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

text:
    ANDREW E. WILLIAMS, Appellant, v. TERENCE KIERNAN and ANNA SCOTT DIAS, Respondents.

      Issue of letters of administo-ation upon the estate of a living person — liability of the sureties upon the administrator’s bond — when an action lies against them by the party defrauded.

    The defendants were sureties upon a bond given to the people by one Williams upon the issuing to him of letters of administration upon the estate of the plaintiff, under the authority of which letters he had taken possession of and converted to his own use property of the plaintiff of the value of about $2,000. About three months after the letters were issued they were revoked and annulled by the surrogate, and an action was brought by the plaintiff against Williams to compel him to account for the property so received, in which he recovered a judgment for $1,761.25, besides costs, upon which an execution was afterwards issued and returned unsatisfied. In this action, brr uglit against the defendants to recover the amount of the former judgment, they demurred on the ground that the plaintiff had not the legal capacity to sue, that there was a defect of parties plaintiff and that the complaint did not state facts sufficient to constitute a cause of action.

      Held, that as the provisions of the statutes, prescribing what should be done before an action upon the bond could be brought in the name of the people, could not be complied with by reason of the fact that the person on whose estate the letters were issued was living, and as for the same reason the provisions of the statutes providing for the assignment of the bond by the surrogate were inapplicable, the plaintiff, as the party beneficially interested in the controversy, might, without making the people a party, prosecute the action against the defendants, as it was by means of their intervening and becoming sureties upon the bond that Williams obtained the authority to receive and misappropriate the plaintiff’s property. (Davis, P. J., dissenting.)
    Appeal from a judgment, entered upon orders sustaining demurrers to the complaint, interposed by the defendants.
    The complaint alleged:
    1. That on or about the 6th day of April, 1878, one Jeremiah Williams falsely pretending and alleging that the plaintiff had died intestate applied to the surrogate of the county of New York for letters of administration on the estate of the plaintiff.
    2. That on the 13th day of April, 1878, the defendants, with said Jeremiah Williams, made and delivered to said surrogate, in pursuance of the statute, their bond in writing under their hands and seals and thereby bound themselves to the people of this State in the penal sum of $3,600, with a condition that if said Jeremiah "Williams should faithfully execute the trust reposed in him as administrator of all and singular the goods and chattels and credits of the plaintiff, described in said bond as Andrew E. Williams, deceased, and obey all orders of the surrogate of the county of New York touching the administration of the estate committed to him, then the said obligation to be void, else to remain in full force and virtue.
    3. That thereupon, and on the same date, letters of administration on the estate of the plaintiff were issued accordingly to said Jeremiah Williams, by an order duly made by the surrogate aforesaid.
    4. That thereupon the said Jeremiah Williams, as such administrator, took possession of a large amount of money or property of the plaintiff, of the value of about $2,000, and converted it to his own use, and has ever sincé retained the same.
    5. That thereafter, and on or about the 23d day of July, 1878, said letters of administration so granted to said Jeremiah Williams were, by order of said surrogate, revoked and annulled.
    6. That thereafter, in an- action in the Supreme Court of this State between the plaintiff, as plaintiff, and said Jeremiah Williams, as defendant, for an accounting of the property of the plaintiff which came into the possession of the said Jeremiah Williams, judgment in favor of said plaintiff and against said Jeremiah Williams was granted by said court, and upon such accounting it was found that the said Jeremiah Williams was indebted to this plaintiff in the sum of $1,761.25, being the amount of plaintiff’s estate retained by him as aforesaid, and final judgment and decree in favor of this plaintiff and against said Jeremiah Williams was accordingly, on October 24, 1878, duly granted in said court for said sum of $1,761.25 as damages and sixty-two dollars and nine cents the costs thereof in said action, amounting in all to $1,823.34, as by a reference to said judgment and decree, and the record of all the proceedings relating thereto and on file in said court will more fully appear.
    7. That execution upon said judgment has been duly issued to the proper county and returned wholly unsatisfied, and of plaintiff’s own knowledge.
    8. That said Jeremiah Williams has totally neglected to pay the amount of said judgment, or any part thereof, or to return or pay over any part of the money or property of the plaintiff so received by him as such administrator, or to account therefor, and has failed to faithfully execute the trust imposed in him as such administrator, but has been unfaithful thereto to the damage of the plaintiff in the said sum of $1,823.34, with interest from October 24, 1878, and by reason thereof and of the premises an action has accrued to this plaintiff as the real party in interest on said bond given for. his protection under the statute against the defendants sureties as aforesaid.
    Each of the defendants demurred upon the grounds:
    1. That the complaint did not state facts sufficient to constitute a cause of action.
    2. That the plaintiff had not legal capacity to sue.
    3. That there was a defect of parties plaintiff.

      Alfred B. Cruiksmnk and Albert Gardozo, for the appellant.

      Lord, Bay <& Lord, for the respondents.
   Daniels, J.:

The action is brought upon a bond executed by the defendants, as sureties for Jeremiah Williams, upon the issuing of letters of administration to him upon the estate of the plaintiff. Under the authority of the letters the principal in the bond, as administrator, took possession of property of the plaintiff, amounting in value to the sum of about $2,000, and has since retained and converted it to his own use. About three months after the issuing of the letters of administration they were revoked and annulled by the surrogate, and an action was prosecuted by the plaintiff against the person to whom they had been issued for an accounting concerning the property obtained under the authority of the letters, in which a judgment was recovered for the sum of $1,761.25 besides costs. Execution was issued upon that judgment and afterwards returned wholly unsatisfied. To the complaint setting forth these facts the defendants separately demurred, assigning as causes for the demurrer that the complaint did not state facts sufficient to constitute a cause of action; that the plaintiff had not the legal capacity to sue, and that there was a defect of parties plaintiff. '

The bond appears by the complaint to have been given in the name of the people, as it was required to be by the statute prescribing its form and contents (3 R. S. [6th ed.], 82, § 56); and because of that form it is objected that the action can alone be maintained in the name of the people of the State. But the further provisions of the statute, prescribing what shall be done before such an action can be prosecuted in the name of the people, cannot be complied with by reason of the fact that the person on whose estate the letters were issued- was living at the time when they were obtained. There was consequently no creditor, legatee or next of kin of the owner of the estate who could require the administrator to account, as that has been provided for and in terms limited by the statute. (Id., 99, § 63.)

No decree consequently could be obtained before the surrogate against the administrator, either for a final settlement of the estate or the payment of a debt, legacy or distributive share, and the facts therefore could not possibly be brought into existence upon which alone the surrogate could cause the bond to be prosecuted. (Id., 125, §§ 19-21.) For that reason no action could be sustained in the name of the people of the State upon the bond, and it was neither necessary nor proper to make the people a party to the action.

It was no part of the substance of the action that it should be brought in the name of the people, for they had no further interest in the controversy than simply to enforce the liability as a trust for the benefit of the parties really entitled to the proceeds of the recovery; and even that has not in imperative terms been required to be done. It might be done in that form for the reason that the people when named in such a bond as the obligee stand in the relation of a trustee to the person or persons intended to be benefited by the obligation. (Code Civil Pro., § 419.) The provision made upon the subject is, however, merely permissive and not of so mandatory a character as to preclude an action from being sustained by the person beneficially interested, when that cannot be done by reáson of an inability to comply with the statutory requirements to be observed before an action can be brought by the people. (Cridler v. Curry, 66 Barb., 336.)

This provision of the Code embodies merely what was in a similar manner secured by a previously existing rule of practice, and that always allowed the party beneficially interested in the controversy to prosecute the action himself when the trustee either colluded with the adverse party or declined upon a request made to prosecute the action. (Weetjen v. Vibbard, 5 Hun, 265 ; Memphis v. Dean, 8 Wall., 65, 73.) And the reason upon which these qualifications of the rule requiring the action ordinarily to be prosecuted by the trustee has been placed, would also appear to include a case where the trustee is .incapable of maintaining the action by reason of inability to comply with what has been required to be done before it can possibly be instituted by the trustee. In embodying the rule of practice prevailing upon this subject as a provision of the Code, in the terms in which it has been enacted, it could not have been the intention to abrogate these' qualifications of it, and for that reason where a trustee either colludes with the other party or refuses, or proves to be incapable of maintaining a proper action, the party interested in obtaining redress by means of it must still be deemed at liberty to institute it in his own name.

