author: Smith, C. J.

text:
    John Griffin, Resp’t, v. Patrick W. Norton, Appl’t.

      (Superior Court of Buffalo, General Term,

      Filed October, 1886.)
    1. PleadiNgs — Jurisdictional pacts —Buffalo city charter, § 4, tit. 2, § 16 AS AMENDED BY LAWS 1885, CH. 181. '
    The Buffalo City Charter provides for the election of a justice of the peace of the twelfth ward, and after making general provision as to his powers, says further that in civil actions and proceedings he shall have jurisdiction only where the defendant is a non-resident of the City of Buffalo at the time the action or proceeding is commenced. The complaint did not allege the fact of the defendant’s non-residence, upon the defendant’s contention that it was a jurisdictional fact which should he pleaded and proved to authorize a judgment in the plaintiff’s favor, it was held that the contention of the defendant could not be maintained.
    2. Same — Appeals — Code Civ. Peo. § 3057.
    If the defendant was not in fact a non-resident, then the issuing and service of the summons could not give the justice jurisdiction, and judgment in favor of the plaintiff was erroneous, and as the proceedings before the justice showed nothing on the subject, the caséis within the Code Civ. Pro. § 3057, which provides that where an appeal is founded upon an error in fact in the proceedings not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the matter upon affidavits; or in its discretion upon examination of witnesses or in both methods

      Perkin & Field, for appl’ts; Josiah Cook, for resp’t.
   Smith, C. J.

This is an appeal from a judgment rendered by the Justice of the Peace of the 12th ward of the city of Buffalo. The city charter in section. 4, title 2, provides that “ There shall be a Justice of the Peace of the Twelfth Ward to be elected by the electors thereof. Section sixteen of the same title (as amended by chapter 181 of the Laws of 1885) provides that: “ The justice of the Twelfth Ward shall have and execute in said ward, the powers conferred by law upon the justices of the peace of towns, but in civil actions and proceedings he shall have jurisdiction only where the defendant is a non-resident of the city of Buffalo at the time the action or proceeding is commenced.”

The return of the justice shows that on the 21st day of July, 1886, at the plaintiff’s request he issued a summons dated on that day directed to any constable of Erie county, commanding him to summon the defendant to appear before said justice at his office in the city of Buffalo, on the 2nd day of August, 1886, at ten o’clock, A. M., to answer the complaint of the plaintiff in a civil action for $200 or under; that on or before the return day of said summons it was duly returned to said justice by a constable of said county, with a return signed by him that the same was duly and personally served on the defendant on the 26th day of July, 1886, by delivering to and leaving with him personally a true copy thereof; that on the return day of the summons the plaintiff appeared in person but the defendant did not appear, and upon due proof of his cause of action made in behalf of the plaintiff, judgment was rendered against the defendant for $24.50 damages and $6.50 costs.

The principal ground of the defendant’s appeal is, that as the statute gives the justice no civil jurisdiction except where the defendant in the action is a non-resident of the city of Buffalo, such non-residence is a jurisdictional fact which must be alleged in the pleading of the plaintiff and must be proved by him in order to authorize a judgment by the court in his favor. Neither plaintiff’s complaint nor his proofs showed anything as to the defendant’s residence, nor does the return contain anything on that subject.

The defendant’s contention is entirely novel and cannot be maintained. The statute defining the class of persons of which the justice of the Twelfth ward of this city has jurisdiction in civil actions, is of the same character as the general statute which specifies the class of persons of which justices of the peace in towns have civil jurisdiction. Section 2869 of the Code provides that actions in justices courts’ must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except in certain special cases. This is substantially a reenactment of the provisions of former statutes, and has for more than half a century been a part of our statute law defining the jurisdiction of justices of the peace. Yet, whoever heard of a case in which it was pleaded or proved in a justice’s court that the residence of the parties was such as to bring the action within the jurisdiction of the justice as limited and defined by the statute? In Barnes v. Harris, 4 N. Y., Rep. 374, which was an action upon a judgment rendered by a justice of the peace of Chenango county, the defendant demurred to the plaintiff’s declaration because (among other alleged defects) it did not show jurisdiction in the justice, it not being alleged or shown that the defendant was a resident of Chenango county when the suit before the justice was brought and the judgment rendered. But the court held the declaration good, and that it was not necessary to show that in the justice’s court it was either alleged in pleading or proved that the residence of the defendant was within the jurisdiction of the justice. The court said: “ It may be assumed as a principle to which it is believed there is no exception, that a court having authority to issue process, acquires jurisdiction of the person of the defendant, prima faeie., by a personal service of that process upon him in the manner required by law. The 11th section of 2 R. S. 226, provides among other things that suits in justices’ courts may be instituted by process, which shall be a summons, warrant or attachment. The form of the summons, the mode of service and return are presented in the 14th, 15th, and 16th sections of the act. It is the ordinary process of the court. The warrant and attachment are extraordinary, and can only issue upon a special application (§§ 17, 26) and upon proof of the circumstances showing the grounds of such application. 2 R. S., 160, 201, 203, sections 19, 28, 17, 292, 301. All that is necessary to authorize the issuing of a summons is the mere suggestion of the plaintiff that he has a demand against the defendant falling within the second section defining the jurisdiction of the court. The justice is not at liberty to decline the jurisdiction except under the special circumstances mentioned in the 7th section ; in all others by necessary implication he is obliged to take cognizance of the action. The plaintiff is not bound even to allege, much less to prove, that the defendant is a resident of the county, the statute neither authorizing nor providing the means for obtaining the evidence.” See also Hoose v. Sherrill, 16 Wend., 33, and Willins v. Wheeler, 28 Barb., 669. In the latter case the justice issued a summons against a non-resident of the county returnable more than four days after its date, tbe statute tlien providing that such a summons should be returnable in not more than four days, otherwise the justice should “have no jurisdiction of the cause.” The court held that if the defendant did not take the objection in the court below he might raise it on appeal to the county court, but that the defect in the process was an error in fact, to be proved by affidavit in the appellate court. Section 3057 of the Code provides that “ Where an appeal is founded upon an error in fact in the proceedings, not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the matter upon affidavits; or, in its discretion, upon the examination of witnesses; or, in both methods.” We are in no manner informed whether the defendant when this action was commenced before the justice was a non-resident of the city or not. If he was not, then the issuing and service of the summons would not give the justice jurisdiction, and tbe judgment was erroneous; but the defect constituted an error in fact, which can be brought before the court only in the manner pointed out in the section last quoted, as the proceedings before the justice show nothing on the subject, and, as we have seen, were apparently regular and free from error.

The judgment appealed from is for $24.50 damages and $6.50 costs, and there is nothing in théheturn of the justice showing the items of the costs or any reason for allowing that amount. By section 3076 of the Code the sum to be allowed the plaintiff for costs in a case like this is limited to five dollars. The judgment, having been rendered for a larger sum, is erroneous, and it may be reversed; or we may modify it by striking out the costs, some years ago certain of the justices of the peace of this city were accustomed to allow much larger sums for costs than were lawful, and to disregard the limitations imposed by statute in this respect. The evil had become a serious one; and this court, feeling that it was its duty to put a stop to it, in more than one instance reversed judgments in which the allowance of costs had been very excessive and in manifest and flagrant disregard of the statute referred to; and we imposed costs of the appeal upon the party in whose favor such costs were allowed.

