author: Learned, P. J.:

text:
    ROBERT C. MARTIN, Appellant, v. JACOB S. RECTOR, Respondent.

      Ejectment — where a wife is lining upon a farm with her husband, what evidence requires the submission to the jury of the question as to which is the actuad occupant thereof.

    This action was brought, in 1860, by the plaintiff, as the assignee of a lessor, to recover the.possession of certain premises for the non-payment of the rent reserved by the lease. It appeared that in 1856, one Lansing, who then owned the leasehold interest, went to the defendant’s house and told the defendant’s wife, who was Lansing’s daughter, that if she would move upon the premises he would make her a present of the place; that she could go on and build upon it and he would give her a deed whenever she called for it. The defendant and his wife moved upon the place and lived there as husband and wife for twenty-two years. Buildings were put up and other improvements made. The wife had no separate estate when she went there. She hired the maid-servants, and he the men on the farm. He managed the farm and sold the produce. The defendant was examined as a witness for the plaintiff before trial and testified that he was in the possession of the farm at the time of the commencement of the action. While the action was pending he and his wife made an affidavit in which they stated that they were occupants of the premises.

      Held, that the evidence would not have justified the court in holding as a matter , of law that the defendant, the husband, was the actual occupa-nt of this premises, and that it properly submitted that question to the juay.
    That a verdict finding that he was not the actual occupant would not be disturbed.
    ’ Appeal from a judgment in favor of the defendant, entered upon the verdict of' a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. ■

      Samuel Hand, for the appellant.

      George W. Miller, for the respondent.
   Learned, P. J.:

This is an action of ejectmeiit. The complaint simply alleges the plaintiff’s ownership in fee and the defendant’s unlawful possession.

On the trial the plaintiff claimed to recover for the non-payment of rent upon a lease, claiming as the grantee of the original lessor. It does not seem to be disputed that he is such grantee. The interests of 'the original lessee were shown to have been transferred, by successive conveyances, to one Martinus Lansing, who became full owner thereof in 1845. Non-payment of the rent falling due in 1859 was shown. The action was commenced and issue joined in 1860. The issue was tried in 1882. Upon the trial the court submitted to the jury the question whether Jacob S. Rector was the actual occupant of the premises at the time of the commencement of the action, charging them, in substance, that if he was, then the •plaintiff was entitled to recover ; that if he was not, then the verdict should be for the defendant. The jury found for the defendant, and further found that Jacob S. Rector was not in actual occupation at the, time of the commencement of the action. The plaintiff appeals and insists that a verdict should have been directed against the defendant. ■

It will be seen then, that so far as the evidence disclosed, the legal rights of lessee were in Martinus Lansing at the commencement of the action. It was proved, in substance, that about 1856 Lansing came to defendant’s house and told defendant’s wife (who was Lansing’s daughter) that if she would move down there (that is upon these premises) he would make her a present of the place; that she could have it; that she could go on and build upon it and it was her’s; that she could have a deed by going to her uncle; that he, Martinus, would draw up a deed for her and she could get it by calling for it.

.Upon this statement the defendant and his wife moved upon the premises about 1856 and lived there twenty-two years. They lived there as husband" and wife. Buildings were put up and- other improvements made. She had no separate property when she went there. She hired the maid servants and he hired the men on the farm. lie sold the produce and managed the farm. ,

In 1863, after the commencement of this action, the defendant was examined on plaintiff’s behalf, and testified that he was in possession of the premises at the commencement of the action. In 1879 the defendant and his wife made an affidavit that they were occupants of the premises.

Now, upon this proof, which might be stated more fully, the question is whether the court could have assumed, as a matter of law, that the defendant was the actual occupant. The testimony given in 1863 was not an estoppel, because it was given after the action had been commenced. It was, of course, important evidence for the jury. The same may'be said of the affidavit of 1879.

The case of Alexander v. Hard (64 N. Y., 230), cited by plaintiff, only decides that in a case somewhat analogous the court could not hold, as a matter of law, that the husband was not in possession so as to maintain trespass. It shows that in that case possession was a question for the jury.

And when we are considering whether the evidence conclusively shows that the defendant was in possession, we must take into account the title or claim of title under which either the defendant or his wife went into possession. Martinus Lansing, the father of defendant’s wife, owned the leasehold. These parties went upon the premises under the statement by Lansing to his daughter that the farm was hers, that she should go on and improve it. She often claimed to own it in her husband’s presence. The plaintiff endeavors to distinguish this transaction from the similar transaction in Freeman v. Freeman (43 N Y., 35), by urging that in this case there was only a parol gift, and in the Freeman case there was a parol promise in consideration of improvements to be made. But an examination of that case will show that the decision rests upon the fraud which would be practiced on the person who should be induced to make improvement on the faith of the parol promise. And it is difficult to see why the fraud would not be equally great when the owner says: “ I give you the land, go on and improve it,” as when he says: “ I will give you the land if you go on and improve it.” In the present case the promise was that Lansing would give a deed to his daughter, and on the strength of that promise' the defendant or his wife took possession.

We have then this circumstance, characterizing the acts of the parties, viz.: That the possession taken and the improvements made were under a parol gift, or promise to give the land, not to the defendant but to his wife. And under Freeman v. Freeman (ut supra), this circumstance, followed by the expenditure of money on the premises, might give the wife a right tó a deed.

It is not uncommon at this day that the legal title to the home of the family is in the wife. "When such is the case, and when the husband and wife lived together as such in the house to which she has the title, if an action of ejectment should be brought against the husband, could the court say, as a matter of law, that his acts, as the head of the family, made him the actual occupant of the premises? Would it not, at least, be necessary to submit this point to the jury ?

The learned justice charged that, where a husband is living with his wife and family on a farm, in the absence of inconsistent facts, the presumption is that he is in possession and occupancy, the fact being unexplained and unqualified. So that he threw on the defendant the burden- of disproving this presumption by explanatory facts. But the doctrine claimed by the plaintiff seems to require us to hold that a wife, who has title to property, cannot be in the actual occupation thereof, if she and her husband live thereon, as husband and wife; each managing the appropriate part of the necessary business.

It may be difficult, we admit, to determine in such cases who is in occupation. But a plaintiff need seldom have any difficulty, if he inquires beforehand of the party he is about to sue, and thus obtains an estoppel. And very possibly we may think the jury came to an incorrect conclusion. But that is not the point. Were there not inferences to be drawn which were not certain and incontrovertible and which might be differently made by different minds ? (Hart v. Hudson River Bridge Co., 80 N. Y., 622.)

We see no error in the case and think the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK v. THE UNIVERSAL LIFE INSURANCE COMPANY. (Claim of ST. PETER’S CHURCH.) (Claim of ST. STEPHEN’S CHURCH.)

      Beeeirer of inmramee company — liability of, for rent — when a claim should be paid without a reference.

    The receiver of an insolvent life insurance company after his appointment occupied and used premises theretofore occupied and used by the company. Having occupied them from November first to May first, and failed to pay the half year’s rent falling due on the latter day, the lessor applied for an order directing the receiver to pay the rent or allowing an action to be brought against him therefor. There was no dispute as to the facts. The court referred the matter to a general referee appointed to pass on claims against the receiver.

      Reid, that the court erred in refusing to grant the motion, and that the order should be reversed and the receiver be directed to pay the rent with interest from the time it fell due.
    Appeal from an order of reference made at a Special Term.
    The Universal Life Insurance Company was, prior to its fail ure and the appointment of a receiver of it, the lessee of St. Peter’s church, under a lease giving a term of twenty-one years from May 1, 1874. When the receiver was appointed he continued to use and occupy, by himself or by his sub-tenants, the leased property. He so occiqfied the property for the half year from November first to May first, except the few days from November first to November fifth, the date of his appointment. On the first of May a half year’s rent became payable, which he has not paid. The church applied to the court either to direct him to pay or to permit him to be sued. Instead of granting either request the court referred the matter- to a general referee, who had previously been appointed to pass on claims against the company, its assets or the receiver.

      Lewis B. Hall, for St Peter’s and St. Stephen’s churches, appellants.

      G. J. Everett, for the receiver, respondent.
   By the Court.

On the hearing of the motion the receiver did not deny any of the facts set up in the petition of the church. It was therefore quite unnecessary' that there should be a reference. And, on this appeal, no dispute is made as to the facts. It was then only a question of law as to what relief the church should have. In the settlement of these insolvent companies, the practice of referring all claims whether disputed or not, is unfair to the claimants, and makes an improper expense for the estate.

It is not necessary for us to say whether the receiver was, or was not, personally liable for the rent during his occupation. If he were personally liable, even then it might be well for the church to 'avoid any question of contempt of court by obtaining leave to sue.

If he were personally liable, still his occupation was in the discharge of his official duties, and the court would reimburse to him anything he should be compelled personally to pay.

If he were liable only as receiver^ then he could not justly enjoy the use and occupation of the property as receiver without paying the rent. The rent in that case would not. be a claim to be paid pro rata with debts of the company. It would be like his necessary expenses, a charge on the fund. If he had chosen to abandon the possession at once, he could probably have escaped liability for the rent accruing. But as he chose to enjoy the possession he was bound to pay the rent, which was the consideration therefor.