From the allegations contained in the complaint the plaintiff has not designated the action either as a suit at law or in equity, and for that reason, if the facts disclosed are sufficient to maintain it at all, he is entitled to have the appropriate relief adjudged in his favor. It is true that he has not complied with the provisions of the law declaratory of the cases in which a bond of this nature may be assigned by the surrogate to the person in whose favor an action may be brought upon it. That assignment could not be made for the reason that the case is not one in which the preceding decree required for that purpose could by any possibility be obtained. (3 R. S. [6th cd.], 329, §§ 17-19.) The plaintiff’s inability to comply with these statutory requirements arises out of the circumstance that the existence of the case now presented was not contemplated as a possible contingency requiring to be provided against by law. It originated out of what was probably a bold and palpable fraud, through which the surrogate was induced to issue the letters of administration and receive the bond now in suit. That fraud consisted in the false representation of the plaintiff’s decease, and whether the defendants, as sureties in the bond, were confederated with their principal in endeavoring to made the fraud a success, can make no practical difference in the substantial rights and. obligations of the parties. It was by means of their intervention, by becoming sureties for the party prominently guilty of the fraud, that he obtained the authority to receive and misappropriate the plaintiff’s property, and the ends of justice as well as the security of property both cotnbiiie to require that these defendants should not be relieved from the effect of their obligation if it can either in law or equity be substantially enforced against them. Neither the provisions declaratory of the cases in which the people may prosecute a bond of this nature, or in which it may be assigned to the party obtaining a decree in the Surrogate’s Court, have been enacted in such terms as to preclude the bond from being otherwise enforced. It has merely been provided that in the cases mentioned in the statute the bond may be prosecuted, or it shall for a like purpose be assigned to the person entitled to enforce the decree. It has neither in form nor effect been anywhere provided or declared that the liabilities created by the terms of the bond shall be no otherwise enforced or redressed. The case hás, therefore, been left subject to the broad principle in equity allowing actions to be prosecuted in courts having equitable jurisdiction over controverted matters, where the ends of justice can be obtained in no other way. The deficiencies of the law and its inability to redress the rights of parties originated the authority of courts of equity, and cases of the present nature are as completely within the theory and terms of that authority as any that can possibly be imagined.

The instrument itself was so conditioned, as the statute required it to be, as to include the case now presented against the defendants as sureties in the bond. One of its conditions was that the person receiving the letters of administration should, a,s such administrator, faithfully execute the trust reposed in him. (3 E. S. [6th ed.],'82, § 56.)

One of these trusts was that he should faithfully preserve and protect the estate committed to his hands by means of the letters of administration issued to him, and that he would devote it to the payment of the debts, and the final distribution of the residue as that has been required by other provisions of the statute. This he wholly failed to do, for he misappropriated and converted to his .own use the property received by him and in that manner wholly failed and omitted, by positive misconduct on bis part, to execute the most important trust reposed in him. The condition of this bond for that reason was forfeited, and the contingency arose upon which it was designed and intended by its terms, as well as the language of the statute, that the sureties themselves should become liable to respond and make good the loss occasioned by the misconduct of their principal. A right of action had plainly and clearly arisen within the terms employed for the purpose of expressing the obligation of the defendants, and the fact that the owner of the property still proved to be living in no manner changed the legal aspect or consequences of what had taken place. The trust reposed was that the party receiving the letters of administration should faithfully discharge his duties as the custodian of the property, and that he is shown not to have done. A case has, therefore, arisen for which it was intended and expected the defendants, as his sureties, would become liable, and the only difference, arising out of the circumstance that the party upon whose estate the letters were issued was living, is that he consequently is the person who has the right to complain of this breach of trust. It is obviously of no consequence to the sureties that they may be held accountable to him instead of the creditors, legatees or next of kin, in terms protected by the enactments of the statute. Their liability is neither greater nor less on account of that circumstance; it still remains the same in its character and extent, and it is a liability for the abuse by the administrator of one of the important trusts reposed in him. By the terms of their bond the defendants have become liable to indemnify the party injured by this abuse of trust for the loss produced to him in that manner. The case, as it is presented, discloses a clear right of action to redress ■ a wrong, violating the terms of the defendants’ obligation, and as it cannot be prosecuted in the form, or by means of the peculiar course of proceedings prescribed by the statute, the party entitled to indemnity has a right to interpose in his own behalf: for that redress which a court of equity, in other cases of inability to secure it at law, has been allowed to administer. It is sufficient for these purposes that the terms of the statute prescribing the proceedings for enforcing the bond have not been made exclusive. They are accordingly to be deeme d to leave the courts at liberty to institute and maintain such other or different proceedings as may, on account of its own deficiencies, be necessary for securing the ends of substantial justice. Upon this subject the rule is a general one, where a party has a meritorious right of action, which he cannot enforce in the ordinary proceedings of a court of law, that he may appeal to a court of ocpiity for redress (1 Story Eq. Jur. [5th ed.], § 33). In Brown v. Brown (1 Barb. Ch. R., 189, 217) the rule was stated by the chancellor to be that a court of equity proceeds upon the principle, that whenever there, is a right, there ought to be a remedy, either in this or some other tribunal, and where no remedy exists elsewhere, to enforce the right, this court will furnish such remedy whenever it is necessaiy to prevent a total failure of justice, where the property in controversy, or the person of the wrong doer, is within the jurisdiction and control of the court. (Id., 217; American Ins. Co. v. Fisk, 1 Paige, 90; Watson v. Sutherland, 5 Wall, 74.) In the last case it was held that the absence of a plain and adequate remedy at law was the only test of equity jurisdiction. (Id., 79 ; Hudson v. Reeve, 1 Barb., 89.) This principle has been considered to be so broad in its application as to justify an action in equity upon the bond of an administrator where it could not be enforced in the manner prescribed for that purpose by the statute, when the case of Carow v. Mowatt (2 Edw. Ch., 57), was decided. The authorities bearing upon the subject were then very carefully collected and considered, and the conclusion was maintained that the action could be properly prosecuted in equity, and if that can be done in an}r case not within the provisions made by the statute, it would seem to follow that it can in all, provided the liability created by the bond is not exceeded. A similar subject was considered in Towner v. Tooley (38 Barb , 598), and while that resulted in a dismissal of the case, because of the absence of necessary parties, it was still deemed capable of being sustained upon the merits and circumstances affecting the controversy itself.

The case now before the court very materially differs from that of People v. Chalmers (1 Hun, 683; affirmed, 60 N. Y., 154), for there the property assigned to the principal in the bond had been taken out of his hands by means of creditors proceedings, and he was in that manner prevented from administering the trust, for the faithful performance of his conduct in which the bond had been given, while in the present case the distinguishing circumstance appears that the property remained in the hands of the principal in the bond and was misappropriated by him. If that fact had appeared in the case just referred to no doubt would exist but that the sureties woirld have been held liable. In the present case the abuse intended to be provided against by the bond lias -been shown to have taken place. Its condition, as it was literally expressed, has been broken and the bond in that maimer forfeited. The plaintiff is the only person injured by the wrong, or who has the right to complain of its perpetration. His complaint is within the terms of the condition of the instrument upon which the action has been brought, for the person upon whose conduct it was made to depend did not faithfully execute the trust reposed in him. No technical difficulty in such a case should be allowed to be interposed to prevent the ends of justice from being substantially attained. It is clearly no unanticipated hardship to the defendants to enforce their‘obligation against them, to the extent of indemnifying the-plaintiff for the loss of his property, for they in terms undertook that measure of responsibility, and if they had not voluntarily assumed this liability their principal who committed the wrong-would have had no power to invest himself with the control he acquired over the plaintiff’s property. As the case is now presented it has been made out within the terms of the defendants’ bond, and the judgment recovered by them should therefore be reversed and judgment ordered upon the demurrers in the plaintiff’s favor, with leave to the defendants to answer in the usual time upon payment of costs.’

Beady, J.:

Jeremiah Williams, falsely representing that the plaintiff was dead, procured letters of administration of all and singular the-goods, chattels and credits of the latter, and having accomplished this fraud, proceeded to possess himself of such property and appropriated it to his own use. Subsequently, the plaintiff brought an action against him, and, having obtained judgment for such conversion, brings this action against his sureties to recover the amount determined by his judgment.

He claims to be the real party in interest in the bond given by the principal, on obtaining the letters of administration, by his •demand herein for judgment, but the facts are stated in the complaint showing the fraud and its results.

The sureties seek to avoid responsibility on several grounds, one of which is that the plaintiff could not maintain the action in his own name, never having obtained an assignment of it or any authority to sue on it from the surrogate, and the others rest upon the proposition that the proceeding which Jeremiah Williams, a3 principal, instituted related to a person supposed to be dead, and, as he was not, the surrogate had no power or jurisdiction whatever in the matter.

