text:
    EDWARD STAMM, Respondent, v. GEORGE H. BOSTWICK, Appellant.

      Injunction — it may he issued to restrain interference with the plaintiff’s possession, in an action to determine claims to real estate — Code of Civil Proaedv/re, secs. 603, 1638.
    Where, in an action brought under section 1638 of the Code of Civil Procedure to compel the determination of a claim made by the defendant to real estate, which is and has been for the term of three years in the actual possession of the plaintiff or his grantor, it is shown that there is danger that the possession of the plaintiff will be unlawfully disturbed or molested during the progress of the action, an injunction restraining the defendant from so interfering with the plaintiff’s possession may be issued under section 603 of the Code of Civil Procedure.
    Appeal from an order made at a Special Term denying a motion to dissolve an injunction.
    This action is brought under section 1638 of the Code of Civil Procedure to compel the determination of a claim, made by the defendant to the property in question, adverse to that of the plaintiff, and to restrain and enjoin the defendant from in any way interfering with the quiet enjoyment and possession of such property by the plaintiff.
    Upon the complaint, setting forth the plaintiff’s title and the defendant’s claim, and upon an affidavit showing that the defendant had brought one proceeding to dispossess the tenants of the property before a civil justice, and having failed in that on the seventh of March, had, on the following day, the eighth of March, obtained from a justice of the Marine Court a precept in a second like proceeding, and averring that the plaintiff and his tenants are put to great trouble and expense by unfounded and vexatious proceedings, and that the defendant is utterly irresponsible and without property, an injunction was granted enjoining the defendant from interfering with the plaintiff in the possession of the property, and from instituting any proceedings or prosecuting any already commenced to recover possession of the premises in question.
    The defendant moved, upon an affidavit of his attorney, to vacate the injunction. This affidavit averred, among other things, that the property in question came from the plaintiff’s daughter, and that “ because of the alienage of plaintiff, defendant claimed to be the heir at law; ” that a suit had been brought by the defendant against the tenants of the said premises for rent, and that he had recovered judgment therein, the plaintiff having notice of said suit (but it was not claimed that he was a party thereto). It is conceded in the affidavit that the two summary proceedings alleged by the plaintiff had been brought, and that the first had been dismissed because it was prematurely brought, and that, in the second, the plaintiff had intervened and filed an answer.

      Lewis Johnston, for the appellant.

      Paul Fuller, for the respondent.
   Daniels, J.:

This action is brought under the authority of section 1638 of .the Code of Civil Procedure, which authorized a person who has been in actual possession of real estate, or whenever he and the person from whom the estate has been derived have held such possession, for a term of three years, under the circumstances therein mentioned, to maintain an action to compel the determination of a claim to the property adverse to that of the plaintiff. And it is clearly contemplated by the provisions enacted to control the proceedings in the action, that the plaintiff should be continued in the possession during its pendency. Por that reason, where there is danger of his possession being unlawfully disturbed or molested in the meantime, an injunction may be issued under section 603 of the Code of Civil Procedure. Por the case will then be one where the disturbance of his possession during the pendency of the suit would produce injury to him. And it appears, by the affidavit sustaining the application for the injunction, that the defendant not only designed but was actually interfering with his possession of the premises in controversy. And as that has not been denied, the case was clearly one for an injunction, within the section last referred to and that immediately following it.

The action is not within the cases which have been decided relating to the right of the tenant to restrain by injunction summary proceedings brought to recover possession of demised premises, for that was not its principal object. The purpose of the suit was to determine the conflicting claim of the defendant to'the property in controversy, and the restraint imposed upon his proceedings was incidental only to the complete accomplishment of the purposes of the action, and for that end the injunction was entirely proper. It was also carefully guarded by the direction requiring the deposit of the rents with the Union Trust Company to the credit of the action, and accordingly no possible injury can be sustained by the restraint imposed upon the defendant.

It was claimed in his behalf that as a recovery of rent_was had in his favor in the Court of Common Pleas against one of the tenants, and the plaintiff was present in the court during a portion of the trial, that his claim of title had, in that manner, been virtually decided against him. But this position cannot be maintained for he was not a party to that action, and the mere circumstances that he was present observing the proceedings without the right to produce witnesses or cross-examine those sworn on behalf of the defendant, will not affect him by the result of the trial.

The order in the case should be affirmed, together with ten dollars costs, besides the disbursements.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Davis, P. J.;

license: Public Domain

text:
    AMASA T. KINGMAN, Appellant, v. THE ROME, WATERTOWN AND OGDENSBURGH RAILROAD COMPANY, Respondent.

      Persons -buying stock, in order to bring actions for past wrongful acts of directors, a/re not fmored by courts of equity.

    Appeal from an order made at a Special Term, denying a motion for an injunction.
    The court at General Term said: “ This is an appeal from an order denying a motion on the part of the plaintiff to continue an injunction. Both the plaintiff and his assignor appear to have become owners of the one hundred shares of stock on which the suit is brought, sometime after the proceedings had been taken, of which complaint is made, the stock having been transferred to the assignor on January 10, 1883, and to the plaintiff on January 16, 1883 ; and the action of the directors, of which complaint is made, was taken in the month of December previously. It seems to be a fair inference from these facts, that the plaintiff and his assignor bought into the company for the purposes of bringing this suit and carrying on this litigation, and it has been held in several cases that persons occupying that relation to a transaction are not entitled to any special favor of the court. (Robson v. Dodds, L. R., 8 Eq., 801; Homes v. Oakland, 104 U. S., 461; and see Rule of Practice in Equity in the U. S. Courts, 104-U. S.) Such parties are regarded as interlopers seeking to disturb the rights of innocent holders of stock, to their great prejudice, and should not be allowed to have or retain injunctions where their rights can be preserved by awarding damages for such injury as they may have sustained.”

      The court then held that in any event the plaintiff had failed to make out a clear case entitling him to an injunction.

      Stanley, Clarke & Smith, for the appellant.

      Twrner, Lee c& McClure, for the respondent.
   Opinion by

Davis, P. J.;

Beady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    HENRY KUPFER, Respondent, v. MARY FRANK, Appellant, Impleaded, etc.

      Judgment — an execution cannot be issued, upon it until it has been docketed, — the jwe yea/rs, within which an execution must issue, a/i'e to be computed, from that time.