The liability which the church seeks to enforce is for the receiver’s own tenancy; it is against him as assignee of the lease, and not for a debt owing by the company.

And in this view (whatever may be the power of the court) it would hardly be reasonable to force the claimant into a compulsory reference, as might be done if this were a claim against the company. If leave to sue were given the claimant would be entitled to a jury trial and could not be compelled to refer. The liability of the receiver appears to be the ordinary common-law liability of the assignee of a lessee to the lessor.

There was no necessity that the claimant should make any other presentation of the claim than that which was made by the motion at Special Term. ¥e think that the Special Term should either have directed payment to the claimant or should have permitted the claimant to sue. And under the circumstances the more just course would be to direct payment.

The order is reversed, with ten dollars costs and printing disbursements, and the receiver is directed to pay to the church the rent, $500, with interest fiom the day when the half year’s rent became payable.

The claim of St. Stephen’s church is of a similar character, and the order should be to a similar effect for the rent payable in 'that case.

Present — Learned, P. J.; Bookes and Boardman, JJ.

Order reversed, and receiver directed to pay the rent, viz., $500, with interest from the time it was payable to St. Peter’s church; $1,312.50 with interest from the time when payable to St. Stephen’s church, with ten dollars costs and printing disbursements in each case.


author: By the Court :

text:
    MELINDA SMITH, as Administratrix, etc., of PETER W. SMITH, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Case and exceptions^-when a resettlement of it will be ordered — the evidence should not be set forth in bsec verba — Buie Sfo. 34.
    For a failure to comply with Rule 34, requiring tbe facts of tbe case, together with tbe rulings on tbe trial, to be stated in a narrative form, and providing that tbe evidence shall not be set forth in hose verba, or by question and answer, unless so ordered by tbe justice, surrogate or referee by or before whom tbe ease is settled, tbe case will be sent back for resettlement.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      D. M. K. Johnson, for the appellant.

      H. B. Oushney, for the respondent.
   By the Court :

In Jewell v. Van Steenburgh (58 N. Y., 86), and again more strongly in Howland v. Woodruff (60 id., 73), the Court of Appeals condemned the practice of using the stenographer’s minutes as the case ” on appeal. In Mead v. Shea (33 Sup. Co. N. Y. [26 Hun], 393), we sent back a case for resettlement, on this ground. Rule 34, as in force since March 1, 1881, requires” that the case shall not contain the evidence in hcep verba, but that the facts shall be stated. in narrative form. If any particular testimony ” ought to be given in hceo verba, the justice who settles the case may determine this.

The present case contains 870 folios. The whole of the testimony is given by question and answer, even where it is of the most unimportant character. Even the testimony in regard to the family of the deceased Amd his property and business, matters which are of no importance on this appeal, are all put in the case and that tooj by question and answer. ¥e have even, in the same way, the examination of a juror as to his .competency, on which no question is raised in the appellant’s points.

This is not the proper way to make a case. We are. glad to say that, generally, cases conform to the rule and to the proper mode, better than they did some time ago. The rule has been in force long enough for counsel to practice according to it. There is probably no part of this case which should, for any reason, be made up by question and answer. If there is any particular testimony ” which it is claimed by either party should be thus given, then the justice can determine whether a proper presentation of the case requires such portion to be so stated. The rule above cited does not mean that the whole case is to be in this form, only that particular testimony ” may beso given when necessary. It may be necessary, for instance, in order to present the question of the admission of evidence. With such exceptions the ease must be in narrative form.

And not only should it be in narrative form but it should contain only so much of the evidence as is necessary to present the questions of law. In the present case those questions are the negligence of defendant and the contributory negligence of the plaintiff’s intestate. No question is made as to the amountof damages, and therefore the evidence on that point is not needed. Probably other evidence might be mentioned which is not material on this appeal.

The present case was submitted without argument. "We could not, therefore, at the term discover how it was made up.

The case is sent back for a resettlement.

Present — Learned, P. «L, Boardman and Bookes, JJ.

So ordered.


author: 'Learned, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. AMASA HUMPHREY, Respondent, v. THE BOARD OF SUPERVISORS OF ULSTER COUNTY, Appellant.

      Mandamus — it should not be granted when the defendant has been legally enjoined from doing what the relator seeks to have done.

    The relator having recovered two judgments against the town' of Kingston, applied for and obtained a peremptory mandamus commanding the Board of Supervisors of Ulster county to levy the amount of the judgments upon such portions of the towns of Kingston, Ulster and Woodstock as constituted the town of Kingston at the time of their recovery. It appeared that before this application was made, an action had been brought in the Supreme Court by. one Osterhout and others against the same board of supervisors, in which these very claims were decided to be illegal, fraudulent and exorbitant, and the audits thereof weie vacated, and the board enjoined from levying or assessing the amounts claimed to be due thereon. The judgment in süch action had been affirmed at the General Term.

      Held, that as this judgment was binding upon the defendant, the mandamus should not have been granted,
    Appeal by the board of supervisors of Ulster county from an order made at a Special Term awarding a peremptory mandamus.

    The relator recovered two judgments in a justice’s court against the town of Kingston, which were docketed in th'e Ulster county clerk’s office. He applied to the supervisors to levy and assess the amount on the said town or pro rata on the towns of Kingston, Ulster and so much of Woodstock as comprises the territory formerly in Kingston. They refused to do so. Thereupon he applied for and obtained a peremptory mandamus commanding the board to levy the amount of the judgments and costs on the towns of Kingston and Ulster as constituted at that time, and on so much of Wood" stock as formed part of Kingston at the time, of the recovery of the judgments, such amount to be levied upon the assessed valuation as it appeared by the tax roll of 1882, in such manner that each dollar of . assessed valuation should pay its proportionate amount;. that is, that the sums to be raised should be charged upon all the assessed property within the limits of Kingston, as it existed before the division.

      Howard CAipp, Jr., and Jo An J. Lmson, for the appellant.

      J. Newton Fiero, for the respondent.
   'Learned, P. J.:

Without discussing in this case the question as to the mode of levying this money it seems to us that there is one great difficulty. It appears by the affidavits of the defendants that in -an action brought by Tennis P. Osterhout, and others in this court, this board of supervisors was enjoined from levying or assessing these very claims upon the ground that they were illegal, fraudulent and exorbitant. In that action judgment was rendered vacating the audits of these claims and perpetually restraining the board as aforesaid. This judgment has been affirmed on appeal to the General Term.

It is plainly inconsistent that this court should, in this proceeding command the defendants to do what in an action it forbids them. What are the defendants to do ? If they obey the mandamus, they disobey the injunction, and vice versa. We cannot place parties in that position. It is not necessary to say that the injunction was binding on this relator. For it is said that he ¡was not a party to that action. But it is binding on these defendants and they must obey it. The pendency of that action and the injunction granted therein were good reasons why they should not comply with the petition of the relator to assess his claim. And were good ’ reasons why the mandamus -should not have been granted. (People ex rel. Duffy v. West Troy, 25 Hun, 179; chap. 554, Laws 1880.)

We notice a fact to which the counsel have not referred and that is that both of the judgments are stated in the transcripts to be canceled of record. What the meaning of this is we do not know.

The relator urges that the defendants cannot impeach the judgmerits for fraud, and .says that a sheriff might as well question the legality of a judgment on which he had received an execution. But if the sheriff had, in any action, been enjoined from levying and collecting such execution, would the court have attached him for not collecting ?

Perhaps the relator would have been permitted to show, if he could, that the injunction action was collusive. But that was not done.

The order should be reversed, with costs of appeal and printing disbursements and motion for mandamus denied, with fifty dollars costs and disbursements.

Present — Learned, P. J., Bockes and Boardman, J Jr

Order reversed with costs, and motion denied, with fifty dollars costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWARD McKENZIE, Respondent, v. THE BOARD OF SUPERVISORS OF ULSTER COUNTY, Appellant.

      Division of a town — collection of debts owing by it — apportionment of them — 1 R. S., 338, 339, secs. 4-11.
    Where a town against which a judgment has heen recovered is thereafter divided into two or more towns, the board of supervisors cannot be compelled by mandamus to levy the amount of the judgment upon the land left in the town against which the judgment was recovered, and that portion of the land (formerly in the old town) which was transferred to another town.
    No towns (certainly none except the town against which the judgment was recovered) can be charged therewith until the debt has been apportioned among them as provided in article 2, chapter 11 of part 1 of the Revised Statutes.
    The statute contemplates that the apportionment shall be between the towns, and does not intend that an apportionment shall be made upon only the property within the territorial limits of the altered or divided town. ,
    Appeal from an' order made at a Special Term granting a peremptory writ of mandamus to the defendant, commanding it to levy the amount of a certain judgment of the relator recovered April 15, 1819, against the town of Kingston, upon the towns of. Ulster and Kingston, and so much of the town of Woodstock as m{ April, 1879, formed part of the town of Kingston upon the assessed valuation of 1882.
    . Howard Ohvpjp, Jr., and John J. IAnson, for the appellant.

