author: Cullen, J.:

text:
    RICHARD B. SMITH, Respondent, v. GEORGE W. COOPER, Appellant.

      Ohaltel mortgage — when invalidated by an oral agreement authorising the mortgagor to sell and dispose of the propmty.

    A chattel mortgage was given which covered all the farming utensils on a dairy farm, the stock, the growing crops, the cord-wood cut and the grain harvested, together with the furniture in the house. At the time of giving the mortgage it was orally agreed that the mortgagor, who was to remain in possession of the property until default, should be permitted to sell and dispose of the property either for money or in- trade for other stock, the money received to be applied to the purchase of further stock, which was to be subjected to the lien of the mortgage, and that the grain should be used in feeding the stock.

      Held, that the agreement was fraudulent per se and rendered the mortgage void. i

    Appeal from a judgment in favor of the plaintiff, 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.

      Downing c& Strubrough, for the appellant.

      J. Lawrence Smith, for the respondent.
   Cullen, J.:

This action is in trover for goods seized by the defendant on an execution against Caleb T. Smith. The plaintiff claims title under a chattel mortgage executed by Smith on October 17, 1877, and refiled on March 11, 1879. The mortgage was refiled with a certificate of Smith that the mortgage was renewed for one year. On a previous appeal to this coürt it was held that the execution by Smith of thp certificate was equivalent to the execution of a new mortgage, and that hence the mortgage was in life at the time of the seizure by the defendant. This decision concludes us on this question on the present appeal.

Rut there remains to be considered the further point urged by the defendant that the mortgage was fraudulent in law and void. The mortgage embraced all the farm utensils on a dairy farm, the stock, the furniture in the house, the growing crops, cord-wood cut and grain harvested.

The mortgage provided that the mortgaged property should remain in possession of the mortgagor until default was made in the payment of the debt, to secure which, the mortgage was given. It was proved on the trial by the testimony of both parties to the mortgage, that the property remained in the possession of the mortgagor until seizure by the sheriff.

It was further proved by the same testimony, that the plaintiff permitted Smith to sell and dispose of the property, either for money, or in trade for other stock, the money to be applied to the purchase of further stock, and the grain to be used in feeding the stock on hand, and the new or substituted stock to be subject to the lien of the mortgage. To such an extent was this carried that, according to the plaintiff’s testimony, the substituted or renewed stock amounted to from one-fourth to one-tliird of the whole property. The grain and crops had all been consumed before seizure by the sheriff. The agreement between the parties as to the disposition of the property was as testified to by the plaintiff himself, that Smith “ could make changes in this stock and replace it by new stock when necessary, and he did so.” In other words, by the conceded statements of the parties, the agreement was that Smith should dispose of and deal with the property as he saw fit, transmuting the mortgaged articles, either directly into stock or indirectly into money, and then purchasing new stock with the money, and that such new stock should be substituted, as to plaintiff’s lien, in the place of stock disposed of.

This agreement was by parol, but if invalid, it would vitiate the mortgage in the same manner as if it were embodied in its provisions. (Conkling v. Shelley, 28 N. Y., 360.) The question is therefore presented to us whether the agreement mentioned was, in law, conclusive of fraud, and did it invalidate the plaintiff’s lien ? In my opinion, the agreement was fraudulent per se. I do not see how the case is to be distinguished in principle from those of Edgell v. Hart (9 N. Y., 213) and Mittnacht v. Kelly (3 Abb. Ct. of App., 301). It was there expressly held that the intention to create a fluctuating lien which would release that which should be sold, and take in what should be purchased, rendered a mortgage void. The present case presents that exact arrangement. Nor has the authority of the cases cited been in any way limited by subsequent decisions. True, it has been held that where a mortgagor is suffered to sell the property, and pay over the proceeds to the mortgagee, such an arrangement would not per se stamp the mortgage as fraudulent; but the receipts from such a> sale would apply to the satisfaction of the mortgage lien, even though such proceeds were not actually paid over. But such is not the agreement in this case. The proceeds of the sale were not to go in satisfaction of the debt, but were to be applied to purchase of new stock, which stock was not to become the property of the mortgagee, but simply to become subject to his mortgage lien. In other words, by all the sales and transmutations permitted the mortgagor, not one dollar of the mortgage debt has been discharged, and this, though one-third of the stock is disposed of, and all the grain and wood has been consumed or sold. On the contrary, the plaintiff claims that all of his mortgage debt is still due and owing to him. It was conceded that the plaintiff allowed the consumption of the grain in feeding the stock. I think that consumption was for the mortgagor’s benefit. He was entitled to possession of the stock until default was made in the mortgage, and was bound to maintain the stock at his own expense. As to the substituted stock, it is expressly decided that the lien or mortgage did not attach to it. (Gardner v. McEwen, 19 N. Y., 123.) No question, however, was made on the trial as to any distinction between the original and new stock, and, therefore, the point cannot be raised here. But the agreement above referred to vitiated the mortgage m toto, as to all the property included in it. (Edgell v. Hart, supra.)

In my opinion, therefore, the learned judge on the trial erred in not directing a verdict for the defendant, and also in his refusal to charge the jury that if they found an agreement for substitution of the character before indicated, they should find a verdict for the defendant- But I am disposed to go farther in this case and hold that, even if it had been proper to submit the question of fraud to the jury, the verdict should-be set aside as against the weight of evidence. It must be assumed, as the jury have found, that the plaintiff’s debt was Iona fide. But this alone would not save his lien. He obtained liens by this mortgage and others on everything the defendant had, articles to be consumed as well as stock of a permanent character. He suffered Smith to carry on business with the mortgaged property in the same manner as if he had owned them’ free from plaintiff’s lien. It is asserted that an account was kept of every article sold and the proceeds directly turned into the new stock. This may well be doubted. The only time plaintiff saw a lot of vinegar which was covered by the mortgage, was when it was on the table being used by Smith’s family; and wheat, covered by another mortgage, he testifies was in part used by Smith’s family for their ordinary consumption.

Reading all the testimony in this case, without referring to its details, the intent of the parties is too palpable to be mistaken. Smith was in money difficulties; he may have owed the plaintiff this money. This mortgage was made to secure it; and the understanding was that as long as Smith’s other creditors refrainfed from proceeding against him he should carry on business as before; but when any of such creditors did intervene, then all of the property should be made over to plaintiff under this mortgage.

This arrangement, however dictated by feelings of family affection, is a fraud on the rights of other creditors.

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

Present — Dykman and Cullen, JJ.; Barnard, P. J., not sitting.

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


source: Caselaw Access Project

license: Public Domain

text:
    ISAIAH MILBURN, Respondent, v. DENTON FOWLER and EVERETT FOWLER, Appellants.

      Sight to lateral support — the owner of a lot adjoining a highway cannot excavate his lot so as to 'render the highway unsafe — who mazy maintain an action to restrain him from so doing.

    The owner of a lot adjoining a highway has no right to so dig or excavate upon his own land as to render the highway unsafe, or cause the earth thereof to subside or fall down.
    The owner of a lot, access and entrance to which is given by the highway, may maintain an action to restrain such unlawful interference therewith.

      Appeal from an order made at a Special Term, continuing an injunction restraining the defendants from “ digging upon their own land at any point southerly of the lands of the plaintiff at the corner of Canal and First streets, in the village of Iiaverstraw, so as-to endanger the safety of said First street, or in any way interfering with said street or the-soil upon the same, and from causing the earth of said street to subside or fall down.”
    The plaintiff’s property is on the west side of First street, which is a public highway. The defendant’s property .is on the opposite side of that street, and extends along the same 400 feet southwardly from the plaintiff’s premises. The fee of the street in front of their property is in the defendants! The complaint alleged that the defendants have “ commenced to dig and excavate along the side of First street, to a depth of ten or twelve feet, so near to the street as to endanger its safety, and render it, or a portion of it, liable to subside and fall down.”
    The allegations of special damage were as follows:
    “ That the value of the plaintiff’s property would be impaired and especially injured, beyond the injury which would be sustained by other property owners in the vicinity or by the public generally, and that the plaintiff’s house and lot is nearer the place where defendants are digging than any other dwelling-house of any considerable value, except those owned by defendants.”

      Wheeler cfi Brown, for the appellants.

      O. Frost, for the respondent.
   Cullen, J.:

The injunction order appealed from restrained the defendants from so digging on their own land as to endanger the safety of the highway or cause the earth of the same to subside or fall down.

Thus the defendants were at full liberty to use their own land as they saw fit so long as they protected the highway. In this respect the injunction follows the precedent laid down in Farrand v. Marshall (19 Barb., 380). If the defendants do not intend to interfere with the highway this injunction will not affect them.

It is claimed that there is no right of lateral support for the street unless it is alleged and shown that the highway is in its natural state and free from superincumbent earth which may increase the lateral pressure.

This doctrine, which, in the absence of any statutory regulations, controls the relative rights between adjacent owners, has no application to the case of a highway.

The right to dig down one’s own land is not absolute, but subject to regulation. In the case of many cities this right is limited by statute, and such regulations are valid. (Dorrity v. Rapp, 72 N. Y., 307.)

Any obstruction or interference with a highway is unlawful and per se a nuisance.

One cannot dig a pit on his own land so close to the highway that a traveler may fall into it unawares. Certainly he cannot then dig that pit so as to cause a subsidénce or destruction of the highway itself.

That this highway affords access and entrance to plaintiff’s premises gives him sufficient special interest or damage to entitle him to maintain this action.

The early eases cited by appellants’ counsel have been much limited by recent decisions. (Francis v. Schoellkopf, 53 N. Y., 152.) The order appealed from should be affirmed, with costs.'

Present — Barnard, P. J., and Oullen, J.; Dvkman, J., not sitting.

Order continuing injunction affirmed, with costs.


text:
    GEORGE W. MEAD, Appellant, v. MARY E. JENKINS and Others, Respondents.

      Statute of limitations — when proceedings to procure a sale of the■ real estate of a deceased debtor a/re not barred by it.