In this case we think there is reason to believe that the error of the justice in allowing costs to the plaintiff beyond statutory limit, was an oversight and not intentional. On the argument-the plaintiff filed with the clerk a written stipulation that the judgment appealed from, be reduced to $24.50 and affirmed for that amount without costs of the appeal. We are disposed to adopt this stipulation as the basis of our judgment, but as the defendant, in order to take his appeal, was obliged to pay the costs in the court below, we therefore decide that the judgment be modified by striking out the costs, thus reducing the amount of the judgment to $24.50, and that the same as so modified be affirmed. The appellant is allowed to tax and recover his disbursements on this appeal, which are to be offset against the plaintiff’s judgments. No other costs of the appeal are allowed to either party.


source: Caselaw Access Project

author: Titus, J.

license: Public Domain

text:
    John J. Sayles, as Receiver, etc., of Ann Naylor, a judgment debtor v. Ann Naylor, et al.

      (Superior Court of Buffalo, General Term,

      Filed October, 1886.)
    1. Dower — Eight to, before assignment is a chose in action.
    The right of a widow to dower until it is assigned, is a mere chose in action which is not the subject of a sale upon execution.
    2. Supplementary proceedings — receiver — title to property of judgment debtor — Code Civ. Pro. § 2468.
    A receiver appointed in supplementary proceedings becomes vested with all of the real properly of which the judgment debtor was seized at the time of his appointment. And the right of dower of a widow though not ad-measured is the absolute right which vests in the receiver.

      Willis J. Benedict, for pl’ff; Manley Q. Green, for def’t.
   Titus, J.

The questions in tjiis ease arise on the demurrer of the defendant, Ann Naylor, to the plaintiff’s complaint, on the ground that the complaint does not state facts sufficient to constitute a cause of action. The complaint alleges in substance that in April, 1885, John Walsh and Andrew Walsh, recovered a judgment in the supreme court, against the defendant, Ann Naylor for the sum of $148.50. That the judgment was filed and docketed in the clerk’s office of Erie county, and that an execution against the property of Ann Naylor was issued to the sheriff of said county, and by him returned wholly unsatisfied.

That subsequently an order for the examination of the defendant in supplementary proceedings was obtained before the county judge of Erie county, and under such proceedings, the plaintiff was appointed receiver of her property.

That he executed the required bond which was approved by the county judge, which, with the order appointing him such receiver was filed in the clerk’s office on the third day of December, 1885. That Ann Naylor is the widow of Thomas Naylor deceased, and as such widow is entitled to dower in certain premises. That her dower has never been assigned to her.

Upon this state of facts the plaintiff asks the judgment of this court to aid him in collecting his judgment out of the dower interest of the defendant.

It is not alleged that the defendant ever assigned by any prober instrument her dower interest in the premises of which her pusband died seized, to the receiver.

Tbe defendant’s counsel insists that the plaintiff cannot maintain this action because, among other reasons, the dower interest of the defendant should have been sold on execution. We do not think the counsel’s position is well taken.

The right of a widow to dower, until it is assigned, is a mere chose in action, which is not the. subject of sale upon execution, and before assignment is only a claim. Lawrence v. Miller, 2 N. Y., 245; Moore v. Mayor, 8 N. Y., 110; Aikman v. Harsel, 98 N. Y., 186.

The other point made by the defendant’s counsel is, that the action cannot be maintained by the receiver for the reason that her dower has not been assigned to him by the widow. This was undoubtedly the rule before the legislature changed it, by amendments to the Code of Procedure. Section 298 of the Code of Procedure as originally adopted made no provision for vesting the title of the judgment debtor’s property in the receiver. In 1862 the legislature amended section 298, by adding a clause in which the following appears : “A certified copy of the said order shall be delivered to the receiver named therein, and he shall be vested with the property and effects of the judgment debtor, from the time of filing and recording of the order aforesaid.” This was again amended in 1863 by a further addition : “ But before he shall be vested with any real property of such judgment debtor, a certified copy of said order shah also be filed and recorded in the office of the clerk of the county in which any real estate of said judgment debtor sought to be affected by said order is situated.”.

This continued without change until the adoption of the Code of Civil Procedure, when that portion of section 298 was embodied in section 2468, which provides that “ The property of the judgment debtor is vested in a receiver who has duly qualified, from the time of filing the order appointing him, or extending his receivership as the case may be, subject to the following exceptions :

1. “ Beal property is vested in the receiver only from the time when the order, or a certified copy thereof, is filed with the clerk of the county where it is situated.”

This would seem to dispose of the question so far as the statute is concerned without resort to adjudged cases for authority, but the courts of this state have in several cases passed upon this very question. The case of Wing v. Disse,reported in 15 Hun, 1.90, is in all respects, so far as this qiiestion is concerned, similar to the one under consideration. A judgment was obtained against Disse, and execution returned unsatisfied, and proceedings instituted supplementary thereto, which resulted in the appointment of the plaintiff as receiver..

In that case the court, by a unanimous decision held that a receiver appointed in supplementary proceedings, under the pro•visions of the code is vested witb tbe real estate of tbe debtor by virtue of bis appointment upon filing tbe security required, duly approved, and tbe entry and recording in tbe proper clerk’s office of tbe order of appointment, without any conveyance being made to him by tbe judgment debtor.

Tbe learned judge in writing tbe opinion says : “ These provisions are so clear to our minds that we would have been content to declare tbe law as we find it written, but for tbe fact that since these amendments were adopted, tbe decision of Moak v. Coats, has been followed by the general term, in tbe second department, in tbe case of Scott v. Elmore, 10 Hun, 68; but in that case the learned judge who wrote the opinion, did not advert to tbe amendments of 1862 and 1868.” The case of Moak v. Coats, reported in 33 Barbour, 498, and of Chautauqua County Bank v. Risley, 19 N. Y., 374, were decided before the amendments of 1862 and 1863. In Hayes v. Buckley, 53 How, 173, tbe question as to the rights of a receiver appointed in proceedings supplementary to execution, was again passed ujDon, and the court held that by virtue of bis appointment all of tbe property both real and personal of tbe judgment debtor vested in tbe receiver without assignment from tbe judgment debtor to him. The case of Scott v. Elmore, is the only case I have been able to find decided since the amendments to the Code, which bolds that it is necessary, in order to vest tbe real property in the receiver, that an assignment should be made to him by tbe judgment debtor, and inasmuch as tbe attention of the court does not appear to have been called to tbe amendments to tbe Code of 1862 and 1863, it cannot be regarded as an authority sustaining the doctrine that when a receiver is appointed under the provisions of the Code providing for tbe enforcement of a judgment in proceedings supplementary to execution, title does not vest in him by virtue of tbe statute.