      J. Newton Fiero, for the relator, respondent.
   Learned, P. J.:

This case is similar to that of Humphrey, relator, only in this case there had been no injunction against the board. The same peculiarity (not referred to by counsel) appears, that is, that the transcript of the judgment states that it is canceled, of record. Put we pass that, as it may be an error.

The judgment of fifty-two dollars and ninety-five cents was recovered against the town of Kingston, February 20,1879. On the 28th of November, 1879, the board of supervisors, in pursuance of chapter 319, Laws 1872, from a portion of the town of .Kingston formed a new town which they called Ulster. Another portion of Kingston was annexed to Woodstock. And the remainder was to be a separate town under the name of Kingston. Their action was ratified by chapter 407, Laws 1880.

The Special Term in its order endeavored to enforce the collection of this judgment on that -property which was within the territorial limits of Kingston before the division, according to the assessed valuation.

The authority for 'the action of the board of supervisors is found in 2 Revised Statutes, m. p. 474, §§ 102 and seq.; chap. 554, Laws 1880. These provisions require the board to levy a judgment upon the town against which it has been recovered. We are referred to no authority in this State giving a discretionary power in the board to levy such a judgment upon such parts of .a town as they think ought equitably to pay it. And, of course, unless the board had the authority to do this without the mandmnus, the court can give the board no new power by the mandamus. The authority in regard to debts, in the case of a division of towns, is given by 1 Revised Statutes, m. p. 339, § 10. The supervisors and overseers of. the poor of the respective towns appear to be clothed with the necessary powers. (See preceding secs. 6 and 7.) A different provision as to bonds issued for the construction of a railroad is made by chapter 336, Laws 1880.

It would then seem to follow either that the old town remained liable for the debt (People v. Morrell, 21 Wend., 563), or that the debt must be apportioned as provided by the statute above cited. For, otherwise, there has been no adjudication, on this claim of the relator, as against the town of Ulster and the town of Woodstock.

It will be further seen that the rule of apportionment prescribed by the statute is “ according to the amount of taxable property in the town divided or altered, as the same existed immediately before subdivision or alteration, to be ascertained by the last assessment list of the town.” Now, as this action of the supervisor and overseers is to be had as soon as may be after the first town meetings, it is evident that by the last assessment list is meant the last list before the division. The division of this town of Kingston was in 1880. We do not see, therefore, how the assessment-rolls of 1882 could be considered.

And we may notice, also, that .this statute seems to indicate an apportionment between the towns, and not an apportionment upon only the property within the territorial limits of the altered or divided town.

We think, then, that the debt must be legally apportioned, as prescribed by statute before any town other than Kingston can be charged ; perhaps even before Kingston can now be charged. For section 10 provides that each town shall thereafter be charged with its share of such debts according to such apportionment. It. seems^ therefore, to us that this apportionment ought to be made; and that it is not reasonable to enforce the debt against that part of the divided town which retains the old name.. The legislature evidently did not intend that this should be done, but intended that, after the division, each should be liable for its proper share, to be ascertained as in that statute provided.

The order should be reversed, with costs, and motion denied, with fifty dollars costs and disbursements against relator.

Present — Learned, P. J"., Boardman and Bookes, JJ.

Order reversed, with costs, and motion denied, with fifty dollars costs and disbursements.

        Ante, page 146.


text:
    AMAND HURTH, Respondent v. GEORGE BOWER, Appellant.

      General assignment — the Supreme Cowrt may entertain an actian to compel an assignee to account — it is not confined to the notice to creditors prescribed by the statute— Chap. 466 of 1877, and 318 of 1878, did not confer exclusive jurisdiction upon the County Court.

    Chapter 466 of 1877, as amended hy chapter 318 of 1878, conferring upon County Courts jurisdiction over assignees for the benefit of creditors, and over all matters connected with their duties, does not deprive the Supreme Court of its jurisdiction over an action brought therein by a creditor to compel such an assignee to appear and account.

      It seems, that an act attempting so to do would be unconstitutional:
    The cpurt should not refuse to exercise its jurisdiction in such a case where no proceedings have been commenced in the County Court.
    When in such a case the Supreme Court refers the action it: may prescribe the notice to be given by the referee to the creditors of the assignor. It is not confined to or obliged to adopt the notice prescribed by the statutes.
    Appeal by the defendant from parts of an order of reference made at a Special Term.
    The action was brought to compel an accounting by the defendant who is an assignee for the benefit of creditors. The order referred the action to a referee to hear, try and determine the same; to take and state the account of the defendant; to ascertain, determine and report the amount of assets and funds in the hands of the defendant or with which he is chargeable as such assignee; the amount of the claims of the plaintiff and such other interested persons who shall come in and contribute to the expenses of the action.; for that purpose directing the referee to, cause a notice for such persons to come in and exhibit their demands by a day and at a place in Elmira, New York, to be designated and fixed by him by the notice as a peremptory day for that purpose, to be published in the manner provided by Code Civil Procedure (§ 786); and that such of them as shall not. come in and exhibit their demands by the time limited, and prove the same before the referee, shall be excluded from the benefit of said order, and of the judgment and decree in this action and from sharing in the distribution of the fund; that such persons who shall come in shall contribute to the plaintiff their proportion of the expenses of the action to be settled by the referee; and allowing costs of the motion to the plaintiff if he be awarded costs in the action payable as such costs shall be directed to be paid.

      Gabriel L. Smith, for the appellant.

      Boswell B. Moss, for the respondent.
   By the Court :

This is an appeal from an order referring this action to a referee to take and state the account of the defendant as an assignee for the benefit of creditors. If the action is properly brought, an order of this kind should undoubtedly be granted. But the defendant by liis appeal seeks to raise the question whether an action of this nature ought to be sustained. The defendant urges that since the-passage of chapter 466, Laws 1877, as amended by chapter 318, Laws 1878, the County Court has complete jurisdiction over assignees for the benefit of creditors and all mattei-s connected with their duties, and, therefore that the Supreme Court should not take jurisdiction of such matters. And the defendant cites Chipman v. Montgomery (63 N. Y., 221), which held that this, court should not entertain an action for the accounting of an executor or 'administrator. The cases are not, however, analogous. The care and distribution of the estates of deceased persons belonged originally to the Ecclesiastical Courts. It was only in exceptional cases that Chancery took jurisdiction. The Surrogate’s Courts have succeeded to the Ecclesiastical Courts; and the Supreme Court, as the successor of the Court of Chancery, takes jurisdiction only for exceptional reasons of matters belonging to the Surrogate’s Courts.

On the contrary, the accounting of assignees and other trustees belongs to the Courts of Equity. If a statute has given jurisdiction of any such action to the County Court, that does not take such jurisdiction from the Supreme Court. Probably the Constitution forbids this, and at any rate it always has been a rule of the Equity Courts that if they once have had jurisdiction of a subject, they retain such jurisdiction, even though other courts may extend their jurisdiction to include such subject. (Converseville Co. v. Chambersburgh Co., 14 Hun, 609; Schuehle v. Reiman, 86 N. Y., 270.) We have no doubt, therefore, that this court has jurisdiction of this subject and of the present action.

Nor should the court refuse to exercise this jurisdiction, when no proceeding has been commenced in the County Court. There are reasons why a plaintiff may prefer to proceed by ordinary action in a court having general jurisdiction of the subject, rather than to take a statutory remedy in a court whose jurisdiction is not general and depends on a special statute. These views are in harmony with those expressed in Noyes v. Newburgh, First Department, May, 1882.

Again, the defendant urges that the order is erroneous in those parts which require the referee to give a certain notice to creditors to exhibit their claims and which directs the notice to be given by publication. He urges that the statute above cited requires a notice-personally or by mail. JBut the form of the order is in accordance' with the practice of the court in such cases. (Code, § 786.) A court of general jurisdiction may have some discretion in the mode of giving notice to persons in such cases, while a mere statu toiy system usually restricts the mode of notice and permits no other than that specified.

It was also urged by the defendant that some creditors may have presented their claims before the assignee under the advertisement authorized by the statute, that such creditors, having already presented their claims, will pay no further attention to the matter and may be deprived of their just rights by this order. But if they have presented their claims to the defendant we cannot assume that he will so neglect his duty as not to present such claims to the referee.

The object of the reference is to ascertain what claims exist, in order to make a distribution among all. And the defendant would be culpably remiss in his duty of distributing the assets if he should fail to present to -the referee all the claims yjhieh he has received. We need not assume that he will do such a wrong and expose himself to loss for such neglect of duty.

The complaint alleges several particulars of misconduct on the part of the defendant in the discharge of his duty. Those allegations, if true, furnish a reason why the plaintiff brought this action instead of proceeding in the County Court. It has always been the special province of the Court of Equity to control trustees and to redress any wrongful or fraudulent acts on their part tending to the injury of the trust estate. And jurisdiction over those matters this court will not surrender.

The order is affirmed, with ten dollars costs and printing disbursements, against the defendant personally.