None of these defenses go to the merits. They are all quasi ■technical, if not absolutely so, and should not be countenanced if by the application of any rule of law or by invoking any principle of justice they can be overcome. As an illustration of the character of these defenses we take the first objection stated, namely, that the bond being to the people, no action can be maintained on it until the surrogate has either assigned the bond or ordered it to be prosecuted. The answer to it' is furnished by the respondents, namely, that the surrogate having no jurisdiction in the matter, the assignment of the bond and the order that it be prosecuted would be nullities and absurdities. What is the status of the sureties here ? It is developed by the fact that they aided and abetted in the fraud practiced, because without their intervention or that of persons occupying similar relations, the scheme could not have been •successful. It was their duty to have ascertained whether the plaintiff was dead before they joined in the fraud by consenting to become sureties.

It must be patent on these facts that the sureties could be held to the extent of the value of the property taken through their instrumentality, even though it was in excess of the amount of the bond given. Accessories before the fact, they should be held responsible in any form of action brought which discloses the facts and circumstances which have been stated. We should, as was well said in the kindred case of Foster v. The Commonwealth (35 Penn., 148-150), treat the administrator as a usurper and his sureties as aiding him in his acts, and not allow them to set up the usurpation as a protection against the accountability for it. In that case it was claimed tbat the administrator was improperly appointed, the register, in granting letters of administration, having invaded a positive -prohibition of the statute, a view which was substantially conceded to be correct. The court said, in addition to what has been already quoted, that the act of the assembly was intended for the protection of estates against intermeddlers and not for the protection of the intermeddlers themselves, and they could not use it to destroy the estate.

The complaint in this action refers to the bond only in the demand for judgment, and thus forms no substantial part of it. The plaintiff is entitled to any judgment, notwithstanding this demand, which the courts on the facts stated should grant, and there is enough, as already suggested, to hold the defendants as tortfeasors for their instrumentality in signing the bond and giving to their principal an apparent right 'to seize the plaintiff’s property,, and under color of which he did' take it.

This is not an action in which the court should be astute in calling into requisition any technical rules for the protection of the defendants. If the issues to be created present the merits properly, that is all that should be required. The defendants should be protected so far as to require, if they deny it, proof that their principal took and disposed of the property alleged to have been converted by him.

The case is novel and extraordinary in its features ; but, assuming the plaintiff’s story to be true, the fraud committed is a bold one, unparalleled, if, indeed, it did not amount to larceny, and demands prompt redress, without reference to the form in which it is administered.

For these reasons we think that the judgment should be reversed, and the defendants held responsible for their participation in the fraud charged against the principal, and which they aided and abetted by executing the bond signed by them.

Davis, P. J.

(dissenting):

T am not able to concur in the views of this case expressed by my brethren. In my opinion the judgment of the court below should be affirmed.

The defendants were mere sureties on the bond. For aught that appears (and it must therefore be assumed) they were entirely ignorant and innocent of the fraud of their principal, and as much so as the surrogate himself who issued the letters.

The argument that they must be held as participants in the fraud of their principal, because without the giving of the bond he could not have obtained the property would be equally as potent against the surrogate, for without his letters the fraud could not have been successful. It is, in my judgment, entitled to no weight whatever. As innocent parties they, the defendants, executed a bond, the office and purposes of which are clearly defined and declared by statute. Their obligations and liabilities are precisely the same as though the several provisions of the statute had been embodied in the bond. Their rights as sureties are strictissimi juris. They were bound, and only bound, to the performance by their principal of his duties and liabilities as administrator towards all persons and creditors interested in his administration of the plaintiff’s estate.

But that administration was arrested. The letters were vacated by the surrogate upon a ground which rendered void all the proceedings in his court, and subjected the administrator to his liabilities to the plaintiff as a personal wrong-doer who had obtained the plaintiff’s property by a criminal fraud. There never existed any liability whatever on the part of the wrong-doer to the plaintiff as his administrator. The plaintiff could not sue him in his representative capacity, but only for his individual fraud and wrong in obtaining possession of the plaintiff’s property. But the defendants by their bond became sureties only for the performance of the principal’s duties and liabilities as an administrator to the extent and in the mode pointed out by statute, and under which their undertaking as sureties was to be enforced only as prescribed by statute.

To change the undertaking of such sureties into a liability for the gross personal fraud of their principal, which he had accomplished through certain legal proceedings, in the course of which he had made use of a bond obtained in fraud also, of the sureties themselves, is something which I think neither equity nor law will permit.

What remedy the plaintiff might have against these defendants if he could show that they were co-conspirators and participators in the fraud is another question. The remedy would not, however, be upon the bond, but by a more efficient action for conspiracy and fraud. The only question here is whether the bond can be perverted from the purposes for which it was given, in such form as to make it the basis of a recovery for wrongs perpetrated by the principal in his individual, and altogether outside of his representative capacity. I think not.

Judgment reversed.


source: Caselaw Access Project

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

license: Public Domain

text:
    HENRY G. FISK and Others, Respondents, v. LUCIUS L. SPRING, Appellant.

      Sale of “perishable" property — meaning of the term,— Gode of Civil Procedure, see. 656.
    In order to authorize the court to order property levied upon under a warrant of attachment to he sold, as being “ perishable,” it must appear that the property is inherently liable to deterioration and decay, it is not sufficient to show that it will depreciate in value because of changes in the styles and fashions. (Brady, J., dissenting.)
    Appeal from an order made on motion of the plaintiff authorizing a sale of personal property, consisting of underwear, neck ties, .shirts, jewelry, gloves, umbrellas, and the usual stock of a gentleman’s furnishing store, which had been levied upon by the sheriff under warrants of attachment issued against the defendant.

      Charles E. Soule, for the appellant.

      B. F. Walsoti, for the respondent.
   Daniels, J.:

As to a very large, if not the greater portion of the goods, they will only suffer by being retained until they can be sold under an execution, if a judgment shall be recovered, by reason of the circumstance that they will depreciate in value, because of changes in their styles and fashions. That is not of itself sufficient to render the property perishable, as that term has been employed in section 656 of the Code of Civil Procedure. To render property perishable, it is essential that it shall appear to be inherently liable to deterioration and decay. Many articles are of that description, and become useless and valueless by the mere effects of time. They cannot be preserved, and for that reason must be used and disposed of within an early period of time to be available for use at all. If' mere changes, in fashions and styles would justify an order for a sale under this provision of the Code, then in all cases of the attachment of goods and merchandise, sales could be ordered whenever a seizure might be made of them ; which would render process of this nature extremely oppressive, and in many cases utterly destructive of the rights and interests of the defendant, and this provision of the Code could not have been intended to permit it.

As to the kid gloves, the order seems to have been proper, and perhaps it might have been made so as to the woolen goods which were liable to be moth eaten, but as they can be probably protected against that liability by occasional attention, that should be given to them, and in that way an immediate sale rendered entirely needless. All the goods can be preserved as they are by reasonable attention and care, and that the sheriff is bound to bestow upon them until the right to make a sale of them shall be secured by a judgment against the debtor, and an execution be issued for that purpose. The order should be modified so as to allow a sale of the kid gloves, as they are shown to be inherently liable to decay and deterioration, and, as so modified, affirmed without costs.

Davis, P. J.:

I agree with the views of my brother, Danimus, in this case.. The fickleness of fashion does not of itself, render articles “ perishable ” within the meaning of the Code. When the only damage- or deterioration in value, arises from a probable change of fashion, it is the fashion that is perishable, not the article. The latter retains all its intrinsic value unchanged in form or substance,, ready for a recurring wave of fashion which may restore or even enhance its market value. TJnder the rule laid down by the court below, and adopted by my brother Beady, there is no article of merchandise that is not perishable or non-perishable by the whims or caprices of the hour, as they may rise or fall. The property of defendants, when attached, would be subject to ruinous sacrifices, for which no remedy is provided, if that construction shall prevail.

I think the order should be modified as suggested in the opinion of DaNiels, J.

Beady, J.:

It appears that an attachment was issued in this case by virtue of which certain property in possession of the defendant was levied upon. It would seem from the evidence that he kept a stock known as gentlemen’s furnishing goods, consisting of underwear, neckties, shirts, jewelry, gloves, umbrellas, etc. The plaintiffs regarding this property as perishable, made application for leave to sell it as such under section 656 of the Code, which provides that “ if property attached, other than a vessel, is perishable, the court or judge may, by an order made with or without notice, as the urgency of the case in its or his opinion requires, direct the sheriff to sell it at public auction, and thereupon the sheriff must sell it accordingly.” The application was granted, and the defendant appeals upon the ground that the property was not perishable within the meaning of the statute.

The word “ perishable,” in the Code, is to be interpreted according to its ordinary signification; in other words, it is to have the effect embraced within its definition by the lexicographer. Webster defines it as follows: Liable to perish; subject to decay or destruction.”

