cut off the rights of the personal representatives, executors, and administrators of Finch from claiming such repayment. The language of the statute is:

“ * * * And a claim shall be preferred by any person entitled .thereto, it shall be the duty of the commissioners to direct the payment of the original purchase moneys which may have been paid to the state by such person.”

While a strict grammatical construction of the above phrase will justify the contention of the learned attorney general, I think it can hardly be maintained that the legislature intended to confíne this remedy to the person paying the money exclusively, and bar the remedy to bis personal representatives or assignees, and in case of his death or assignment, forfeit the money which the state had received for lands sold by it to which it had no title. Such a construction would seem to be .violative of the very principle of justice which must have been the motive of the legislature in providing for the payment of money paid to the state on void titles. This statute is remedial, and should, we think, be so construed as to effect the purpose for which it'was enacted. That purpose was to enable the state, when it had received compensation for land sold by it, the title to which had failed, to refund to the person entitled thereto the money so received ; and, as-the state cannot be sued on such liability, the statute makes it the duty of the comptroller to declare the title defective and void, directs the commissioners of the land office to order the repayment, and the state treasurer to pay the same, on the warrant of the comptroller. But the question has, we think, been settled upon authority, in People ex rel. Ostrander v. Chapin, 109 N. Y. 177 ; 15 St. Rep. 76. In that case, it is true, as claimed by the defendants, the question arose as to whether the original purchaser or his grantee was entitled to have the money refunded, but we do not see how that affects the question. The state conceded its liability to one of the claimants, and the court held that it must be paid to the grantee or assignee of the one who paid the money to the state in the first instan ce. It is also true that the statute under which that payment was made gave the right to the assignee, as well as the original purchasers from the state; but, as we have seen, the assignee takes the place of the assignor, and is the real party in interest in this case.

The remaining question which seems to demand consideration is whether the commissioners of the land office, in refusing to order the repayment of this money, acted judicially or ministerially. If the act of the commissioners were purely judicial', and involved only the exercise of judicial functions, then it is quite clear, upon authority, that the court cannot by mandamus reverse their judicial determination, and compel them to act in opposition to their judicial determination. If, on the contrary, the commissioners acted only as administrative or ministerial officers, then, if they failed in the performance of their ministerial duties, the court can, by the power of this writ, compel sucli performance. The difficulty, therefore, in the decision of this question upon this branch of the case, is in determining whether the act of the commissioners of the land, office in denying the application for an order for repayment was a judicial or ministerial act. Under the distinction of the power and duties of state officers, the commissioners of the land office are classed as administrative officers, and are therefore clothed with no judicial functions, except such as may arise from the special duties which by statute they may be required to perform of a judicial character. While, perhaps, no special significance attaches to this fact, it is clear that the acts of these officers cannot be regarded as judicial, from the character of their office, unless they appear to be judicial in themselves. It is not every exercise of judgment by ministerial or administrative officer or body that ■can be held to be the exercise of a judicial function or a judicial act. A sheriff is required to determine, at his peril, whether a process he is required to execute is fair upon its face, but such exercise of his judgment is not a judicial act He is a ministerial officer, and acts as such in making such determination. Bouvier says : “A ministerial act may be defined tó be one which a person performs in a given state of facts, is a prescribed manner, in obedience to the mandate of legal authority, without regard to or the ■exercise of his own judgment upon the. propriety of the acts being •done. Acts done out of courts, in bringing parties into court, are, as a general proposition, ministerial" 2 Bouv. Diet. 237. It is quite apparent that the commissioners of the land office were not, in this case, required to exercise judicial functions, in the sense required to make their action judicial. The comptroller had determined that the title of the state had failed. That statute made it incumbent on the commissioners to order the payment when the title of the state fails. There is no question raised by the papers as to the relator’s title to the money in controversy, and that title is established by the assignment. In the absence of any question of fact in dispute in this case, it seems clear that the duty of the ■commissioners was ministerial, and that their refusal was not a judicial act which cannot be assailed on an application for a peremptory mandamus. We think, on the whole case, the relator is entitled to the writ of peremptory mandamus. Motion granted, with costs.


author: Rumsey, J.

text:
    Marcus L. Peck et al., Pl’ffs, v. John E. Richardson, etc. et al., Def’ts.

      (Supreme Court, Seneca Special Term,

      Filed April, 1895.)

    1. Pleading — Demurrer.
    Where a demurrer to the complaint specifies certain grounds of objection, the examination must be-had within the limits which the defendant himself has fixed by stating the grounds of his demurrer.
    3. Parties — Proper.
    The next of kin of the husband are properly joined with his administrators as parties plaintiff, in an action for an adjudication that certain property, possessed by deceased wife, was in fact owned by her deceased husband, and for an accounting by the executor of the wife and a distribution of it among those entitled.
    Demurrer to a complaint.
    Miller, Gridley & Pratt, for pl’ffs; Charles A. Hawley, for def’ts.
   Rumsey, J.