Present — Learned, P. J., Boardman and Bookes, JJ. •

So ordered.


text:
    THERESA J. McCLEARY, Appellant, v. SAMUEL T. McCLEARY, Respondent.

      Action for a divorce — the reference of the issues must be to hea/t' and determine the same — form of the order — power of the court u/pon am, application for judgment upon his report— Code of Civil Procedure, secs. 1328, 1229.
    Where an action for a divorce, in which issues have been joined, is by consent of the parties referred, the reference should be to hear and decide the issues and not merely to take evidence and report the same with the referee’s opinion. Although where the issues in an action are sent to a referee for trial it is better to have the order direct him “to hear and decide,” or “to hear and determine ” the same ,it is not necessary that these words should be used.
    An order directing “that this action be and the same is hereby referred to * * * to hear the same, and all the issues therein and to report to this court,” is sufficient.-

      Qucare, as to what is the extent of the power given to the court by section 1229 of the Code of Civil Procedure, where judgment in an action for divorce is applied for upon the report of the referee and the testimony taken upon the trial.
    Appeal by the plaintiff from an order denying a motion to confirm the report of a'referee, and for a judgment thereon in an action for divorce upon the ground of adultery.

      G. Af Forbes, for the appellant.

      Pratt, Brown c& Garfield, for the respondent.
   Learned, P. J.:

The learned justice from whose order an appeal is taken, in a very careful and able opinion, has shown clearly, that when issues are joined in an action for a divorce and, by the consent of parties, the court, in its discretion grants a reference, this is a reference to hear and decide tbe issues, and is not merely a reference to take evidence and report tbe same witb bis opinion. "With that conclusion we fully agree. When issues are joined tbey are to be tried, not merely reported upon. Probably no doubt would have ever arisen on a question so plain if it bad not been for tbe provision of tbe Supreme Court Rule 73, since embodied in section 1229 Code Civil Procedure. In other cases than that of an action for divorce, tbe report of the referee, on tbe trial of issues, stands as tbe decision of tbe court and entitles tbe successful party to. judgment. (Sec. 1228.) But this is not so in actions for divorce. Although tbe referee has tried tbe issues and passed upon them and reported, yet bis report and the testimony must be presented to the court, and judgment must be rendered by tbe court. (Sec. 1229.) Tbe reason of this provision is that, in matters of divorce, tbe public have an interest. Married parties are not to be permitted by any collusion between themselves to obtain a judgment of divorce. It is tbe right and duty of tbe State, acting through its courts, to see that ho divorce is granted, unless there be real and not collusive ground tberefor. Hence it is required that after a trial of the issues before a referee, not merely his report, but the whole testimony, shall be presented to the' court for its action.

By reason then of this provision, which was first in the rules and is now in the Code, practitioners seem to have thought that, as the report of the referee, after issue joined and also the testimony taken before him were to be presented to the court, the reference was such as is granted under section 1215 or section 1757 second sentence.

The learned justice whose order is apjiealed from was of the opinion that the order of reference granted in this action, and under which the parties had proceeded and the referee had reported, was not one which was authorized. He therefore set aside the order and all proceedings under it.

In his opinion, stating the facts, he says that the referee reported the evidence with an opinion that the plaintiff is entitled to a divorce but did not pass upon any of the issues raised by the pleadings.

The- part of the order important to this point is as follows: <c Ordered, that this action be and the same is hereby referred to * * * to hear the same and all the issues therein and to report to this court.” The complaint was in the usual form and alleged adultery with a person named. The answer was a general denial.

The referee’s report finds several facts, viz.: The marriage; the adulterous intercourse; the absence of privity, etc., and of voluntary cohabitation; that five years have not elapsed, etc.; that no action has been commenced by defendant, etc. As a conclusion of law the referee finds that plaintiff is entitled to the judgment demanded, with costs. It seems to us then that the referee did pass on the issues and that he did not merely report the evidence.

Now, as' we judge from the argument of the respondent, it is claimed that this order of reference is not a reference to try the issues because it does not contain the words “determine” or “ decide.” If we look at the language of section 1011, which (as modified by section 1012) is that under which this reference is made, we find that the language is that “ the whole issues or any of the issues must be referred, etc. It does not seem to have been thought necessary to add the words “ to decide ” or “ to determine ” however wise it may be to express them in the order. The section speaks of referring the issues; and that language seems to have been thought full enough to imply that the referee was to try the issues thus referred and decide them.

Now this order refers the action “ to hear the same and all the issues therein.” If this had been an action for assault and battery, or on a contract, and a similar order had been entered, would any doubt have been entertained that it was sufficiently formal to justify the referee in trying the issues ? Especially after he had actually tried such issues and reported upon them.

The referee on this trial upon objection taken, held that the order was “ to hear and determine.” He therefore acted as if the issues had been referred to him.

It is not necessary to cite the cases referred to by the respondent’s counsel. Many of them uphold the doctrine which we have just laid down, that where issues are joined the reference must be to try the issues. But it will be found that in those cases where the orders of reference have been held irregular they have been orders to take proof and report the same to the court with the referee’s-opinion. The present is no such order. But it is an order of reference to hear the action and all the issues. Further, the order twice speaks of the trial of the action, and says nothing of the referees returning the evidence with his opinion.

¥e are, therefore, of the opinion, as was held by the learned justice, that in such a case as this the reference should be a reference of the issues, that is for trial and decision; that to avoid all doubt it is better to • use, as in other orders of reference, the additional words, to hear and decide,” or words to that effect. But we are compelled to differ from the learned justice as to the order in question; and we hold that it was a reference of the issues for the trial of the same, and that the same have been tried by the referee and decided by him.

On this appeal we are not called upon to express any opinion as to the extent of power given to the court by section 1229, when judgment is applied for upon the report and the testimony after trial. The fact that the testimony is to be certified to the court would seem to indicate that the court was to consider it, and that the judgment was not to be granted by the court, as a matter of course, upon the report of the referee. But that question is not before us now.

For the reason above given, the order is reversed, with ten dollars costs and printing disbursements, and the plaintiff may apply for judgment as she may be advised according to law.

Present — Learned, P. J., Boardman and Bockes, JJ.

Order reversed, with ten dollars costs and printing disbursements, and plaintiff may apply for- judgment as she may be advised according to law.

      Foilett, J:
      The Code of Civil Procedure provides five modes for the trial of issues joined by the pleadings in an action:
      1. Issues of fact by a jury.
      2. All issues by the court,
      3. All issues by a referee.
      4. Part of the issues of fact by a jury, and the remainder of the issues by the court, or by a referee.
      ■ 5. Part’ of the issues by a referee and the remainder of the issues by the court. (Code Civil Proc., §§ 968 to 972, and §§ 1008 to 1014; Barnes v. West, 16 Hun, 68.)
      Under this Code any or all of the issues arising in an action may by agreement be tried before a referee, except in matrimonial actions, certain actions against corporations, and actions affecting the interests of infant defendants, in which excepted actions the court may grant or refuse a reference; and if granted the court must designate the referee. (Code Civil Proc., §§ 1011, 1012.)
      Undoubtedly, one or more of several issues, joined by the pleadings, in matrimonial actions may, with the approval of the court, be referred to a referee to hear and determine, and the remaining issues may be brought to trial before the court, with or without a jury, as the case may require. But I am unable to find any authority in this Code for referring issues arising on the pleadings in matrimonial actions to a referee to take evidence and report with his opinion, and for the court, upon this evidence and opinion so reported, to grant a divorce.
      Section 1229 of this Code provides: That judgments in matrimonial actions cannot be taken — of course — upon a referee’s report, but the testimony and proceedings must be certified to the court by the referee with his report and judgment rendered by the court. .“His report,” is the referee’s decision iipon. the issues tried before him. (Code Civil Proc., §§ 1019, 1031, 1032, 1228.)
      Under this Code it has been twice held (Anonymous, 3 Abb. H. C., 161; Schroetar v. Schroeter, 23 Hun, 230.) that upon a reference to hear and determine an action for a divorce, the court cannot set aside the referee’s report and direct a judgment in favor of the party against whom the referee reported.
      The referee must determine the issues referred to him, after which the court may grant or refuse the judgment directed by the report; from this decision an appeal may be-taken by the aggrieved party. In Meyer v. Meyer (7 N. Y., Weekly Dig., 535) the reference was to take evidence and report it with the referee’s opinion. The referee reported in favor of the plaintiff, but the Special Term set aside the report and ordered judgment for the defendant.' The General Term reversed the judgment and set the case back for trial before the referee, to the end that findings of fact and conclusions of law might be made. In Sparrowhawk v. Sparrowhawk (11 Hun, 528) the terms of the order of reference are not disclosed.
      The foregoing are all the cases under the present Code bearing upon the question, to which my attention has been called.
      The Court of Chancery was without power to take evidence before a master or an examiner in an action for divorce, or in an action to annul a marriage, where issues were joined, and grant a judgment of divorce, or a judgment annulling the marriage contract upon evidence so taken. (2 R. S., 145, § 40; 175, § 45; Whale v. Whale, 1 Code Rep., 115; Forest v. Forest, 6 Duer., 102; S. C., 3 Abb., 144; 2 Barb. Ch. Pr., 259.)
      In one case (Van Epps v. Van Epps, 6 Barb., 320) after, verdict and on a motion for a new trial, a reference was ordered to a master to take and report further evidence — evidence so taken was with the same effect as though taken before the chancellor on application for a judgment.
      The Code of 1848 provided the same modes as are provided by the present Code for the trial of issues arising upon the pleadings in actions. (Old Code, §§ 253, 254, 271.)
      Under the old Code it was many times held, that in an action for a divorce, a reference of the issues arising upon the pleadings should be to hear and determine. (Whale v. Whale, Spl. Term, 1848, 1 Code Rep., 115; Lincoln v. Lincoln, Superior Ct., Spl. Term, 1866, 6 Robt., 525; Waterman v. Waterman, Spl. Term, 1868, 37 How., 36; Merrill v. Merrill, Superior Ct., Spl. Term, 1871, 11 Abb. [N. 8.], 74; Price v. Price, Gen’l. Term, 1871, 9 Abb. [N. S.], 291; Sullivan v. Sullivan, Superior Ct., Spl. Term, 1877, 9 J. & S., 519; S. C., 52 How., 453; Harding v. Harding, Superior Ct., Gen’l. Term, 1877, 11 J. & S., 27; S. C., 53 How., 238; Harper v. Harper, Superior Ct., Spl. Term, 1877, 5 N. Y. W. Dig., 460.)
      In Simmons v. Simmons (Superior Ct., Spl. Term, 1864, 3 Robt., 642), it was held that a reference to hear and determine, was improper, and that the stipulation should have been for a reference to report the evidence with the opinion of the referee. The report of this case does not show that issues had been joined, but it appears (2 Robt., 712) that a month before the defendant was in default, and there is nothing to show that at the time of the proposed reference he had answered. If the defendant was in default there was no issues to he determined, and, ot course, the stipulation that the referee might hear and determine was irregular.