And “decay” is defined to be “a gradual failure of health, strength, soundness, prosperity; any species of excellence or perfection declined to a worse or less perfect state.” The question presented to the court below was whether on the evidence, with this definition of the word “ perishable ” in view, the property levied upon could be sold under the provisions of the Code mentioned.

The evidence shows that the attachment was issued on the 19th of January; 1881, and that a portion of the goods levied upon could only be used in summer; that the dealers therein buy them in February and March; that after the first of February very few winter goods were sold until the following fall. It appeared that another portion of the goods were made of wool, and if they were boxed up and put in a warehouse for a year there would be great danger of their being eaten up by moths; that though it might be prudent, if they were kept, to have the goods opened and shaken every few weeks, that operation would entail considerable expense. It appeared, also, that another portion were silk and lisle thread goods intended for summer wear, and that if sold to dealers it was necessary that the sale should be made in February or March. It also appeared that another portion were kid gloves which, if stored, would be likely to become mildewed and spotted and to lose value by reason of the change in fashion. It also appeared that another portion were neckties and scarfs, and that they are goods which depend for their value almost entirely upon fashion, which changes with every season, creating therefore the necessity that they should be sold-at once and before the fashion changed.

Upon these various points the evidence, though in conflict, preponderates in favor of the proposition that the goods would suffer in value by being kept, if they did not perish absolutely by reason of the change of fashion or by injuries from moths; or, in the case of the kid gloves, by spots which would destroy their value almost entirely.

The learned justice who heard the motion, having been justified in arriving at the conclusion that the detention of the goods by the sheriff would result in tlieir depreciation in value, made the proper order in -reference to their disposition; It may be said that they were perishable because they were liable to decay or destruction; and if liable to decay they were liable to decline to a worse or a less perfect state than when the application was made to sell them.

■ The word perishable ” used in relation to a stock of goods such as described, should be held applicable, particularly for the reason that the value of the goods may be affected by the changes of fashion which, according to the evidence of the experts in the case, is liable to occur. If there were-no other reason this would seem to be sufficient to justify a sale, not only for the protection of the plaintiffs but for the security of the defendant.

There can be no doubt about the proposition as to the changing fashions on the evidence in this case. It may indeed be said to be a subject of which the court would take notice that the changes of fashion in articles of wearing apparel considerably affect their value.

If, superadded to that, there be any danger of decay by spotting or by tbe ravages of insects upon tbe article, it would seem to be tbe duty of tbe court, for tbe protection of all parties, t® order tbe sale to be made at a time wbicb would seem to be most advantageous to obtain the best prices.

The result of this investigation therefore, although no case can be found decisive of the precise point involved, and none was cited, is that tbe articles levied upon within tbe purview of section 656 of tbe Code were perishable, not so much from the inherent causes of decay as from tbe external circumstances and contingencies affecting their value as articles of merchandise.

For these reasons I think the order appealed from should be affirmed, with ten dollars costs and the disbursements of the appeal.

Order - modified as directed in opinion of Daniels, J., and affirmed as modified, without costs to either party.


author: JDahiels, J.: Brady, J.:

text:
    In the Matter of the Petition of SUSAN O. ROBERTS and Others, Executors, etc., to Vacate an Assessment.

      New York city — power of the common council to regulate and grade streets — what is not a repavement.

    Subdivisión 10 of section 17 of chapter 885 of 1873, authorizing the common council of the city of New Y ork to provide for and regulate streets, pavements, crosswalks, curb-stones, gutter-stones, sidewalks and the grade of streets, repealed so much of section 7 of chapter 872 of 1872, and section 5 of chapter 697 of 1867, as conferred upon the Department of Public Works the exclusive power of determining and establishing the grades of streets and avenues, and from and after the passage of the said act, it was the duty of the common council to provide for and regulate the grade of the streets, and of the Department of Public Works to comply with such directions as the common council might deem it prudent and proper to give.
    Where, after a street has been regulated, graded, curbed, guttered and flagged, the grade thereof is lawfully changed, thereby necessitating the replacing of the flagging, and the curb and gutter-stones, such replacement of the said stones is not a repavement within the meaning of that term as used in chapter 385 of 1873, and chapter 470 of 1875, requiring the expenses of the improvement to be imposed upon the city generally. (Brady, J., dissenting.)
    Appeal from an order made at Special Term denying an application to vacate an assessment.

      James A. Deering, for tlie petitioners appellant.

      J. A. Beall, for tbe Mayor, etc., of New York.
   JDahiels, J.:

. The portion of Eighty-first street to which this controversy relates, was regulated, graded, curbed, guttered and flagged in the year 1871, under the authority of an ordinance of the common council, adopted in October, 1869. An assessment for the expenses of the work was afterwards made and confirmed, and that portion of it which was assessed upon the petitioners’ lots fronting on the street was j>aid. A majority of the persons owning the property fronting on the street between Ninth and Tenth avenues became dissatisfied with the grade at which this portion of the street had been fixed, and they presented a petition to the common council in the early part of 1874, requesting that the grade of that part of the street should be altered so as to conform to a diagram for that purpose accompanying the petition. Action was had upon this petition by the common council in the spring of 1874. It proceeded upon the ascertained circumstance that a large majority of the owners of property favored the change in the grade, and for that reason a resolution was adopted by the concurrence of three-fourths of all the members of the common council, directing the proposed change in the grade to be made. Under that authority the change was made by the department of public works, and the expenses attending it were assessed upon the property deemed to be benefited by the improvement. "What was done in the way of setting the curb and gutter-stones and laying the flagging seems to have been required for the purpose of conforming them to the change made in the grade. No unnecessary or improper work appears to have been performed in carrying out the authority of the resolution, neither was the proceeding irregular by which the assessment itself was made and distributed upon the property. From the statement made in the petition and the action taken upon it, it is to be presumed that such a majority of the property owners upon the street concurred in requesting the change to be made, as was required by the provisions of the statute prescribing what should be necessary to render such action effectual, and no proof was taken upon the hearing in any manner impeaching the propriety of this presumption. This street is situated in that part of the city of New York as was included within chapter 697 of the Laws of 1867. By that act the board of commissioners of the Central Park was given exclusive power to determine and establish the grade of this and the other streets, avenues, roads and public places including the portion of the street in which this improvement was made. And it was provided, after such grade should be designated, that it should not be changed, unless the owners of two-thirds of the land in lineal feet fronting upon the street where the proposed change was to be made should consent to it in writing, and file such consent in the office of the commissioners of the Central Park. And upon that consent being filed, authority was given to such commissioners to make the proposed change in the grade of the street to which the application and consent might relate. (Laws 1867, chap. 697, vol. 2, p. 1751, § 5.)

By chapter 872 of the Laws of 1872, so much of the authority, powers and functions of the department of public parks as .related to streets, avenues and roads above Fifty-ninth street not embraced within the limits of any park or public place, and including the boulevard, were taken from that department and vested in the department of public works. (Laws 1872, vol. 2, p. 2134, § 7.)

This was apparently done to render the policy of chapter 137, Laws of 1870, more uniform, complete and effectual, as that had already provided that the department of public works should have cognizance and control of opening, altering, regulating, grading, flagging, curbing, guttering and lighting streets, roads, places and avenues. (Laws 1870, vol. 1, p. 385, § 78, sub. 3.)

And, if the petition in this case had been presented for the change of grade in this portion of the street while these laws remained in .force, it would necessarily have gone to the department of public works, in order to render the proceeding legal in its character. The evidence taken upon the hearing shows that it was not presented, neither was any other petition or consent for the change of the grade presented to or filed with the department of public works. It was, on the contrary, directed to and acted upon only by the common council, as that body was organized in the year 1874. But before that time further changes were made in the charter of the city of New York by the enactment of chapter 335 of the Laws of 1873. That continued the authority of the department of public works over the opening, altering, regulating, grading, flagging, curbing, guttering and lighting streets, as it had been prescribed by chapter 137- of the Laws of 1870, and it at the same time enlarged the powers of the common council over the same class of subjects. For power was then given to that body to provide for and regulate street pavements, cross-walks, curb-stones, gutter-stones, sidewalks and the grade of streets. (Laws 1873, chap. 335, p. 488, § 17, sub. 10.)