The complaint alleges that on the 17th day of December, 1893, one Joseph Schryver died intestate, and that the two plaintiffs named as administrators were duly appointed as administrators of his estate, and that the plaintiffs, William T. Schryver and Joseph G\ Schryver are his only next of kin and heirs at law. That Joseph Gf. Schryver was married to one Lucy Schryver in the year 1848. Lucy Schryver became the owner of a considerable amount of personal property, which she continued to hold until the time of her death, which was shortly before that of her husband except so far as she used the same to purchase real estate with. That before her death she executed a will, which is set out in full in the complaint, and that certain of the other defendants are officials of corporations which are named as legatees in the will. It is alleged that the devises to these corporations are void, and for that reason these persons are made parties to this action, but, as they have not Appeared in the action and do not join in the demurrer, it is unnecessary to consider their interest any further. The complaint alleges that before her death Lucy Schryver was the owner of three pieces of real estate, which she bought with a portion of the personal property that came to her before the year 1848. It would seem, from the allegations of the plaintiff, that she died having title to this real estate, and that after her death the defendant Richardson, her executor, undertook to sell the three pieces of real estate, and did convey them away, receiving a certain sum of money for one of them, but not yet having received the consideration for the other two parcels, which were conveyed to the defendants Allen 0. ButtL and Katharine Tharp. It is alleged that the consideration for those two pieces of land from Butts and Tharp is still unpaid, but the precise reason why they are made defendants is not easily to be deduced from the complaint. However, it is not very material as no relief seems to be asked against them, and they do not appear upon the argument of this demurrer. The complaint then alleges thatLucy Schryver died in July, 1893, and before her husband, and that the defendant John E. Richardson was made executor of her will, and was qualified as such. These are substantially all the facts alleged in the complaint, except some others which seem to be incidental to the relief demanded, and which it is not necessary to refer to here. The gravamen of the action is shown by the allegation of a conclusion of law, which is that prior to the year 1848, and after her marriage, Lucy Schryver became possessed and entitled to the possession in her own right of a large amount of personal property, to wit, about $7,000, as her own property, “the title to which immediately thereafter vested in and became the property of her said husband Joseph Gr. Schryver, deceased, and continued to be down to the date of his decease.” It is alleged in the complaint that Lucy Schryver, without the consent and approval of her husband, used the personal property of which she became possessed to buy two pieces of real estate which Richardson undertook to-sell and for which he has not received the pay. The relief demanded in the complaint is, among other things, that the plaintiffs have judgment that ail the personal property of which Lucy Schriver became possessed before 1848 was the property of said Joseph Gr. Schryver and, passed, as a part of his estate, to the two plaintiffs who were his administrators, and to John Gr. Schryver and William T. Schryver, his next of kin, and the further judgment that; when Lucy Schryver took title to the real estate mentioned in the complaint as sold to Butts and Tharp, such title vested in her as trustee for her husband, Joseph Gr. Schryver. While this demand for relief is no part o.f the complaint, and is not the subject of a demurrer, yet it is proper to refer to it to ascertain the precise naturc and character of the action. O'Brien v. Fitzgerald 143 N. Y. 377; 62 St. Rep. 344.

The defendant Richardson alone demurs to the complaint, and his demurrer is put upon the ground solely that there is a misjoinder of the parties plaintiff, for reasons which he states in his demurrer, and that there is a misjoinder of causes of action, the nature of which is more particularly set out in the demurrer. Ho other grounds of demurrer are specified, and, if there are any other objections to the pleading appearing upon the face of it, they must, for the purpose of this discussion, be deemed to be waived. Insurance Co. v. Baldwin, 37 N. Y. 648. The rule requires that the grounds of demurrer shall be distinctly specified, and that the demurrer cannot be sustained upon a ground which is not stated. Carter v. De Camp, 40 Hun, 258. As the only grounds stated are those mentioned above, this discussion must proceed upon the theory that the facts stated in the complaint constitute a good cause of action of some kind, and entitle the plaintiff to some relief, although that proposition of law might be somewhat doubtful had the defendants seen fit to attempt to raise it. But ás he has chosen to rest his demurrer upon other and practically immaterial and unimportant grounds, and to substantially concede that one or more causes of action have been stated in the complaint, the examination must be had within those limits to which the defendant himself has confined it by stating the grounds of his demurrer.

The first question logically presented in looking at the complaint is, what cause of action is set out in it? The defendant claims that there are several causes of action which cannot be joined. It is claimed by the plaintiff that there is but one cause of action, although it is quite a comprehensive one, and the relief asked is various in its nature. The courts have never attempted to define accurately the term cause of action ” or to strictly limit its signification. It is said by Mr. Pomeroy, that if the fact alleged show one primary right of the plaintiff, and one -wrong done by the defendant which involves that right, the plaintiff has stated but on cause of action, no matter how many forms and kinds of relief he may claim that he is entitled to, and may ask to recover; the relief is no part of the cause of action. In applying this test, however, it must be observed that the single primary right and single wrong, which, taken together, constitute one cause of action, may each be very complicated. For example, the primary right of ownership includes not only the particular subordinate right to use the thing owned in any manner permitted by law, but also similar rights to the forbearance on the part of all mankind to molest the proprietor in such use. Pom. Rem. & Rem. Rights, § 455. The right which is alleged in this complaint is the right of Joseph Gf. Scbryver to own and have the beneficial use of the personal and real property of which Lucy Schryver died seised and possessed. That right not only includes the right, of possession of the personal property, but the right to receive the-price for the real estate which has been sold if those entitled to it elect not to disaffirm the sale. The wrong which is complained of is the act of Richardson in retaining possession of this personal property, and proposing to dispose of it pursuant to the will, and the persons who are parties to that wrong or interested in the perpetration are not only Richardson, who proposes to commit the wrong, but the persons claimitig under the will, who have the right, if the will is valid, to insist that the property belonging to Mrs. Schryver and the legacies should be paid over to them. So it will be seen that, before the plaintiffs can insist upon their right to have the property left by Mrs. Schryver turned over to them, they must obtain a judgment of the court that the property belonged to the estate of Joseph Schryver, and that these persons who are claiming it as executor and legatees have no interest in it and no right to its possession. Viewed from this standpoint, I do not think that it can be said that more than one cause of action is set out in the complaint, and for this reason that ground is not well taken. What is said above is upon the theory that a cause of action is set out in the complaint, and it is not intended to decide that question, which has not been submitted to the court.