        Tlie only case which seems to support the legality of a reference to report the evidence with the opinion of the referee in an action for a divorce, where issues were joined by the pleadings, arose under the old Code. In Pollock v. Pollock (71 N. Y., 137) such a reference was had, and the referee reported the evidence, with an opinion that the defendant was, and the plaintiff was not guilty of adultery. The Special Term refused to follow the opinion, found the plaintiff guilty of adultery and dismissed the complaint, which was affirmed by the General Term. The Court of Appeals reversed the judgment and ordered a new trial, but without discussing the regularity of the reference.
      It is urged that the parties having appeared before the referee and taken the evidence and his opinion without objection, neither can now object to this mode of trial, in support of which proposition Lincoln v. Lincoln (supra), is cited.
      •In Merrill v. Merrill (supra) it was held that the evidence and opinion reported by a referee under an order not authorizing him to hear and determine was a mistrial, and that the judgment could not be rendered upon the evidence and opinion so reported. In Sulliva/n v. Sullivan (supra) the reference was to take proof of the material facts set forth in the pleadings, and report the same to the court with the opinion of the referee. The referee reported in favor of the plaintiff but the court refused judgment upon the ground that the reference was irregular and unauthorized. But it does not appear that the defendant actually appeared before the referee.
      In Harper v. Harper (supra) an order was entered upon the stipulation of the parties, referring the case to a referee to report the evidence with his opinion, but afterwards on defendant’s motion, the order was set aside as irregular.
      The power of parties to try causes before referees by mutual agreement, and the power of courts to authorize or permit causes to be so tried, is derived solely from statute. The power does not exist at common law.
      Prior to chapter 163, Laws of 1845, courts were without power to try actions before referees, though the parties agreed to that mode of trial; except in actions involving long accounts. (2 Van Schaack, 517; 2 Jones & Varrick, 270; 1 Bev. Laws [1801], 347; Id. [1813], 516; 2 B. S., 384, chap. 499, Laws 1836.)
      Under these statutes it was repeatedly held that references by agreement of the parties, of actions not involving 'long accounts, amounted to an agreement to-arbitrate," and effected a discontinuance of the action. (Stevenson v. Beecker, 1 Johns., 492; Camp v. Root, 18 id., 22; Rathbone v. Lownsbury, 2 Wend., 595; Dedericks Adm’rs. Richley, 19 id., 108; Id., 2 Hill, 271.)
      In Yates v. Russell (17 Johns., 461) it was agreed the action should be tried before three referees, that judgment should be entered for the amount reported; and it was held that the agreement amounted to a plea of confession for that amount. (damp v. Boot, supra.) It was also held (Dodge v. Waterbury, 8 Cow., 136; Jones v. Cuyler, 16 Barb., 576), that a reference of referable actions contrary to the provisions of the statute, produced an arbitration and a discontinuance of the action.
      It is also urged that the action can be tried before the court and decided by it on the evidence reported.
      It was said in Waterman v. Waterman (supra) that the system inaugurated by section 10, article 6, of the Constitution of 1846, does away with the former practice' of taking evidence in equity cases before an examiner, and not in the presence of the tribunal deciding the issues, and that it is only in cases where no issues are joined, or where only some interlocutory question is involved, that a referee is permitted by the Code to take and report evidence. This constitutional provision is not contained in the amended Constitution, but the old practice has not been restored by statute, or sanctioned by any well considered case.

        It was said in Whale v. Whale (supra) that before the Code, in actions for divorce, the court was without power to order a reference to take evidence and report to the court; and to permit it to he done under the Code would be restoring the old system of taking evidence before an examiner, which is expressly abolished, and applying it to a class of cases in which, under the old system, it never was allowed.
      The evidence was not taken conditionally under the provision of the Code, and to so regard it would be an unauthorized fiction. None of the conditions existed which are necessary to authorize evidence to he so taken, and no order for that purpose has been granted, under the authorities cited, and for the reasons given I am of the- opinion that the court is without power to grant a judgment of divorce upon the evidence and opinion of referee, taken and reported pursuant to an order entered upon the mutual stipulation of the parties, and notwithstanding the fact that the parties appeared before the referee and put in their evidence without objection.
      In rendering judgment in actions for divorce'it should be borne in mind that the courts are without power to grant divorces, except for the causes, and in the modes prescribed by the statute. (Peugnet v. Phelps, 48 Barb., 566; Blott v. Rider, 48 How., 90; Sullivan v. Sullivan, supra.)

      The proceedings had in this casé have not effected an arbitration and discontinuance of the actions, because the parties have' not stipulated to have the issues heard and determined in a mode not sanctioned by the statute. They have not arbitrated their issues, but agreed to have the evidence taken and submitted to the court.
      The motion for a judgment for a divorce is denied, and the stipulation and order of reference entered thereon, are set aside.


author: Learned, P. J.: Boardman, J.:

text:
    GEORGE CLARK, Appellant, v. IRA DAVENPORT, as Comptroller of the State of New York, Respondent.

      Action to remove a cloud upon title created by a tax sale — uihat must be shown to maintain it.

    This action was commenced in December, 1881, to have a sale of the plaintiff’s lands for non-payment of taxes set aside and a certificate therefor issued to the comptroller canceled and the execution of a deed enjoined. The lands were ■ sold in November, 1881. It was conceded that the sale was irregular. The plaintiff claimed to be entitled to maintain the action upon the ground that the deed when executed would be presumptive evidence of the regularity of the proceeding.

      Beld, that as the comptroller had power to cancel the sale at any time befor^ the conveyance was given if the sale was for any reason invalid, and as the deed could not be executed until after the expiration of two years, when a notice to redeem within six months must be given, there was no such threatened and immediate danger of a cl®ud upon the plaintiff’s title as justified the maintenance of the action.
    Appeal from a judgment dismissing the plaintiff’s complaint, entered upon the report of a referee.
    On the 15th of November, 1881, the comptroller sold lands of the plaintiff for non-payment of taxes of 1873,1874,1875 and 1876, and on snch sale the lands were bid in by the comptroller. A certificate of sale was made as required by law. A short time before the sale the plaintiff explained to the comptroller or his deputy the plaintiff’s objections to the assessments and requested him to cancel the tax and stop the sale. This the comptroller through his deputy declined to do.
    In December, 1881, this action was commenced to have the sale-declared null and void, the certificate given up and the execution of a deed enjoined. The referee rendered judgment for the defendant and the plaintiff appeals.

      James B. Olmey, for the appellant.

      Leslie W. Russell, attorney-general, f ir the respondent.
   Learned, P. J.:

The point does not seem to be disputed that the assessments were irregular. The referee was of that opinion, and we find nothing in the defendant’s points to the contrary.

If it were an open question I should think that it was only just / and equitable that one, whose lands had been sold under or for taxes or assessments, which were void, might maintain a suit in equity to set aside the sale. The serious evil of having a tax, or assessment, sale outstanding ought, in my opinion, to justify an action to set it aside. But the right to bring such an action has be.en limited to cases where the invalidity does not appear upon the face of the assessment (Strusburgh v. Mayor, 87 N. Y., 452, at p. 455), and to cases where the instrument to be executed by the authority which sells the property is presumptive evidence of the validity of the sale.