    Appeal from an order made at a Special Term, denyingamotion to vacate an injunction.
    This is an action in the nature of a creditor’s bill, founded upon a judgment and an execution issued and returned nulla tona, and it seeks assets of the appellant to be applied upon such judgment. The assets consist of a claim against the Mutual Life Insurance Company, arising upon a policy of insurance in the name of the appellant on the life of her husband. The only question that seems to have been presented at Special Term was whether the complaint shows an execution duly issued within five years from the time the judgment was rendered. The allegations of the complaint are sufficient upon that question to show the issuing of an execution within that time; but it is shown by affidavit -that the judgment was for deficiency arising upon the sale of mortgaged premises in an action of foreclosure, and it is also shown that the judgment of foreclosure and sale was rendered on the 5th day of September, 1876, and that on the 25th day of October, 1876, the referee’s report of sale was made in the action bearing date on that day, which shows a deficiency, for which judgment was docketed on the 22d of January, 1878.
    The court at General Term said: “ If such docketing was the entry of the judgment wittiin the meaning of the Code, then the issuing of the execution on the 13th of December, 1882, was within five years. The Code provides (sec. 1375) that executions may issue, of course, at any time within five years after the entry of the judgment, and by section 1365 that an execution' against property can be issued only to the county, in the clerk’s office of which the judgment is docketed.
    “We are inclined to think that the .court below was correct in construing these sections as authorizing the issuing of execution in this case. On the filing of the referee’s report of deficiency, the judgment declaring the liability, of the defendants for such deficiency was not brought to a condition in which execution could issue; therefore something more was necessary to be done, and we are of opinion that the sections referred to, of the Code, are intended to limit the time within which executions may issue of course upon any judgment, to the period of five years after the right to issue the same has fully accrued. In this case, the right did not accrue until the judgment was duly docketed, and that not having been done until the time above named, the execution is shown upon the facts to have been issued within five years.” * *

      A. E. Dyett, for the appellant.

      Ezra A Tuttle, for the respondent.
   Opinion by

Davis, P. J.;

Brady and Daniels, JJ., concurred.

Order affirmed, without costs.


text:
    THOMAS T. AHRENBERG and Others, Respondents, v. JAMES A. WRIGHT and Others, Appellants.

      Charter party — guaranty as to the condition of the vessel — to what time the guaranty relates.

    Appeal from a judgment in favor of the plaintiffs, entered upon a verdict directed by the court, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The court at General Term said: “ The charter party on which this action was brought was executed in London on the 7th of January, 1879. It contained the following words: ‘Guaranteed to class A 1\ in Am. Lloyds.’ The ship was then at Trieste, or had already left that port for New York.
    “ The main question of the case is as to the meaning of the clause just quoted. On the part of the defense it is claimed that the words £ guaranteed to class A in Am. Lloyds ’ means that the vessel is of the class stated at the time of the execution of the charter party, while on the part of the plaintiff it is insisted that those words mean that she shall be of that class at the time she is ready to enter upon the performance of the charter party.
    “The court below ruled in favor of the plaintiff’s contention. We think that ruling is correct. The vessel was in a foreign port or on the sea in the course of a voyage from a foreign port to New York. Her exact condition was not known, and it cannot’ be assumed to have been the intention that the defendants should accept her under the charter party, if when she reached New York she proved to be in a condition which would require her class to be rated differently than that guaranteed in the charter party.
    “ The description in a charter party of a ship as A 1 warrants that she is so at the time of making the charter party, not that she will continue to remain so. This point was determined in Hurst v. Cóbora (36 Eng. Law and Eq., 299). In that case the vessel was described as rated A 1 at the time of entering into the charter party, but being then on a voyage she met with disaster after that date. The court held that it was sufficient to satisfy the charter that she was in fact A 1 at the time of making it, and that there was no guaranty that she would continue to remain in that condition. But the language in this case is quite different, for the £ Solide ’ is not described as being A 1£, but she is guaranteed to class A 1£ in Am. Lloyds, which we think must be held to signify that she shall be in that condition and class when tendered upon the charter party at her port of destination.” * * *

      J. E. Parsons, for the‘ appellants.

      W. W. Goodrich, for the respondents.
   Opinion by

Davis, P. J.;

Daniels, J., concurred.

Present — Davis, P. J., and Daniels, J.

Judgment affirmed.


author: Daniels, J.;

text:
    JOHN VAN ROY, Respondent, v. CLARA MORRIS HARRIOTT, Appellant.

      Examination of a party before trial — the residence or office address of the applicant's attorney must be stated in the moving affidavits — Code of Civil Procedure, sec. 877.
    Appeal from an order made at a Special Term denying a motion to vacate an order requiring the defendant to appear and be exam- - ined as a witness at the instance of the plaintiff before trial.
    The court at General Term said: “ By the affidavit upon which the order was made it appeared that an issue of fact had been joined in the action by the service of the defendant’s answer. But neither of the affidavits contained a statement of the residence or office address of the plaintiff’s attorney. The statement npon this subject was £ that defendant has appeared herein and that I, Albert Englehardt, of 291 Broadway, New York city, is her attorney.’ This was not a compliance with what has been positively required by subdivision 1, section 872 of the Code of Civil Procedure, to entitle a party to the examination of an adverse party as a witness before trial. The legislature have prescribed precisely what shall be done, and no difficulty whatever can stand in the way of complying with these requirements. Where that is not done no right to examine the adverse party in this manner will be made out. (Bimham, v. Mercantile Mutual Ins. Go., 6 Abb. N. C., 70.)
    “ In Beach v. Mayor, etc. (14 Hun, 79), the affidavit npon which a like order was made was similarly defective, and it was held by the court to be insufficient to entitle the party to the examination. This authority is decisive against the order in this case. It was irregularly made, and it should be reversed with the usual costs and disbursements.”

      A. J. Bittenhoeffer, for the appellant.

      O'Byrne & Stewctrt, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., concurred.

Present — Davis, P. J., and Daniels, ¿T.

Order reversed, with costs.


author: Per Curiam.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent. SAME, Appellant, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Respondent.

      Mandamus — proper mode of dismissal of application for, upon the failure of the people to prosecute.

    Appeals from orders made at Special Term, requiring tbe attorney-general to proceed with an application for peremptory writs of mandamus and setting the causes down for bearing.
    Upon a previous appeal to tbe General Term, orders made at tbe Special Term quashing and dismissing petitions for a ma/ndamus bad been reversed. (28 Hun, 548.)
    Tbe court at General Term said : “ Tbe decision of tbe General Term reversing tbe ordérs of tbe court below, which denied tbe motions for mandamus, left those motions undisposed of in tbe court below. Tbe application on tbe part of tbe respondents to have those motions disposed of by tbe Special Term was proper; but when tbe moving parties came into court and declined to proceed with tbe motions, tbe Special Term should have denied tbe motions, with or without costs, in its discretion.
    “ There was no special proceeding pending which entitled tbe respondents to have tbe case set down for trial at the Special Term. That was done by tbe order of tbe court below. They were like' ordinary motions noticed by a party who subsequently declines to proceed upon bis notice, and tbe disposition above suggested, to wit, by denying tbe motion, was tbe proper one to relieve tbe respondents from any further action on tbe part of tbe people.
    “ Tbe order should therefore be modified by simply denying tbe motions noticed at Special Term for mandamus, and as so modified affirmed, without costs.”