The next ground of demurrer to be considered, although the first one which is stated in the pleading, is that there is a misjoinder of parties plaintiff. As has been said, the theory upon which this action seems to have been brought is that the property which stood in the name of Mrs. Schryver in fact was owned by her husband, and that the plaintiffs as personal representatives and next of kin are those who are entitled to all the property which she left. The relief sought is not only to establish the right of John Gr. Schryver to this property, but also to procure a judgment that the ultimate title to it and right of enjoyment in it belongs to John Gr. Schryver and William T. Schryver, as his next of kin. Undoubtedly, were this an action at law to recover property which was claimed to belong to Joseph Gr. Schryver, and had it no other purpose, it would not be necessary to join as plaintiffs any others than the personal representatives of Joseph Gr. Schryver, because they, as his administrators, have the sole legal title to his personal property, and are the only ones necessary to be made plaintiffs in an action to recover it. But, in such a case as that even, it cannot be said that the next of kin or the persons who have the financial interest in the personal property, although not necessary, may not be proper parties plaintiff in the action. Section 446 of the Code of Civil Procedure prescribes that all persons having an interest in the subject of the action, and in obtaining the judgment, may be joined as plaintiffs, except as otherwise expressly prescribed in the act. There can be no doubt that the next of kin of Joseph Gr. Schryver have an interest in the result of this action. The administrators, it is true, have the legal title, but they have it only as trustees, and they hold it for the ultimate benefit of the next of kin. Within the plain reading of section 446, the next of kin are persons who might be properly joined in this action. Section 449 of the Code prescribes that every action must be prosecuted in the name of the real party in interest, except that the administrator may sue without joining with him the person for whose benefit the action is prosecuted. It has been held that this section is purely permissive in fact, as it is in form, and that it does not forbid an action by the beneficiaries, or by the beneficiaries with the trustee. If, therefore, the object of the action were only to procure judgment that the property possessed by Lucy Schryver was in fact owned by Joseph Gr. Schryver, and that the executor of Lucy Schryver should account for that property to the personal representatives of Joseph Gr. Schryver, the next of kin of Joseph Gr. Schryver might, still be the proper, although not necessary, parties to such action. But the complaint goes further than that. It seeks, not only to-procure a judgment that this property belongs to the estate of Joseph Gf. Schryver, and that it must be accounted for’to the proper persons of that estate, but it seeks a distribution of that estate, and a judgment that these two plaintiffs, who are next of kin, are the persons ultimately entitled to it. Assuming, as we must, that a cause of action is set out in the complaint, and that the plaintiffs do, upon the facts, show themselves entitled to the relief which they ask, or something like it, it is clear that before they can obtain such relief they must be parties to the action, and, as they ask for this relief as a complete determination of the questions involved in it, it is certainly proper that they should be parties plaintiff, so that they may obtain the relief which they ask. It is not asserted that the estate of Joseph Schryver could not obtain all that it is entitled to in this action withoutthe presence of his next of kin ¿s plaintiffs, but all that is attempted to be decided is that- they are proper plaintiffs, although not necessary, and if they are proper plaintiffs the defendant is not at liberty to object to-their presence, and his demurrer on that ground is not well taken. For these reasons the plaintiffs must have judgment upon the demurrer, upon the above terms. Judgment directed for plaintiffs, with leave to defendant to withraw demurrer and answer in twenty days, on payment of costs of demurrer.


author: Smith, J.

text:
    Walter E. Parfitt, Pl’ff, v. Kings County Gas and Illuminating Company, Impleaded, etc., Def’t.

      (Supreme Court, Kings Special Term,

      Filed April, 1895.)

    1. Contract — Rescission—Executed.
    A stronger degree of evidence will be required to rescind an executed, than an executory, contract.
    2. Same — Void—Public policy.
    A contract, which is expressly authorized by statute, wil not be declared void as against public policy.
    3. Same — Unreasonable provision.
    A provision in a contract for street lighting, which prohibits the municipality from diminishing the number of lamps, is not so unreasonable as to lead to the inference of fraud.
    Action by Walter E. Parfitt against the Kings County Gas & Illuminating Company, impleaded, to set aside contracts between defendant and the board of improvements of the town of New "Utrecht.

      Edward M. Grout, for pl’ff; Benjamin F. Tracy, William J. Kelly, James G. Church, and Herbert E. Ketcham, for def'ts.
   Smith, J.

The plaintiff has assumed to state in his complaint three causes of action : (1) To set aside the original contract between the board of improvement of the town of New IJtreoht and the defendant gas company, dated 28th December, 1889 ; (2) to-set aside the contract of extension, by which the life of the original contract was extended for fifteen years, which contract of extension was dated 19th March, 1891; (3) to declare void the action, of the said board of improvement, so far as by its order lamps-were wastefully, improvident, and fraudulently caused to be placed in certain parts of the town sparsely inhabited. It is not necessary to set out the allegations of fraud and illegality in the complaint. Some of them were abandoned on the trial. Attention will be directed simply to the issue actually presented by the proofs adduced. It may be well first to note the legal rules of construction of evidence in actions of fraud. The principle is settled beyond question that fraud is not presumed, and must be proven. Arthur v. Griswold, 55 N. Y. 410; Brackett v. Griswold, 112 id. 457; 21 St. Rep. 791. In Nichols v Pinner, 18 N. Y. 295, the court lays down the rule in these words:

“ Fraud must be proved affirmatively. The presumption is always in favor of innocence, and not of guilt. The evidence should, therefore, be direct and strong which would authorize the repudiation of a contract on the ground of fraud, especially in the case of an executed contract.”

It has been further held that if the evidence is as capable of innocent as guilty iterpretation it cannot be used to establish guilt Morris' Case, 96 N. Y. 100 ; Constant v. University of Rochesterr 133 id. 640; 45 St. Rep. 252 ; Fenno v. Hannan, 32 St. Rep. 791. And again:

“While fraud may be established by circumstantial evidence, it can only be so established by proof of such circumstances as are-irreconcilable with any other theory than that of the guilt of the-persons accused of fraud.” Baird's Case, 96 N. Y. 567.

It will thus be seen that the law will not impute fraud without positive testimony. It is true that the testimony may be circumstantial, as at times it must; but such circumstances must point to the fraud at least with some degree of certainty. It is not enough that facts are shown that cause suspicion. Again, it will be further seen that a distinction is made between contracts which are merely executory and contracts which are executed. Executory contracts can generally be set aside with little loss. To set aside an executed contract must always cause a loss. In the case at bar this distinction has a special force. This contract was-made December 28, 1889. The work of laying the mains and constructing the plant was commenced the following spring. The first illumination of the town was on the night of December 2, 1891. Extensions were thereafter ordered by the board so that construction continued down to the spring of 1893. The extension contract was made March 19, 1891. This suit was not commenced until May 5, 1893. The testimony shows that the corporation defendant has in the meantime laid ninety-three miles of gas mains. It has in the meantime purchased land in the town, and erected two gas holders ; one with a capacity of 100,000 cubic feet, and the other with' the capacity of 500,000 cubic feet. It has expended, according to the estimate of the engineer, $600,000 for its plant. The evidence does not disclose the fact but it is a fair presumption, that part at least of this $600,000 has been raised by the issue of bonds, which are now held by parties innocent of any fraud or claim of fraud. Innocent parties have, undoubtedly, contracted with the company upon the faith of its supposed contract rights with the town. It is undoubtedly true that this action may be commenced at any time within the statutory limit. It is further undoubtedly true that, if fraud is once established, the court cares little or nothing that the fraudulent party may lose. When, however, a contract has been executed, and large amounts, of money have been expended therein, and the rights of innocent parties perchance are imperiled, the courts should and will require a stronger degree of evidence to establish the invalidity of such contracts than would be required if the action were to set aside an executory contract, where no great loss would follow. Especially will this be held where the party who has the right of action has quietly lain by for three years and a half and seen all these moneys expended without protest.