In the present case it is urged that the deed to be executed, after the lapse of two years is presumptive evidence. It was held, however, in Sanders v. Yonkers (63 N. Y., 489), that there must be some imminent danger that the instrument will be executed, which is to be presumptive evidence; that there must be a determination on the part of the defendant to create the cloud upon title.

'Within that decision then this case falls. The action was commenced within a month after the sale. Wihile two years must elapse before the deed can be executed, and a six months notice to redeem must be given. Before the conveyance the comptroller has statutory power to cancel the sale if the sale is for any cause invalid or ineffectual. It cannot be said, then, that there is such threatened and immediate- danger of a cloud on the plaintiff’s title' as justifies, under the decisions in the State, the present action.

Judgment affirmed with costs.

Boardman, J.:

I concur upon the authority of Sanders v. Yonkers (63 N. Y., 489). In the absence of an authority controlling our action, I should have said enough was shown to call upon a court of equity to order the certificate set aside and forbid the giving of the deed at the end of the two years. Under the authority the plaintiff must wait until the- giving of the deed or at least until it is threatened by the comptroller, and then bring his action anew unless in the meantime the comptroller decides upon Ms own motion or otherwise to set aside: the certificate. It ought to be sufficient that the deputy comptroller-insists that the proceedings are regular and that the sale took place,* in pursuance of such decision.

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

Judgment affirmed, with costs.


author: Boardman, J.:

text:
    WILLIAM H. BALDWIN, Appellant, v. WILLIAM ROBERTS, Respondent.

      Justice's Court — has no jurisdiction over cm action brought upon one of its judgments which has been made, by the filing and docketing of a transcript thereof, a judgment of the County Court— Code of Civil Procedure, secs. 1913, 8017.
    The filing and docketing of a transcript of a justice’s judgment in the county-clerk’s office makes it the judgment of the County Court; and no action can thereafter be brought upon it in a Justice’s Court, as it is required by section 1913 of the Code of Civil Procedure that the order granting leave to bring such am action shall be made by the court in which such action is to be brought, and that court has no power to grant leave to bring an action upon a judgment of a County Court.
    Appeal from a judgment of the County Court of Chemung county reversing a judgment of a justice of the peace.
    This action was commenced in a Justice’s Court by personal service of the summons on the defendant on the 19th day of January, 1881. On the return day plaintiff complained on a justice’s judgment between the same parties. The defendant claimed that the court had no jurisdiction for the reason that the judgment sued on was a judgment of a court of record, and that leave of the court to bring the action had not been obtained. The plaintiff was sworn and admitted that he had filed a transcript of the judgment in the Chemung county clerk’s office, and had issued an execution thereon to the sheriff of Chemung county. Judgment was rendered for the plaintiff and the defendant appealed to the County Court. There the judgment was reversed, and from that judgment of reversal this appeal is taken. ,

      Erastus P. Hart, for the appellant.

      Edgar Denton, for the respondent.

       Decision handed down July, 1883, as also the succeeding cases to and including the case of Bloomer v. McInerney ending on page 204.

   Boardman, J.:

In the County Court it was conceded that the plaintiff ought not to have recovered, if the judgment of the justice sued upon had been made a judgment of the County Court by the filing of a transcript, because no leave of the County Court had been given. The only question presented to the County Court was the sufficiency of the evidence of the filing of a transcript in the county clerk’s office, so as to make the judgment one of the County Court. We agree with the learned county judge in his opinion on that subject. The evidence given by plaintiff was within the issue and in the absence of objection constituted prima facie evidence of the due and proper filing of the transcript. The plaintiff did all he could to make it a judgment of the County Court. An execution was issued and put in the hands of the sheriff of the county. It is only left to be pre-' sumed that the county clerk did his duty with the transcript left with him by the plaintiff in docketing the same, as the law requires. (Hartwell v. Root, 19 Johns., 345; Leland v. Cameron, 31 N. Y., 115.) Such presumption will be indulged where the fact, as in this case, is not jurisdictional.

Apparently in this court for the first time, it is now urged that no leave is necessary under the Code of Civil Procedure. Such leave is conceded to have been necessary under section 71 of the old Code. Has it been changed ?

Section 1913, Code of Civil Procedure, prohibits the bringing of an action upon a judgment for a sum of money rendered in a court of record of the State, except where otherwise provided, unless “the court in which the action is brought has previously made an order granting leave to bring it.” The present action is brought in a Justice’s Court which has not and cannot make an order granting leave to bring it. It could not, therefore, have been contemplated that leave should be asked of a Justice’s Court. If it lie held that a transcript filed makes the judgment a judgment of the County Court and that the justice’s judgment is merged in or extinguished thereby under section 3017, then it must follow that a Justice’s Court has no jurisdiction to sue over a judgment of the County Court under sections 2862, 3.154. (Lyon v. Manly, 10 Abb., 337). leave granted by the County Court would not answer because it is not “ the court in which the action is brought” or to be brought. (Sec. 1913.) ITnder section 63 of the old Code, it was held that the filing of a transcript made it a judgment of the County Court. (Lyon v. Manly, ante; Kincaid v. Richardson 9 Abb. N. C., 315.) The change in section 3017, Code of Civil Procedure, is trivial, and the same construction must be given it. It would seem to follow that the Justice’s Court had no further jurisdiction over its .judgment. • It has ceased to be the judgment of the Justice’s Court and it has become the judgment of the County Court, “rendered in a court of record” for a sum of money. In such case the judgment cannot be sued over without leave of the court in which the action is brought. Such leave has, not been obtained.

It being, by the filing of a transcript, a judgment of a court of record, a Justice’s Court is not given jurisdiction to- entertain an action in it. (Secs. 2862, 3154; 1 Wait’s L. & Pr., 598, 599.)

The changes in the Code have not taken away the necessity for leave to be obtained to sue over a County Court judgment entered upon filing a justice’s transcript. But inasmuch as the leave must be granted by the court in which it is proposed to bring the action such leave must be granted and such action brought either in the County Court or in the Supreme Court.

It follows that the Justice’s Court had no jurisdiction to render the judgment appealed from upon the pleadings and facts presented and that the decision of the County Court in reversing the same was correct.

Judgment of County Court reversing the judgment of the Justice of the Peace affirmed, with costs.

Learned, P. J., and Bookes, J., concurred.

Judgment ¿>f County Court affirmed, with costs.


text:
    STEPHEN C. JOHNSON, Plaintiff, v. THE NEW YORK, ONTARIO AND WESTERN RAILROAD COMPANY, Defendant.

      Practice — a County Couo’t cannot order exceptions to he hearrd in the first instance at the General Term— Code of Civil Procedure, sea. 1000.
    A County Court lias no power, upon the trial of an action, to nonsuit the plaintiff and order the exceptions to he heard in the first instance at the General Term, staying all proceedings in-the meantime.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a nonsuit directed upon the trial of the action in the County Court of Delaware county.
    This action was originally brought in the Delaware County Court to recover damages for an alleged unlawful ejection -from one of the defendant’s trains, and a verdict was rendered for the plaintiff for $125 and costs. A motion before the Special Term on a case and exceptions for a new trial was denied. The plaintiff entered judgment and the defendant appealed to the General Term where the order and’judgment was reversed and a new trial directed.
    The case was subsequently retried with the result first above stated.

      S. C. Johnson, for the plaintiff.

      N. O. & M. W. Marvin, for the defendant.
   Boardman, J.:

This action was tried in the Delaware County Court and the plaintiff was nonsuited. The County Court then ordered the exceptions taken to be heard in the first instance at the General Term, staying proceedings in the meantime. This is a novel practice and no precedent or authority for it can be found. The County Court is not a branch or part of the Supreme Court as is the Circuit or Special Term. No power is expressly given to the County Court to make such an order. If it possesses such authority it is by virtue of section 1000 of the Code of Civil Procedure. The language is broad enough to embrace a county judge, but there are difficulties in giving it such construction. The General Term under such orders must render the judgment. We have the anomaly then of the process, pleadings and trial in County Court, while the judgment is to be rendered in the Supreme Court. Doubtless the broad language was used to take effect in other courts than the Supreme, where such other courts had trial terms and general terms, such as New York Court of Common Pleas, New York Superior Court, Buffalo Superior Court and others. But a County Court has no general terms to which it can send a case. (Sec. 355.) Its decisions are reviewed by appeals, and so far as I can find by appeal only. (Code, §§ 1340, 1342.) By section 343 the Supreme Court may remove by order an action from the County Court to the Supreme Court. By such an order all the pleadings, etc., are taken with the cause to the Supreme Court. But the County Court has no power to divest itself of the jurisdiction given it by statute and delegate its power to give judgment to another court.

An examination of very many cases shows no instance of such an order made in the County Court. It is not believed such a practice was contemplated by the framers of the Code, or that its language fairly leads to such a result. Nor do we think it wise or profitable for such a power to be exercised by county courts.

.The Code (§§ 1185 and 1234) provides that a verdict may be ordered by the judge upon the trial of an issue by the jury, when no question of fact is involved, subject to the opinion of the court. The motion for judgment in such case must be made at the General Term. Yet no one, we think, has ever entertained the idea that such an order might be made by the County Court.