This provision was enacted in terms so general in their nature, as to include the streets in the portion of the city in which Eighty-first street was situated, as well as those not placed at any time under the control of either the department of parks or the department of public works; and to that extent it was inconsistent with so much of chapter 697 of the Laws of 1867 and chapter 872 of the Laws of 1872 as secured exclusive authority over changes in the grade of the streets to which they related, first to the commissioners of the Central Park and afterwards to the board of public works. These acts were not in terms repealed, but it was provided generally by section 119 of chapter 335 of the Laws of 1873 that all acts or parts of acts inconsistent with the act of 1873 should be' repealed; and so much of these preceding laws as provided for the exercise of exclusive authority over the grade of this and other streets by the commissioners of the Central Park, and afterwards by the board of public works, was plainly inconsistent and in conflict with the general authority vested in the common council by the act of 1873. For the common council could not provide for and regulate the grade of streets if exclusive authority over that subject should still continue to exist in either one of these different boards. The language in which the authority of the common council was provided is so general in its terms as to admit of no exception, and by means of this portion of the act the common council from the time of its enactment possessed the authority to provide for and regulate the grade of this street, and the power still remaining in the department of public works was simply that of complying with the direction which the common council might deem it prudent and proper to give. The power to direct what should be done was vested in the common council, while the power to perform it still remained in the department of public works. (Laws 1873, p, 502, sub. 3, § 71.) And such appears to have been, from the time of the enactment of this chapter of the Laws of 1873, the understanding and practice of the different 'departments of the government of the city. When the petition for the change in the grade of the street was presented, as that was done after the act of 1873 went into effect, it was directed and delivered as the law required it to be for that purpose, to the common council of the city, and that body acted strictly in accordance with its authority in requiring the change in the grade to be made and directing the work for that purpose to be performed under the authority of the commissioners of public works.

Replacing the flagging and the curb and gutter-stone, as that was rendered necessary by the change made in the grade of the street, was not a repavement of it in such a sense as to require the expense of the improvement to be imposed generally upon the property of the city, for the street itself had not been paved as that term has been made use of in the act of 1873 or in chapter 476 of the Laws of 1&75. As that term has been employed in these acts it was made to refer to the pavement of the street itself and not to the mere fact that it may have previously been curbed and guttered and flagging laid upon the walks. The language of neither of these acts concerning this subject includes any pavement beyond that of a street, avenue or public place of the city, and from the manner in which it has been employed it was evidently intended to relate only to the bed or traveled part of such streets, avenues or public places. (Laws 1873, chap. 757, p. 1126, §22; Laws 1875, chap. 476, p. 541, § 1.)

This intention is still further evinced by the distinguishing circumstance that, in the act of 1873, special prominence is given to cross-walks, curb-stones,- gutter-stones and sidewalks, as differing from the pavement of the street itself. (Laws 1873, p. 488, sub. 10, § 17; p. 502, subs. 3 and 9 of § 71.)

And the preservation of that distinction may well be assumed to have been within the intention of the legislature when, by section 22 of chapter 757, it provided for the amendment of section 115 of chapter 335 of the Laws of 1873. And, as the same terms are made use of to designate the subject-matter to which chapter 476 of the Laws of 1875 should relate, the further presumption arises that its enactment was animated by the same intention. The decision macle by the Court of Appeals, and not yet reported, In the Matter of Brady, confirms the propriety of this construction of the statutes, and it is so far a direct authority in favor of the validity of this assessment.

The work for the expenses of which it was laid was let by contract to the lowest bidder, and in that particular, also, it conformed to what the laws required should be done. Throughout the proceeding, the statutory enactments relating to and regulating it were substantially complied with. So much of the assessment as is now made the subject of complaint was legally imposed, and the order made must therefore be affirmed.

Davis, P. J., concurred.

Brady, J.:

I dissent for the reason that there was a repavement under the decision of the Court of Appeals.

Order affirmed.


author:
      Daniels, J.:
      Navis, P. J.:

text:
    HENRY Y. ATTRILL, Appellant, v. THE ROCKAWAY BEACH IMPROVEMENT COMPANY (Limited) and Others, Respondents.

      Receivers of insolvent corporations — who are within the purview of chapter 537, Laws of 1880 — removal of a receiver — where the motion nmst he made — to whom notice of the motion should he given.

    Chapter 537 of 1880, providing means for compelling receivers of insolvent corporations to make and file reports, applies only to such receivers as are appointed in proceedings instituted under title 4 of chapter 8 of part 3 of the Revised Statutes, who are, by chapter 348 of 1858, required to make and file quarterly reports of their proceedings. It has no application to receivers of insolvent corporations appointed in one of the additional cases defined and declared in chapter 151 of 1870.
    A receiver of an insolvent corporation appointed under subdivision 4 of section 3 of chapter 151 of 1870, in the first judicial district, in an action there pending, cannot be removed upon an application made in the third judicial district.
    Even when a court in one judicial district has power, under chapter 537 of 1880, to remove a receiver appointed in an action pending in another judicial district, it lias no power under tlie said act to appoint his successor. To accomplish that end, the proceedings must be remitted to the district in which the action is pending.
    A receiver appointed in such an action should not be removed without notice oí the application having been given to the plaintiff in the action, at whose instance he was appointed.
    Appeal from an order made at Special Term, denying a motion to vacate an order removing a receiver and appointing another person to act as receiver in his place.
    This action, the venue of which is laid in the city and county of New York, was commenced by the plaintiff against the Eockaway Beach Improvement Company (limited) for the appointment of a receiver of the corporation, on the ground of its insolvency or immediate danger of insolvency. On August 2, 1880, John A. Eice was appointed receiver and took possession of the property.
    On the 2d day of May, 1881, Judge Westbrook, upon the affidavits of Hamilton Ward, attorney-general, and Charles J. Everitt, made an order that Eice should show cause why he should not be removed, which order was returnable at a Special Term to be held at Kingston, in the third judicial district, on the seventh day of said May, and provided that service]thereof should be made only upon Eice. Upon the return of this order, which was served upon none of the parties to this action, an order was made that Eice file his accounts, and a referee was appointed to pass upon the account. The referee made his report and upon this report, and the affidavits before referred to, Judge Westbrook, at a Special Term held in the city of Albany, in the third judicial district, made an order removing Eice and appointing J ames W. Husted receiver, and providing for service only upon Eice or his attorneys. None of the parties to this action had notice of either of the orders made by Judge Westbrook.
    A motion was made to set aside the last mentioned order removing Eice and appointing Husted for irregularity; and from the order denying the motion, this appeal was taken.

      Thos. M. Wheeler, for the appellant.

      C. J. Everett and Rastus S. Ransom, for the respondents.

       See post, page 509.

   Daniels, J.:

The receiver who was removed from his office upon a motion made in the third judicial district, was appointed upon motion in an action prosecuted by the plaintiff as a stockholder of the corporation.

It was instituted and pending in this district and consequently triable here. The authority for his appointment, in an action of this description, is contained in subdivision i, section 3, chapter 151, of the Laws of 1870, and it could only be exercised after a notice of at least eight days had been given of the application, to the proper officers of the corporation. (Id., § 3.) As the action was triable in this district and the appointment of a receiver could only be made upon notice, the order making it ivas not one which, under section 772 of the Code of Civil Procedure, could be vacated in any other part of the State. It was, on the contrary, in substance declared that it could be vacated only upon motion of which previous notice was given, for the appointment, was a provisional remedy, and that is the only mode in which a proceeding of that nature may be reconsidered.

To remove such a receiver therefore the motion for that purpose can, under the terms of section 769 of the Code of Civil Procedure, be heard only in the first judicial district, when the action is triable there, unless authority for that purpose has been created by the terms of chapter 537 of the Laws of 1880. And whether it has or not must depend upon the circumstance wñether he has been required by law to make and file reports of his proceedings. If he has, then under that act a motion might be made in the third judicial district for his removal. But if he has not, then such a motion in that district would be clearly in contravention of the positive languagé of section 769 of the Code of Civil Procedure, and an order following it granting the relief applied for, would be absolutely void.

That the act of 1880 was only intended to be applied to such receivers of insolvent corporations as had at the time been required to make and file reports is clear from the terms in which it has been enacted. The sections contained in it referring to the officers who may be removed under its authority expressly confine it to those who are required to make and file reports. The language made use of in this respect contemplates the existence of some other statutory authority upon this subject by which the obligations and duties of receivers may have been prescribed. I‘t is consistent with no other construction, and was intended to reach a class of cases where, by consulting the positive law, the receiver could discover his duties and protect himself against the delinquencies intended to be punished under its authority. A simple order of the court requiring the receiver to report would not be sufficient to bring the case within the language of this statute, and was not therefore intended to be affected by it. In fact no necessity existed for legislation over that class of cases, for it lias always been competent for the courts to fix the time within which, and prescribe the consequences of a failure on the part of a receiver, to make and file a proper report. No extension of the legal remedies over that class of cases was required for the purpose of attaining all just and proper results. But where, by the terms of any law of the State, a receiver had been required to make and file a report of his proceedings within a specified period of time, there may have been propriety in some enactment of this nature declaring what should be the consequence of his omission to observe the duty enjoined upon him by law. And it was to reach that class of cases, and no other, that the act of 1880 appears to have been enacted. The general terms made use of in its last section form no exception to this construction of its provisions, for they are restricted to the class of cases mentioned in the preceding sections and are evidently made use of only to define the course of proceeding which may be taken to carry the other provisions of the statute into effect. Whether the court in the third district had authority to interfere with or remove this receiver must depend, therefore, upon the result of an investigation to be made for the purpose of ascertaining whether he was one of the officers mentioned in it who had been required by law to make and file a report of his proceedings.