In Payne v. Becker, 87 N. Y., 153, the question was before tbe court of appeals ; in that case tbe court held, all tbe judges concurring, that “ Where in pursuance of an order appointing a receiver in proceedings supplementary to execution against the widow, who was entitled to dower, but which bad not been assigned to her, that he was entitled to maintain the action as receiver, and that her dower, although unmeasured, was liable for her debt in that proceeding.

In that case, however, the court said that whether the widow bad assigned to tbe receiver or not, was of no consequence, because by direction of the judge she bad conveyed her right to the plaintiff.

Again in Manning v. Evans, 19 Hun, 500, the general term of tbe supreme court, in this department, reiterated the doctrine that “ Whatever title, estate, or interest the defendant may have bad in it, capable of being aliened if she bad any at the time of tbe appointment of tbe receiver, became vested in tbe receiver, by virtue of his appointment, followed by tbe fibng of tbe requisite security, and tbe entry and recording of tbe order of appointment in tbe proper clerk’s office, without any conveyance being executed to him, by tbe judgment debtor.”

It seems clear from the language of tbe Code itself, as well as from tbe adjudged cases, tbat tbe plaintiff as receiver, is vested with all of tbe real estate, of which the judgment debtor was seized at tbe time of bis appointment. And that tbe widow’s right of dower, although unmeasured, is an absolute right wbicb is assignable as perfectly as any other interest in lands. Payne v. Becker, 87 N. Y., 158, and Pope v. Mead, 99 N. Y., 201. It follows from what has been said that tbe plaintiff should have judgment on tbe demurrer with costs.


text:
    Nathan W. Davis, Resp’t, v. The New York, Lake Erie and Western R. R. Co., Appl’t.

      (Superior Court of Buffalo, General Term,

      Filed December, 1886.)
    .1. EVIDENCE — MUST CORRESPOND WITH THE ALLEGATION'S.
    In an action brought to recover damages for injuries suffered by the plaintiff while in the defendant’s employ as an engineer upon one of its locomotive engines, the complaint alleged that the neglect consisted in furnishing a defective engine. Held, that evidence that the fuel used was not of safe or proper quality, was improper.
    2. Pleadings — Object oe weitten pleadings.

      Held, That ’the object of written pleadings is to frame the issues so that the parties may know what questions are to be tried, and make preparation therefor, and that this purpose is frustrated if on the trial the party is suffered to substitute other and different issues for those so framed.

      Greene, Mc'Millan Gluck, for resp’t; Sprague, Morey .Sprague, for appl’t.
   Smith, C. J.

This action was brought to recover damages for injuries suffered by tbe plaintiff while in tbe defendant’s employment as an engineer upon one of its locomotive engines.

The complaint alleges tbat tbe. defendant so negligently, carelessly and unskillfully conducted its business tbat it failed to supply tbe plaintiff with suitable and safe appliances for tbe conduct of its business and failed to keep tbe same in repair as was proper and necessary to do to secure tbe safety of said plaintiff, “ tbat said defendant was negligent and careless in tbat behalf as alleged in this, tbat while tbe said plaintiff was engaged in tbe discharge pf bis duties as engineer, the defendant failed to furnish a safe and proper locomotive engine with wbicb to do so said work, but tbat the said locomotive so furnished plaintiff was out of repair, defective, insecure and dangerous to persons upon it ... . and by reason of which defective condition and lack of repair the said plaintiff while engaged in the performance of his duty was hurled violently out of the window of' the cab of the said locomotive by an explosion of gas in the firebox of said locomotive upon the ground, and received thereby severe and permanent injuries.”

The plaintiff testified on the trial that while he was at work with his engine hauling a train of freight cars, his engine “ blew out and got stopped up; she blew fire, gas and smoke out into the cab and blew me out onto the ground; ” and that thereby his leg was broken and he suffered the injuries complained of. He further testified that the netting over the smoke stack of the. engine got stopped up and that caused the engine to blow out; that, he had not examined the netting, but that he knew that it was liable to get stopped up, and that the netting was used upon the smoke-stack of ail engines to prevent fire and sparks from escaping, and burning property along the line of the railroad. He did not testify to any defect in the engine or any want of repair thereof which caused the injury. After proving the nature and extent of his injuries, the plaintiff called as a witness, one, Stephens, who, at the time of the accident, was employed by defendant as an engineer upon one of its locomotive engines, and who, having testified that he was familiar with the kind of coal in use by defendant at the time in question, was asked by plaintiff’s counsel what kind of coal it was. The defendant’s counsel objected to the question as irrelevant and immaterial, and that the complaint contained no allegation that the fuel furnished for use by plaintiff on his engine was improper, or of a defective quality. The objections were overruled, "and the Avitness was allowed to testify to the quality and kind of coal used on plaintiff’s engine. He was asked by plaintiff’s counsel how the coal was, as to being screened or dirty, and mixed with foreign substances. Defendant’s counsel objected to the question as immaterial and irrelevant and that the complaint contained no allegation that the fuel furnished for use on plaintiff’s locomotive was improper or of defective quality. The objection Avas overruled and the witness answered that the coal was not screened ; that the netting used on the engine had the same sized meshes as the netting in general use on defendant’s locomotives; that he had had exjAerience of the danger of using that kind of netting, with that kind of coal. He further testified under similar objection by defendant’s counsel that the netting that was used on defendant’s road in connection with the kind of coal that was used was not a safe and suitable instrumentality to do business with upon the engine used by plaintiff; that if a larger netting was used with that kind of coal, there would be no difficulty and that if with the netting used on that engine a better quality of coal were used, there would be no difficulty. Several other witnesses called by the plaintiff who had been employed by defendant npon its locomotive engines were allowed to testify under defendant’s objection, that the quality of the coal used on defendant’s engine was defective and bad, unsafe and unfit for use with the netting used on defendant’s engines, though they also testified that it was a standard netting in use upon all the defendant’s engines, and in those of other railroad companies, and that it was a safe and proper netting if a good quality of coal was used upon the engine. Nor was any testimony given on the trial that would warrant the conclusion that there was any defect in the netting of plaintiff’s engine if the coal furnished him for use thereon had been of good quality and fit for such use.

It is entirely clear to my mind that the court erred in permitIng the plaintiff to prove that the coal furnished for use upon liis engine was of ' bad quality and unsafe and unfit for such use. As we have seen the complaint contained no allegation touching the kind or quality of fuel furnished plaintiff. On the contrary the complaint alleges that the engine furnished plaintiff was out of repair, defective, insecure, and dangerous by reason of which the plaintiff suffered the injuries complained of. On the trial the plaintiff attempted to prove that the netting upon his engine was defective, insecure and dangerous. He could only prove that when coal not screened, dirty and of a kin d and quality unfit for use was employed, the netting was unsafe and defective, but his own witnesses testified that the netting was safe and proper for use with a good quality of coal. When, therefore, the court allowed the plaintiff to abandon the charge in the complaint, that the engine was defective and unsafe, and to prove instead that the fuel used on the engine was of a bad quality, that it could not be used with safety upon an engine properly constructed and in good condition, he compelled the defendant to meet an issue not made by the pleadings, and which it did not come into court to try; and the jury were allowed by the admission of this improper evidence, to find a verdict for the plaintiff, because the fuel furnished him was not of good quality: but was unfit and unsafe for use upon .his engine.