There were several questions of fact which the plaintiff insists were proper for the jury, such as the reasonableness of the place where the train was stopped and he put off, the waiver of the right to demand additional compensation to that paid, etc.

If in fact there were any questions of fact to be submitted to the jury it would have been a mistrial on the part of a judge to order a verdict subject to the opinion of the court. (Purchase v. Matteson,, 25 N. Y., 211.) That case is not overruled by Huntingdon v. Claflin (38 id., 183).

If, however, there were no questions of fact to be determined the learned county judge was controlled, as we must be, by our former decision in this case. The evidence is substantially the same as on the former trial. Mr. Justice Landon, in delivering the opinion of tlie General Term, then said: “We.do not think there was any question to submit to the jury. * * * He (plaintiff) was put 0f[ -x- * * a lawf¿L place. * * * He may complain of the law, but not .that the defendant did not keep within it.”

Adhering to our former decision the motion for a new trial, if properly before us, should be denied and judgment ordered for the defendant on the nonsuit, with costs.

But upon the first ground stated we think we have no jurisdiction of the exceptions or to hear the motion, and the proceedings in this court should for that reason be dismissed.

Learned, P. J., and Bocees, J., concurred.

Motion for new trial dismissed for want of jurisdiction.


text:
    ARAD FRASIER, Appellant, v. THE TOWN OF TOMPKINS, Impleaded with the TOWN OF WALTON, Respondent.

      Statute — when it wül not be construed to operate retrospectively — chap. 700 of 1881. making towns liable for defective highwa/ys has no reti'oaetive effect.

    Chapter 700 of 1881, providing that the several, towns in this State shall be liable to any person suffering damages by reason of defective highways or bridges, in cases in which the commissioners of highways were then liable therefor, instead of such commissioners, did not render the towns liable, for damages theretofore occasioned by such defects in the highways or bridges, but only created and imposed such obligation upon them for damages to be sustained after its passage.
    Appeal from an interlocutory judgment, entered upon an order sustaining a demurrer interposed by the town of Tompkins, upon the ground that the complaint did not state a cause of action against it.

      E. D. Cummings, for the appellant.'

      Arthur E. More, for the respondent.
   Boardman, J.:

The plaintiff’s wife was injured through defects in a bridge over the Delaware river on the line between the towns of Tompkins and Walton, which it was the duty of the commissioners of these towns at the time-.of the accident (September 25, 1879) to keep in repair. This action was brought September 25, 1882, just three years after the injury. The complaint alleges facts sufficient to sustain an action against the commissioners in office at the time of the injury, individually, by reason of their neglect to repair the bridge, while having funds in their hands and having notice of the defect. But the towns, defendants, could not be and were not made liable by reason of the neglect of the commissioners. (People ex rel. Loomis v. Board of Auditors, 75 N. Y., 316, 319.) To the complaint the towns of Tompkins interposed a demurrer upon the ground that no cause of action was alleged thereby against the defendants. Can the action against the defendants be sustained under chapter 700 of the Laws of 1881?

By that act (sec. 1), “ the several towns in this State shall be liable to any person suffering ” damages by reason of defective bridges “ in cases in which the commissioner or commissioners of highways of said towns are now by law liable therefor, instead of such ”-commissioners.

. Section 2 provides that any judgment recovered under the law shall be a town charge to be audited and paid by the toYn. Section 3-permits the town to recover the amount of such judgment of the commissioner when the defect and injury were caused by the misconduct or neglect of the commissioner.

By section i the board of town auditiors has power to audit and pay “ any judgment already recovered and not paid, and any judgment which may be hereafter recovered against any commissioner * * * of such town, for damages to person * * * arising from defective * * '* bridges in such town” whenever such board shall be satisfied that the commissioner acted in good faith and “ the defect causing the damage shall not have been caused' by the willful misconduct or neglect of the commissioner.”

Prior to the passage of this act towns were not liable for injuries arising from defects in highways or bridges. Such liability is purely statutory. . (People v. Board of Auditors, 75 N. Y., 319; Dill, on Mun. Corps., § 785.) The same principle applies to a joint liability for defects in a bridge over a stream between two towns. (Bryan v. Landon, 3 Hun, 500.)

The defendants are not liable for the cause of action now stated in the complaint unless the law of 1881 is retroactive in its effect. To give it such a construction would violate the general policy of the law. (Potter’s Dwar. on Stat., 162, etc., and note 9 foot of 162.) A law will not be so construed as to give it a retroactive effect when it is capable of any other construction. (N. Y. and O. M. R. R. Co. v. Van Horn, 57 N. Y., 473.) The law by its terms does not purport to be retrospective. It does not take away the rights of action against the commissioners for their negligence. Indeed, by the fourth section it provides for judgments thereafter obtained against the commissioners' without restriction as to the time when brought. It does not repeal any portion of any existing law. By its title it is an act “ to provide for the liability of towns,” etc., that is, in the definitions of Webster, “ to procure beforehand; to get ready for future use; to prepare; to stipulate previously,” all looking to a preparation for the future, not a modification of the past. Then the language of section 1 points in the same direction, the towns “ shall be liable.” The words are not appropriate, for the creation of an’ existing liability as would be the words “ towns are hereby made liable” or “towns are liable” for all damages heretofore incurred or which may hereafter be suffered, etc. The subsequent words “in cases-in which the commissioners of said- towns are now by law liable ” are purely and evidently descriptive and are inserted by way of limitation of liability and not to extend the obligations of towns. The evident object of the statute was to create a new obligation upon towns from the date of its passage, without disturbing existing laws except as adapted to the new rule by section 4. The act is readily and naturally capable of such construction which satisfies its language and is consistent with its purposes. Such construction is equally just if the act were remedial. But the creation of a duty and imposing of an obligation upon towns, never before existing either at law or in equity, cannot easily be looked upon as a remedial act. (People ex rel. Peake v. Board of Supervisors of Columbia, 43 N. Y., 130, 135.)

The construction given renders it unnecessary to consider the constitutional limitations of the right of the legislature to pass such a law as the present having retrospective effect.

We conclude the judgment sustaining the demurrer of the defendant to the plaintiff’s complaint is free from error and should be affirmed.

Judgment should be affirmed, with costs.

Learned, P. J., and Bockes, J., concurred.

Judgment affirmed, with costs.


author: Boardman, J.: Learned, P. J.:

text:
    SARAH McCORN, Respondent, v. JOHN McCORN and Others, Appellants.

      Legacy — when it is charged upon the read estate.

    A testator, on the day before his death, made a will by which he gave $1,000 and certain specific articles of personal property to his second wife, to whom he had been married fourteen years, and $400 to one of his sons. He then directed “that the rest of the preperty” should be divided equally between his four children, naming them. He did not leave enough personal property to pay the funeral expenses, but left a farm worth $2,500, which was subject to a mortgage of $500.

      Held, that the legacy to the wife was a charge upon the real estate.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.
    Tbe action was brought by tbe plaintiff to recover a legacy given to her by tbe will of her deceased husband, and to have the same adjudged to be a charge upon and payable out of tbe real estate left by the deceased.

      Memtt King, for tbe appellants.

      Jawves A. Christie, for tbe. respondent.
   Boardman, J.:

Tbe will of Moses McOorn, senior, gave $1,000 and some specific articles of personal property to the plaintiff. In tbe third clause $100 was given to bis son Moses. Tbe fourth and last clause reads as follows:

Fourthly. I devise that tbe rest of tbe property shall be divided equally between Mr. Moses McOorn, Jr., and Mr. John McOorn, and Mrs. Eliza Tompkins and Mrs. Mary Jane Alexander.”

Is the gift of $1,000 to plaintiff 'a charge upon the real estate as claimed by her ? The will was made on the day before the death of the testator. He had no personal property, certainly not enough to pay the funeral expenses. The plaintiff was his second wife to whom he had been married fourteen years. Before their marriage an ante-nuptial contract was made between them providing for ownership and control of the property owned by each. The testator owned a farm of the value of $2,500, subject to a mortgage thereon of $500. He owned no other real estate. The residuary legatees are the sons and daughters of the testator.

Formerly it was understood that a legacy could not be declared a' charge upon real estate unless by virtue of express word or by the language and dispositions of the will from which such an intent could be clearly inferred. (Lupton v. Lupton, 2 John. Ch. R., 623.) But even then “extrinsic facts” or “surrounding circumstances,” whatever such expressions may be held to mean, might be resorted to in ascertaining the intent. (Myers v. Eddy, 47 Barb., 263.) Hnder these and other similar cases the courts have refused to charge real estate with the payment of legacies where the language of the will was in substance like the present. (Spilane v. Duryea, 51 How., 260; Babcock v. Stoddard, 3 Th. & C., 207; Reynolds v. Reynolds, 16 N. Y., 257; Kinnier v. Rogers, 42 id., 531.)