      E. G. James, for the appellant.

      William D. Shipman, for the New York, Lake Erie and Western Railroad Company, respondent.

      Poscoe Conhling, for the New York Central and Hudson River Railroad Company, respondent.
   Opinion

Per Curiam.

Present — Davis, P. J., Brady and Daniels, JJ.

Orders modified as directed in opinion and affirmed as modified,, without costs.


author: Bbadt J.;

text:
    THOMAS A. HARDY, Respondent, v. CHARLES G. PETERS and Others, Appellants.

      Pkeamination of a party before trial as to Ms receipt of telegrams, eta. — when it should be allowed, — Oode of Givil Procedure, sea. 872. *
    Appeal from an order made at a Special Term, vacating an order for the examination of the plaintiff before trial.
    This action was brought by a customer against his stock brokers to recover damages alleged to have been sustained by the wrongful sale of stocks. The answer admits that the sales referred to were made, but alleges that they were properly consummated and upon due notice to the plaintiff by whom they were ratified. Upon the pleadings and the affidavits of the defendant Peters and one of the defendant’s attorneys, an order was granted for the examination of the plaintiff as a witness before trial. Upon the return day of the order the plaintiff’s counsel upon the defendants’ papers moved to vacate it and the motion was successful, the learned justice presiding stating it to be his opinion that the applicant sought only to find out what the plaintiff would swear to so as to enable him to meet and overcome it.
    The court at General Term said: “ The papers on which the order for the examination ofó the plaintiff was predicated were sufficient prima, facie in form to entitle him to such examination and, as will appear, in matters of substance as well. The gravamen of the defense is the notification, which relates not only to demands for margin, but also to the time and place of the intended sale of -the stocks of which complaint is made.

      “ The affidavit of Mr. Peters shows that the plaintiff, during a part at least of the period covering these transactions, was not in the city of New York, and. that rpost of the notices were sent by telegram, and the allegation is that they desire and expect to prove that the plaintiff did receive some or all of the notices so sent to him and when and where he received them. It is true that the plaintiff in his complaint alleges as follows :
    “1 That defendants never demanded of plaintiff that he should deposit collateral security or margin, nor was there at any time any suggestion made or notice given to plaintiff by said defendants that said collateral security was desired or required by defendants before the alleged sale of stocks as hereinafter mentioned.’
    “ But the defendants are not absolutely bound by this declaration, and although the means of proving these facts and the delivery of the notices by telegram at the offices to which they were sent may be accessible it is quite apparent that proof of their actual delivery may be attended with many difficulties from which the defendants ought to be relieved. • In reference to these notices and demands for margin or collateral security it may be said, it is true, that if the plaintiff upon his examination adheres to the statements made in the complaint, of course the examination] will not result in any advantage to the defendants, ilut of this the court cannot be assured from anything at present before it. Won constat but that some facts and circumstances will be revealed upon the examinar tion which would justify the inference that the plaintiff was mistaken in the allegation made, arising either from forgetfulness or other circumstances about which it is not necessary to indulge in any conjectures. If the application here were regarded as a fishing expedition it would not be entertained for a moment, and this court would concur readily and cheerfully in the result expressed by the learned justice in the court below. But the court is not impressed that such is the character of the application. The plaintiff appears to have been traveling from place to place during a part of the period over which the transaction extended, and if the telegrams- were sent it seems to be unjust ,'to withhold, under our existing statutes, the right of examining him for the purpose of ascertaining whether he received them or not.
    “ We do not deem it necessary to go into the consideration of the adjudications in reference to this subject, because whenever it appears that the examination of an adversary is material and necessary, and the application is one not for the purpose of extracting evidence from him by unnecessary procedure, and when its good faith cannot be seriously questioned, it is almost a matter of course under our statute to direct the examination in the furtherance of justice. In this case upon the papers presented all these elements ' are apparently present, and for that reason it is thought that the ordér appealed from should not have been made under the circumstances. It is further thought that it should be reversed, with ten dollars costs and the disbursements of the appeal.”

      G. L. Rives, for the appellants.

      J. W. Lawson, for the respondent.
   Opinion by

Bbadt J.;

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

Order reversed, with ten dollars costs and disbursements.


text:
    LAZARUS S. MURAD, Respondent, v. ELLIS R. THOMAS, Appellant, Impleaded, etc.

      Commitment of a party for contempt — attendance of such a party upon the court • upon an application for his discharge — -,such attendance does not entitle him to claim the privilege of a witness and freedom from arrest while so in attendance.

    Appeal from an order made at a Special Term denying a motion to set aside a commitment.
    A fine had been imposed upon the defendant by an order of the court because of his violation of an injunction, and his commitment was ordered until hp should pay the fine or be otherwise sooner discharged by the court. Under this order a commitment had been issued upon which the defendant was arrested and committed to prison, and he applied for his discharge from the imprisonment, by habeas corpus, on the ground of the insufficiency of the commitment itself.
    During the pendency of that proceeding he was committed to the custody of his counsel, and appeared in person when it was finally decided and an order made for his discharge. Immediately succeeding this order a further commitment was issued upon which the defendant was at once arrested, and he applied to be relieved from that arrest for the reason that he was privileged as a party in , attendance upon the other proceeding.
    The court at General Term said: “For all the purposes of the case he continued in custody from the time when he was brought before the judge by the habeas corpus until the order was made for his discharge. Theoretically as well as in fact he was during the whole time under restraint and could not, therefore, entitle himself to be relieved from the second commitment on any ground' of privilege from arrest. This second commitment was issued to supply the defects found to exist in the one which preceded it, and for that reason it was sanctioned by the practice of the court. (Snyder v.,Van Ingen, 9 Hun, 569.)' It was warranted by the order itself, which directed the effectual imprisonment of the defendant until he should pay the fine imposed upon him or be otherwise discharged, and that under the circumstances could only be secured by issuing and executing the second commitment.” * * *

      F. Cooke, for the appellant.

      8. F. Kneeland, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., and Heady, J".,.concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Brady, J.

text:
    In the Matter of the Accounting of William Simpson, and In the Matter of Walter Stevenson.
   Order modified as directed in opinion. Opinion by

Brady, J.


author: Daniels, J.

text:
    Frederick W. Pratt, Respondent, v. Beriah G. Underwood, Appellant.