If the complaint had not specified in what particular the plaintiff was guilty of negligence, or failure to do its duty towards the plaintiff, it would have been defective and the plaintiff could have been compelled to state in his complaint specifically, the negligence or neglect of duty which caused the injury for which he sued. And when stating the facts requisite to make his complaint sufficient in this respect, he was bound to rstate them truly, so that the defendant might know with what fault or wrong he was charged, and come to the trial prepared to meet the charge. The very object of written pleadings is to frame the issues so that the parties may know what questions are to be tried and make preparation therefor and this purpose is frustrated and manifest injustice is done if, on the trial, the party is allowed to abandon the issues deliberately framed, and substitute other and different ones. The defendant no doubt was bound to furnish the plaintiff a safe and proper kind of coal to use upon his engine, and had the complaint contained proper allegations on that subject, either originally or by proper amendments, a verdict based upon those allegations and suitable proofs supporting them would not be disturbed.

I have not considered other questions made by defendant in this case, because the error of the court in permitting evidence to be given to support an issue first raised on the trial, renders it necessary to grant a new trial upon which, with amended pleadings, or otherwise, those questions may not arise.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.


author: Beckwith, C. J.

text:
    John W. Wilson v. Frances A. Berger and Fanny Adams.

      (Superior Court of Buffalo, Trial Term,

      Filed January, 1887.)
    1. DEBTOR — May ASSIGN property to a BONA fide ceeditoe to keep it FROM THE HANDS OF ANOTHER CREDITOE.
    A debtor may convey Ms property to Ms creditor in satisfaction of an honest debt, or as security for the same, and the open declaration of the parties to the conveyance of their intent to keep if from another creditor who is in pursuit of it, will not, without other evidence of fraudulent intent, make the transaction liable to be declared void.
    2. Fraudulent intent alone will not avoid conveyance.
    A mere fraudulent intent followed by no illegal action does not give ■ ground for action.
    This action was brought by a judgment creditor to set aside a conveyance from the defendant Frances A. Berger to the defendant Fanny Adams. In 1884, Mrs. Adams bought a lot of land, and caused it to be conveyed to her daughter Mrs. Berger, and advanced the money necessary for the erection thereon of a dwelling house.
    Thereupon' she took a bond and mortgage back from Mrs. Berger for the amount paid for the lot and house, to wit, $2400. After that she advanced further sums of money for improvements on the lot, and for insurance and payment of taxes, and for other purposes. No security had been taken for these-subsequent advances. No interest had been paid to her. Meanwhile Mrs. Berger had become liable to the plaintiff by indorsement, or otherwise, as surety for her husband on purchases of coal by him from the plaintiff, and in 1886, the plaintiff threatened to sue her and to collect his claim out of her real es-tate, and be afterwards got judgments against her, and the present action is founded on those judgments.
    When the plaintiff threatened to sue the defendant, Mrs. Berger, she went to the defendant Adams, who was her mother, and proposed to her that she should take back the property, and Mrs. Adams consenting, the house and lot were conveyed to her by deed, executed by Mrs. Berger, either in satisfaction of her debt or as security for the same. The plaintiff claims that the conveyance was made with intent to hinder and delay him in the collection of his judgments. For proof of the fraudulent intent the plaintiff relies mainly on the admissions and statements made by defendants in an examination in proceedings supplementary to execution and similar admissions as witnesses on this trial. The plaintiff also proved that personal property belonging to the defendant Mrs. Berger or her husband, was transferred by bill of sale to the defendant Adams, and that they, Mrs. Berger and her husband, have continued to occupy the house and. use the personal property. The plaintiff also produced a witness who testified that the house and lot were worth $4,200. Upon the examination in supplementary proceedings Mrs. Berger testified : “ The day before I deeded it to her, I went out to her house, and told her I wanted her to take the property back. * * * * * * P told my mother that Mr. Wilson said he was going to sue me and my husband and take the property away from us. I thought it would be best for her to come into Buffalo and take the property back. I told her to come in the next morning. * * * * When I gave the deed to my mother, I did it so that Mr. Wilson, the plaintiff, could not take the property for his debt. I did not want it sold at a sacrifice.”
    Mrs. Adams in the same proceedings testified as follows:
    “ My daughter deeded the property back to me. The defendant, Frances Berger, came to me, and said that the plaintiff, John W. Wilson, was going to take the house and lot from her, if she did not pay the coal bill, and that he was going to sue her on Monday. She told me that she wanted me to come in early on Monday morning so that she could deed the property to me, and convey to me all her personal property, including horses, wagons and sleighs so that Wilson could not get them.”
    It appeared on the trial that the mother furnished money towards the purchase of the horses, and that the husband of the defendant, Frances A. Berger, gave Mrs. Adams a chattel mortgage on the personal property at the same time that Frances A. conveyed the house and lot.

      Greorge M. Browne. for the pl’ff; Spencer Clinton, for the def’t.
   Beckwith, C. J.

I cannot make it out that the plaintiff has established the proposition that the conveyance from Frances A. Berger to Mrs. Adams was fraudulent.

In order to recover tbe plaintiff must affirmatively prove tlie allegation by direct testimony, or facts justifying a conclusion to that effect. We might speculate on the probability that Mrs. Berger felt assured when she tendered a conveyance to her mother that she would still be allowed to occupy the house as-her home, and also on the chance of the mother’s disposition to hold the property for her daughter’s benefit. But I do not discover in the evidence that any understanding to that effect existed between them, nor do I see in the facts proved any circumstances from which it could be legally inferred that the conveyance was made to hinder or delay creditors any further than they were necessarily hindered by the preference given to Mrs. Adams. The plaintiff in support of his claim seems to rely mainly on the testimony of Mrs. Berger and Mrs. Adams given before the referee in supplementary proceedings, as well as on the trial herein, to the effect that the conveyance was añade to prevent the plaintiff from levying his execution upon the piece of land. An understanding between vendor and vendee, and the declaration of each of them, that such was the purpose of the conveyance are not necessarily enough to establish fraud. The cases seem to lay down the doctrine that a debtor may convey his property to his creditor in satisfaction of an honest debt, or as security for the same, and that their open declaration of an intent to keep it away from another creditor, who is after it, will not without other evidence of a fraudulent intent, make the transaction liable to be declared void. Coranhovan v. Hart, 21 Pa. St., 500; Waterbury v. Sturtevant, 18 Wend., 358; Auburn Bank v. Fitch, 48 Barb., 344. This doctrine results from the legal premises that the owner of the property has the primary right of disposing of it as he pleases, and that, if insolvent, he may lawfully turn it out to one creditor to the exclusion of another. Hence Mrs. Berger had a right to convey her house and lot to Mrs. Adams in satisfaction of the demands held by the latter to the exclusion of the plaintiff, and having the lawful right to do the act, it does not affect the lawfulness of her act that she and the vendee admitted afterwards, or openly declared at the time, that such was the pui’pose of the act. Although vendor and. vendee may be led to testify that the one conveyed, and the other received the property, with intent to keep it from the plaintiff, yet from those circumstances the court cannot find the fact that there was an intent to hinder and delay, because the law says there can be no such intent when the property is kept away from the pursuing creditors by being given to another creditor in satisfaction of an honest debt. Of course this is upon the assumption that there is no further evidence of fraud. In this case the plaintiff founds his claim mainly on the verbal language of Mrs. Berger and Mrs. Adams in admission of their purpose to place the property beyond reach of tbe plaintiff’s execution.