But in Hoyt v. Hoyt (85 N. Y., 142, 147), the assumption is indulged that no man will make a legacy “save with the honest, sober-minded intention that it shall be paid.” "Where, therefore, the personal estate was known to the testator to be insufficient to pay the legacies, “ it is "reasoned,” says the learned chief judge, “ that the bare fact of giving a legacy indicates an intention that it shall be met from real estate.” It is further shown that a legacy like the present under the residuary clause of this will would be charged upon the real estate in the English courts, in the courts of some of the States of the Union and in the Federal Supreme Court. But the rule was neither adopted nor rejected in Bevan v. Cooper (72 N. Y., 317), but the case was disposed of upon another point. A distinction is, however, made at page 325 between the cases of Lupton v. Lupton (ante) and BabeoeTe v. Stoddard (ante) and the present case. In each of the former cases there was a devise of real estate as well as legacies, before coining to the residuary clause, while in our case there can be no residue of the real estate unless it be charged with- the legacies. Such was the distinction taken in Shulters v. Johnson, (38 Barb., 80); Tracy v. Tracy (15 id., 503); R. C. Church v. Wachter (42 id., 43); Ragan v. Allen (7 Hun, 537); Hall v. Thompson (23 id., 334); Taylor v. Dodd (58 N. Y., 335); Lefevre v. Toole (84 id., 95); Finch v. Hull (24 Hun, 227). In Manson v. Manson (8 Abb. N. C., 123), the inadequacy of the personal property to pay legacies is held to require but very slight indications in the will to justify a charge upon the real estate. That was a legacy to the widow.

So far as we can see the extrinsic facts make it certain' that the testator knew he had no personal property out of which this legacy could be paid; and the will plainly shows an intention that it should be paid, which can only be done by charging it upon the real estate. "We concur, therefore, in the conclusion of the learned referee charging the legacy upon the real estate, not by virtue of any distinct authority ip the Court of Appeals, but by a very considerable authority in the Supreme Court, and by indications, from judicial reasoning in the Court of Appeals in several of the cases cited.

Ye think the judgment should be affirmed, with costs against the appellants.

Learned, P. J.:

If because a man makes a legacy he intends, it to be paid, then all legacies would be charged on real estate if the personal estate fell short. The distinctions which have been drawn as to the general residuary devise are ingenious but would never enter into a testator’s mind. I think that Hoyt v. Hoyt sustains the judgment in this case, but I regret to see the doctrine of Lupton v. Lupton broken down.

One thing, however, is wrong in my opinion. If Mrs. McCorn’s legacy is a charge on real estate so is the legacy to Moses of $400. The court ought not to sell -the real estate and apply the avails solely to Mrs. McCorn’s legacy. ■ - It is true that Moses insisted that the land was not charged as a matter of law. If he was mistaken' in this, as we hold, then his legacy should be paid from the avails as well as the legacy to Mrs. McCorn. He cannot bring another suit. ' He is a party to this and the whole matter should be disposed of. This is always the rule in equity and I think the judgment should be modified accordingly.

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

Judgment affirmed, with costs.


author: Boarbman, J.:

text:
    GEORGE W. BEDFORD and ADDIE J., his Wife, Respondents, v. HORACE D. TUPPER and Others, Appellants.

      Recording acts — a purchaser is not deprived of his rights by the neglect or errors of the county clerk in recording and indexing the instrument.

    Where an assignment of the interest of the owner of a leasehold estate in fee is presented to and left with the clerk of the proper county to he recorded, the failure of the clerk to properly index it, or errors made by him in transcribing it, will not prejudice the rights of the assignee or deprive him of the privileges conferred upon him by the recording acts.

      Mutual Life Insurance Company v. Lake (87 N. Y., 257) followed.
    Appeal from a judgment of the Special Term declaring the interest of the various parties in certain real estate described in the complaint and directing a partition sale and distribution of the proceeds.
    The premises sought to be partitioned are four lots in the city of Cohoes covered with one large tenement-house. On the 6th day of July, 1869, these lots were conveyed to Zephirin Perrault and Theophile Perrault by a lease in fee. On the 15th day of February, 1871, the said Zephirin Perrault and wi$e executed an assignment of their undivided half of said lots to Theophile Perrault. This assignment was left for record at the clerk’s office May 2,1872. The assignment was recorded as an assignment from Theophile Perrault and wife to Theophile Perrault, and, as appeared by the record, it was signed “Theophile Perrault” and Denise Perrault. The acknowledgment annexed to the assignment was correctly recorded as made by Zephirin Perrault and Denise, his wife. The assignment was not indexed.
    Afterwards and in June, 1872, Theophile Perrault and wife executed a mortgage on the property, which was foreclosed and the premises were purchased by the defendant Horace D. Tupper,. who is now in the possession of the property, and has been since November 25, 1879. On the 27th day of February, 1878, two judgments were recovered by James- Hunter and James E. Hunter against Zephirin and Theophile Perrault, aggregating $879.31. The property was seized on attachments in these actions March 10, 1878, and the property was sold by the sheriff April 20, 1878. The sheriff’s deed of the property was dated October 28, 1879, and conveys all the interest which Zephirin and Theophile Perrault had in the said premises, at the time these attachments were levied, to-George ~W. Bedford, the plaintiff in this action. Having perfected his title Bedford brought this action, in March, 1880, for partition against Tupper as the owner of the other undivided half of the premises.
    It was shown on the trial that before the entry of the Hunter judgments their attorney made an examination of the title to this property, and also obtained a search from the clerk of Albany county, who certified that there was no deed of the premises from Zephirin Perrault on record.

      J. H. Hallen, for appellants Tupper.

      E. Van Olinda, for appellant Kimberly.

      EseTc Gowen, for the respondent.
   Boarbman, J.:

This is an appeal from a judgment directing a partition of lands among the parties to this action. The facts appear in the findings of the court below.

The defect in the record of the assignment from Zephirin Perrault to Theophile Perrault did not prejudice the rights of the latter as a purchaser; nor did the failure of the clerk to properly index such, assignment have that effect. It follows that Zephirin Perrault had no title to the premises in question after May 2, 1872. This property was attached by plaintiffs March 10, 1878, long after Zephirin. and Theophile had parted with their title. But the judgments of the plaintiff appear to have been entered before the attachments were levied, to wit, February 27,1878. But in no event did either the attachment or tbe judgment become_a lien upon any interest of Zephirin in the real estate in question, since he had none. The deed of the sheriff upon his sale under the judgments could not, therefore, convey any title. He could only sell the interest which Zephirin had in the premises on the 27th of February, 1878. (Code, §§ 1242, 1244.) But as he had no interest at that date the sheriff’s deed conveyed nothing to the plaintiffs. (Lamont v. Cheshire, 65 N. Y., 30, 43; affirmed S. C., 6 Lans., 235.)

We have said the defect in the record and in indexing did not prejudice the rights of Theophile under his purchase from Zephirin. That position seems to be fully sustained in the case of Mutual Life Insurance Company v. Dake (87 N. Y., 257), where it is, after careful consideration, held that the index is no part of the record, and that the omission of the clerk to index properly does not deprive the mortgagee of the right of priority given by the recording act. The learned judge (at page 264) also says : When a conveyance is delivered to the clerk the statute provides that it shall be £ considered as recorded from the time of such delivery.’ After such delivery nothing more need be done to keep the record perfect, except at the' proper time to record it in its proper order in the proper book; and yet if the conveyance in the meantime, before the record thereof should be mislaid in the clerk’s office or lost dr purloined, the record would still remain complete.” To the same effect is the case of Simonson v. Falihee (25 Hun, 570). P. J. Barnard says (page 573): ££ The record did not bind Simonson. * * * He is not to be deprived of his property by a failure of the clerk to record the release properly. * * * The record of the release was complete when it was left with the clerk for record.” (Jones on Mortgages., § 552; 4 Kent’s Com., * 174, [n] 3.)

The counsel for the appellants cites cases of similar import from various States of the Union. It is not necessary to notice them particularly. They confirm the views expressed in 87 New York, 257. (Mims v. Mims, 35 Ala., 23; Chatham v. Bradford, 50 Ga., 327; S. C., 15, Am. R., 692; Polk v. Cosgrove, 4 Biss., 437; Riggs v. Boylan, Id., 445; Merrick v. Wallace, 19 Ill., 486; Bank of Kentucky v. Haggin, 1 A. K. Marsh., 306; Payne v. Pavey, 29 La. Ann. R., 116; Swan v. Vogel, 31 id., 38; Sinclair v. Slawson, 44 Mich., 123; Green v. Garrington, 16 Ohio St., 548; Tousley v. Tousley, 5 id., 78; Schell v. Stein, 76 Penn. St., 398; Wood v. Brown’s App., 82 id., 116; Curtis v. Lyman, 21 Vt., 338; Mwnter v. Windsor, Id., 327.)

Without considering the questions of adverse possession as notice to purchasers, or as affecting tbe plaintiff’s right to bring an action of partition, we conclude that tbe plaintiffs bad no title to any portion of tbe premises, and bence tbeir complaint should have been dismissed.

Tbe judgment is therefore reversed and a new trial granted, costs to abide tbe event.

Learned, P. J., and Bookes, J., concurred.

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