   Order modified as directed in opinion, without costs to either .party. Opinion by

Daniels, J.


text:
    Gordon McKenzie, Respondent, v. Nicholas H. Decker, Appellant.

   Judgment modified as directed, and affirmed as modified, without costs to either party. Opinion by

Brady, J.


author: Davis, P. J.

text:
    Frederick Reck, Appellant, v. The Phœnix Insurance Company, Respondent.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    Same, Appellant, v. Same, Respondent.

   Order reversed and motion for leave to amend granted, without terms or costs. Opinion by

Davis, P. J.


text:
    Abraham Hewlett and others, Appellants, v. William Elmer, Respondent.

   Decree affirmed, costs, to respondent out of the funds. Opinion by

Davis, P. J.


author: Brady, J.; Davis, P. J.,

text:
    In the Matter of Stephen B. French.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.;

Davis, P. J.,

dissenting.


author: Daniels, J.,

text:
    Catharine Lachenmeyer, Appellant, v. August Lachenmeyer, Respondent.

   Order reversed; order entered as directed in opinion by

Daniels, J.,

and by Brady, J., dissenting.


text:
    Solomon Loeb, Respondent, v. Benjamin A. Willis, Appellant, Impleaded, etc.

   Judgment affirmed, with costs.

Opinion, by

Brady, J.


author: Davis, P. J.,

text:
    Emeline F. Tooker, Respondent, v. Joseph S. Winston, Appellant.
   Judgment modified as directed in opinion. Opinion by

Davis, P. J.,

and by Brady, J., dissenting.


author: Brady, J.,

text:
    Francis Bruecher, Appellant, v. The Village of Port Chester, Respondent.

   Judgment reversed,' with costs. Opinion by

Brady, J.,

and by Davis, P. J., dissenting.


text:
    Fabiano R. Francke and Jonas R. Francke, Appellants, v. Kate L. Youmans and Edward L. Youmans, Respondents.

   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    Arnold J. D. Wedemeyer, Respondent, v. William F. Redlich, Appellant.

   Judgment reversed, new trial granted, costs to appellant to a&ide event. Opinion by

Davis, P. J.


text:
    Rachel Acker and others, Appellants, v. James English, Respondent.
   Judgment affirmed, with costs. Opinion by

Daniels, J.


text:
    Peter Van Zandt Lane, Appellant, v. Jedediah R. Haywood, Respondent.

   Judgment affirmed. Opinion

Per Curiam.


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

text:
    Virginia B. Matthews, Appellant, v. Kenneth M. Murchison, Respondent.

   Order affirmed, with ten dollars costs and disbursements. Opinions by

Brady, J., and Davis, P. J.


text:
    Gordon McKenzie and another, Respondents, v. Nicholas H. Decker, Appellant.

   Judgment modified as directed in opinion. Opinion by

Brady, J.


text:
    John B. Devlin, Appellant, v. The Mayor, etc., of the City of New York, Respondent.

   Order affirmed on plaintiff stipulating as required in opinion, costs to abide event. Opinion by

Davis, P. J.


text:
    Ann Slevin, Respondent, v. Margaret McCormack, Appellant, Impleaded, etc.

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    John L. Hobson and another, Executors, etc., Plaintiffs, v. Ruth C. Hare and others, Respondents, Impleaded with James Frank Hale and others, Appellants.

   Judgment affirmed, with costs to all parties out of the fund. Opinion by

Davis, P. J.


text:
    Henry A. Peck, Appellant, v. Charles A. Fredericks, Respondent.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Brady, J.


text:
    In the Matter of Edward S. Parsells.
   Order reversed, petition dismissed,- with, costs and disbursements. Opinion

Per Curiam.


text:
    In the Matter of Stephen H. Tyng.
   Orders affirmed, without costs. Opinion by

Brady, J.


author: Brady,'J.

text:
    John H. Browning, Appellant, v. Oliver W. Marvin, Respondent.

   Judgment affirmed, with costs. Opinion by

Brady,'J.


text:
    Sarah Taylor, Appellant, v. William P. Stymus, Respondent.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Brady, J.


text:
    John L. Hubbard, Appellant, v. Charles R. Otis, Respondent.
   Order modified as directed in opinion. Opinion by

Brady, J.


text:
    Lucien Birdseye, Respondent, v. Charles W. Goddard, Appellant.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    John Murphy and another, Plaintiffs, v. Jasper R. Rand and Addison C. Rand, Appellants, Impleaded with John Mulholland and The Bowery National Bank, Respondents.

   Judgment reversed-, new trial ordered, costs to abide event. Opinion by

Brady, J.


text:
    Seth M. Milliken, Respondent, v. Andrew McLean, Appellant.
   Judgment and order affirmed. Opinion by

Davis, P. J.


text:
    In the Matter of Samuel A. Lewis.
   Decree affirmed, with costs. Opinion by

Daniels, J.


text:
    George H. Higgins, Respondent, v. Hannah W. Higgins, Appellant.
   Judgment reversed, new trial ordered, without costs. Opinion by

Daniels, J.


text:
    John E. Waller, Respondent, v. Lewis Lyon, Appellant.

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

Davis, P. J.


text:
    Henry E. Sprague, Respondent, v. Edwin Butterworth and others, Appellants.
   Judgment and order affirmed. Opinion by

Daniels, J.


text:
    Charles F. Holly, Respondent, v. The Metropolitan Life Insurance Company, Appellant.

   Judgment affirmed, with costs. Opinion by

Daniels, J.


text:
    John Fay and another, Respondents, v. John T. Lynch, Appellant, Impleaded, etc.

   —Judgment affirmed. Opinion by

Daniels, J.


text:
    Philip Schulhoff, Respondent, v. Co-Operative Dress Association, Appellant. Same v. Same.
   Orders affirmed, with ten dollars costs and disbursements in one case. Opinion by

Davis, P. J.


text:
    Alexander Vandenburgh and others, Appellants, v. William H. Hallock and others, Respondents.

   Judgment reversed, new trial ordered,.costs to abide event. Opinion by

Daniels, J.


text:
    Electrical Power Storage Company (Limited) Appellant, v. Walter B. Whiting and others, Respondents.

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Same v. Same.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    The People of the State of New York ex rel. The West Side and Yonkers Railway Company v. The Commissioners of Taxes and Assessments of the City of New York.
   Order of commissioners reversed. Opinion by

Brady, J.


text:
    The First National Bank of Montrose, Respondent v. William B. Harwood, Appellant, Impleaded, etc.