By chapter 348 of the Laws of 1858, amending section 42 of chapter 8,' article 2, title 4, part 3 of the Revised Statutes, the receivers, whose appointments were provided for in that article, were required to keep accounts and make and file quarterly reports of their proceedings in each and every year verified by the oath of the officer making the same. The provisions made by this amendment were definite and certain as to what the officer was required to do, and prescribed the time when the requisite acts should be performed, and they correspond fully in their nature with the allusions made to a further law in the act of 1880 requiring receivers to make and file reports of their proceedings. The nature of the duty prescribed by the first act, and of the references contained in the last act, indicate an identity of intention including both of these statutes, and they together form a clear and intelligible system so far as they have been made to extend. The first is a positive law requiring the receivers affected by it to make and file their reports at certain specified periods of time, and the other declares certain consequences which shall result from an omission to comply with what has been so required. But this act requiring receivers to make and file reports, by its terms extended no further than to control the conduct of those who derived their appointment under the authority of the title of the Revised Statutes, to one section of which this act was an amendment. The eases in which receivers of the effects of corporations might be appointed had been previously enumerated. (3 R. S. [5th ed.], 763, 764, §§ 44, 46, 49.) And it was only to such receivers that the amendment made by the act of 1858 was ■ rendered applicable. But the receiver who was appointed in this action was not one of those whose appointment was provided for by either of these sections. This receiver on the contrary, as has been already stated, was appointed under the authority of chapter 151 of the Laws of 1870, which in addition to providing for other cases in which such an appointment might be made, in terms, also continued in force the provisions contained in the title of the Revised Statutes already mentioned. And without intrenching upon the previous statutory authority created upon this subject, this act was made to include additional cases not before the subject of legislation.

It was enacted subsequent to the law requiring, reports from receivers appointed under the authority of the Revised Statutes, and in no manner subjected the receivers to be appointed under it to the provisions contained in the act of 1858. Such certainly was its effect as to the receiver appointed in this action, at the suit of the plaintiff as a stockholder.

In compiling the statutes known as the sixth edition, so much of the act of 1870 as prescribed the cases in which receivers might be appointed under it, was inserted in that compilation previous to the section amended by the act of 1858. (3 R. S. [6th ed.], 749.)

This gave the statute the appearance of requiring the same reports from such receivers as were by its terms required from receivers appointed under the provisions of the Revised Statutes. But that was evidently done without authority, inasmuch as the act of 1858 had in no manner been rendered applicable to the provisions of the act of 1870, not before that time forming any part of the Revised Statutes. The act of 1870 was not enacted as an amendment of those statutes, but as an independent law defining and declaring additional cases in which receivers of the property of corporations might be appointed. And for that reason the amendment of 1858 relating only to the receivers mentioned in the Revised Statutes cannot, by any rule of construction, be rendered applicable to the act of 1870. In this respect this compilation of the statutes was unauthorized and calculated to create such an erroneous impression of the law as may have resulted in the hearing and determination of the application for the removal of this receiver in the third 'judicial district. But even if it did, that circumstance can furnish no real justification for the court in hearing an application over which its jurisdiction did not in reality extend. As the statutes of the State stood upon this subject when the application was heard, the receiver affected by it was not within the terms of the act of 1880, for the reason that he had not been by law, as the receivers mentioned in the Revised Statutes had, required to make and file reports of his proceedings. The motion to remove him for his misconduct should therefore have been made in the first judicial district of the State. The action was pending there, and the motion could not be made elsewhere. (Code, § 769.)

The order, consequently, which was made in the third district, was unauthorized and void, and it was not only so as to the removal of the receiver, but also as to the appointment of his successor. For the latter act no authority was given, even by the Law of 1880. When the application under its provisions can be heard out of the district in which the action is pending, the relief afforded can extend no farther than to remove the receiver himself. No authority, either in terms or by implication, has been given to appoint his successor, and consequently to attain that end the proceedings should have been remitted to this district, even if the order for the removal of the receiver had itself been authorized.

It was for that reason, according to the views expressed in Seaman v. Whitehead (78 N. Y., 306-308), the proper subject of a motion to vacate it. And as all motions on notice, by the express language of the section of the Code last referred to, are required to be made in this action in the first district, it necessarily included the motion required to vacate the order.

This point was considered in the ease of Fitch v. Hall (18 How., 311), and that was held to be the only correct conclusion which could be adopted, and it was placed upon the authority of a case previously heard and decided by the General Term of the third judicial district.

The order which the plaintiff applied to have vacated through the application made at the Special Term should have been declared a nullity, and disposed of accordingly. As .the act of 1880 had no application to the case, that order had been entered without authority, and it was the province of the court at which the motion was made to vacate and set it aside. The order from which the appeal has been taken should therefore be reversed and an order entered vacating the order made in the third district for the removal of the receiver and the appointment of his successor, and the application should be remitted to the Special Term at Chambers, for the purpose of determining what order ought properly to be entered upon the complaint made concerning the misconduct of the receiver and indicating the necessity of appointing and continuing his successor. Upon this application this court cannot accede to the request presented on behalf of creditors for the continuation of the successor of the receiver in office. But whether that should be done or not must be determined by the Special Term. He has faithfully managed the affairs committed to his care, and if the original receiver is to be removed he may be a proper person to select as his successor.

Whatever should be done in that respect will be fully determined on the hearing of the application to be provided for by the order to be entered upon this decision.

Brady, Jconcurred.

Navis, P. J.:

I concur fully, in the conclusion of my brother Daniels on the grounds stated by him. I think also that the other questions in the case ought to be considered. The receiver appointed in the action was removed without notice to the plaintiff, or indeed to any party in the suit. The order to show cause why the receiver should not be removed was only directed to be served on the receiver himself. It was served upon neither the plaintiff nor the defendant, nor did either of them appear on the hearing. No notice of application for the appointment of a new receiver was given to the plaintiff, or to the defendant corporation. The motion was made under the act of 1880, and was of necessity a motion in the pending action. It was in no sense an original proceeding. It was the duty of the moving party to have given notice to the plaintiff, and no order binding upon him could be made without such notice or without his appearing on the motion and expressly or by necessary inference waiving such notice. This irregularity was too gross to be disregarded. The plaintiff, who is now appellant, had the fullest interest in the receivership. He was entitled to be heard upon any question affecting it. He was especially interested in the question who should be appointed receiver if the existing one should be removed. No action taken without notice to him, or a hearing on his behalf can be upheld. This principle is so elementary and so controlling in all cases that no authority need be cited. In this case it was wholly disregarded. The irregularity was therefore fatal to the order so far as it affects or can affect the plaintiff or his rights. And the motion to set it aside as to him was properly made at the Special Term in this district, which is the place of trial of the action. It should have been granted by the court below. If the plaintiff had a right of appeal from the order, which is certainly questionable, he yet had a clear right to move at Special Term to set aside an order void as against him for such ail irregularity.

The order made by the Special Term in the third district was, as already suggested, one in an action the place of trial of which is in the city and county of New York. The justice ordered it to be entered in Albany county. This was a violation of the rules of the eotírt, but it did not affect the validity of the order because the irregularity could be corrected by another order directing the entry in the proper county. It was introducing a method' of practice greatly inconvenient and embarrassing to the administration of justice. In effect it divided the pending action in which the receiver had been appointed into two parts, to be run concurrently in different districts and before different justices or courts. The one having the action and its merits in hand -which, of course, involve the question whether there should have been any receiver appointed, and the other taking charge of the management of the receiver and the incidental orders affecting his proceedings, and the disposition of funds in his hands. Such a division of actions and dispersion of papers in the same action ought not to be tolerated. It is sure to lead to controversies and, perhaps, to abuses discreditable to the administration of justice. Motions will be made, conflicting in their nature, touching the disposition of funds or the conduct of the receiver in the different districts, resulting in conflicts injurious to the rights of parties and unhappy in all their aspects. It is very clear that the act of 1880 contemplates nothing of the kind; nor was it intended that a motion in the third district made by the attorney-general under that act, in a suit pending in a distant portion of the State, should operate to transfer the control of any new receivership that might be created, from the courts where the action was pending, and confer it on a court of justice in a distant portion of the State.