What, then, is the point of attack upon this contract? It is not claimed that the contract is wasteful, in that it provides for an exorbitant compensation for gas furnished. The plaintiff in his complaint, charged that the price asked was exorbitant, but upon the trial of the action such charge was expressly abandoned. No provision in the defendant’s contract is assailed as detrimental to the interests of the town^ except the provision which prohibits the town from “ capping” lamps. The contract is claimed to have been fraudulent and illegal in that it did not follow the specifica„tions which were adopted by the board of improvement, upon which was made the advertisement for bids. It seems that upon the 26th day of November, 1889, the board of improvement adopted by formal resolution certain specifications. The usual notice for bids was advertised in the papers as required by law. The bid of the defendant gas company was the only one received. The contract was thereupon made. The question presented is, did that contract follow substantially the provisions of the specifications adopted upon the 26th of November ? The defendant produced upon the trial a paper containing in typewriting specifications with certain alterations appearing thereon. That copy had the indorsement upon the back of the president and secretary of the board. These indorsements were made pursuant to a resolution of the board, for the purpose of identifying them as the specifications legally adopted, and upon which the advertisements for bids were made. Those specifications, as they now appear, conform substantially to the contract which was afterwards made, and which is here assailed. The claim of the plaintiff is that these specifications as they now appear differ in four material matters from the specifications that were adopted on the 26th of November, the day at which the advertisement commenced, in that (1) the specifications in fact then.adopted required the manufacture of gas within the town, while these specifications and the contract as made do not so require; (2) in that the specifications as then adopted reserved the right in the town authorities to diminish as well as increase the number of lamps, while these specifications as they now appear, and the contract, left in the town authorities only the power to increase, — in other words, took from them the power of “capping” lamps; (3) in that the specifications as then adopted required the contract to be finished by July 15, 1890, while the specifications as they now appear, and the contract, give the date a year later; and (4) in that the specifications as then adopted did not contain the provision, inserted in the contract as made, prohibiting any other gas or electric company from laying pipes or conductors within the town. In support of this contention the plaintiff produces the witness B. H. Sherwood, who called three or four times to see the specifications, and afterwards obtained a copy, which is in evidence here, and marked “ Ex. 3.” That copy of the specifications is the copy claimed by the plaintiff to be the specifications adopted upon November 26th, but does not contain the matters which are claimed by the plaintiff to have been inserted at some later time, and which appear in the copy of the specifications presented here by the defendant. Mr. Sherwood swears upon cross-examination that he did not see the advertisement for bids upon the contract, and he does not know whether it was before or after that advertisement. Confessedly, there were drafts or proposed specifications in the office of the board of improvement before the meeting of November 26th, at which time the official specifications were adopted. It is claimed by the defendant that these specifications were there kept for the purpose of getting suggestions from any one who might come in as to matters in which they might be changed for the benefit of the town. Upon cross-examination Mr. Sherwood says that Mr. Fergueson, who was president of the board, said to him : Bead that over, and, if you can make any suggestions to protect the interests of the citizens, I would like to have you.” If this remark were made, it is in line with the defendant’s contention that these specifications shown, and which are produced here by Mr. Sherwood, were drafts or proposed specifications which were in the office before the specifications were officially adopte.d upon which the advertisement was made. It is not probable that Mr. Fergueson would be asking for the suggestion for the purpose of altering the specifications after the advertisement had begun, and which could not be legally altered. It also appears in the case, by testimony of Mr. Sherwood, that his relations with Mr. Fergueson were not friendly. Another copy of the specifications, precisely similar to the one produced by Mr. Sherwood, is produced upon the trial by Mr. J. Lott Nostrand, who appears here as a witness for the plaintiff, and he was a member of the board of improvement by which this contract was awarded. He states that these specifications were the only ones he ever saw or knew anything about, but he has no recollection where he got them, whether from the rooms of the board of improvement or elsewhere. Nor has he any recollection of the time when he got them. The plaintiff concedes that there were with the board of improvement other copies of the-specifications, but it does not appear that Mr. Nostrand ever saw them. There is only one matter in which Mr. Nostrand will swear, from his recollection that the contract as made differs from the specifications as he understood them, and that was in that the contract provided that the work should be completed by July, 1891, while the specifications called for its completion in July, 1890. Upon page 62, Mr. Nostra.nd swears that he was present at the meeting of November 26th ; that lie is not sure what the discussion there was, and that he is not sure but there was a talk about it. “ We probably met with the intention of talking over the matter, and-making some arrangement.’’ The testimony of Mr. Nostrand is, in my judgment, entitled to weight. This contract was made in December, 1889. The original specifications required that.it should be fulfilled by the 1st of July, 1890. It would appear to me that with the winter intervening the time was somewhat short, and the change from July, 1890, to July, 1891 would not be a very unreasonable one. The plaintiff produces one other witness, John McKay. The witness McKay swears positively that, after he had seen this advertisement, he went and saw the specifications ; that the Specifications, now claimed by the defendant as being the ones adopted upon November 26th were not the specifications shown him, and that the specifications shown him required that the gas should be-manufactured, as well as stored within the town. He took these specifications over to a meeting of an association of citizens, but he does not produce them here, nor are they produced by any member of the association of citizens to which he made his report. He cannot remember whether the specifications which he saw were printed or in typewriting. His recollection seems to be based upon the fact that in his opinion the requirement of the specifications that the gas should be manufactured in the town prevented the free competition of companies outside of the town which might bring gas within the town. He did not call the attention of any body to this provision. He did not in any way protest against it, nor, so far as appears from the evidence, was any protest made to the board of improvement by any one against the provision which was deemed by him and others to prevent free competition for the contract. It is admitted that the first copies of the specifications, which are claimed by the defendant to be draft or proposed copies, did require the manufacture of the gas within the town, but defendant claims that such provision was stricken out at the meeting of November 26th, when the specifications were adopted upon which the bids were to be made. It is unfortunate, if Mr. McKay made his report to an organization of citizens, some of those citizens of that organization could not have appeared upon the trial and corroborated him as to the time-when that report was made, and as to the terms of those specifications. It would seem as if such proof were easily accessible if it could have been had.