    February 11, 1871, a simple contract debt became due from one Jenkins to tbe appellant. March 19, 1871, Jenkins died, and on April 14, 1871, letters of administration upon his estate were granted. February 6, 1880, the appellant instituted proceedings in a Surrogate’s Court to compel the sale of real .estate of the intestate which had descended to the respondents.

      Meld, that he might institute such proceedings at any time before his right to maintain an action against the heirs-at-law was barred by the statute of limitations.
    That as the statute (2 R. S., 113, § 53) prevented any action being brought against the heirs within three years from the decease of their testator, such three years constituted no part of the period of limitation, and that the action might be brought at any time within nine y^ears from the debtor’s death.
    That the proceedings were not barred by the statute.
    Appeal from an order made by tbe surrogate of tbe county of Westchester, on the 28th day of February, 1881, denying and dismissing the application of George W. Mead, made on the 6th day of February, 1880, for an order requiring Mary E. Jenkins, administratrix, and Stephen M. Sherwood, administrator of John P. Jenkins, deceased, to show cause why-they should not be required to mortgage, lease or sell the real estate of the said deceased for the payment of his debts.
    The heirs-at-law of the deceased set up the statute of limitations in bar of the proceedings. The application in question was based upon a promissory note made by John P. Jenkins, the intestate, payable to the petitioner on demand and dated the 11th day of February, 1871.
    It appeared on the hearing before the surrogate that in November, 1879, all the real estate described in the petition was sold under and by virtue of a judgment or judgments in partition.

      J. T. Marean, for the appellant.

      M. L. Cobb, for the respondents.
   Cullen, J.:

The appellant instituted proceedings in the Surrogate’s Court to sell lands descended to the respondents for a claim against their ancestor, John P. Jenkins. The proceeding was dismissed upon the ground that the plaintiff’s claim was barred by the statute of limitation.

The claim was due February 11, 1871; the deceased died March 19, 1871. Letters of administration were granted April 14, 1871. This proceeding was commenced February 6, 1880. It is provided by section 10 (3 Edm. St. at L., 106), that the heirs may set up as a bar to the plaintiff’s claim, tile statute of limitations.

The question presented is, when was this claim, which is a simple contract debt, determined by the statute of limitations ? The statute commenced to run-before the decease of the testator. On November 1, 1877, the plaintiff recovered judgment on the claim against the administrator. It was properly conceded by the appellant that the recovery of such judgment against the administrator could not take the claim out of the statute as against the heirs-at-law. (Sharpe v. Freeman, 45 N. Y., 802.) But I think that the converse of the proposition necessarily follows, that the bar of the statute in favor of the administrator would not operate in favor of the heir.

What then is the bar of the statute that the heirs may set up against this proceeding? Evidently that the land descended to them is freed from liability for the claims against their ancestor by lapse of time.

By law, upon a deficiency of personal assets of intestates, the heirs, are liable for their debts to the extent of the land descended to them. This liability may be enforced by an action. The proceeding in the Surrogate’s Court is a concurrent remedy to reach substantially the same object. So true is this that it is specially provided that any suit brought to charge the heir shall not be prosecuted if proceedings have been taken before the surrogate to sell lands of the deceased, bnt that the plaintiff may discontinue the suit and share in the proceeds of the sale with other creditors. {2 Edm. St. at L., § 113, 53, 54.) This establishes conclusively that if the appellant could- have maintained his action against the heir, he could have had the land sold in the Surrogate’s Court; and his claim cannot be barred in the Surrogate’s Court unless it would have been barred in the action. Indeed, as stated by the counsel for some of the respondents, “ the true test is, could the appellant have maintained his action against the heirs-at-law? ”

We do not think that the action against the heirs is to be treated as a new cause of action given by statute, as claimed by the appellant, but merely a continuance of the old cause of action against the deceased.

The debt, being on a simple contract, would ordinarily be barred in six years. But the statute provides that no action shall be brought upon it against the heirs within three years after the decease of the ancestor. Such three years does not constitute part of the period of limitation. (Van Wezel v. Wyckoff, 3 Sandf. Ch., 576; Wood v. Wood, 26 Barb., 356; Sharpe v. Freeman, 45 N. Y., 802.) Therefore, the appellant had nine years from the maturity of his debt in which to bring an action, and this proceeding was instituted in time.

The respondents urge that the sale in partition in this court cut • off the lien of the plaintiff. • This is not well taken; only general liens on undivided shares or interests are barred by sale in partition. (2 Edm. St. at L., 337, § 61.)

As to the interest of Gilligan under a tax lease, it is no answer ■to this application. If valid, the sale cannot affect it, and its validity cannot be tried in this proceeding.

The order appealed from should be reversed, with costs, and the proceeding remitted to the surrogate.

Present — Barnard, P. J., DvKMAN.and Cullen, JJ.

Order of surrogate reversed, with costs, and proceedings remitted to surrogate.


author: Dxkman, JT.:

text:
    In the Matter of Proving of the Last Will and Testament of SETH CHAPMAN, Deceased.

      Miidence — instructions to an attorney as to the matsmg of a will — when they at'e not to he treated as privileged communications.

    Probate of a will was contested upon the ground that a mistake had been made in respect to a piece of real estate specifically devised thereby. It appeared that the testator had intended to embody in the will a prior will and a codicil thereto, and it was claimed that his attorney in attempting to do this had made the mistake complained of. The attorney had in his possession the prior will with the signature of the testator torn therefrom, but he declined to produce it upon the ground that he received it as a confidential communication from his client, and that as such it was privileged.

      Held, that the surrogate erred in refusing to compel him to produce it.
    Where the probate of a will is contested on the ground of fraud, forgery or mistake, instructions for the making of the will, received by an attorney, are not privileged communications within any just and proper construction or understanding of the rule of law relating to them.

      Appeal from a decree of the surrogate of Queens county admitting a will to probate and judicially construing certain of the provisions thereof.

      Jno. J. Armstrong, for Annie 0. Kirby, appellant.

      W. S. Oogswell, for the respondents.
   Dxkman, JT.:

This is an appeal from a decree of the surrogate of Queens county ■admitting to probate the last will and testament of Seth Chapman. The allegation against the will was that there was a mistake respecting a certain parcel of real property specifically devised; that such was not the intention of the testator, and that by him it was intended to fall in with the property included in the seventh clause.

Under this issue the contestants had the right to introduce legitimate testimony to establish the mistake set up. The source from which such evidence would best come is the instructions of the testator delivered to the person who prepared the will. The will in question bears date November 16, 1881; and it appeared that before this and after the first day of that November the testator had executed two wills and a codicil to the second, and the main object in the execution of the last will was to embody in it the second will and the codicil thereto, so that the instructions were substantially to put these two instruments into one.

These facts were established by the lawyer who drew the will and who was examined as a witness. He declined to produce the second will, which he retained with the signature torn off, on the grounds that he received the same as a confidential communication from his client, the testator, and. stated that the last will was drawn substantially from the one he refused to disclose, and that he knew of no other memoranda.

The witness declined to produce the paper, and the surrogate justified his refusal on the ground of his privilege, and excluded testimony respecting memorandums for the will, to which there was exception to raise the question whether the attorney was entitled to privilege and whether the surrogate was right in his rulings.

'While it is quite true tnat the seal fixed by the law on confidential communications to professional men is not removed by the death of the party, yet the rule is not to be so far extended as to permit a failure of justice. On an allegation of fraud, forgery or mistake, instructions received by an attorney for making the will are not privileged communications within any just and proper construction or understanding of the rule of law. (Sheridan v. Houghton, 16 Hun, 628.)

It was error for the surrogate to refuse the examination of the lawyer' fully respecting instructions and directions received by him from the testator for drawing this will. If there is a mistake it has crept in by an omission which can be best shown in that way and there should be no suppression, a full examination and disclosure will be much more satisfactory, and the decree should be reversed and the cause- sent back to the surrogate.

This result dispenses with the necessity for any determination respecting the construction of the will at this time.

Decree reversed. The question of costs is reserved.

Barnard, P. J., and Cullen, J., concurred.

Decree of surrogate reversed. Question of costs reserved until after new hearing.


text:
    In the Matter of the Probate of the Last Will, etc., of JOHN HANCOCK, Deceased.

      Supreme court — jurisdiction of, to appoint receivers of estates of deceased pm'sons— an action must te pending in the Supi'eme Court to confer jurisdiction upon it.

      A surrogate having made an order vacating a decree admitting a will to prohate, an appeal was taken therefrom to the General Term. During the pendency of this appeal an order was made at a Special Term of the Supreme Court by which a receiver of the estate of the testator was appointed.

      Held, that the court had not iurisdiction to make the order.
    Arpeal from an order, made at a Special Term, appointing a receiver of the estate of John Hancock, deceased.
    On the 10th of November, 1879, Surrogate Andrew E. Suffern made a decree admitting to probate the will of John Hancock dated January 2, 1874, and rejecting certain codicils, in one of which John W. Hutton was named as an executor. From that decree Hutton appealed to the Supreme Court and then to the Court of Appeals. These courts affirmed the decree of the surrogate, and their decrees were made a decree of the Surrogate’s Court by an order of Surrogate Seth B. Cole, of 24th of August, 1881.
    On the 28th of December, 1881, the said Surrogate Seth B. Cole, on the application of the said Hutton, set aside the decree of Surrogate Andrew E. Suffern of the 10th of November, 1879, for alleged disqualifying interest in Suffern.
    An appeal from this last decree of Surrogate Cole was taken to the General Term of the Supreme Court, and was there pending undetermined when the motion for a receiver was made at a Special Term of the Supreme Court and the order now appealed from granted.

      Amos G. Hull, for James M. Allen, executor.

      W. H. Taggard, for John B. Locke, executor, appellant.

      Hufus L. Scott, for A. S. Walsh, executor, appellant.