The abuses to be corrected by the interposition of the attorney-general would, in many cases, be slight compared with those which might grow out of the concentration in one district of the control, patronage, allowances, accountings and discharging of receivers, to say nothing of the expense and embarrassment of distant parties, counsel, witnesses, and receivers in attending before courts distant from their places of residence. It is to be regretted, in view of the case made against Receiver Rice, which seems to call for his removal, that these questions should have arisen. But they are before us in the case, and must be disposed of in conformity to established rules of law and practice affecting not only this but all other cases of like nature, and thev demand a reversal of the order in so far as it affects the appellant.

Brady, J., concurred.

Order reversed.


author: Davis, P. J.:

text:
    WILLIAM WARD, Appellant, v. MARGARET REYNOLDS and Others, Respondents.

      Action by a grantee in the name of Ms grantor — does not abate by the death of the grantee — who may appeal from the ord&r denying a motion for its continuo/nce for the benefit of his devisee.

    An action brought by a grantee in the name of his grantor, against one who at the time of the execution of the deed was in possession of the premises under an adverse claim of title, does not abate by the death of the grantee, but the same may be revived and continued by his devisees. :
    Where an application by the devisee for leave to continue the action is denied, he.may take an appeal from the order denying his motion, in the name of the plaintiff of record.
    Appeal from order of the Special Term denying a motion for leave to continue the above entitled action.

      Martin c& Karge, for the appellant.

      Frederick Smyth, for the respondents.
   Davis, P. J.:

This action was brought for the recovery of real property by and on behalf of one Henry Bretzfield, in the name of William Ward his grantor, against the respondents who were in possession of the property claiming to hold the same adversely at the time of the execution of a deed thereof from William Ward to said Bretzfield, and it is claimed to be brought in conformity to the provisions of section 111 of the Code. Upon an order requiring the attorneys to produce their authority for bringing the action, the facts were presented by affidavit to the court, and the court at a Special Term in July 1880, held the authority sufficient and vacated the order. Afterwards Henry Bretzfield died leaving a last will and testament whereby he devised all his estate to his widow, Mary Bretzfield, and appointed her and two other persons his executrix and executors. Mrs. Bretzfield, as devisee under said will, applied for leave to continue the action, and her motion was denied by the Special Term. Erom such denial an appeal is brought. The appeal is brought in the name of William Ward the plaintiff on the record, and the point is made that it is not brought on behalf of Mrs. Bretzfield, but in the name of a party who is not injured by the order. This point we think is not well taken. If a legal right existed to bring the action in the name of William Ward, he is to be regarded, for the purpose of proceedings in the action, as a party in interest. The action did not abate by the death of Henry Bretzfield, but continued to exist for the benefit of the party who succeeded to the title or interest held by the deceased. The deed of Ward as between himself and his grantee was good, and conveyed all of the grantor’s right, title and interest in the premises.

It was only void as against parties holding and claiming title adversely; and in such a case an action to recover possession may be maintained by the grantee in the name of the grantor. (Code of Pro., § 111; Hamilton v. Wright, 37 N. Y., 502; Lowber v. Kelly, 9 Bosw., 502; Hasbrouck v. Bunce, 62 N. Y., 483.) The action in that form may doubtless be continued, with leave of the court, in the name of the decedent’s grantee or devisee for his or her benefit.

The motion was, therefore, a proper one and ought to have been granted by the court below.

The order should be reversed, with ten dollars costs besides disbursements, and an order entered permitting the continuance of the action by the appellant on her complying with the requirements of the practice in such cases.

Brady and Daniels, JJ., concurred.

Order reversed, with ten dollars costs and disbursements. Order entered as directed.


author: Reb Ourlam :

text:
    EDWARD S. LOOP, Respondent, v. JAY GOULD, Appellant.

      Foreign judgment — what credit is to be given to it — all the prerequisites to the courts jurisdiction must appear by proof or recitals.

    In this action, brought upon a judgment recovered against the defendant by a Pennsylvania corporation, in an action brought in a court of that State, the plaintiff claimed title to the judgment by virtue of an assignment from one who had been appointed a sequestrator of the property of the corporation by a court of general jurisdiction in that State.
    Under the statute of Pennsylvania no power exists in the court to appoint a sequestrator of corporate property, until an execution has been issued upon the judgment-against the corporation and returned unsatisfied in whole or in part.
    The recovery of the judgment against the corporation was proved, but the record of the appointment of the sequestrator contained no recitals showing the issue of any execution upon the judgment, nor was its issue proved upon the trial.

      Held, that in the absence of such recitals and proof no power was shown in the court to appoint the sequestrator, and that the plaintiff, having failed to show title to the judgment in his assignor, could not recover.
    Appeal from a judgment in favor of tbe plaintiff, entered on a verdict directed by the court at circuit.
    Vanderjpoel, Oreen dc Gumming, for the appellant.

      Henry J, Seudder and Henry D. Hotchkiss, for the respondent.
   Reb Ourlam :

This action is upon a judgment recovered by The Lehigh and Delaware Plank Road or Turnpike Company against the appellant, impleaded with one David W. Lee, on the 7th of March, 1861, in the Court of Common Pleas of Monroe county, Pennsylvania. It was shown on the trial that the court in which the judgment was recovered is one of general jurisdiction in and for the county of Monroe, in the State of Pennsylvania, and that the Lehigh and Delaware Plank Road or Turnpike Company was a corporation duly created hy the law's of that State. The plaintiff claims title to the judgment under an assignment made by one Orestes Collins as sequestrator, bearing date April 8, 1865, and acknowledged on the 28th day of December, 1818. To show title to the judgment in plaintiff’s assignor, a judgment recovered by one Jacob ICoon against the Lehigh and Delaware Plank Road or Turnpike Company, in the Court of Common Pleas of Luzerne county, Pennsylvania, on the 15th of January, 1861, for the sum of $5,300, was proved by the e2 recitals showing that on the 1st of April, 1861, the court granted a rule to show cause why a sequestrator should not be appointed, returnable on the tenth of April following, and that on the eleventh of April following, the court on motion appointed Stiles Williams sequestrator; that on the 19th of October, 1861, the court, on the application of Stiles Williams, discharged him from the office of sequestrator and directed that he hand over his accounts and documents to his successor to be appointed by the court, and that on the 28th of October, 1861, the court appointed Orestes Collins sequestrator in place of Stiles Williams resigned and directed that all books, notes and accounts of the company be handed over to said Orestes Collins on his filing his bond, etc. On the same day Collins filed his bond and became sequestrator under his appointment. It nowhere appears in the record that any execution had been issued upon the judgment against the company and returned unsatisfied, nor was the issuing and return of execution shown in any other manner.

The statute of Pennsylvania conferring power upon the courts to appoint sequestrators after judgment against a corporation was put in evidence as follows:

Section 43. In every case in which judgment shall have been obtained against such corporation, except as aforesaid, and an execution issued thereon shall have been returned unsatisfied in whole or in part, it shall be lawful for the court in which such judgment shall have been obtained, upon'the bill of petition of the plaintiff in such judgment, to award a writ to sequester the goods, chattels and credits, rents, issues and profits, tolls ancl receipts from any road, canal, bridge or other work, property or estate of such corporation.” ,
“ Section 46. The court shall, upon ■ the awarding any such .writ, appoint a sequestor to execute the same, and to take charge of the property and funds,” etc.

It is very clear, from the provisions of these statutes, that no power exists in the court to appoint a sequestor of corporation property, until an execution shall have been issued upon the judgment against the corporation, and returned unsatisfied in whole or in part; and it is insisted on behalf of the appellant that it must affirmatively appear by the record, or be shown by proof aliunde, that such execution was issued and returned, and that in the absence of such appearance and proof in this case, the plaintiff has failed to show title to the judgment in the sequestrator from whom he derives title. The prothonotary of the court certifies that the exemplification produced contains the whole of the record of the proceedings in the case.