The plaintiff’s counsel claims that this testimony is fully corroborated by the evidence appearing in the writings themselves. He shows that the copies of the specifications produced by Mr. Hostrand and Mr. Sherwood are copies of the original specifications produced by the defendant here, with some of the alteration, there made appearing in type. He thus urges that the copies of the specifications thus produced by Sherwood and Hostrand must have been made after the copy produced by the defendant, and after certain changes were there made. He further shows that the copies produced by Sherwood and Hostrand appear to have been made by Mrs. Pettengill, a typewriter, living in Brooklyn. He produced her book, upon which is charged, about Hovember 6th, for making six copies of gas specifications, thirty folios, and Hovember 26th, for making three copies gas specifications, sixty folios. To those familiar with typewriting it is shown that the copy produced by Hostrand and the tine produced by Sherwocd were both original copies, and were about thirty folios. • It is claimed when this charge of three copies of sixty folios was made that in fact Mrs. Pattengill ran a paper through the typewriter twice, thus making six copies of thirty folios with two originals, which would undoubtedly be the same charge as making three copies of sixty folios, as the same work would be required. Prom this it is urged by the plaintiff that the copies produced by Mr. Hostrand and Mr. Sherwood were the copies made upon Hovember 26th, and were copies of the specifications as in fact they were adopted. I am not unmindful of the force of this corroborative evidence. The copy produced by the defendant, with the alterations made, and claimed to have been the copy indorsed and adopted upon Hovember 26th, is upon thin paper, such as would be required to be used in the making of six copies. The defendant cannot explain how it is that two originals _ are produced in the hands of Mr. Hostrand and Mr. Sherwood, nor why it is that those typewritten copies contained part of the alterations which appear in the copy of the specifications they produced. It is sufficient at least to raise a grave suspicion that the alterations which afterwards appear in the copies produced by Mr. Hostrand and Mr. Sherwood were agreed upon at the meeting of Hovember 26th, and that the copy was then indorsed, and that the other alterations which have caused this litigation were afterwards made. On the other hand, the witness Church, in whose handwriting appear all the alterations made, swears positively that they were all made upon Hovember 26th. In the paper itself there is no indication that they were not all made at one time. The witness Keegan, a member of the board, swears positively that the contract made followed the specifications adopted upon the 26th of Hovember. The witness Cowenhoven, a member of the board, swears positively that the contract made followed the specifications adopted upon the 26th of Hovember. The witness Ward el, a member of the board, swears positively that the contract made followed the specifications adopted upon the 26th of Hovember. And the witness Ferguson, a member of the'board, swears positively that the contract made followed the specifications adopted upon the 26th of November. The testimony of these witnesses is in some matters indefinite, but it must be remembered that by reason of the plaintiff’s delay more than five years have now elapsed since the transaction took place. It must be impossible, therefore, to remember the exact detail of matters then occurring. If the claim of the plaintiff is true, the witness Church is guilty riot only of perjury, but of forgery. The witness Sherwood, the president of the defendant’s company, swears positively that these alterations claimed by the plaintiff to have been made after November 26th followed suggestions made by him prior to that time, and before the contract was made. The design and purpose of this action is to save money for the taxpayers. In order to sustain the action, therefore, knowledge of the fraud of the municipality must be brought home to the contracting party; otherwise, if the contract were here set aside, the contracting party would have a right of action against the town for damages, "which the taxpayers would have to pay. In this conflict of evidence, therefore, I am compelled to hold that the plaintiff’s proof has not so far preponderated as to reach that degree of certainty which the law requires in order to set aside this contract as having been made fraudulently by the municipal authorities with the connivance or knowledge of the defendant company or its officers. The large forfeitures involved in the annulment of this contract call for stronger proof than that which may raise doubt or suspicion. . I do not, therefore, consider the effect of that provision in chapter 59 of the Laws of • 1891 which purports to confirm the contract made. I have grave doubts of the constitutionality of that provision under the reasoning in Rogers v. Union R. Co., 10 Misc. Rep. 57; 63 St. Rep. 162.

2. The second cause of action alleged is a cause of action to set aside the contract of extension executed in March, 1891, whereby the life of the original contract was extended for fifteen years. In the plaintiff’s complaint this contract of extension is assailed as having been fraudently made, and as being illegal and unauthorized. Upon the trial of the action the plaintiff’s counsel aban- • doned his claim of fraud, and assailed the contract of extension upon legal grounds only. It is alleged to be illegal (1) upon the ground that Mr. Nostrand, when a member of the board, was not notified of the meeting at which the extension was made ; and (2) as against public policy, in making a contract of extension before it had commenced supplying gas under the original contract. As to the first reason assigned, the evidence shows that Mr. Nostrand was at the time in Florida, and that an attempt was made to notify him, which failed by reason of his absence. I think the legal requirements have been complied with, and the municipal board is not bound to await the return of one of its members from a pleasure trip, or even a business trip, before transacting the business which may come before it. The sending of a notice, therefore, to the defendant Nostrand was excused by his absence from the state. As to the second reason alleged, it is a complete answer that the legislature has in fact authorized it. That an act may be against public policy is no legal taint where expressly authorized by the legislature of the state. The argument could with much force be made to the legislature, but as against their authority it must be unavailing with the court. Inasmuch, therefore, as this contract is not assailed on the ground of any fraud, but purely on the ground of illegality, my conclusion is that the plaintiff’s claim is not well founded.