Here it is a mere mental intent or purpose that is shown, in no way allied to, or accompanied by, an illegal act; for the act of preference was a lawful act. A mere intent accompanied by no illegal act will not give a ground of action. In Billings v. Billings, 101 N. Y., 226, there was something more than evidence of the mere mental state or intent. There was, a plan concurred in by the vendor and vendee to cover up and shield the property from the pursuit of other creditors in order to enable the vendor to continue to occupy it. This unlawful design entered into the transaction between vendor and vendee, and tainted the conveyance and their acts from the beginning of the pretended attempt to secure the creditor. Even in that case the Supreme Court, at General Term. (31 Hun, 65), could not see how there could be any fraud consequent upon such understanding between 'the parties when the resultant acts of the parties were legal in themselves considered, for the creditor would have had the right not only to accept the mortgage but afterwards voluntarily to allow the debtor to remain on the premises.

In the case before me there were no facts proved besides the-testimony of vendor and vendee mentioned, tending to show a fraudulent intent, unless it may be the testimony as to the value of the land that was conveyed, and the fact that everything the defendant Frances Berger and her husband owned, was transferred. The plaintiff produced a witness who testified that the property was worth upwards of four thousand dollars. On the other hand it appeared that Mrs. Adams paid the cost of the property and subsequently the taxes, and that interest on her demand had accrued.

I am not satisfied that the consideration was so inadequate as to justify for that reason, an inference of fraudulent intent, nor has the plaintiff made it appear that the entire amount of the property turned over to Mrs. Adams was more than sufficient to reasonably secure her demands. It was said on the argument that the defendants had given Mrs. Berger the appearance of being a woman of property to the injury of the plaintiff and those dealing with her. But that charge would be true in a great many instances where a man is dealing with many different persons.

A great many merchants and other business men are indebted for the property in their possession. The seller must loot out for himself.

Judgment must be ordered for the defendants with costs.


author: Hatch, J.-

text:
    Giles P. Buck v. William Barker and David L. Waters.

      (Superior Court of Buffalo, Special Term,

      Filed March 7, 1887.)
    1. Corporation — Laws ISIS, ch. 611 § 18 — Liability op directors ip report IS NOT PILED.
    The directors of a company organized under Laws ISIS, ch. 611, become liable for the debts of the company contracted during their term of office as such unless they file with the Secretary of State the report as provided by § 18 of that act.
    2. Same — Any director may terminate his liability by piling report.
    So long as the default continues, the other essentials existing, there is no-distinction between directors in office at the time of default and those subsequently elected. Any director has the power at any time to protect himself from liability by filing a report and his failure to do so imposes a liability for debts contracted during his term.
    3. Pleadings — Amendments to — Code Civ. Pro., §§ 723, 519.
    Where a complaint so far stated a cause of action that there was sufficient to show for what the action was brought and the defendants answered and came to trial and there for the first time raised the objection of its insufficiency. Meld, that the error being one which in no way misled or prejudiced the defendants upon the trial, the allowance of an amendment of the complaint so as to make its allegations sufficient was not only within the power of the court but was an imperative duty.

      4. Corporation — De pacto — Sufficiency.
    Although the papers filed by which a corporation is sought to be created under this act are so defective that in an action against it by the State, it would for that reason be dissolved, yet if colorable by acts of user under such an organization it becomes a corporation defacto and no advantage can be taken of such defect in its constitution collaterally by any one.
    5. Same — Evidence — Certificate of secretary of state that report HAS NOT BEEN FILED, SUFFICIENT EVIDENCE OF THE PACT — CODE ClV. Pro., § 921.
    The certificate of the Secretary of State that a corporation has filed no annual report in his office as required to by law is sufficient evidence of that fact by force of Code Civ. Pro., § 921.

      A. M. Thomas, Jr., for pl’ff. Stephen Lockwood, for def’ts.
   Hatch, J.-

-This action is brought under Chap. 611 of the Laws of 1875. Its object is to charge a personal liability upon the defendants as Directors of the Sixteenth Amendment Publishing Company, Limited, a corporation organized under said law, and doing business at the city of Buffalo.

Upon the trial it appeared that the said company was organized in February, 1885, for the purpose, among other things, of publishing and circulating a certain newspaper; that they carried on and issued said newspaper until on or about the 15th of October, 1886, when they ceased to do business.

The defendant Barker was elected a director on the 7th day of February, 1886, and continued to act as such director until such corporation ceased doing business ; the defendant Waters was elected a director upon the organization of the company and continued to act as such until February, 1886, when an annual election of Directors was held and another person elected in his place, who declined to qualify or serve. Subsequently, and on the 26th day of April, 1886, said Waters was again elected a director and continued to serve as such until the company closed its doors.

The plaintiff was engaged by said company on the 18th day of February, 1886, as foreman of the printing establishment at an agreed price of $15 per week; he continued thereafter as such foreman until on or about the 29th day of September, 1886, when his connection with said corporation ceased, at which time there was due him for salary the sum of $120.45. Thereafter, and in October, 1886, the plaintiff brought an action in the municipal court of Buffalo, against the said company and recovered a judgment for the above amount, with costs. Subsequently the plaintiff brought an action against these defendants seeking to charge them personally with said deht.

No certificate, such as required by Sec. 18 of said Act, was filed by the officers or directors of said company within twenty days after the first day of January in 1886, and at no other time in that year.

It is upon these facts that the plaintiff seeks to charge the defendants with liability for said debt. Section 18 of chapter 611 of the Laws of 1875 provides, among other things, as follows: Every such corporation shall annually within twenty days after the first day of January make a report which shallstatethe amount ofeapital and the proportion actually paid in, the amount and, in general terms, the nature of its existing assets and debts, and the names of its then stockholders, and the dividends, if any, declared since the last report, which report shall be signed by the President, and a majority of the directors and shall be verified by oath of the president or secretary of such corporation, and filed in the office of the Secretary of State, and if any such corporation shall fail so to do, all the directors thereof shall be jointly and severally liable for all the debts of the corporation then existing, and for all that shall be contracted before such report shall be made.”