      Walter H. Simpe, for John W. Hutton, receiver, respondent.
   Cullen, J.:

We think the Special Term had not jurisdiction to make the order appealed from. Doubtless, the Supreme Court, as a court of equity, has concurrent jurisdiction with the Surrogate’s Court over the administration of estates, save as to probate and the issue of letters testamentary. But that jurisdiction, we think, was not properly invoked in this case. There was no action pending in this court. There was simply a proceeding in the Surrogate’s Court. In that proceeding' an order was made by the surrogate vacating a decree admitting the will of the deceased to probate. From such order an appeal was taken to the General Term, and was there pending when the order appealed from was made. Such appeal in no sense brought the whole subject-matter of the administration 'into this court, so that the equitable jurisdiction of the court attached to it.

There was, therefore, no proceeding or action pending in this court, in which the order appointing a receiver would properly be made. This renders it unnecessary to inquire whether the respondent could have invoked the powers of this court by an action brought for the purpose, and whether the facts shown would have justified the appointment of a receiver in such action.

The order appealed from should be reversed without costs.

Present Barnard, P. J., and Cullen, J.; Dvkman, J., not sitting.

Order appointing receiver reversed without costs.


text:
    In the Matter of the Final Accounting of JOHN M. MACAULAY, Executor, etc., of ISAAC C. VAN WYCOK, Deceased.

      General appearance in a Surrogate’s Court — what constitututes — it is awaiv&r of cdl irregularities in the service of the citation — application hy a creditor or legatee, to compel payment of a claim — power of the surrogate to compel the executor to account — Code of Civil Procedure, secs. 2717, 2718, 2723.
    Upon the return day of a citation the person served filed an answer stating that ■ he appeared solely for the purpose of objecting to.the jurisdiction of the surrogate, on the ground that the order directing the citation to be served, was irregular. The answer then went on to deny certain allegations of the petition, and raised objections on the merits of the case.

      Held, that answering the petition on its merits was equivalent to a general appearance, and a waiver of all irregularities in the service of the citation.
    A legatee may combine in one petition an application to obtain the payment of his legacy or a distributive share of the estate, and with an application to compel a settlement of the accounts of the executor.
    Upon an application by a creditor, or legatee, to' compel an executor or administrator to pay the petitioner’s claim, the surrogate may compel the executor or administrator to account, in order that it may be ascertained whether or not he holds money or property applicable to the payment of the claim. ,
    Appeal from an order of the surrogate of Dutchess county, requiring the appellant to file a statement of his accounts and proceedings as executor of Isaac C. Van "Wyek, deceased. The petitioner alleges that she was the administratrix of Emma Louisa Yan Allen, who was a legatee under the will of the said Yan "Wyck, and prayed that his executor, the appellant, might be required to pay to her the amount of the said legacy, and, also, that he be required to file his inventory and appear and render an account of his proceedings.

      O has. M. Hall, for the executor, appellant.

      H. H. Hustis, for L. Ida Jones, respondent.
   Cullen, J.:

The surrogate had jurisdiction of the subject-matter, but it is claimed that he did not acquire jurisdiction of the person of the appellant because the order for the service of the citation was irregular. On the return day the appellant filed an answer, in which he asserted his appearance solely for the purpose of objecting to the jurisdiction of the surrogate on the grounds above mentioned, and set forth in detail in such answer.

Had the appellant rested here he would have been in a position to raise the question, which he now ai’gues, as to the sufficiency of the service of the citation. But the answer went further and ' raised objections, on the merits, to the respondent’s petition, and put some of its allegations .of fact in issue. This answer to the petition on Its merits made the appellant’s appearance general in .spite of his protest of limited appearance. (Ballard v. Burrowes, 2 Robt., 213.) The objection as to the service of the citation cannot now be raised.

It is urged that the petition was defective because it was neither specifically and in terms to obtain the payment of a distributive share nor to obtain a judicial settlement of the appellant’s accounts, but sought both reliefs. The objection is untenable. It is not * necessary that separate proceedings should be taken. The surrogate may, upon such a petition and a citation to account, examine and settle the account, and also decree distribution or payment to legatees. (Peck v. Sherwood, 56 N. Y., 615.)

The claim that the application should have been dismissed under the provisions of section 2718 is more doubtful. The section directs that the dismissal shall be without prejudice to an accounting. Section 2723 authorizes an accounting to be had on the return of a citation issued under section 2717. It is difficult to harmonize all these provisions of the Code, but we think that under the last section the surrogate was empowered to order the appellant to account in order that it might be ascertained whether there was money or property applicable to the respondent’s claim.

The answer does not controvert the death of the original legatee, nor the appointment of the petitioner as administratrix. Presumptively, therefore, petitioner succeeded to the legatee’s rights.

The petition is not to be commended as to its form, but we think it was sufficient to authorize the order made.

The order of the surrogate should be affirmed, with costs.

Present — Barnard, P. J., Dykman and Cullen, JJ.

So ordered.


author: Oullen, J.:

text:
    In the Matter of the Estate of ANDREW HOOD, Deceased.

      Final accounting — an executor may be compelled to account after homing rendered one final account — when the pendency of an action in the Supreme Oou/rt to eha/rge the sureties of an executor will not prevent his'being compelled to account before the surrogate.

    By the will of the deceased the petitioners were not to receive their share of his estate until they became of age. In 1869, and while they were still minors, the executors rendered their final account, and by the decree entered in the proceedings then had, they were directed to hold the balance in their hands, including the shares of the petitioners, pursuant to the powers and directions contained in the will.

      Held, that upon the petitioners coming of age they were entitled to compel the executors to appear before the surrogate and render an account of their proceedings.
    Upon the hearing before the surrogate it appeared that before the making of the application to him an action had been commenced in the Supreme Court by other beneficiaries under the will against the executors, in which they alleged the default and insolvency of the executors, and sought on the latter ground to compel their sureties to make good the loss the estate had sustained. To that action the petitioners were made parties defendant. The Court of Appeals’ had reversed a judgment recovered in that action and held that the sureties could not be made liable until tbe failure of the executors to comply with a decree of the surrogate hall been shown.

      Held, that as it appeared that the petitioners could not obtain in that action the relief to which they were entitled, its pendency was not a bar to their instituting proceedings to compel the executors to account before the surrogate.
    Appeal from a decree of the surrogate of Westchester county requiring the appellant to render an account of his proceedings, as executor of the last will and testament of Andrew Hood, deceased, since the 8th day of December, 1868.

      Edward P. Wilder, for Frederick Hood, executor, appellant.

      Hoe & Maeklin, for William Hood and Annie Hood, the petitioners, respondents.
   Oullen, J.:

It was no sufficient answer to the petition for account, in 1881, that there had been a final accounting in 1869. A final accounting is not necessarily the last to be made. Final accountings may be had, from time to time, whenever there is anything to account for. (Glover v. Holley, 2 Bradf., 291.)

By the will these petitioners were not to have their shares of the estate until they became of age. Two of them have recently-arrived at age. On the accounting of 1869, nothing was ordered to be paid over to the petitioners, but the executors were decreed to hold and invest the balance in their hands pursuant to the powers and directions contained in the will. Certainly these petitioners are entitled to have an account from the executors of what moneys are now due and payable to them under the will.

On such accounting the accounting of 1869 may be put in evidence. If conclusive on the petitioners, it will establish the basis from which the new accounting will proceed. If the fact is shown that the petitioners are not bound by the accounting, then the proceeding will go back to the time when the executors first entered upon their trust. But ..that question does not occur at this stage of the proceeding. The fact of the lapse of time since the first account, and the fact that two of the petitioners are now to receive their shares of the estate, justifies the relief' asked.

It is objected that, after the final accounting of 1869, the appellant became a testamentary trustee instead of an executor, and could only be proceeded against in the former -capacity. The decision of the Court of Appeals in Hurlbut v. Durant (Alb. Law Jour. [vol. 25], p. 315) is cited in support of this claim. The report gives a mere abstract of the decision, and we have not been furnished with the opinion. But we regard the decision of the same court in Hood v. Hood (85 N. Y., 561), as settling the law on the subject, at least for this controversy and these litigants, adversely to the appellant’s claim. (See opinion at page 571.) Nor do we think the action in the Supreme Court, brought by other beneficiaries under this will against the appellant for an account, and to which these petitioners were made parties defendants, a bar to this proceeding. That action is still pending undetermined, a judgment rendered therein at Special Term having been reversed in the Court of Appeals.

It may be conceded that the general rule is, as claimed by the appellants, that where there are two proceedings pending between the same parties for the same cause of action, the proceeding first commenced is a bar to the latter, and this although the same persons are not plaintiffs in both proceedings. (Groshen v. Lyon, 16 Barb., 461.) But the rule is subject to this limitation, recognized in all the cases, that full relief can be obtained in the first proceeding. (Geery v. Webster, 11 Ilun, 428; Rogers v. King, 8 Paige, 210; Groshen v. Lyon, supra.)

The record produced before the surrogate shows that the action ■was brought to establish the default of the executor, and, on the allegation that he was insolvent, to charge his sureties with such default. On appeal the Court of Appeals held that the action could not be maintained against the sureties of the executor; that the liability of such sureties must be fixed by a failure of their principal to comply with the decree of the surrogates. It thus appears that the petitioners cannot obtain in the equity action the full relief afforded them in this proceeding. They did not institute that defective form of proceeding, but were brought into it as defendants. Therefore this case comes within the exceptions to the general rule, and the proceeding can be maintained.

Any relief the appellant may desire, to prevent being oppressed by a double litigation, can be obtained by a motion for a stay in the equity action. But certainly the rights of these petitioners should not be impaired, or their enforcement even delayed, by the action of the other beneficiaries beyond ¿heir power to prevent.

The order appealed from should be affirmed, with costs.

Present — Barnard, P. J., Dykman and Cullen, JJ.

Order affirmed, with costs.


text:
    PATRICK MORAN and Others, Respondents, v. JOHN R. LYDECKER and SAMUEL M. SCHAEFFER, as Receivers, etc.

      Joinder ofpa/rUes plaintiff — persons sustaining sepa/rate and special damages (as owners of separate lots on a street) cannot jam as plaintiffs — The insolvency of a corporation does not work a forfeiture of its rights — When a receiver of an insolvent railroad company may proceed with the construction of its road.