   Order reversed, without costs, on appellant stipulating not to sue for false imprisonment. Opinion by

Davis, P. J.


text:
    Maria C. Boschart, Respondent, v. Charles Koch, Appellant.

   Judgment affirmed, with costs. Opinion by

Daniels, J.


text:
    Mary O’Hara and another, Appellants, v. William H. Dudley and another, Respondents

   Judgment affirmed, costs of appeal of both parties to be paid out of the fund. Opinion by

Davis, P. J.


text:
    In the Matter of Thomas McKenna.
   Decree affirmed, costs of appeal of both parties to be paid out of the fund. Opinion by

Davis, P. J.


text:
    Henry A. Barnum, Appellant, v. Oscar Tomagno, Respondent.

   Judgment affirmed, with costs. Opinion by

Daniels, J.


text:
    Theodore H. Knox, Appellant, v. John D. Hutchinson, Respondent.

   Order affirmed, with costs. Opinion by

Brady, J.


text:
    Alfred L. Simonson, Respondent, v. William Elmer, Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    Milton H. Robertson, Respondent, v. Samuel Schuyler, Appellant.

   Judgment reversed and a new trial ordered, with costs to abide the event, unless plaintiff stipulate within twenty days after iiotiee of decision to deduct the sum mentioned in opinion, with interest from the amount of the judgment, in which event the judgment as so modified affirmed, without costs. Opinion by

Daniels, J.


text:
    John Roach and others, Respondents, v. Isaac F. Duckworth, Appellant.

   Judgment affirmed, with costs. Opinion by

Davis, P. J.


text:
    Joseph J. Kittle and others, Respondents, v. Daniel J. O’Brien, Appellant.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Anthera Manufacturing Company, Respondent, v. William H. Burton and another, Appellants.

   Order affirmed, with ten dollars costs and disbursements to abide event.


text:
    In the Matter of Charles Oster.
   Order reversed, motion granted, with ten dollars costs and disbursements to abide event.


text:
    Florence M. De Meli, Respondent, v. Henry A. De Meli, Appellant.
   Order affirmed, with, ten dollars costs and disbursements.


text:
    Edward Schell, as Trustee, etc., Respondent, v. Theodore Y. Brown, Appellant.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Lena Mannheimer, Respondent, v. Siegfred Mannheimer, Appellant.

   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of Alexander P. McCue.
   Motion granted, with ten dollars costs.


text:
    In the Matter of Opening Seventy-fourth Street.
   Motion denied.


text:
    John Van Roy, Respondent, v. Clara Morris Harriott, Appellant.

   Case allowed to be resubmitted.


text:
    George F. Gantz and others, Respondents, v. John W. Holgate, Appellant.

   Beargument ordered. Opinion

Per Curiam.


text:
    In the Matter of J. Harsen Rhoades.
   Order affirmed, with ten dollars costs and disbursements.


text:
    John I. Lawrence and others, Trustees, Appellants, v. Charles Kohlman, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of John C. Bray.
   Order affirmed, with ten dollars costs and disbursements.


text:
    William I. Chase and another, Appellants, v. Nelson Chase and others, Appellants. Henry Newman, Purchaser, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Patrick Rafferty, Executor, etc., Appellant, v. Alice L. Donohue, Respondent.
   Judgment affirmed, without costs. Opinion by

Daniels, J.


text:
    Alfonso Garofalo, Respondent, v. Guiseppe Errico and others, Appellants.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Anna Lally, Appellant, v. Samuel H. Everett, Respondent.
   Judgment affirmed.


text:
    The Schenectady Stove Company, Respondent, v. Charles Holbrook and others, Appellants.
   Judgment affirmed.


text:
    William I. Chase and another, Respondents, v. Nelson Chase and others, Respondents. Marcus L. Stieglitz, Purchaser, Appellant.

   Order reversed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Nelson B. Killmer, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment affirmed.


text:
    Mary Simon, Appellant, v. Wilhelmina F. Schmidt, Respondent.
   Judgment affirmed, with costs and with leave to the aupellant to amend on the usual terms, without prejudice to a proper action to redeem.


text:
    William H. Coffin and another, Respondents, v. Adolph Lange and another, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Jonathan Woodruff, Respondent, v. Charles G. Schneider, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Gilman Goodwin, Respondent, v. The National Bank of Malone, Appellant.
   Order reversed, and motion granted, with .ten dollars costs and disbursements .to abide event.


text:
    The Emigrant Industrial Savings Bank, Respondent, v. Thomas J. Clute, Appellant, Impleaded, etc.

   Judgment affirmed, with costs.


text:
    Cyrus H. McCormick, Respondent, v. The Pennsylvania Central Railroad Company, Appellant.
   Judgment affirmed.


text:
    In the Matter of the Estate of Joseph C. Pinckney.
   Decree affirmed, with costs. '


text:
    Milton T. Wooley, Appellant, v. John W. Stevens, Respondent.
   Judgment and order affirmed, with costs. Opinion by

Daniels, J.


text:
    Joseph Simon, Appellant, v. Marcus Fleischaner and another, Respondents.

   Order modified as directed in' opinion. Opinion

Per Curiam.


text:
    George F. Train, Jr., Appellant, v. Max Freidman and others, Respondents.

   Order reversed, with ten dollars costs and disbursements to abide event. Opinion

Per Curiam.


text:
    Edward C. Hazard and Frank Green, Appellants, v. Evolin B. Robertson and others, Respondents.

   Order affirmed, with ten dollars costs and disbursements to abide event.


text:
    Henry Wallack and others, Respondents, v. Isaac Sippili, Appellant.

   Order reversed; attachment vacated, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    The People of the State of New York v. The Globe Mutual Life Insurance Company.
   Order reversed; motion denied, without costs. Opinion

Per Curiam.


text:
    Charles Sternbach and another, Appellants, v. Spencer A. Fanning, Respondent.

   Judgment affirmed, with costs.


text:
    Adolph Hermann, Respondent, v. The Niagara Fire Insurance Company, Appellant.

   Judgment affirmed.


text:
    Charles R. Purdy and another, Respondents, v. Orlando L. Stewart, Appellant.

   Order reversed, without costs. Opinion by

Brady, J.


text:
    Charles E. Berger, Appellant, v. The New York and Harlem Railroad Company, Respondent.

   Judgment reversed, new trial ordered, costs to abide event. Opinion

Per Curiam.


text:
    Samuel Baron, Respondent, v. Aaron Brummer and another, Appellants.