It is plain from the wording of the statute that the directors of a company organized under this law becomé liable for the. debts of the company contracted during their term of directorship, unless they file with the Secretary of State the certificate therein provided for. Under Chapter 40, Sec. 12, of the laws of 1848, which is, upon this subject, like this statute, a like construction obtained. Jones v. Barlow, 62 N. Y., 202; Cameron v. Seaman, 69 N. Y., 402. In Boughton v. Otis 21 N. Y., 261, Comstock, C. J., says : “ By the express terms of the statute the trustees omitting to file their statement within the first twenty days of that month (January) are liable for the debts then existing.”

What is claimed by counsel for defendants, as dictum is simply a statement of what the statute says. Garrison v. Howe, 17 N. Y., 464-5.

So far as the act of 1848 is concerned it was amended by Chapter 510 of the Laws of 1875; corporations organized under that act, are now only required to file a report upon the January succeeding a full year of corporate existence. This amendment did not set at rest, as is claimed, an unfounded doubt, it changed the law. The act under which this corporation is organized is like the old act before amendment and has been the subject of judicial construction many times.

There was in this case a failure to file the statement as required by Section 18 of the Act. The debt sued for was contracted between the 26th day of April, 1886, and the 29th day of September in the same year; the defendants were directors between those periods, so that we have the default, the debt, and the directorship all concurring in point of time. Under such circumstances the directors become personally liable for the debt contracted. Shaler Lime Co. v. Bliss, 27 N. Y., 297-300.

So long as the default lasts the other essentials existing there is no distinction between directors in office at the time of default and those subsequently elected, the incoming director has the power at any time to protect himself from liability by filing a report, his failure to do so imposes a liability for debts contracted during his term. Chandler v. Hoag, 2 Hun., 613; Affirmed on appeal 63 N.Y., 624:

It follows that these defendants are chargeable personally with the payment of the debt due the plaintiff. At the opening of the trial the defendants moved to dismiss the complaint upon the ground that it failed to state facts constituting a cause of action. The criticism made is that the complaint was framed upon the judgment recovered in the municipal court and that such judgment furnished no right of action against these defendants. Such undoubtedly is the law, assuming the objection is well founded. Miller v. White, 50 N. Y., 137.

The complaint alleges that the defendants, during 1886, were ■directors of the -Sixteenth Amendment Publishing Company, Limited, a domestic corporation existing under the laws of 1875, and that on the 15th of October, 1886, the plaintiff recovered judgment in the municipal court of Buffalo against the said corporation, alleging its amount, and then states “ for work, labor and services rendered for it at its request, while the defendants were directors and stock holders as aforesaid.” Then alleges the issuing of a transcript, the docketing of the judgment in the Erie county clerk’s office, the issuing of an execution prior to the commencement of this action, its return wholly unsatisfied and that the judgment remains wholly unpaid. Then alleges the failure to file a report by the officers and directors as required by law, and demands judgment. It is thus seen that this complaint alleges every essential fact necessary to constitute a cause of action against the defendants with the possible exception that the allegation of debt existing against the company is stated as having been merged in the judgment. How the debt arose is stated, that services were performed at the request of the corporation is alleged, and that the defendants were then directors, enough is stated to show what the action is for. The defendants answered, came to trial without raising the question, and were clearly not misled or prejudiced upon the trial. It is perfectly clear that the rights of the parties can be disposed of without prejudice to either. Such being the case, it is the policy of the law that the rights of each should be settled without a multiplicity of suits. Not only has the court power in such a case to grant an amendment, but it is the imperative duty of the court to do so, by having the necessary allegation inserted. Such an amendment does not change the cause of action or bring in a new one. Code Civil Procedure, sections 728, 519; Reader v. Sayre, 70, N. Y. 180, 190; N. Y. Milk Can Co., v. Remington Works, 25, Hun, 475; Simmons v. Lyons, 55, N.Y., 671. In Woolsey v. Rondout, 4 Abbott, Court of Appeals, 639, the court held that even though the complaint was not sufficient to resist a demurrer, yet if the defendant chose to go to trial the complaint should be amended. Price v. Brown, 98 N.Y. 388, 393.

The cases cited by defendant’s counsel are in harmony with these views. Tooker v. Arnoux, 76 N.Y., 397, holds that the motion to dismiss where no amendment was made or ashed for, and the complaint did not state facts sufficient to constitute a cause of action, must be granted, but the court expressly says that the amendment may be allowed by the trial Court. Id. 404. Woolsey v. Trustees of Rondout, 2 Keyes, 602-4-5, the same power in the court is recognized. Weymouth v. Dimock, 41 Howard’s Practice, 92, holds that the allegation of the judgment was irrelevant and should be stricken out. But a good cause of action was then stated. In McHarg v. Eastman, 35 Howard, 205, the demurrer was sustained and the plaintiff allowed to amend.

In this case the plaintiff seasonably made his application to amend by alleging the original indebtedness; this he should be allowed to do, it is further urged by the defendants that there was no proof that the Sixteenth Amendment Publishing Company was ever legally organized and that the certificate filed with the clerk of Erie county is not only insufficient, but it is not in any sense proof. Assuming that the claim is well founded, that we reject entirely the certificate filed, it does not help the defendants or prevent “a recovery. The proof is-that there was a corporation which assumed to act and carry on business, having a general manager, directors and' by-laws, by .assuming to act they became at least a defacto body, their legal organization cannot be attacked in this action to the aid of either party.

In Buffalo & Allegany Railroad v. Cary, 26, N.Y., 75, MasTEN, Justice, says: I am of the opinion that under this and similar general acts for the formation of corporations, if the papers filed by which the corporation is sought to be created, are colorable, but so defective, that, in a proceeding on the part of the State against it, it would for that reason be dissolved, yet by acts of user under such an organization it becomes a corporation defacto and no advantage can be taken of such ■defect in its constitution, collaterally by any person. Id. 77. This view was affirmed by the Court of Appeals. Aspinwall v. Sacchi, 57 N.Y., 331-338; Meriden Tool Co. v. Morgan, 1 Abbott, N. S. 125; Note.

The objection that the certificate of the Secretary of State is not sufficient to show that the corporation filed no annual report is answered by Section 921, Code of Civil Procedure, it follows that the defendants become chargeable with the debt due to the plaintiff. On account of the pending of other claims to a considerable amount it was deemed proper to state the reasons for the conclusion reached.


author: Hatch, J.

text:
    Alexander McRoberts v. William Pooley et al.