    Several owners of separate lots fronting on a street cannot join in bringing an action to restrain the construction of an elevated railroad thereon on the ground that the company has not made, and does not intend to make, compensation to ■ any of them for the damages they will severally sustain by reason of the construction and operation of the road.
    The fact that a railroad corporation has been alleged to be insolvent and that a receiver thereof has been appointted in an action brought against it, does not authorize the court to restrain the receiver from proceeding to construct the road, as authorized by the company's charter, so long as its corporate rights and franchises have not been adjudged to be forfeited in an action brought against it by the people.
    Appeal from an order made at a Special Term continuing an injunction restraining the defendants from entering upon York street, in the city of Brooklyn, for the purpose of constructing an elevated railway thereon.
    The Brooklyn Elevated Railway Company was incorporated by chapter 585 of 1874, as amended by chapter 422 of 1875. After it had commenced the construction of its road an action was commenced against it by the attorney-general to compel the directors to account and to restrain them from any further dealings with the property of the company, and by the trustees of a mortgage given by it to procure its foreclosure. Receivers were appointed in each action, but subsequently the receivers appointed in the action brought by the attorney-general were discharged.
    On the 23d day of February, 1881, an order, entitled in both actions, i. e., that of the Farmers' Loan cmd Trust Company, Trustee, v. The Brooklyn Elevated Pailway Company cmd others, and that of the People of the State of New York v. The Same, was made at Special Term authorizing and directing Lydeclcer and Schaeffer, receivers, to proceed with the construction and equipment of the railroad, to purchase all the material, employ all the labor and defray all the expense incident to the completion of the road; and for this purpose the receivers were authorized to issue certificates of indebtedness on their part to an amount not exceeding $2,500,000, which certificates were to constitute a debt of the receivers, and be a first lien prior to the mortgage and prior to all other liens on the property of the corporation.
    From an order restraining them from proceeding so to construct the road this appeal was taken.

      Ashbel Green, for the receivers, appellants.

      Wingate dé Cullen, for the Brooklyn Elevated Railway Company, appellant.

      Wm. C. Be Witt, for the respondents.
   Cullen, J.:

The several plaintiffs are owners of separate lots fronting on York street in the city of Brooklyn. None of them have title to the street itself. The complaint seems to be drawn in a double aspect. It alleges that the defendants have not authority to construct or operate the road for reasons set forth, and it then further alleges that no compensation has been made or is intended to be made to any of the plaintiffs for the damages to be severally suffered by ..them on account of the construction and operation of the road. The relief asked is an injunction restraining the defendants from entering upon any part of the whole street.

In its first aspect the action is to restrain a public nuisance from which the plaintiffs suffer special damage. In the latter it is to restrain the invasion of property rights that are separate and distinct as to each piece of land and as to each plaintiff.

In this latter aspect it is evident that no joint action can be maintained. In the case of a railroad constructed through the country, no one would contend that the owners of several and distinct farms could bring a common actiop to prevent the road being built across those farms without compensation. In this case, if the abutter has any special easement or property in the street that will be invaded by the construction of the railroad, it is evidently only in such part of the street as is adjacent to and gives access, air and light to his adjoining lot. He has no special easement or property in other parts of the street, or in those which subserve the same purpose for other and distant lots. But this action covers the whole street, in many parts of which neither the plaintiffs jointly, ñor any one of them singly, can upon any theory have a special property or easement.

For aught that appears, the owners on such parts of the street may assent to the construction of the road. We think that the action cannot be sustained in this aspect, and that the question as to the rights of the abutters in the street to have it free from any use injuring the adjoining property, does not arise in this case. As long before this road can be completed, that much debated question will be settled" by litigation now pending decision in our highest court, it is not necessary we should express an opinion on this subject.- The defendants must take the risk of that decision.

To maintain the action in its first aspect, it must be shown that the defendants do not possess the power or franchise to construct the road on the street in question. That power is challenged by the plaintiffs on several distinct grounds.

The defendant company was incorporated May 26, 1874, under the name of the Brooklyn Elevated Silent Safety Railway, and authorized to construct its road on certain specified streets in Brooklyn, including York street. On May 22, 1875, an act was passed adding one new'corporator, providing for a somewhat different character of structure and changing the name of the company to its present title. The first contention of plaintiff’s counsel, that the constitutional amendments of 1875 operated upon the previously granted charter to the defendant, has been definitively settled adversely by the decision of the Court of Appeals in the case of The Gilbert Elevated Railroad Company (70 N. Y., 361). The same principle has been reaffirmed by the same court in The People v. The Flatbush, etc., Railroad Company (not reported).

Nor did the amendatory act of 1875 create a new corporation or grant a new franchise. It merely regulated the use of a franchise previously granted. The amendment of a statute does not operate as a repeal and re-enactment of the retained part of the amended act, but such part is to be considered as having continued the law from the time of its original enactment. (Ely v. Holton, 15 N. Y., 595.)

The constitutional limitation upon the power of the legislature to change the names of persons, has no application to corporations. But were it otherwise the result is not that the identity of the defendant corporation was changed, but that its present title is a misnomer, We, therefore, think that the defendants are not obliged to obtain the consents or determination prescribed by the constitutional amendments.

There now remains to be considered the ground on which the learned justice, at Special Term, granted this injunction, the insolvency of the corporation, and the fact that it is in the hands of the individual defendants as receivers. It is claimed by defendants, I think correctly, that there is no allegation of insolvency in the complaint, nor direct proof of' the fact in the papers. The complaint merely states that in an action by a creditor, in which the insolvency of the company was alleged, receivers were appointed. There has been no judicial declaration of the insolvency, nor judgment forfeiting defendant’s charter therefor.

But assuming the insolvency of the defendant company, I think that would not authorize the order appealed from as to it. Insolvency continued for a specified period is by statute made a ground upon which forfeiture may be decreed. Of that the State alone can take advantage, and I know of no principle of law, nor of any statute, by which insolvency is, per se, a forfeiture of corporate rights. We think the receivers, by their appointment, were vested with all the franchises of the corporation, to construct and operate the railroad.

The company was by law authorized to mortgage its franchises as well as the property, and the receivers took title to the franchise with the property.

It is too late to question in this country the power of receivers to operate railroads or exercise other corporate franchises under the direction of the court; and there would seem to be no reason why receivers should not complete a road partially built as well as operate one completed.

It is true that the right of eminent domain did not pass as a part of the mortgaged franchises. But the statute of 1881 (chap. 649) would seem to confer such power, and it is not necessary that the power be exercised by a corporation. (Matter of Townsend, 39 N. Y. 171.) But if the receivers could not exercise such powers, it would by no means follow that the construction of the road has become impossible. It is entirely possible that the property rights affected by the road may be acquired by purchase. On the sale of this road the purchasers are authorized by law to form a new corporation, which would have the right of eminent domain. It seems entirely, proper that the receivers, therefore, should carry on the construction of the road where the property rights of opposing owners are not involved, and thus enable the purchasers, if there be a sale, or the defendant corporation, if its property be restored to it, to complete the road within the statutory time and save the franchise.

The’plaintiffs are not concerned in the validity of the receiver’s certificates. That is a question for those only who propose to advance on such certificates and those who are interested in the property.

The order appealed from should be reversed, with ten dollars costs.

Present — Barnard, P. J., Dykman and Cullen, JJ.

Order continuing injunction reversed, with costs and disbursements.


author: Cullen, J.: Dykman, J.

text:
    CHARLES FRAZIER, Surviving Partner of FRANK E. WILLIAMS, Deceased, Appellant, v. CHARLES H. TRUAX, as Assignee, etc., Respondent, Impleaded with Others.

      General assignment — must show upon its face the creditors preferred — a preference cannot he given to one person upon a verbal trust for another.

    A general assignment must show upon its face the creditors whom the assignor intends to prefer.
    An assignment in which preferences are given to persons'who are not creditors-of the assignor, upon a verbal trust for real creditors, is void as a matter of law. (Dykman, J., dissenting.)
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    The action was brought to set aside a general assignment made by the firm of Neil,'McCullum & Co., on the ground of fraud.

      Thomas Stevenson, for the appellant.

      Thomas H. Hubbard, for the respondent.
   Cullen, J.:

As to three of the preferred claims' set forth in the assignment,, concededly the assignors were not indebted to the persons in whose favor the preferences were made. Unless explained these preferences for fictitious debts would render the assignment fraudulent.

The explanation offered is that the debts, though not owing h> the parties named, were owing to other persons, and that the preferences were made, as it were, in trust for the real creditors. .1 do not think such a method valid. No trust is declared on the face of the assignment; and I doubt if, in favor of the real creditor, it would be competent to show the trust by parol. By the statute the assignment must be in writing, and be acknowledged and recorded, otherwise it is void. Therefore I think the whole of the assignment, must be expressed in the written instrument; and not a most important part of it, that is, to whom preferences are to be really made, rest in mere words. In the case of the preference to Beaver he knew nothing about it, nor ever accepted the' trust in favor of Mrs. McCullem, nor do we think that the evidence established the bona fides of the debt to Mrs. McCullem.

If this mode be tolerated it will make most glaring frauds easy of accomplishment. It is settled law that a power reserved to either the assignor or assignee to designate future preferences renders the assignment void. (Sheldon v. Dodge, 4 Denio, 217.) To be valid the instrument must definitely settle the respective rights of the creditors.

If the real parties intended to be preferred are to be known only to the assignor and assignee, it will put it in the power of these persons to declare at any future time, without fear of contradiction, that any particular persons whom' they see fit were the real parties intended to be preferred, at least any whose debts approximate to the debts named in the preferred schedule. And if such declaration be made in favor of any creditor, why may not the parties declare subsequently that their previous statement was an error and that the person really to be preferred was another creditor? I think this scheme fraudulent in law, and that the assignment was void.

The judgment should be reversed on-- questions of fact and law, and a new trial ordered.

Dykman, J.

(dissenting):

This is an action by judgment-creditors to set aside a voluntary general assignment for the benefit of creditors, containing preferences. The assignment is challenged by reason of the four preferences to Hansett, Lamont, Blaners and Wilcox, and special findings have been made by the trial judge respecting each of these claims. These findings show entire freedom from fraud, and they are all well supported by the testimony.