Under the Constitution of the United States we are to give full faith and credit to the judgments of the courts of other States, and under this requirement we must hold that the judgment was duly and lawfully recovered. The court being shown to be one of general jurisdiction, everything essential to uphold the validity of the judgment is to be presumed. But in this ease the question is not one affecting the validity of the judgment, but of proceedings subsequent to its recovery, occurring in the efforts to enforce the judgment. "We cannot take judicial notice that an execution was ever issued, nor that other steps were taken toward enforcing it, nbr, as the rule is settled in this State, are we to presume from the production of an order of the court, which could only lawfully be made after other steps had been taken, that such steps were taken, in the absence of any recital to that effect, or of any affirmative proof. It would doubtless be our duty to give full force and credit to recitals contained in the record or order, showing that the order was made upon due proof, or upon its appearing to the court that such steps had been taken. The proceedings to sequestrate the property of the corporation were special proceedings, based in part upon the judgment and in part upon other subsequently occurring facts which were made by the statute essential to the exercise of such power. If those facts did not exist at all the order of sequestration would be utterly invalid, and if there be no recital of their existence in the order or in the record of the proceedings, there is nothing to uphold the order, unless it be averred and shown by satisfactory proof that they in fact existed. This rule is established or recognized by Bullymore v. Cooper (46 N. Y., 236); Staples v. Fairchild (3 id., 41); Stanton v. Ellis (12 id., 575); People ex rel. Gambling v. Board of Police (6 Abb., 162). The court of general jurisdiction ip such a case derives its power from the statute, and the statute in express terms makes its exercise dependent upon certain specified facts; those facts must appear or be shown to have in fact existed. The courts will not presume their existence from mere evidence that the court in which the judgment was recovered made the order of sequestration.

We think, therefore, that the point urged by counsel for appellant is well taken, and that the judgment must be reversed and a new trial ordered.

The judgment onN which the action in this case is brought is a stale one recovered some twenty years ago and the record shows that a levy was made upon a large amount of property soon after its recovery. What became of that property or of the levy nowhere appears. The assignment of the judgment bears date in 1865, but it was not acknowledged until 1878, thirteen years after its date. Under the circumstances the presumption of satisfaction of the judgment by the levy on property, when connected with the great delay in seeking to enforce the judgment, might well excite suspicion of the justice of the claim. We do not feel ourselves called upon in such a case to disregard the point raised by the appellant’s counsel, on the ground that it was not more specifically pointed out on the trial.

Judgment reversed, new trial ordered, costs to await events.

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

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


author: Daniels, J.:

text:
    WILLIAM JARVIS, Respondent, v. ELIZABETH FURMAN, Appellant.

      Evidence — opinion of witness as to the value of property — when it is admissible.

    In an action to recover damages for a failure by tbe defendant to perform a contract for tbe sale of real estate, where tbe value of tbe real estate at tbe time of tbe breach is to be determined, a witness, who was at that time engaged in a business which required his attention to be directed to tbe marketable value of property of tbe kind in question, and who was acquainted with that and other property of tbe same character in its vicinity, and knew at what prices such property was held by the persons owning and controlling it, is competent to express an opinion as to the value of the property in question.
    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.

      H. D. Birdsall, for the appellant.

      Daily & Crosby, for the respondent.
   Daniels, J.:

The action was brought to recover damages arising out of the nonperformance of a contract for the sale of real estate. It was made in writing and subscribed and sealed by the parties to it. The plaintiff failed to pay the amount becoming due. from him at the time, mentioned in the agreement and gave evidence - tending to show that the defendant required a larger amount, and for. the purpose of affording him an opportunity to obtain it extended the time for the payment. This was the controverted subject at issue between the parties upon which the right of the plaintiff to recover in the action was chiefly made to depend; and the evidence given to sustain what the plaintiff claimed to be the fact was sufficient to submit the inquiry to the jury, whether such an extension had been agreed upon or not, and no exception was taken to the propriety of submitting this point to their determination. It has been relied upon, however, as an improper proceeding, because the agreement itself was under seal; and one which should be corrected under so miich of the appeal mentioned in the notice as is stated to have been taken from an order'denying the motion made upon the minutes to set aside the verdict. But no such order as is mentioned in the notice appears in the case. All that is disclosed upon this subject is that such a motion was made and denied, to which the defendant excepted. But as this was not the ground of an exception (Matthews v. Meyberg, 63 N. Y., 656) the case is in no such condition as to authorize the consideration of this point. As it has been presented it is to be presumed that the evidence was properly received, and the point raised by it regularly submitted for the decision of .the jury.

The court was asked to charge the jury, that if the time of payment was extended to.a certain day, and it was not paid on that day, the -verdict must be .for the defendant. This was declined, not because ■.of .any unsoundness in the proposition itself, but for the reason that the evidence did not show any certain day to have been fixed for the payment of the money, if the time mentioned in the contract had, in fact, been extended. The evidence given upon the trial clearly justified the refusal to charge this request, for it did not tend to show that any specified time was agreed upon when the payment should be made, but simply that the plaintiff might take a longer time to raise the money, because of the increased amount required •beyond that mentioned in the agreement. It is true that the ¡defendant, in her testimony, stated to Mr. Rnland, on Thursday, that they would only give the plaintiff until the following. Saturday to pay the money. But he was not shown to be the agent of the plaintiff, and - consequently this information, as it did not appear to be communicated to him, was not binding upon him.

An important subject of inquiry upon the trial, was the value of •the property agreed to be conveyed to the plaintiff by the terms of the contract alleged to have been broken, and evidence was given by both parties upon this subject. And as it appeared that the defendant had voluntarily conveyed away the property before the period stated to have been agi’eed upon for the extension had expired, this evidence was properly received. Further testimony upon this subject was proposed to be given by the witness, Herr, who was called and sworn on behalf of the defendant. Iiis testimony, as to the value of the property, was excluded upon the plaintiff’s objection that he had not been shown -competent to give it, and an exception was taken to the ruling by which this objection was sustained. The material point, therefore, to be considered is whether this witness appeared to be competent to answer the question propounded to him. His testimony bearing upon his competency was as follows: Q. Tour business is real estate? A. Yes, sir. Q. Ho you know anything about the value of property in the neighborhood of thése lots you have heard us talking about ? A. Yes. Q. "What do you know about it, and how did you get your knowledge ? A. I was trading in real estate generally since in 1862, and traveling a good deal around speculating to see where I could get the cheapest lots and houses. Q. Ho you know what property was bought and sold at in that neighborhood ? A. Yes. Q. And what people held it at, etc. ? A. Yes. Q. What did you say your business -yas ? A. Real estate. Q. What do you mean by real estate ? A. Real estate business. Q. Ho you mean to buy and sell for anybody else or for yourself? A. For myself. Q. Speculator in real estate? A. Yes. Q. Hid you know in 1868, along about that time, of the value of property in the neighborhood of that property? A. Yes. Q. Ho you know the value of this property? A. Yes, sir; I traveled over it oftentimes. Q. How do you know the value of this property ? A. By going bn and inquiring of parties, and making valuations of different property. Q. Hid you know of purchases or sales of real estate in the immediate vicinity of this property, and of this property itself, at that time? A. Not in 1868.

From this examination of the witness it appears that he was engaged in the business requiring his attention to be directed to the marketable value of property of this nature"; that he was conversant with this property, and ¿Iso with other property of the same character in its vicinity, and knew at jvhat prices such property was held by persons owning and controlling it.

His information and knowledge related to the time when it was important in the case to ascertain the value of the property made the subject of this controversy, and as the evidence of the witness was given, he was a competent person to express his judgment upon this subject. That evidence of this nature is admissible in such an action is well sustained by the authorities. (Morehouse v. Mathews, 2 Conn., 514-516; Clark v. Baird, 5 Seld., 183.) In the last ease it was held that “ the opinion of a witness who has seen the thing in question, and is acquainted with the value of similar things, is not incompetent to be submitted to a jury.” (Id., 196; Judson v. Easton, 58 N. Y., 664; Mercer v. Vose, 67 id., 56.) What is required to render the witness competent to give his opinion is that he must have dealt in or had some knowledge of the article concerning which he is to speak. (Teerpenning v. Corn Ex. Ins. Co., 43 N. Y., 279, 282; Bedell v. Long Island R. R. Co., 44 id., 367.) In the last case it was held that there is no rule of law, and thez-e can be none, defining how much a witness shall know of property before he can be permitted to give an opinion of its value. He must have some acquaintance with it, szzfficient to enable him to form some estimate of its value, and then it is for the jury to determine how much weight to attach to such estimate.” (Id., 370.)

Under the principle established by these authorities, this witness should have been allowed to have answered the question put to him, and the exclusion of his answer was unwarrazited and improper. In no other respect does it appear that any principle of law was violated in the trial of the cause, but in this there was error in sustaining the plaintiff’s objection. The evidence proposed to be given related to a material subject of inquiry in the case, and its exclusion can neither be seen, nor held, to have been free from injuzy to the pei’son offering it.

Because of the exclusion of this evidence, the judgment in the case should be reversed, and a new tidal ordered, with costs to the appellant to abide the event.

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

Judgment reversed, new tidal ordered, costs to abide event.