3. The third cause of action alleged is to declare void the action of the board so far as by its order lamps were wastefully and fraudulently placed within the town. I have no doubt of the power of the court to regard these separate resolutions directing the placing of the lamps as contracts which, if fraudulently made with the connivance of this company, can be assailed by the taxpayer, undér the statute under which this action is brought. As far as appears in the evidence in this case, the original contract as made was a harmless contract. The price of gas per lamp stands, for the purpose of this action, confessedly reasonable. The only provision assailed as unreasonable, to wit, the provision forbidding the municipality from diminishing the number of lamps, is not, in my judgment, so unreasonable as to lead to an inference of fraud. It might well be that the company would be unwilling to put large amounts of money into a gas plant, and then to place the lamps, at its own expense, in remote quarters of the town, when so ordered by the board, with the right to any new board, with differing views, to stop the lighting of those lamps, and to cut off their compensation therefor, without remunerating them for the expense which they had incurred in placing such lamps. . For the purpose of this suit, in my judgment, their orders for the placing of lamps constitute independent contracts, and, if such orders.were fraudulently made, through collusion with the defendant company, they may be declared void. The complaint in this action alleges at paragraph 13:

“That there are about 3,600 street lamps to be lighted and paid for under the said contract, most of them being remote from any habitation, and through vacant country. They are useless, and were placed by the said board and officers, not in the interest of the said town or its inhabitants, but only to favor the defendant gas company, and enable it to get money wrongfully from the said town, and for no equivalent and no return. That the said contracts were inequitable and unjust, and a waste of the funds of said town and its taxpayers.”

It will be noticed that there is no allegation in the complaint of any collusion between the municipality and the defendant gas company, or any knowledge on the part of the board of improvement. I cannot see that this is a fact necessarily to be alleged and proven. If defendant gas company has placed these lamps without collusion with the board, they are entitled to their compensation, and the court is without power to declare the contracts void. But assuming, for argument that the complaint may be deemed, even by inference, to allege such collusion, has there been a cause of action established ? The rule governing this action is explicitly laid down in Talcott v. City of Buffalo, 125 N. Y. 280; 34 St. Rep. 871. The court there says :

“The terms ‘waste’ and ‘injury’ used in this statute, comprehend only illegal, wrongful, or dishonest official acts, and were not intended to subject the official action of boards, officers, nor municipal bodies acting within the limitations of their jurisdiction and discretion, but which some taxpayer might conceive to be unwise, improvident, or based on errors of judgment, to the supervision of the judicial tribunals. It is believed that no action was ever maintained under this statute with the sanction of this court, without some proof or allegation that the official act or proceeding complained of was without power, or was tainted by corruption or fraud.”

And the court further says:

“Any other construction would subject the discretionary action of all local officers and municipal bodies to review by- the courts at the suit of the taxpayers, — a result which would burden the courts with the litigation without increasing the efficiency of local administration. Whatever evils may exist in the government of cities that are due to mistakes, errors of judgment, 'or the lack of intelligent appreciation of official duty, must necessarily be temporary, compared with the mischief and inconvenience which judicial supervision in all cases would ultimately produce.”

In the application of this rule to the facts in the case at bar there is first a practical difficulty presented. The propriety of placing lamps in a growing suburb of a large city depends upon many considerations which it is impossible, to present to a court. Were the power, given me in this action to order canceled the direction for certain lamps, I would find it very difficult, if not impossible, to determine which lamps should be cut off. The determination of such questions depends upon many facts which are present to the minds of the local board, but which cannot be mapped out to any court so clearly as to authorize the court to say that certain lamps were ordered placed by fraud, rather than by improvidence. Again, a legal difficulty exists. The allegation of the complaint is that these lamps were ordered to favor the defendant gas company, and to enable it to get large sums wrongfully from the town. But that this was not the sole motive would seem to be completely answered by the fact that Nostrand, as a member of the board, voted for every lamp ordered. Plaintiff will not claim that any corrupt motive of. friendship to this company actuated him. His whole course of conduct negatives such a proposition. Then, too, there is no evidence of any collusion of the gas company in the different orders given for lamps. They were all ordered upon the petitions of a taxpayer of the different localities. There is no evidence that the gas company induced the making of those petitions, or in any way influenced the giving of directions for new lamps. No business relation is shown between any member of this board and any stockholder of this company. The whole case is barren of any evidence of fraud of the gas company concerned with the ordering of new lamps. As far as appears, the lamps were ordered in the interests of the owners of outlying lands. But, when so ordered, the gas company was required by the contract to place them. I have been firmly impressed upon this trial with the conviction that the placing of many of these lamps was improvident and wasteful of the funds of the municipality. Public officers who thus waste the funds of the taxpayers, for whom they are acting as trustees, should be taught in no uncer-, tain way that their office is a trust which cannot be abused. The law has provided a way for the punishment of such abuses of .trust, but it is not in this action.

The other question remains to be considered. Plaintiff asks to have declared illegal that clause in the contract wherein the board of improvement contract to give consent to no other company to lay its mains in the streets of Mew "CJtrecht. Without considering the merits of the question, I do not conceive that it is the province of the court in this action so to declare. If illegal, it is .mere surplusage, and binds no one; and, as the expenditure of no money is involved in any rights therein assumed to be given, plaintiff needs no decree of the court to protect him. These views lead to the conclusion that the cause of action has not been proven, and the complaint is dismissed, but without costs.

Complaint dismissed, without costs.


author: Van Wyck, J.

text:
    Max Taube, Resp’t, v. Dry Dock, East Broadway and Battery Railroad Company, App’lt.

      (New York City Court, General Term,

      Filed April 9, 1895.)

    Evidence — Admissions.
    Admissions, made out of court, are not conclusive.
    Appeal from an order, setting aside a verdict in favor of defendant and granting a new trial.

      John M. Scrivner, for app’lt; Grossman & Vorhaus, for resp’t.
   Van Wyck, J.

The order appealed from is affirmed, on the opinion of the trial justice filed February 19, 1895.

All concur.

The opinion of Fitzsimons, J., at trial term is as follows:

Defendant’s counsel requested me to charge “ that if the jury believe that the plaintiff made to Drs. Muscovitz and Michol the admission that has been proven in this case, — that he was getting off the ear while it was in motion, and before it stopped, — that defendant is entitled to a verdict.” I charged: “If he made that admission, and the jury believed it (i. e., that he made this admission), I charge you that in that event the verdict would have to be in favor of defendant.” In effect, I charged that, although if the jury believed that plaintiff was entitled to a verdict because of defendant’s negligence, and his freedom from contributory negligence, yet their verdict must be for defendant, if they believed that defendant stated to Drs. Muscovits and Michol that he was injured by getting off the car while it was in motian. It seems to me that it is not necessary to cite any authorities, or indulge in any argument, to prove the error of such direction. Error is apparent on its face. Surely, the mere admission referred to, made out of court, could not have defeated a recovery by plaintiff of a verdict herein, providing he proved defendant’s negligence, and that he was free from contribútory negligence. Yet I so charged, and for that reason a new trial must be granted. Settle order upon notice.


author: Gildersleeve, J.

text:
    Israel Gerstein, Pl’ff, v. Robert W. Fisher, Def’t.