An extended examination of the proof would be only a collation of the facts contained in the findings, and these are sustained by proof; the result would be the same.

The plaintiffs had reason for the commencement of the action as there were some matters quite suggestive of fraud without explanation. .Hence the complaint was properly dismissed without costs.

The judgment should be affirmed, with costs.

Present — Barnard, P. J., Dykman and Cullen, JJ.

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


author:
Cullen, J.:
      Dykman, J.:

text:
    JAMES OSBORNE and Others, Respondents, v. THE JERSEY CITY AND ALBANY RAILWAY COMPANY and Others, Appellants.

      Highway — right of a raiVroad, company to construct its road across it —1850, chap. 140, sec. 28, sub. 5, as amended by chapter 582 of 1864.
    Under subdivision 5 of section 28 of chapter 140 of 1850, as amended by chapter 582 of 1864, a railroad company has no right to construct its road upon the surface of a highway — either across or along it — without first obtaining an order of the Supreme Court authorizing it so to do, made upon notice to the highway commissioners. (Per Cullen, J.)
    A railroad company cannot construct its road across a highway where by so doing the usefulness of the highway will be not only diminished, but virtually destroyed. (Per Dykman, J.)
    ' Appeal by the defendants from an order made at a Special Term continuing a temporary injunction restraining the defendants from “ constructing a grade crossing ” over the highway in the village of Haverstraw known as the Short Clove Road.
    The temporary injunction was granted on the application of the plaintiffs, as commissioners of highways, in a suit brought to enjoin the defendants perpetually from making such grade crossing. The grounds of the injunction are, that no consent of the commissioners of highways, nor permission of this court, has been obtained to the making of such crossing; and that it will be impracticable to restore the highway to any reasonable state of usefulness if the crossing is made.

      AsKbel Orem and Howard Mansfield, for the appellants.

      George W. Weiamt, for the respondents.
   Cullen, J.:

The defendants were enjoined from constructing their railroad crossing upon the surface of a highway in Rockland county. They had obtained neither the consent of the plaintiffs for such crossing nor an order from the Supreme Court authorizing the same.

By subdivision 5 of section 28 of the- general railroad act of 1850, every company is authorized to construct its road “ across, along •or upon any stream of water, water-course, street, highway, plank-road, turnpike or canal which the route for its road shall intersect ■or touch, but the company shall restore the stream or water-course, street or highway, plank-road and turnpike thus intersected or touched to its former state, or to such state as not necessarily to have impaired its usefulness.” This section was amended in 1864 so that nothing therein should be construed to .authorize any such railroad company to construct its road “ upon and along ” any highway without an order of the Supreme Court authorizing the same •on notice to the highway commissioners.

The question presented by the appeal is whether such consent is necessary where the road runs across a' highway. The defendant ■contends that the requirements of the amendment of 1864 are ' limited to cases where the road is to be constructed longitudinally upon the highway; in other words, where for some distance the •company shall adopt the route of the highway as the route of the railroad. We cannot assent to this construction; it gives too harrow a significance to the wording of the law.

Upon this construction, if the railroad crossed the highroad at such .an acute angle that the crossing might occupy hundreds of feet, the statute of 1864 would be, inapplicable, and nothing short of absolute identity of location of the highway and the railroad, would require the statutory permission. If this be not so, where is the line to be drawn ? At what angle does the crossing cease to be across ” and become along and upon ” the highway ? We think that wherever the railroad is constructed upon the surface of the highway, it is u along and upon” so much of the highway as is occupied by it.

To construct any grade crossing upon the highway, either the ■consent of the commissioners or an order of the Supreme Court, must first be obtained. The defendants urge that the crossing enjoined was not a part of the permanent structure of a road-bed, but simply temporary, to be used for convenience in constructing their road, and that hence, the injunction was improper. If this fact be so, then the defendant’s structure was wholly illegal, as there is no authority to be found in law for the occupation of the highway, save by the permanent road-bed of a railroad.

The order appealed from should be affirmed, with costs.

Dykman, J.:

The defendant desires to construct a railroad across a highway in the town of Haverstraw, and an injunction was sued out to prevent such crossing at the same level for the reason that it would be impracticable to restore the highway to any reasonable state of usefulness. From that order we have this appeal.

The highway in question is called the Short Clove road and is the thoroughfare from the interior of the county to the village of ' Haverstraw. It runs aslant a precipitous'mountain, which faces and slopes to the east and north. The railroad comes in lower down and is to cross the highway at an acute angle where the grade is heavy, five feet above the present surface of the traveled road, so that it would become necessary to raise the road-bed at that point to a level with the rail track about five feet. This would leave a very dangerous place where disasters must result with great fre- ■ quency, and the public should not be subjected to this evil if we can administer a remedy.

Railroad corporations have power under the statute to construct their road across, along or upon any highway which the route of its road shall intersect, but the company must restore the highway thus intersected to its former state, or to such state as not unnecessarily to impair its usefulness; but this statute is so qualified that no railroad company can construct its road upon and along any highway without the order of the Supreme Court. So that while a railroad may be constructed across a highway without the permission of the court, it cannot, without such leave, be constructed upon and along the same. Here no permission was obtained, because the effort is to cross the highway under a claim of authority to locate the railroad and restore the public road afterwards. Ordinarily it is doubtless the right of a railroad company to locate its road and carry the same across highways and water streams in its own way, subject to the obligations imposed by the statute to restore the same to usefulness. But there are exceptions to all rules, and while the statute seems to contemplate diminution of usefulness to highways by railroad crossings, it does not yet aim at their destruction or at' their being rendered dangerous or impassable. The public have rights in their highways, and they must receive respect and not disregard. The usefulness of roads may be impaired, but if there comes a case where restoration to usefulness is not practicable then such interference should be arrested by the courts.

In our view a case of that character is now presented. The rail road is laid across the highway on the side of a mountain five or six feet above the road level. To raise such level to the railroad grade will necessitate a retaining wall on the lower side of great height, and such a descent from the rail track as to be well nigh impassible. Instead of working a simple diminution of the usefulness of the highway it renders the same exceedingly dangerous. The usefulness of the highway is substantially destroyed. It was not the intention of the legislature to bestow such power on railroad corporations.

From such facts as we can gather from the complaint and affidavits this seems to be a case where the railroad should be carried over the highway, but we do not control that now. On the trial of the action the proper relief will be administered, but in the meantime the defendant should be restrained from its present intended action.

The order should be affirmed, with costs and disbursements.

Present — Dykman and Cullen, JJ.; Barnard, P. J., not sitting.

Order continuing injunction affirmed, with costs and disbursements.


author: Barnard, P. J.: Cullen, J.

text:
    ROBERT L. QUICK, Respondent, v. NOAH WIXON, Appellant.

      Costs — upon an appeal from the judgment of a Justice’s Cowrt— Code of Civil Procedure, sec. 3070.
    In an action brought by the plaintiff in a Justice’s Court to recover fifty dollars for work, labor and services performed for and rendered to the defendant, the latter set up a counter-claim of sixty dollars for goods sold and delivered. The plaintiff recovered a judgment for eight dollars damages and three dollars costs, from which the defendant appealed to the County Court, where a new trial was had, and a verdict of “ no cause of action” was rendered by the jury.

      Held, that section 3070 of the Code of Civil Procedure only applied to cases in which some judgment is recovered by the respondent, and that the defendant was entitled to the costs of the trial in the County Court. (Cullen, J., dissenting.)

      Appeal from an order of the Dutchess County Court vacating a judgment, entered herein in favor of the defendant for costs, and directing that the plaintiff’s costs and disbursements be taxed and allowed by the county clerk.
    The action was brought in a Justice’s Court in the county of Dutchess, by the plaintiff, for work, labor and services performed for and rendered to the defendant, and a judgment for fifty dollars was demanded.
    The defendant denied each of the allegations of the complaint; pleaded payment and set up a counter-claim for goods sold and delivered, and demanded judgment therefor for sixty dollars. The justice ordered the plaintiff and defendant to furnish a bill of particulars. The plaintiff furnished and served his as directed, but the defendant neglected and refused to furnish his.
    The action was tried before the justice without a jury, and decided in favor of plaintiff, and a judgment was entered for eight dollars damages and three dollars costs.
    The defendant appealed to the Dutchess County Court for a new trial, which was had therein, the jury rendering a verdict of “ no cause of action ” simply.
    Each party sought to have the costs taxed in his favor.

      Haokett <& Williams, for the appellant.

      John Z. Storrs, for the respondent.
   Barnard, P. J.:

In no case can a party to an action recover costs when he fails to recover judgment against his adversary. The general rule in actions for the recovery of money is that the plaintiff must recover a judgment for fifty dollars to be entitled to costs. In appeals from Justices’ Courts, it is provided that in certain cases offers may be made to compromise. If no offer be made by the respondent, or if made and not accepted, then the respondent is entitled to costs, unless the decision is more favorable to the appellant by the sum of ten dollars; otherwise'the appellant is entitled to costs. (Code Civ. Pro., § 3070.) This has reference only to cases where some judgment is recovered by the respondent. Here the respondent entirely fails to recover any judgment. The case, therefore, falls under section 3229. By this section the plaintiff is only entitled to costs when he recovers a judgment. Unless the plaintiff is entitled to costs the defendant is so entitled. The appeal was an action at issue from the filing of the return. (Code Civ. Pro., § 3071.)

The order should be reversed, with costs and disbursements, and the defendant be declared entitled to the costs established for such action by section 3073 (Code).

Dykman, J., concurred.

Cullen, J.

(dissenting):

I dissent. Section 3070 of the Code of Civil Procedure makes complete provision as to all cases of appeal from J ustices’ Courts where a new trial is demanded, and is exclusive. It cannot be denied that, within the literal terms of that section, the plaintiff was entitled to costs, and the decision below was correct.