   Judgment affirmed, with costs.


text:
    In the Matter of Alexander McCue.
   Decree reversed, with costs; issues ordered to be tried by a jury; order to be settled by Daniels, J. Opinion by

Daniels, J.


text:
    Martin V. Purple and another, Appellants, v. William Webb and another, Respondents.

   Judgment affirmed, with costs.


text:
    Joseph A. Vose, Respondent, v. Francis S. Street, and another, Appellants

   —Judgment reversed, new trial ordered, costs to abide event. Opinion by

Brady, J.


text:
    James S. Haviland and others, Appellants, v. William H. Schmohl, Respondent, Impleaded, etc.

   Judgment affirmed, with costs. Opinion by

Daniels, J.


text:
    Eliza G. Tuers and others, Respondents, v. Sylvester P. Tuers, Appellant.

   Judgment affirmed.


text:
    Lorenz Zeller, Respondent, v. Calvin E. Powell, Appellant.

   Order reversed, motion, granted, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Mather B. Almon and others, Respondents, v. James G. Hamilton and others, Appellants. The Bank of Nova Scotia, Respondents, v. James G. Hamilton and others, Appellants.

   Judgment affirmed.


text:
    Julius Forstmann, Appellant, v. Herman Schulting, Respondent.

   Order reversed and motion granted, without costs. Opinion

Per Curiam.


text:
    George S. Scott and others, Appellants, v. Jane R. Stockwell, Administrator, etc., and others, Respondents.

   Order affirmed, without costs.


text:
    John C. Wilmerding and others, Appellants, v. John Cunningham, Respondent.

   Order affirmed, with ten dollars costs and disbursements.


text:
    George F. Victor and others, Respondents, v. John Cunningham, Appellant. James McCreary and others, Respondents, v. John Cunningham, Appellant. Samuel P. Hyman, Respondent, v. John Cunningham, Appellant.

   Orders affirmed, with ten dollars costs and disbursements in one case. '


text:
    August Pleninger, Respondent, v. Frederick Homeyer and another, Appellants.

   Order reversed, with ten dollars costs and disbursements, and judgment set aside, without costs. Opinion by

Daniels, J.


text:
    Michael Byrne, Respondent, v. The American Heating and Power Company, Appellant.

   Order affirmed, with ten dollars costs and disbursements.'


text:
    The People of the State of New York ex rel. George Hill v. John McKeon, as District Attorney, etc.

   Order affirmed, with . ten dollars costs and disbursements.


text:
    Jeremiah O’Neil, Appellant, v. William D. Hoover, Respondent.

   Order modified by requiring defendant, as condition of opening judgment, to pay amount of sheriff’s fees and expenses, as specified in opinion. Opinion by

Daniels, J.


text:
    Same v. Same. Same v. Same. Same v. Same.
   Orders modified as above directed.


text:
    Robert H. Parks, Appellant, v. John M. Hughes, Respondent, Impleaded, etc.

   Order affirmed, with ten dollars costs and disbursements.


author: Larremobe, J.,

text:
    Algernon S. Sullivan, Public Administrator, etc., Respondent, v. Isaiah C. Babcock and others, Appellants.

   Judgment affirmed on opinion of

Larremobe, J.,

in the court below, with costs.


text:
    William A. Mills, Respondent, v. James W. Sackett, Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    Joseph A. Vose, Appellant, v. Charles F. Chickering and another, Respondents.

   Judgment affirmed.


text:
    Austin S. Cushman, Respondent, v. Henry A. Mott, Appellant.

   Order affirmed, w-ith ten dollars eosts and disbursements.


text:
    In the Matter of Agnes Shaw.
   Decree reversed and issues ordered to be tried at circuit by a jury $ costs to abide event; order to be settled by Daniels, J. Opinion by

Daniels, J.


text:
    Margaret Sarvent and others, Appellants, v. Edward D. Hesdra and others, Respondents.

   Decree reversed and trial by a jury directed upon issues to be settled by the court, costs of appeal out of 'the fund to abide the event; order to be settled by Davis P. J. Opinion

Per Curiam.


text:
    William B. Smyth, Appellant, v. George W. M. Sturges, Respondent.

   Judgment affirmed.


text:
    William J. Callahan, Respondent, v. John S. Bancroft, Appellant.

   Motion denied.


author: Boardman, J.:

text:
    ANNA M. HOUSE, Respondent, v. AMBROSE J. EISENLORD and Others, Appellants.

      Costs — discretion qf the court as to, in equity cases — when it will not he reviewed hy the General Term.

    In this action, brought to foreclose a mortgage, it was claimed that the whole amount had become due by reason of the failure of the mortgagor to pay the sum of seventeen dollars and fifty cents of interest, within thirty days from ’ the time it fell due. The court held that the payment of the interest was deferred with the consent of the plaintiffs agent and in her interest, and under such circumstances as to prevent her from electing to consider the whole amount of principal secured by the mortgage as due. It further held that no sufficient tender of the interest had been made, and directed the usual judgment of foreclosure and sale, for the amount of interest due when the action was commenced, without costs.

      Held, that the action of the court in so doing, and in not awarding costs to the defendant, was not so unreasonable or oppressive as to require the review of its judgment.
    Appeal from a judgment of a Special Term in an action brought to foreclose a mortgage.
    The interest on the mortgage foreclosed, at seven per cent, was payable semi-annually — eighty-seven dollars and fifty cents on the first day of November and May in each year, and the principal, $2,500, five years from the date, May 25, 1879. It contained a clause providing that if any part of the interest should not be paid in thirty days after dne, the whole principal and interest should, at the option of the mortgagee or assigns, become due.
    The parties lived near each other in the same village until shortly before May, 1880, when plaintiff and her husband moved to and have since remained in Kansas.
    It was claimed by the appellant that when about moving away they left this bond and mortgage with her agent, to attend to for her, and that, desiring to obtain the whole principal, attention was called to the interest clause, and the' plan was then adopted of foreclosing if payment of any interest should be omitted for the thirty days.
    On May 27, 1880, the mortgagor paid the agent seventy dollars of the eighty-seven dollars and fifty cents due the first, and offered to get and pay the balance, seventeen dollars and fifty cents, then; but the agent told him he might let the balance go and take his time to pay it. The plaintiff accepted the seventy dollars and ratified the agent’s acts. The thirty days having passed, this suit was commenced, the plaintiff claiming that the whole amount had become due by reason of such .omission to pay this balance of seventeen dollars and fifty cents.
   Boardman, J.:

This action was brought to foreclose a mortgage. By reason off seventeen dollars and fifty cents of interest due May £5, 1880, . remaining unpaid more than thirty days, it was claimed that the whole principal became due and the foreclosure was begun, claiming the whole amount was due-under a provision of the mortgage so providing. The court finds that the payment of the seventeen dollars and fifty cents was deferred, with the consent of plaintiff’s agent and in her interest, under circumstances which prevented the plaintiff from taking any advantage thereof or electing that the whole sum unpaid became due by reason of such default'; that the foreclosure is legal and valid for the seventeen dollars and fifty cents which was the only sum due at the commencement of the action; that no sufficient tender of that sum had been made by the mortgagor and that the plaintiff is not entitled to recover costs. The usual judgment of foreclosure and sale was ordered. TLe defendant appeals, claiming that the action should not have been .sustained and that the complaint should have been dismissed, with; costs to defendant.