      (Superior Court of Buffalo, Special Term,

      Filed April, 1887.)
    1. MORTGAGE — Foreclosure of — Surplus must be paid into court— Code Civ. Pro., § 1638.
    If, on the sale of premises in an action to foreclose a mortgage thereon there is any surplus of the proceeds after payment of the expenses of the sale and satisfying the mortgage debt and costs of the action, it must be paid into court.
    2. Same — Disposition of surplus — Supreme court, rules 61-64 — Referee's report binding on parties.
    The subsequent disposition of the surplus, if there are claimants, is regulated by supreme court rules 61-64, which among other things provide that the claimant must file with the clerk where the report of sale is filed a notice stating that he is entitled to the same or a part thereof and he thereupon becomes entitled to an order of reference. All persons who have appeared in the cause, and all persons who upon the official search appear to have an unsatisfied lien must under the direction of the court have notice of the proceeding. The referee in such a case is to ascertain and report the amount due to the claimant or to any other person, which is a lien upon such moneys, and to ascertain the priorities of the several liens thereon. On such a reference the referee has the power to determine the validity and-amount due upon any claimed lien, and this extends not only to liens equalling in amount the surplus moneys, but all liens whatever. The referee has power to pass upon the question whether a party claiming as an owner ■of a subsequent mortgage and to whom insurance upon the premises was made payable in ease of fire, has rendered himself chargeable with the' amount of the policy by laches in the presentation of proofs of loss. The determination of such referee when confirmed by the court is binding upon the parties and can not be disturbed except by appeal.

      Adelbert Moot, for plaintiff; Charles A. Pooley, for defendant Pooley.
   Hatch, J.

The plaintiff seeks in this action to charge the defendants with a personal liability for the deficiency due upon a certain mortgage executed by the defendants upon certain property situate in the City of Buffalo. A blanket mortgage was given by defendants as collateral security for advances of money, notes, drafts etc., which the plaintiff might hold of the defendants who were doing business under the firm name of Pooley, Rhinehardt & Company. Subsequent to the giving of the mortgage and after considerable deal between the plaintiff and defendants, the buildings covered by the mortgage were burned. At the time of the fire the firm held two policies of insurance in the Lycoming Insurance Company, a foreign corporation, payable to the plaintiff as his interest might appear. After the fire one of the policies was paid; the other being for the sum of $1,500 remained unpaid. An action was brought upon the last named policy in the supreme court. A defense was interposed by the company that the proofs of loss had not been made within the time required by the policy, winch relieved the comnany from liability. This action has never been tried.

There was upon the premises covered by the blanket mortgage a prior mortgage which was foreclosed. Upon sale a surplus was realized, which at time of surplus money proceedings amounted to the sum of $3,663.47, in the hands of the treasurer of Erie County; Subsequently proceedings were taken by the plaintiff to have said surplus applied upon his mortgage. There were Aarious other claimants and creditors of said firm for said surplus. Upon proper notice to parties interested, the court referred the matter to John C. Graves to ascertain and report the amount due plaintiff, .or to any other person which is a lien upon the surplus moneys in this action and as to the priorities of the several liens thereon. The parties who defend this action were parties to that proceeding appeared upon the order of reference, before the referee, and contested the amount due the plaintiff upon his mortgage. The only matter important in this action relates to the policy ox insurance remaining unpaid. Upon the hearing before the referee it was alleged, and much testimony was taken to show upon the one side that the plaintiff had lost the amount of said policy by reason of laches in filing proofs of loss, and that consequently he should be charged with the amount of the same. Upon tbe other side, evidence was given tending to show that the failure to file proofs of loss was due to au arrangement with the general agent of the company, who proposed to adjust the loss without the necessity of proofs ; -that failing to reach an agreement the said action upon the policy was commenced, which was at the time of hearing then at issue untried. The proofshaving been given, the matter was submitted to the referee, who found that the mortgage was a subsisting lien to the extent of 16639.91, which included the amount unpaid upon the contested policy. Upon that subject the referee finds as follows “but is not bound to consider the other policy in suit until it is paid to him.” Upon the referee’s findings and report a motion was made to confirm the same which was granted by the court, and an order entered directing the payment of the-whole surplus to the plaintiff. No appeal was ever taken from such determination. After applying said surplus and other sums upon the mortgage there still remains due and unpaid thereon the sum of about $1,906.38, for which the plaintiff' brings this action. All defendants have made default excepting William Pooley and Mary A. Pooley.

The claims made here are substantially by the plaintiff, that the litigation before the referee in the surplus money proceedings, his report and its confirmation by the court is res adjudicata as to the amount unpaid upon the mortgage, unless the defendants are able to show payment since, or that a realization has been had of the amount due upon the said policy in suit.

By the defendants — that the hearing before the referee was simply to find out who was entitled to the surplus moneys, and that when the referee found that there was a sum due upon plaintiff’s mortgage sufficient to exhaust said surplus his duties ended. That there was such sum due without reference to whether he was charged with the amount of said policy; that, consequently the inquiry was collateral and not binding upon either party; and that they now have the right to litigate the question as to plaintiff’s laches in failing to collect said policy,, in this action.

Section 1633, Code of Procedure, requires that all surplus moneys arising upon a sale must be paid into court for the use of the persons entitled. The practice with respect to their subsequent disposition in the event there are claimants is regulated by Supreme Court Rules 61-64, which provide among other things that the claimants for the surplus must file with the clerk where the report of sale is filed, a notice stating that he is entitled to the same or a part thereof, etc., and he thereupon becomes entitled to an order of reference. All persons who appeared in the cause, and all persons appearing upon the official search to have an unsatisfied lien must under the direction of the court have notice of the proceeding. The referee in such a case is “ to ascertain and report tbe amount due to him (claimant) or to any other person, which is a lien upon such surplus moneys, and. to ascertain the priorities of the several liens thereon.” In Halsted v. Halsted, 55 N. Y., 442-445, it was held that upon such a referance, the referee has the power to determine the validity and amount due upon any claimed lien.

In Tator v. Adams, 20 Hun, 131, the court says: “ Although there had previously been some doubt as to the power of referees in proceedings to distribute surplus moneys, the decision in Berger v. Snedker, 21 Alb. L. J., 54, has settled the matter. It is held, and wisely held in that case, that a question of fraud may be investigated before the referee, and it follows by analogy that every question may be examined tending to show the equities of the claimants. Rogers v. Ivers, 23 Hun, 424-426.

In Berger v. Carman, 79 N. Y., 146, the court say: “We think that the referee, by virtue of the order to ascertain and report the liens and their priorities in reference to the surplus moneys, had authority to inquire as to the validity of the conveyances. . . . The object of the reference was to ascertain to whom the surplus moneys belonged; and this opens a door to an inquiry as to the character of all liens which may be presented.” -It it thus seen that the power of the referee is ample to determine all the questions which were litigated in the proceedings before him. While there were no formal pleadings in the proceeding before the referee, yet, it logically follows that the issue between the parties is as broad as the proof given upon any matter which was competent or material for him to determine. With respect to the policy of insurance, the issue squarely tendered was that the plaintiff was equitably chargeable with its amount, and to that extent reduced the claim he was endeavoring to establish. This was as material a matter to be determined as that of any other claim set up against the plaintiff. To establish the amount due upon the mortgage it became necessary to determine it. Having the power and being compelled to act, upon the issue tendered by these defendants, can it be said that it amounted to nothing, was in no sense binding upon either party? True, the whole amount of the mortgage was more than enough to exhaust the whole surplus if it was determined that the amount it called for was still a lien. Upon that point there was a severe contest, not only as to the policy, but as to other matters. To the claim made that the referee had power only to determine the amount due upon the mortgage to the extent of the surplus, I cannot assent. Such limitation is not placed upon the referee, he is to report' the amount due which is a lien, not an amount due sufficient to exhaust the surplus; he was to adjust the equities between the parties; they were all before him; they litigated the question; they compelled tbe referee to decide; he had the power and did determine. Under well settled authority a party cannot present an issue to a court for determination, and when the decision is adverse, refuse to recognize it; if aggrieved he has his remedy by appeal, but he cannot again litigate the same question in another action.