The general rule that a party must recover judgment to entitle himself to costs does not apply to appeals from justices. The whole scheme is symmetrical and its object apparent. On appeals with demand of new trials, if the appellant gains ten dollars by his appeal, he is entitled to costs, otherwise not. The respondent can escape being mulcted in costs by an offer of judgment. If the error be less than ten dollars, the aggrieved party is not without remedy. He may appeal, under the provisions of section 3044 to 3067, when he will not be entitled to a new trial as a matter of right. But, if successful, he will be entitled to costs.

The Code intends that an error of less than ten dollars shall not be corrected at the expense and trouble of a new trial, but by an appeal on the justice’s return. Nor is any injustice done the appellant by this rule. The plaintiff had a small claim, ill-founded, it is true, still he had a right to try it in an inexpensive tribunal. The defendant, by setting up a counter-claim sufficiently large, obtains a trial in the County Court; that counter-claim is as baseless as the plaintiff’s claim. It was the amount of the defendant’s counterclaim, not that of the plaintiff’s judgment, that authorized the new trial. It is therefore right that, failing in the counter-claim, the defendant should pay the costs.

The order appealed from should be affirmed.

Order reversed, with costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. HENRY GRIFFIN and CHARLES RILEY, Appellants.

      Code of Oriminal Procedure, sea. 543 — when an mvoneous judgment is entm'ed upon a lawful verdict the appellate court must correct it, and not remit the ease to the trial cowrt.

    By section 543 of the Code of Criminal Procedure it is made the duty of the appellate court, when an erroneous judgment has been entered upon a lawful verdict, to correct the judgment in such manner as to make it conform to the verdict.
    It is no longer proper to remit the case to the trial court to have the proper judgment pronounced, as was required hy chapter 226 of 1863.
    Appeals from judgments, entered on the conviction of the defendants upon their trials upon indictments for felonious assaults.

      S. B. Noble, for the appellants.

      Benjami/n W. Downing, district-attorney, for the people.
   Cullen, J.:

There was no general verdict on any count of the indictment. The jury found the prisoners guilty of assault and battery with intent to do bodily harm. This verdict was, in its legal effect, a conviction of assault and battery only. (Hussy v. The People, 47 Barb., 503.)

The defendant Riley was sentenced, on such conviction, to imprisonment for six months in the penitentiary. This sentence could be pronounced for an assault and battery. The record, therefore, discloses no error as to him, and the conviction and judgment thereon must be affirmed.

The defendant Griffin was sentenced, as for a felony, to imprisonment in the states prison for one year. This judgment was unauthorized. Before the statute of 1863 (chapter 226) this error would have compelled the .prisoner’s discharge.

After the passage of that statute the record was remitted to the court below, with directions to pronounce a proper judgment. (Hussy v. The People, supra.) But the Code of Criminal Procedure seems to have altered the practice in this respect.

By section 543 it is made the duty of the appellate court, where an erroneous judgment has been entered upon a lawful verdict, to correct the judgment to conform to the verdict, and there is no provision for remitting the case to the trial court.

It seems, therefore, that the appellate court must now pass the proper sentence.

The judgment upon the defendant Griffin must be reversed, and the prisoner brought before this court for judgment on his conviction.

Present — Barnard, P. J., Dykman and Cullen, JJ.

Conviction and judgment affirmed.

Sentence as to Griffin set aside, and defendant Griffin to be brought before the court for sentence as for an assault and battery only.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE PETRY and the said GEORGE PETRY, Respondents, v. HENRY S. DE BEVOISE, Appellant.

      Practice — action to try title to office — the claimant may he joined as a party plaintiff— Code of Giwil Procedure, sec. 446.
    To an action of quo waircmio, brought by the people upon the relation of one claiming to be entitled to an office held by the defendant, the claimant is, under the Code of Civil Procedure, a proper, if not a necessary party plaintiff.
    Appeal from an interlocutory judgment, entered upon an order overruling a demurrer interposed to the complaint on the ground that there was a misjoinder of parties plaintiff. The action was brought by the people, on the relation of George Petry, to oust the defendant from the office of mayor of Long Island City and have Petry declared entitled thereto.

      J, Ralph Burnett, for the appellant.

      Leslie W. Russell, attorney-general, and A. T. P ayne and Homer A. Nelson, for the respondents.
   Cullen, J.:

We think that Petry is a proper party plaintiff to this action. He certainly has an interest in the subject-matter and in obtaining the judgment demanded. This, under section446, Code of CivilProcedure, justifies his appearance as plaintiff. Under the former Code he would have been a necessary party. (People ex rel. Crane v. Ryder, 12 N. Y., 433.) It may be that since the change in phraseology of the new Code he is not now a necessary party, but we do not think he has ceased to be a proper party. The statement in the complaint, “ The People complaining on the relation of George Petry,” is a sufficient allegation that the action is brought on the relation of Petry, especially as Petry joins in it. We doubt if a defect in that respect would be ground for a demurrer.

Order appealed from should be affirmed, with costs, with leave to defendant to answer over on payment of costs.

Present — Dykman and Cullen, JJ.; Barnard, P. J., not sitting.

Judgment affirmed, with costs, with leave to answer in twenty days on payment of costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE BECHTEL, Supervisor, etc., Appellants, v. JORGEN H. WELBROOK, Commissioner of Highways, etc., Respondent.

      Qomrmisdonen's of highways* — must account to loan'd of town auditors — 1863,-chap. 172 — 1875, ciiap. 180.
    Under chapter 172 of 1863 and chapter 180 of 1875, commissioners of highways are required to account annually before the board of town auditors, and not before the board of town officers.
    Appeal from an order made at a Special Term, denying a motion for a writ of peremptory mandamus, requiring the respondent to “account with the board of town officers (viz., the supervisor, justices of the peace and town clerk) of such town for all moneys received and disbursed by him ” as commissioner of highways of the town of Middletown, Richmond county.
    The town of. Middletown, by the relator and appellant, brought these proceedings and appealed from the order made herein.

      W. S. Hornfager, for the relator.

      Thomas Frean, for the respondent.
   Cullen, J.:

By section 1 of chapter 172, Laws of 1863, the town auditors are directed to examine the accounts of highway commissioners on Tuesday preceding the annual town meeting. By section 2, such commissioners, and all town-officers receiving or disbursing town moneys, .must account for such moneys with “ the board of town officers.” By section 3, the said board of town auditors must make and file a statement and certificate of such accounts. We think there is no significance to be attached to the change of language found in the second section, the term there used being the board of town officers” instead of “town auditors,” employed in the first and third sections. The board of town officers means the town auditors. The examination and allowance of accounts is the proper function of an auditing board. Chapter 180, Laws of 1875, provided for the election of town auditors as independent officers, and by section 2 of that act, all powers conferred by law upon boards of town auditors, and duties required by law to be performed by such boards, were devolved on the boards created by that act.

Hence the duty of examining the respondent’s accounts rested in the new board of town auditors, and with it necessarily the duty devolved on the respondent to account to that board, which was to pass his accounts, and not to the board of town officers.

The order appealed from should be affirmed, with costs.

Present — Barnard, P. J., Dykman and Cullen, JJ„

Order affirmed, with costs.


author: Barnard, P. J.:

text:
    In the Matter of WILLIAM L. O’NEILL.

      Attorneys — must be citizens of the United States.

    No person can be admitted to practice as an attorney or counselor- at-law wbo is not a citizen of tire United States.
    ■ Motion to set aside an order made by the General Term of the Second Department, on the 9th day of May, 1881, admitting Mr. William Lane O’Neil to practice as an attorney and counselor-at-law.'
    The papers, upon which the order admitting him to practice was made, show that he was born in Ireland in 1846, and emigrated to the United States on February 25, 1881. On February 28, 1881, he filed his declaration of intention to become a citizen of the United States. He had been admitted as an attorney on February 5, 1875, and as a solicitor in chancery on February 9, 1875, and practiced as such in England from the time of. his admission to the time’ of coming to this country.
    This motion was made upon the ground that as O’Neill was not a citizen of the United States he could not be admitted to practice here.

      Henry Arden, for John B. Newman, petitioner.

      Wm. L. O' Neill, in person, opposed.
   Barnard, P. J.:

An attorney of this court must be a citizen of the United States. This was the practice before the Constitution of 1846. (Graham’s Pr., 33.) By the Constitution of 1846, it was provided that any male citizen of the age of twenty-one years, of good moral character, and who possesses the requisite qualifications of learning and ability, shall be entitled admission to practice in all the courts of this State.” (Const, of 1846, art. 6, § 8.) The use of the words any male citizen ” must be held to exclude females and aliens.

By the statute of the State no one can hold a civil office who is not a citizen. (1 R. S., 116, § 1.) Attorneys are public officers. (Waters v. Whittemore, 22 Barb., 594; Wallis v. Loubat, 2 Den., 607.) The rule of the Court of Appeals requires an applicant for examination to prove he is a citizen of the United States. (Rule 2.)

The permission to license those who have, practiced m another country without examination was not intended to waive the requirement of citizenship. Neither the legislature or the Court of Appeals could so waive it under the Constitution of 1846. The preliminary objection taken by the respondent is one of mere form. Assuming that it is improper for an attorney to make this motion, the suggestion of the subject-matter would call upon the court to order the respondent to show cause why the license irregularly granted should not be revoked. We think that all parties are here for the purpose of determining the question raised.

Order admitting O’Neill as an attorney vacated and license issued thereon revoked.

Dykman and Cullen, JJ., concurred.

Order admitting W. L. O’Neill as an attorney revoked and license vacated.


author: Barnard, P. J.;

text:
    WILLIAM S. MARRIN and MARY A. S. MARRIN, Appellants, v. OWEN A. MARRIN, Defendant. HENRY HOFFMAN, Respondent.