We do not consider this case unreasonable or oppressive. It is .not worthy of imitation. The defendant could at any time have paid the seventeen dollars and fifty cents. No obstacle was interposed. The neglect was his own voluntary act. So far as the plaintiff has attempted to take advantage of it she hás been thwarted and has her own costs to pay. The bad faith of her agent and her own have not profited the plaintiff, nor have they harmed the defendant beyond 'what is due to his own neglect to perform his contract and pay. his interest. The plaintiff waited from May till September before the action was brought. The foreclosure for the seventeen dollars and fifty cents was pursuant to law and' to the terms of the mortgage contract between the parties, and we think the judgment was proper.

The allowance of costs in equity actions is in the discretion of the trial court. That discretion will not be interfered with on appeal except in case of abuse, which cannot be claimed here, or of palpable error in disregard of-recognized equities and rights. (Morris v. Wheeler, 45 N. Y., 708; Barker v. White, 1 Abb. Ct. of App. Dec., 95.) In Noyes v. Clark (7 Paige, 179) it was the trial oowrt which exercised its discretion in the matter of costs, not an appeal as here. But in that case costs were not allowed the defendant. The same is true of Adams v. Staton (1 Bing., 69 S. C., 7 J. B. Moore, 365), a much stronger case for the defendant than the one under consideration, yet no costs were asked for or given to the defendant. The same is time of the case of Johnson v. Houlditch (1 Burr., 578) which was held to be an oppressive proceeding and for that reason the plaintiff was not allowed any costs. In Slee v. Manhattan (1 Paige, 49, 81), the mortgagor brought his action to redeem against the mortgagee. Because an unconscionable defense was interposed the trial court against the ordinary rule gave the plaintiffs costs. In Detillin v. Gale (7 Ves. 584), Lord Eldon says: “It is admitted there is no instance in which a mortgagee has been called upon to pay costs.” Such a precedent, he says, “ ought to be made upon great consideration.” That was a case by a client against his agent and solicitor (his mortgagee) for redemption. The solicitor by his bad faith in the use of his client’s money and in the conduct of the action made heavy costs, a part of which for these reasons were by the trial court charged against him. Pratt v. Ramsdell (7 Abb., 340, n.), is a Special Term case, and the decision was by the trial cowrt. In Law v. McDonald (9 Hun, 23) a decision was made, Learned, P. J., dissenting, reversing the judgment as to costs because not awarded in accordance with recognized principles of equity. It was considered an extreme exercise of the power of an appellate court. In that case the plaintiff had failed in one cause of action, tried at great length and expense, and succeeded in another. The trial- court charged the defendant with all the costs. In the case before us the defendant is charged with no costs. It was believed that the referee in Law v. McDonald had granted the plaintiff full costs through inadvertence and because his attention had not been called to the subject.

Had the trial court seen fit to give costs to the defendant this court would not in all probability have disturbed such decision. It would be equally improper to do so now. There was no abuse of discretion. Costs were not given to the mortgagee according to the. usual practice of the court. To that extent the discretion was exercised wisely in favor of defendant. Beyond that, the occasion for the litigation being the neglect of duty and failure to perform his promise by the defendant, he was entitled to no special consideration.

The case was properly disposed of by the learned justice at Special Term, and no good reason is apparent for protracting the litigation after the decision at Special Term.

The judgment is affirmed, with costs.

Learned, P. J., concurred.

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

Judgment affirmed, with costs.


author: Ingalls, J.:

text:
    DANIEL DE FREEST, Plaintiff, v. SAMUEL S. WARNER and MICHAEL H. WARNER, Administrators of MICHAEL WARNER, Deceased, Defendants.

      Statute of limitation —what is a sufficient written acknowledgment of the debt, within section 395 of the Oode of Owil Procedure.

    April 2, 1875, the defendants’ intestate conveyed certain real estate to his three sons. The deed contained a clause providing that ,the premises were conveyedvto the grantees “ subject to the following amounts due by me to the parties hereafter- specified, which forms a part of the consideration above expressed; and which I charge the said estate above conveyed with the payment thereof; and .which said several amounts, together with the interest, the said parties of the second part assume and agree to pay, -to Daniel De Freest (the plaintiff), about $600 * * * together with the legal interest thereon.” The deed was accepted by the grantees. In an action against the administrators of the grantor to recover the amount of the said debt, brought after the grantees, in an action brought against them, had been held to he discharged from liability therefor:

      Held, that the clause in the deed was a sufficient written acknowledgment of the debt hy the grantor, within section 395 of the Oode of Civil Procedure, to take the case out of the statute of limitations.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General. Term, after a verdict had been directed for the plaintiff at the circuit.
    The action was brought to recover upon four promissory notes, dated respectively May 1, 1871, August 25, 1871, August 3, 1872, and April 3,1873, made by Michael Warner, the father and intestate of the defendants.
    On the 2d day of April, 1875, Michael Warner executed and acknowledged a deed to his three sons (two of whom are the defendants in this action) of certain real estate in Rensselaer county. The deed Contained the following clause: “ The aforesaid piece and . parcel of land is this day sold and conveyed by the said Michael Warner to the said Samuel S. Warner, Michael H. Warner and Albert Warner, subject to the following amounts due by me to the parties hereinafter specified, which forms a part of the consideration above expressed, and which I charge the said estate above conveyed with the payment thereof, and which said several amounts, together with the interest, the said parties of the second part assumes and agrees to pay, to Daniel De Freest about $600, to Mrs. De Freest about $400, together with the legal interest thereon.”
    On the 3d day of May, 1875, interest was paid to plaintiff on each of the notes, and indorsed thereon. These payments were made by defendant Samuel S. Warner. Michael Warner died February 16,1876, and letters of administration were issued to the defendants and Albert Warner, their brother, who died before this suit was commenced.
    After Michael Warner’s deatfy, an action was brought by the Union National Bank of Albany (a creditor of Michael Warner, deceased, not named in the deed) against the three grantees in the deed of April 2, 1875, to set aside the deed as fraudulent and void as against the plaintiff in that action, and judgment was rendered setting aside the deed, and providing for the appointment of a receiver and the sale of the premises, in which judgment it was also provided that if there was any surplus the defendants pay it to the creditors of Michael Warner mentioned in the deed, and that after such surplus should be paid over to said creditors, and if a balance was still due them, the defendants should be discharged from personal liability, etc. The premises were sold under this judgment, and there was no surplus and no creditor got anything under this provision of the judgment.
    In 1878 the plaintiff sued the grantées in the deed ,to recover the amount of the notes in question, by virtue of the promise in the deed. The defendants set up ■ in defense the facts relating to the Union Bank judgment and the sale thereunder, and claimed they were not hable under their promise in the deed, and judgment was rendered in their favor.
    Upon being sued as administrators of Michael Warner, they pleaded the statute of limitations. To take the case out of the statute the plaintiff relied, first, upon the acknowledgment in the deed; and second, upon the payments of interest proved.
    The following opinion was delivered by the justice at Special Term, before whom this action was tried :
   Ingalls, J.:

It is only necessary to consider one question in deciding this action, which is whether the plaintiff’s cause of action has been barred-by the statute of limitations? The impression which I received at the trial, that the determination of such question must depend upon the effect to be given to the provision contained in the deed executed by Michael Warner to Samuel S. Warner, Michael H. Warner and Albert Warner, on the 2d day of April, 1875, in regard to the payment of the indebtedness in question, has been confirmed by reflection. The clause in the deed is as follows : “ The aforesaid piece or parceTof land is this day sold and conveyed by the said Michael Warner to the said Samuel S. Warner, Michael H. Warner and Albert Warner, subject to the following amounts due by me to the parties hereafter specified, which forms a part of the consideration above expressed, and which I charge the said estate above conveyed with the payment thereof; and which said several amounts together with the interest, the said parties of the second part assume and agree to pay to Daniel De' Freest, about $600; to Mrs. De Freest, about $400, together with the legal interest thereon.” The deed was accepted by the grantees. The fact that the demands which are sought to be recovered in this action are the same which are specified in the clause of the deed above set out, is not controverted. Without encumbering the consideration of this question with a history of the litigation in regard to such conveyance, and abstaining from a discussion of the numerous decisions which have been cited by the counsel, and others which I have encountered in examining this case, I will, as briefly as possible, state the result which I have reached, and the process by which it has been attained. The Code of Civil Procedure (§ 395), provides as follows: “ An acknowledgment or promise contained in a writing, signed by the party to be charged thereby, is the only competent evidence of a new or continuing contract whereby to take a case out of the operation of this title. But this section does not alter the effect of a payment of principal or interest.” The Code of Procedure (§110), was to the same effect. The acknowledgment or promise of Michael Warner, in order to be available to the plaintiff, must appear to have been made by Michael Warner to the plaintiff or to the grantees in the deed, for his benefit, and with the intention and expectation, on the part of said Michael Warner, that it would be ■communicated to . the plaintiff, and that such deed was delivered to and accepted by the grantees under circumstances which would fairly warrant the supposition and belief that the 'provision of the deed for the benefit of the plaintiff would be communicated to him byvsuch grantees. (Bloodgood v. Bruen, 8 N. Y., 362; Wakeman v. Sherman, 9 id., 86.) In the last case Judge Gardner, at page 91, remarks: “But in the second place, the promise was not made to the plaintiff or his agent, but to a stranger who was not authorized by the defendant to communicate with the plaintiff in any manner on his account.”

Again : “ The promise must be made to the creditor, or some one acting for him, or, if made to a third person, must be calculated and intended to influence the action of the creditor.” It can hardly be doubted but that Michael Warner intended and expected that-the plaintiff would avail himself of the benefit of the provision incorporated in the deed for his benefit, and that .his action would be influenced accordingly. (See, also, Winterton v. Winterton, 7 Hun, 230; Morrow v. Morrow, 12 id., 386; Ross v. Ross, 6 id., 80.) The provision of the Code referred to has not changed the rule in regard to what will be required to constitute the acknowledgment of a debt sufficient to take the same out of the operation of the statute of limitations, but merely requires that such sufficient acknowledgment or promise shall be in writing,.simply changing the character or grade of the -evidence by which the fact must be established.' In Shapley v. Abbott (42 N. Y., 447) Judge Earl remarks: “ The only effect of this section is to require that to be proved by writing which could before be proved by parol.” As to what will constitute a sufficient acknowledgment or promise to avoid the statute, the learned judge remarks, at page 446 : “ It would only have been necessary for the plaintiff to show an unconditional acknowledgment of the existence of the debt, and this could have been shown by proof of a direct acknowledgment, or by proof of facts from which it could be properly inferred.” In Van Keuren v. Parmelee (1 N. Y., 531) Judge Bronson says: “ There must, at the least, be a plain admission that the debt is due, and that the party is willing to pay it.” (The First National Bank of Utica v. Ballou, 49 N. Y., 155; Smith v. Ryan, 66 id., 352; McNamee v. Tenny, 41 Barb., 495; Anderson v. Sibley, 15 N. Y. Week. Dig., 382.) The deed executed by Michael Warner contained a clear acknowledgment of his indebtedness to the plaintiff, coupled with a provision for its payment. The real estate eonveyed was expressly charged with such debt and the grantees expressly agreed to pay the same. Regarding the entire arrangement, I cannot doubt but that Michael Warner not only intended to acknowledge the indebtedness to the plaintiff and to provide for .its payment, but also desired aiid expected that the plaintiff would, be informed thereof by the grantees in such deed. The deed was recorded in the clerk’s office of the county of Rensselaer on the 5th day of April, 1875, three days after its date. Michael Warner undertook to provide for the payment of the plaintiff’s claim in a particular manner, and we mufet assume that he understood and intended the legal effect of the acknowledgment which he thus made. Certainly there is no evidence that he attempted to restrict his liability to the plaintiff. On the contrary, the plaintiff is presented in the light of a favored creditor. There is nothing in the case to show but that the indebtedness of Michael Warner to the plaintiff was voluntary and in all respects just. The legal effect of this transaction seems to me quite unlike that of an ordinary voluntary assignment for the benefit of creditors, and quite distinguishable from a case where a debt is merely included in the inventory of a debtor in bankruptcy., for the reason, among others, that this seems to savor more of a personal transaction. The plaintiff should have judgment in this action.

Judgment affirmed at the General Term, on the opinion of Judge Ingalls, with costs.

Present — Learned, P. J., BoARDMANand Bocees, JJ.

So ordered.