      (New York Superior Court, Special Term,

      Filed April, 1895.)

    1. Pleading — Supplemental answer.
    If the proposed defense is manifestly frivolous or immaterial, the court is justified in refusing the motion for leave to serve a supplemental answer.
    2. Former adjudication — Parties.
    A judgment for or against a person as guardian ad litem does not necessarily preclude him, in an action affecting him personally, from disputing: the findings or judgment, though the same questions are involved.
    Motion for leave to serve a supplemental answer.

      Louis Steckler, for pl’ff; O. H. Bogart, for def’t.
   Gildersleeve, J.

This is a motion for leave to serve a supplemental answer. _ The plaintiff herein sues for damages for loss of services of his son, who has been injured through the alleged negligence of defendant. Subsequently to the joining of issue herein, another action, in which plaintiff sues as guardian ad litem of his said son for damages arising from the same cause of action, has been brought to trial, and judgment rendered for defendant This judgment the defendant desires to set up in his supplemental answer. While it is true that in general the proposed supplemental pleading is not passed upon on a motion for leave to serve it, if the motion is timely made, and made in good faith, still, if the proposed defense is manifestly frivolous or immaterial, the court is justified in denying the motion. See Williams v. Hays, 23 St. Rep. 489. In the case before me, it seems to me that the proposed defense is absolutely inadmissible, inasmuch o's the parties are not the same in this case as in the other case, in which the judgment was obtained. It is true that the causes of action arise from the same injury, but that is not sufficient to make the judgment obtained in that action a defense in the case at bar. Furlong v. Banta, 80 Hun, 248 ; 61 St. Rep. 253. In the first action the plaintiff sues as guardian ad litem for his son, while in the present case he sues individually. A former judgment concludes the party only in the character in which he sues, and a judgment for or against him as guardian ad litem does not necessarily preclude him, in an action affecting him personally, from disputing the findings or judgment, although the same questions are involved. See Collins v. Hydorn, 135 N. Y. 320 : 48 St. Rep. 370; Furlong v. Banta, 80 Hun, 248 ; 61 St. Rep. 253. The mere fact that the same persons are litigants in the two actions is not sufficient always to satisfy the rule of res adjudícala, for the same person may in law be considered another person, and consequently another party, by suing in another capacity. Collins v. Hydorn, supra. In therefore seems to me that this motion must be denied, on the ground that the proposed defense is immaterial and frivolous.

Motion denied, with $10 costs.


author: Silkman, S.

text:
    In the Matter of the Estate of Libretto Tartaglio, Deceased.

      (Surrogates Court, Westchester County,

      Filed April, 1895.)

    Consul — Authority.
    A consul has the right to demand and receive moneys or property, deposited in court, belonging to a subject of such consul’s country, and the infancy of some of the parties does not affect or limit such right or power.
    Application by the Italian consul general to compel the payment to him of the distributive shares of the widow and minor children of Libretto Tartaglio, deceased.

      D. Humphreys and C. H. Ostrander, for petitioner; Wilson Brown. Jr., for county treasurer.
   Silkman, S.

Application is made by the consul general of Italy at New York to have paid to him the distributive shares of the widow and five minor children in the estate of Libretto Tartaglio, an Italian subject, who died leaving personal property which has been administered in this county, and which distributive shares have been deposited with the county treasurer pursuant to a decree of this court. The widow and children are residents and subjects of the kingdom of Italy. The county treasurer opposes the application upon the ground that the consul general has no authority to receive such distributive shares, and give such an acquittance as will relieve him from responsibility. The rights o£ subjects of foreign countries, both as to their persons and property, largely depend upon treaty provisions. The treaty between the United States and the kingdom of Italy provides that consuls general “may have recourse to the authorities of the respective countries within their respective districts, whether federal or local, judicial or executive, in order to defend the rights and interests of their countrymen.” The term “defend,” as used, is to be given the broadest meaning, and includes the power to maintain affirmatively the rights of the consul’s countrymen, and our local as well as federal judiciary must, in obedience 'to the treaty, recognize such rights. But, in the absence of such treaty provision, a foreign consul would have much the same power. We find the rule laid down in Kent: “The practice of our courts is that a foreign consul may assert and defend as complainant party the rights and property of a person of his nation.” The consul of a foreign nation recognized by the United States is competent to defend and watch over the interests of persons of his nation, and may bring suits for such purpose without any special authority from the parties in interest. The Bello Corrunes, 6 Wheat, 168. The court says, in the case cited, “that a vice consul, duly recognized, by our government, is a competent party to assert or defend the rights of property of the individuals of his nation in any court having jurisdiction of causes affected by the application of international law. To watch over the rights and interests of their subjects wherever the pursuits of commerce may draw them or the vicissitudes of human affairs may force them is the great object for which consuls are deputed by their sovereigns, and, in a country where laws govern and justice is sought for in courts only, it would be mockery to preclude them from the only avenue through which their course lies to the end of their mission. The long and universal usage of the courts of the United States has sanctioned the exercise of this right, and it is impossible that any evil or inconvenience can flow from, it.” Foreign consuls have authority and power to administer on the estates of their fellow subjects deceased within their territorial consulate. Wheat. Int. Law (2d Eng. ed.) 151; Wools. Int. Law, § 96. The right to demand and sue for necessarily implies the authority to acquit and release. In case -of a debt due by a resident of this state to the widow and children of Libretto Tartaglio, there would seem to be no doubt not only of the consul’s power, but his duty, under the authorities, to demand and collect it, and if so, I can see no reason in principle that would prevent his demanding and receiving moneys or property deposited in court belonging to a subject of such consul’s country. Neither can I see that the infancy of some of the parties affects or limits the right or power of the consul. The question as to what disposition may be made of the property after the consul has received and exported it is something with which our courts have nothing to do; that is to be settled by the laws or authority of the .government to which the foreign subject owes allegiance. An order will be made directing the county treasurer to pay the distributive shares of the widow and children of Libretto Tartaglio in his estate, deposited with said county treasurer pursuant to the decree of this court, to the consul general of Italy at New York, upon his executing and delivering a proper receipt thereof.