      Confession of judgment — requisites of the statement upon which it is entered — Code of Civil Procedure, sec. 1274.
    Appeal from an order made at a Special Term, setting aside a judgment entered by confession, upon the application of a judgment creditor of a party against whom it was entered.
    The court at General Term said: “ A statement upon which a judgment by confession is based ‘ must state concisely the facts out of which the debt arose, and must show that the sum confessed therefor is justly due or to become due.’
    “ I thinlc the statement in the present case fails to meet this requirement of section 1271 (Oode of Civ. Pro.).
    “ The facts stated are in these words: ‘ The late William Marrin, of Saratoga Springs, New York, died May 1, 1871, leaving as heirs and legatees under his will said plantiffs and others; that I am, and since said date have at all times been, an executor of said will, and for the greater portion of the time have also been trustee of other property for said plaintiffs; that on an accounting before the surrogate of Saratoga county by me as said executor, and on examination of my accounts as said trustee, it appears that there is now due and owing to said plaintiffs the sum of two thousand five hundred dollars, and that the same is already justly due to said plaintiffs from me.’
    “ The statement rests upon the apparent result of an examination of the accounts of the judgment-debtor. No information is conveyed thereby. It is not stated that the executors ever received any money belonging to plaintiffs as legatees or heirs, or that he ever received money as trustee, or that there is an actual balance due the plaintiffs thereon for the amount of receipts over disbursements. An examination of the accounts disclose that ‘ it appears ’ there is due a sum which, with the account of the executor, makes up $2,500. Such a statement in effect was held bad in Du/nham v. Waterman (17 N..Y., 9); also in Miller v. Earle (24 id., 110). The plaintiffs do not make out a consideration by the supporting affidavits so that there should be an amendment of the statement ordered. The defendant on the confession makes no supporting affidavit.
    “ It appears by the affidavit of William S. Marrin that the approximate indebtedness appearing upon the accounting before the Saratoga surrogate was a'little over $2,500; that the defendant was ‘heavily indebted5 as trustee of property not embraced in the will; that the plaintiffs compromised with defendant for the amount of the judgment. Other proof is given of the compromise, b.ut n'o other of the debt. As against this pi'oof the affidavit of Mr. Hitching» shows that from the account in the Saratoga surrogate’s office there is little or nothing due to the plaintiffs from the estate; that the accounting was not completed and had been abandoned for .over two years.
    “ The case does not fall, therefore, within Mitchell v. Van Burén (27 N. Y., 300) or Ingram v. Robbvns (33 id., 409). Neither the good faith of the confession or the validity of the claim is apparent.
    “The order should therefore be affirmed, with costs and disbursements.”

      Joseph J. Ma/rrin, for the appellants.

      Benjamin G: Ilitchinas. for the respondent.
   Opinion by

Barnard, P. J.;

Dykman, J., concurred; Cullen, J., not sitting.

Order setting aside judgment by confession affirmed, with costs and disbursements.


text:
    JOSEPH M. PRAY and RICHARD INGRAHAM, as Executor, etc., of JOHN DIKEMAN, Deceased, Appellants, v. JOSEPH HEGEMAN, as Executor and Trustee, etc., of AIISTIN D. MOORE, Deceased, and Others, Respondents.

      Trust — direction for accumulation of income during minority of henejma/ry — the■ amumnt accumulated may he added to the principal on Ms a/rriml at majority.

    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court, without a jury.
    This action was originally brought in the lifetime of John Dike-man and Austin D. Moore, Jr., by John Dikeman, as plaintiff,, against Austin D. Móore, Jr., and Joseph Hegeman, as executor and trustee of and under the will of Austin D. Moore, Sr. It was-in the nature of a creditor’s action to reach a certain fund in the-hands of defendant Hegeman, as such executor and trustee, amounting to upwards of $27,000, claimed by the plaintiff to belong to-Austin D. Moore, Jr., and apply it to the payment of certain judgments in favor of the plaintiff against said Austin D. Moore, Jr., amounting to about $7,000, on which the remedy at law had been exhausted.
    The fund sought to be reached consisted of accumulations of income, rents and profits, made by said Hegeman, as such executor and trustee, during the minority of Austin D. Moore, Jr., pursuant to the directions contained in the will of Austin D. Moore, Sr., upon the share of the testator’s estate held in trust for said Austin D. Moore, Jr.
    The main question in the case was whether the said accumulations belonged to the judgment debtor, Austin D. Moore, Jr.; that question depending upon whether the direction for the accunmlation in the will was void.
    The testator, after providing for the creation of trusts foi such of his children as might survive him, and the payment to them of specified sums during their minority out of the income of the estate, directed: “And the balance of such income shall, from time to time, be added to the share or sub-share from which the same proceeded, and accumulated as principal until he or she arrives at the age of twenty-one years, after which period the whole of such income shall be paid over, quarter-yearly, to such child.”
    The court at General Term said : “ The question involved in this case was decided in Meseróle v. Meseróle (1 Hun, 66). By section 37 of chapter 1, part 2, title 2, Revised Statutes, accumulations are permitted for the benefit of minors in being at the creation of the trust, and terminating at the expiration of their minority. In Meseróle v. Meseróle {supra), the direction was to add the accumulation to the principal, and thereby to make one fund, at the expiration of the minority. The General Term of the First Department held this a valid direction, as being for the benefit of the infant.
    “ The true construction of the will of Austin D. Moore, deceased, requires a new principal to be made up of the original share of Austin D. Moore, Jr., and of the accumulation accruing during his minority, ‘and the balance of such income shall, from time to time, be added to the share or sub-share from which the same proceeded, and accumulated as principal until he or she arrives at the age of twenty-one years.’ The subsequent words, giving the ‘ whole of such income,’ were intended to mean the income upon the new principal made up by the addition directed by the will to the original share.”
    The judgment should be affirmed, with costs.

      J. T. Ma/rean, for the appellants.

      Smith dé Woodwa/rd, for Hegeman, respondent.

      Coudert Bros., for Holden, guardian ad litem, respondent.

      H. M. Whitehead, for G. M. Lyon, respondent.

      JD. B. Thompson, for Sarah M. P. Moore, respondent.

      Traey, GatUn <& Hudson, for John Hudson, guardian ad litem.

   Opinion by

Barnard, P. J.;

Dykman, J., concurred; Cullen, J., dissenting.

Judgment affirmed, with costs.


text:
    In the Matter of the Certiorari of CHARLES H. BRACKET.

      Gertiora/ri — a void judgment will be reversed in proceedings by such unit — power of the president of a court martial to annul its judgment.

    Certiorari to review the conviction and sentence of the relator by a court martial.
    The court at General Term said: “The relator, Charles H. Bracket, was tried at a court martial for ‘ certain offenses, delinquencies and deficiencies ’ as a private in the Thirteenth regiment, National Guard of the State of New York. He was convicted and fined. It appears that the relator had no notice of the day appointed for the trial and hearing. Hpon a warrant being issued to collect the fine imposed by the court martial, the relator obtained a writ of certiorari. The return shows that the president of the court martial, upon being informed that no notice of the day of hearing had been given relator, he ‘ amended said proceedings, revoked said warrant for the collection of said fine, and withheld the said warrant from the marshal’s hands.’
    “ The judgment was void. It is proper to reverse a void judgment by certiorari. (People v. Judges of Suffolk, 24 Wend., 249.)
    “It is not necessary to inquire whether the president of a court can annul its judgment. The relator properly brought his writ, and he is entitled to judgment reversing the proceedings, with costs.”

      John J. Jewry, for the relator.

      Horatio C. King, for the respondent, Major H. H. Tyson, president of the court martial.
   Opinion by

Barnard, P. J.;

Dykman and Cullen, JJ., concurred.

Order and judgment reversed, with costs.


author: Cullen, J.

text:
    GEORGE M. CHAPMAN, Respondent, v. JOHN G. L. BOETCHER, Appellant, Impleaded, etc.

      Bale of real estate under an execution — when it will be set aside becamse of the inadequacy of the price paid.

    Appeal from an order granting a motion to set aside a salé of real property under executions.
    The motion was based on four grounds:

      First. Because the judgment debtor had, at the time of the issuing of said execution and precept, ample personal property within the county subject to levy and sale under execution, which fact was known to the defendant.

      Second. Because the property sold consisted of twelve lots of land, and were sold in one parcel.

      Thwd. Because the price said twelve lots of land were sold for was grossly inadequate, they having been sold for the trifling sum of $190, and their value being between $30,000 and $40,000.

      Fourth. Because the property was sold under execution and a precept for costs, and a sale of real estate under a precept for ten •dollars costs is illegal.
    The order imposed the following terms on the mover, viz.: Ten dollars costs of the motion; the payment of "the original judgment’ •and precept, with interest; the payment of tax certificates held by defendant, amounting to $303.88, with fifteen -per cent in<crest, •amounting to $776.53, and the payment of $750 counsel fees.
    The court at General Term said: “ The value of the lands, as •claimed by the plaintiff, was $40,000; as conceded by defendant, was $20,000. They were sold for the sum of $190.
    “ The general rule is, as stated by counsel for the appellant, that mere inadequacy of price is not a sufficient ground for setting aside •a judicial sale. I am not clear, however, that the inadequacy may not be so gross as to justify relief on that ground alone, where the rights of third persons have not intervened. In Marsh v. Lowry (26 Barb., 197), the sale was set aside because the property brought ■one-fifth of its value. In Bixly v. Mead (18 Wend., 611), where property worth $1,000 was sold for twenty-six dollars, the sale was set aside, though no irregularity appeared. Here the property brought one-hundredth part of its value. However this may be, it is well settled that where gross inadequacy appears the court will take hold of minor irregularities to relieve from the sale. (Collier v. Whipple, 13 Wend., 224.) Iu this case the property consisted of city lots, any one'of which should have produced enough to satisfy the judgment, yet the property was sold as an entirety. While this would not render the sale void, it was good ground of relief. {Griffith v. Hadley, 10 Bosw., 587.) The present case is not distinguishable from the ease cited, except that the inadequacy of price here is much more gross.
    “ The debtor has been guilty of great laches, but the terms imposed upon him at Special Term are ample both for his punishment and the full indemnity of the purchaser.”

      Hugo Irish, for the respondent.

      Jos. A. Burr, Jr., for the appellant.
   Opinion by

Cullen, J.

Present — Barnard, P. J., Dykman and Cullen, JJ.

Order vacating sale affirmed, with costs.


author: Opinion by

text:
    In the Matter of the Accounting of WILLIAM LIVINGSTON, as Executor, etc., of JAMES EGAN, Deceased.

      Set-off of judgment — when allowed in favor of an individual, who as executor is directed to pay over money to his own debtor — the surrogate cannot allow it — supplementary proceedings cannot be instituted by a person in his individual capacity against himself m a representative capacity.

    Appeal from an order made by the surrogate of Queens county, directing the payment by William Livingston to Hattie Lynam of $979.08.
    William Livingston individually obtained two' judgments in this court against one Thomas Eox, one of which was entered and docketed in the office of the clerk of Queens county, January 13, 1879, for $692.42 and interest from December 26, 1873, and the other was docketed and entered on February 8, 1879, in the same office for $157.86 and interest from January 10, 1879. On January 12, 1881, an order was made in each of the said actions against Fox, in proceedings supplementary to execution, ordering and requiring William Livingston, as executor, etc., of James Egan, deceased, to appear and be examined concerning any property of the said judgment debtor in the hands of said executor, and as to any indebtedness of said executor to said judgment debtor, and said executor was therein forbidden to transfer or make any disposition of any property belonging to said defendant, Thomas Fox, not exempt by law from execution, or in any manner to interfere therewith until the further order of the court in the premises. Each of said orders, with the affidavits upon which the same were granted, were duly served according to law, upon the said William Livingston, on January 12,1881, and also on the same day upon the said judgment debtor, Thomas Fox, and the original orders with the judges signature exhibited to each. It appeared that upon his accounting as executor before the surrogate, on December 31, 1880, Livingston had been directed to pay to Fox $979.08 as a dividend upon a judgment recovered by Fox against Eagan, Livingston’s testator, during the latter’s lifetime. Fox assigned his claim to Hattie Lynam, on January 13, 1881, before he had notice of the supplementary proceedings. On the 31st day of January, 1881, the said Hattie Lynam, by her attorney, John J. Armstrong, Esq., applied to the surrogate of Queens county for an order to show cause why the said William Livingston should not pay the said sum of $979.08 to the said Hattie Lynam, as assignee of the said Thomas Fox. Hearing was had upon such order before said surrogate upon the affidavits of said Hattie Lynam and of said John J. Armstrong, and the affidavit of said William Livingston and papers referred to in the same, and thereupon the surrogate granted the order appealed from, directing said Livingston to pay the $979.08 to Hattie Lynam within fifteen days, or that an attachment issue against him.
    The court at General Term said: “ Undoubtedly the judgment of William Livingston against Fox was not originally a set-off to a claim of Fox against the estate which Livingston represented. But after Fox’s claim was established, and he obtained the decree of the surrogate, directing payment by Livingston, I think such a decree became a demand against Livingston personally, and I think the set-off might have been established if the executor had brought a suit in equity for the purpose. But the surrogate had no power to try the question of set-off. (Stilwell v. Carpenter, 59 N. Y., 414.) The order made in supplementary proceedings was, in my opinion, wholly void. While for many purposes a person individually and the same person in a representative capacity are considered different legal persons, it is impossible for a party to sue himself or enjoin himself, no matter in what capacity the proceeding is instituted or defended. (Cole v. Reynolds, 18 N. Y., 74.)
    “ The proceeding is necessarily collusive, and therefore void. It follows that the appellant has mistaken his remedy, and that the order appealed from should be affirmed, with costs.”

      John II. V. Arnold, for William Livingston, executor, appellant.

      John J. Armstrong, for Hattie Lynam, respondent.
   Opinion by

Cullen, J.

Present — Barnard, P. J., Dvkman and Cullen, JJ.

Order of surrogate affirmed, with costs.


text:
    In the Matter of the Judicial Settlement of the Accounts of the Executors, etc., of MARY H. VERPLANCK, Deceased.

      Final accounting — the surrogate may construe the provisions of a will, so far as may be necessary to enable him to make a proper decree for the distribution of the estate.

    Appeal from a decree of the surrogate of Dutchess county, made on the final settlement of the accounts of the executors of Mary H. Verplanck, deceased.
    The court at General Term said: “I am of opinion that the surrogate had jurisdiction to pass on the validity and interpretation of the various provisions of the will, so far as was necessary to make a proper decree of distribution. Otherwise, it is plain that any party in interest, by raising a controversy, could prevent a distribution of the estate by the surrogate. I cannot find that such power has ever been denied. In Grill v. Brouwer (47 N. Y., 549), the' Court of Appeals, upon an appeal from a surrogate’s decree of distribution, passed upon the question whether a legacy under the terins of the will had lapsed. In Orton v. Orton (3 ICeyes, 486), on a similar appeal, it was determined whether, under the terms of the will, a legacy to the widow abated ratably with other legacies. On a like appeal in Ferrer v. Pyne (81 N. Y., 281), a question, identical with the one involved in this case, was determined.
    “ If there had been any doubt in the minds either of the profession or the court concerning the jurisdiction of the surrogate in this matter, I think the point would have been made in some of the cases- cited.”

      George■ IP Forster, for the executors.

      Malcolm G'amgjbell, for J. H. Hobart.

      S. A. Brewster, for Mary 0. Hobart.

      Henry He Forest Weelces, for Mary H. Hare, Elizabeth C. Hare, Chandler Hare and others.
   Opinion by

Cullen, J.

Present — Barnard, P: J., Hykman and Cullen, JJ.

Decree of surrogate modified according to opinion.- Order to be settled by Cullen, J.


author: Dykman, J.;

text:
    BENJAMIN A. MAYOR, Appellant, v. ANNIE E. MAYOR and Others, Respondents.

      Practice — actions for partition of land lying in different counties — power of the court to consolidate them, though the defendants are not the same.

    Appeal by the plaintiff from an order made at Special Term, consolidating two actions brought for the partition of land situated in different counties, there being two defendants in one action who were not parties to the other action.
    The court at General Term said: “The plaintiff commenced two actions for the partition of land. The parties were the same, except that two defendants in one action had no interest in the land in the last suit. The land was in two counties. The court made an order consolidating the two actions, from which the plaintiff appeals. We think the consolidation was within wise discretion. The situation of the land in two counties presents no obstacle. Actions for partition and foreclosure, where the land lies in two counties, are not infrequent, and no difficulty has ever been experienced in the practice. That some of the defendants are interested in some parcels and not in all raises no impediment.
    The actioti might well have been commenced by the plaintiff in the first instance against all the defendants, for the partition of all lands in which he had a common interest. He has an interest in all the land included in the consolidated action. There is, therefore, no objection for him, or which he can make available.” •
    The order should be affirmed, with ten dollars costs and disbursements.

      Abram Kling, for the appellant.

      JDmid Barnett, for the defendants Coffin and Edwards, respondents.
   Opinion by

Dykman, J.;

Barnard, P. J., and Cullen, J., concurred.

Order consolidating actions affirmed, with costs.


text:
    CHARLES J. QUIMBY, Respondent, v. HORACE B. CLAFLIN and Others, Appellants.

      Amendment to complaint — a cause of action barred by iho statute of limitations - cannot be allowed to be inserted as an a/mendment.

    Appeal from an order made at a Special Term, allowing the plaintiff to amend his complaint.
    The court at General Term said: “ The order appealed from gave leave to the plaintiff to amend his complaint by adding, as a third cause of action, a further claim against the defendant of thirty- . four thousand dollars.
    “The claim was barred by the statute of limitations. We arq1' of opinion that the order was unauthorized. The defendants have a right to the bar of the statute. It is conceded that the plaintiff could not maintain an original action on the claim. The claim is gone. Does it alter the rights of the parties that the plaintiff happens to have another litigation with defendant, into which it is proposed to incorporate this claim. On the theory of the plaintiffs, the pendency of an action between parties, it may be on a single promissory note, would keep alive all contract claims against either party during the time consumed by the litigation, at least to the extent of making it discretionary with the court to allow the prosecution of such claims by means of an amendment to the pending action. We think this cannot be. The uniform current of authority is opposed to such a doctrine.” ^Weston v. Worden, 19 Wend., 648; Willink v. Renwick, 22 id., 608; Williams v. Cooper, 1 Hill, 637.)

      Robert 8. Green, for the appellants.

      I. T. Williams, for the respondent.
   Opinion by

Cullen, J.

Present — Barnard, P. J., Dykman and Cullen, JJ.

Order reversed, with costs and disbursements.


text:
    Bowker Robinson, Respondent, v. John A. Rowland and others, Assessors, etc., Appellants.
   Motion denied.


text:
    Byron Bird v. Emily H. Crane.
   Motion denied.


author: Dykman, J.

text:
    Maria Schlichtling, Administatrix, etc., v. Lewis Wintgen.
   Motion for reargument granted. Opinion by

Dykman, J.


text:
    Isaac H. Jones, Respondent, v. Oliver J. Jones and others, Appellants.
   Appeal withdrawn.


author: Barnard, P. J.

text:
    David B. Amos, Respondent, v. Stephen R. Bradley, Appellant.
   Order vacating expa/rte order amending notice of appeal affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    David B. Amos, Respondent, v. Stephen R. Bradley, Appellant.
   Order denying resettlement of order, and denying reargument affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


author: Dyicman, J.;

text:
    Charles T. Goodwin, Executor, etc., and Amelia P. Ingraham, Executrix, etc., Respondents, v. George E. Ingraham and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Dyicman, J.;

Barnard, P. J., dissenting.


text:
    The People of the State of New York ex rel Thomas Wilson, Respondent, v. John M. Rowell, Clerk, etc., Appellant.
   Reargument ordered.

Dykman, J., not sitting.


text:
    Alfred Curry, Respondent, v. John W. Adams, Appellant.
   Judgment of County Court affirmed, with costs. Opinion by

Dykman, J.


text:
    Alfred Curry, Respondent, v. John W. Adams, Appellant.
   Order denying new trial upon case made, and upon affidavits alleging newly discovered evidence, affirmed with costs and disbursements. Opinion by

Dykman, J.


text:
    John Foster, Respondent, v. James H. Romer, Appellant.
   Order of County Court vacating judgment affirmed, with costs and disbursements. Opinion by

Cullen, J.