Ordered accordingly.


author: Goff, R.

text:
    The People, Pl’ff, v. Louis Meyer, Def’t.

      (New York Court of General Sessions,

      Filed May, 1895.)

    1. Husband and Wife — Support.
    A complaint against a man for failure to support his wife may he made by any person. -
    2. Same — What is failure.
    A husband, who fails to make the payments for the support of his wife and child, in accordance with an agreement for a separation, is guilty of neglecting to support them in the county in which she then resides.
    3. Same — Demand.
    No demand for support is necessary in such case.

      4. Same — Separation.
    An agreement for a voluntary separation,wherein a certain, sum is stipulated for support, is no bar to a prosecution to compel the husband to support his wife.
    Appeal from an order, declaring the defendant a disorderly-person in failing to support his wife and child.

      Benjamin Baker, for app’lt; Greenhull & Levy, for appellee; Nathaniel Levy and Percy McElrath, for commissioners of charities and correction.
   Goff, R.

The police justice has jurisdiction to entertain the complaint of the complainant, and to judicially pass upon and determine the question whether the appellant was a disorderly person for failure or neglect to support his wife and child (§ 900 of the Criminal Code, and §§ 1454 and 1455 of the Consolidation Act). I find no provision of law requiring the complaint to be made by the commissioners of charities and correction. Any person may make the complaint. The appellant and his wife, while residents of the city of Brooklyn, entered into an agreement— through an intervening trustee — of separation, which provided that the sum of $15 per week should be paid to the wife for the support of herself and child. This was separation, not abandonment; and, so long as the appellant continued to pay the stipulated sum, he did not abandon his wife. Whether the separation took place in the city of Brooklyn or in the city of New York is immaterial. The materia] question is, where did the abandonment take place, if the appellant did abandon his wife? The evidence shows that after the separation the wife left Brooklyn, and took up her residence in New York, and that at the time when the complaint was made she was actually residing in the latter city. The appellant was bound to pay the stipulated sum to his wife, no matter where she resided. He, having agreed to the voluntary separation, was precluded from controlling her choice as to a place of residence. His domicile was no longer her domicile, and therefore she had a right to take up her residence in New York. It is conceded that he failed to pay the stipulated $15 per week, that by his own action he reduced the .payment to $12 per week, and finally offered her $3 a week which the trustee refused. The criminal law cannot enforce the observance of contracts; neither will the authorities institute or prosecute proceedings of a criminal nature for such a purpose. Did the appellant abandon his wife and child in the city of New York without providing for and furnishing them with adequate means of surport, so that there would be danger of their becoming a burden on the public? That was the question for the magistrate to decide, and he decided it affirmatively, and, in my •opinion, correctly. The contention by the appellant that the wife was limited in her remedy to an action through the trustee on the tripartite agreement cannot be sustained in this proceeding. That is a matter for the husband and wife to settle; but the matter of interest for the taxpayers of this city is that they should not be called upon to pay the legal obligation of the husband. The fact that husband and wife voluntarily separated under an agreement that he should pay her a stipulated weekly sum, and he violates that agreement, and then sets it up as a bar to a prosecution to compel him to support his wife, is- a contention against law and reason, and, if sustained, would enable him to take advantage of his own wrong. It is urged that the wife did not, in the city of FTew York, demand from the husband support, and consequently he was not obliged to provide for her until such demand was made. She was not obliged to make demand uponii him. A man who has an imperative duty to perform shall not wait until he is asked to-perform that duty. The justice did not fix an excessive sum for allowance. The appellant’s proposals to provide a home for the wife were of such a nature that the justice was right iu refusing them. On the whole, the judgment of the special sessions is affirmed.


text:
    Henry J. Fisher et al., Pl’ffs, v. William Gunn et al., Def’ts.

      (New York Superior Court, Special Term,

      Filed April, 1895.)

    Trial — Amendment op fleadins.
    A new pleading which brings in new parties, though it creates no new issues between the original parties, renders necessary a new notice of trial and note of issue.
    Motion to strike the cause from the special term calendar.

      R. H. Arnold, for the motion; Wensley & Gilroy, opposed.
   Gildersleeve, J.

This is a motion to strike from the special term calendar the within action, on the ground that an amended pleading has been served, and no new note of issue has been filed since the service of such amended pleading. The plaintiffs claim that the new pleading is a supplemental and not an amended one. It is wall settled that no new note of issue need be filed after a supplemental complaint has been served. Lovatt v. Watson, 35 Hun, 553 ; Myers v. Railway Co., 34 St. Rep. 293 : whereas, after an amended pleading is served, there must be a new notice of trial and anew note of issue. Gair v. Birmingham, 15 N. Y. Supp. 147; Ostrander v. Conkey, 20 Hun, 421; Black v. Bank, 2 Abb. N. C. 332. The distinction between a supplemental and an amended pleading is that the latter takes the place of the original, while the former does not. When an amended complaint is served, it supersedes the original for the purposes of the issues in an action. A supplemental complaint, however, never takes the place-of an original, and the issues joined under the original pleadings remain as issues to be tried in the action; and, indeed, as a general rule, a supplemental complaint does not state a cause of action. See Myers v. Railway Co., 34 St. Rep. 293. The question presented on this motion is whether the new summons and complaint,, served under the order of the general term, are amended or supplemental. By the wording of the general term order they are-both, and they are so entitled. Bv these pleadings new parties-, defendant are brought in, and in other respects the new pleadings supersede the original for the purposes of the issues in the action. The plaintiffs claim that, as between them and the defendants Gunn, no new issues have been framed or created by the service of the new complaint required by the general term order. It is contended, however, by defendants Gunn, that copies of the amended and supplemental pleadings must be served on the old as well as the new defendants, who are at liberty to set up any new or additional matter in their answers they may have omitted in their original answers, and that the new defendants are certainly entitled to notice of trial. It seems to me from the papers before me that this is a case where the rule regarding amended pleadings must govern, and that new notices of trial should be served, and a new note of issue should be filed. It is true that, where a proper notice of trial is served, the court may permit the note of issue to be amended nunc pro tunc,— Gair v. Birmingham, 15 N. Y. Supp. 147, — but in the case at bar no notice of trial has been served since the service of the amended and supplemental pleadings. The motion must be granted, and the case stricken from the special term calendar.

Ordered accordingly.