In Leavitt v. Wolcott, 95 N. Y., 212, the court say: “ It is well settled, that as to all matters either of fact or of law which legally might have been and actually were litigated in an action or special proceeding, between the same parties, in a court of competent jurisdiction the judgment rendered therein is binding and conclusive in all subsequent litigations between such parties or their privies.” Pray v. Hegeman, 98 N. Y., 351-358; Jordon v. Van Epps, 85 N. Y., 427; Blair v. Bartlett, 75 N. Y. 150.

The report of the referee was confirmed by the court. It then became a valid binding judgment, from which either party could have appealed to the court of appeals. It was acted upon and the money paid over in accordance with its terms. Such a judgment is a formal, solemn adjudication which concludes the parties.

The cases cited by defendants’ counsel are not in conflict with the views here expressed.

In Campbell v. Consalus, 25 N. Y., 613, the action which was first brought was to set aside a mortgage and judgments alleging' that they had been fully paid. The relief asked for was a judgment that the mortgage and judgment be cancelled. There was no offer in the complaint to pay or redeem should an amount be found due. The issue presented by the answer was the sole question of payment. No affirmative relief was asked (as might have been) that the court should determine the amount due upon the mortgage and judgments and adjudge them to be liens to the extent of the sum due ; consequently the only judgment which the court had the power to render was to declare the mortgage and judgments paid and direct their cancellation or dismiss the complaint. In determining the-question, the amount due was entirely immaterial, if (as was found) something was due the only judgment which the court had the power to render, and which it did render, was that the complaint be dismissed. True they took and stated an account, but that became necessary in order to determine whether anything was due upon the mortgage and judgments not the amount due.

Had the pleadings raised that issue and asked on the one hand that if any amount should be found due, the plaintiff would pay,' and on the other that the amount found due should be declared a subsisting lien upon the premises covered by the mortgage and judgments, then the judgment would have been con-elusive and tbe court so say. Id. 616. That is not this case. Here the question was embraced within the proof which furnished the issue, declared, what it was. In various ways the whole amount due upon the mortgage was contested and the referee was bound to pass upon the issues thus raised.

Suppose all the questions had been decided adversely to the plaintiff here and the surplus awarded to other claimants. Is there any doubt but that such a finding and report of the referee, subsequently confirmed by the court, would present an effectual barrier to the plaintiff’s enforcing his mortgage against any individual a party to it ? If he would be bound (as it seems clear he would) what rule in law or equity can be invoked to say that his adversary shall not equally be bound ? If it is a judgment at all it must affect both, and being a judgment, is conclusive.

I have examined the other cases cited by defendant but they do not modify or change this rule.

It follows from the reasons above assigned that the defendants in this case cannot go behind the findings of the referee. They are at liberty to show any subsequent change that the amount due upon the mortgage has been paid, or that the defendant has by subsequent neglect precluded a recovery upon "the policy, or that he has been paid the same. But we must regard the position of the parties at the time when the referee rendered this report as finally settled and determined in accordance therewith, upon the confirmation of the same by the court.


author: Clement, J.

text:
    Thomas Greenland, Resp’t, v. John A. Waddell, and Richard Major, Appl’ts.

      (City Court of Brooklyn, General Term,

      Filed September 27, 1886.)
    1. Executor — Will, construction of — When entitled to rents — Accounting for — Real estate.
    Where by the terms of a will the executors were directed to sell real estate for the purpose of division among the legatees, the fact that they were given the rents and profits of the land prior to the sale would in no wise affect the construction of the will. The executor would be entitled to the intermediate rents, even if not given by the will, but he must account for such rents before the surrogate.
    2. Same — Real estate when treated as personalty.
    The direction in a will that real property be sold is an equitable conversion of that property into personal property.
    3. Same — In whom title to real estate devised before sale.
    The title to real property directed to be sold by a will remains in the executor until sold. He does not become trustee until after the sale.
    ,4. Practice — Executor, removal of — Appointing successor.
    The supreme court has jurisdiction over trusts, but has no power by petition to remove an executor or appoint his successor.
    Appeal from judgment of special term.
    This action was brought to recover a certified cheek for $ 1000 which had heen drawn by the defendant Waddell, and deposited, with defendant Ma“jor, to be held by him and paid over to plaintiff under the following conditions: The defendant Waddell had orally contracted to purchase of the plaintiff certain premises,, paying $1000 besides assuming a certain mortgage, etc. A certified check for the $1000 was to be deposited with defendant Major, who was to hold it until Waddell had time to examine the title, and, if found good, the check should be paid to plaintiff. A deed was executed, and under said conditions, delivered to the defendant Waddell, and the check deposited. Defendant refused the title unless one Boerum, as executor, and Bush, as trustee, execute a bargain and sale deed to him of the portion of which Agnes Boerum died, seized. This was refused and defendant offered to reconvey said premises to plaintiff, etc.
    Agnes Boerum, who died, seized of a portion of said premises, left a will devising all her estate, real and personal, to her executors therein named, to sell the real estate and to divide the proceeds. Her executors were Falkert B. Boerum and C. H. Yanderveer, both of whom qualified and entered upon the duties, of their trust. Yanderveer died, and F. B. Boerum has never accounted, resigned, been removed or discharged. On the petition of said F. B. Boerum, and the consent of Mrs. Charles Yanderveer and Adrianna Bush, an order was made by the supreme court, accepting the resignation of F. B. Boerum as trustee, and appointing Adrianna Bush as trustee under the said will of said Agnes Boerum, in place of said F. B. Boerum.
    Adrianna Bush qualified and entered upon the duties of such trust, and as such trustee executed and delivered a deed to said premises to one Joslyn, and said Joslyn on the same day, executed and delivered a deed of the same premises to Adrianna Bush individually. And Adrianna Bush thereafter executed and delivered a deed purporting to convey said premises to the plaintiff herein.
    The defendant claimed that the title was defective, because 1st, no person other than the executors named in the will could convey the property, and 2d, that the resignation of F. B. Boerum and the appointment of a new trustee did not operate-to convey the legal title to the new trustee. That the conveyances to Joslyn and by him back again to Mrs. Bush were-in effect but one conveyance, and that of a trustee to herself of trust property and therefore bad. The trial court overruled the first objection and held the second well taken, and ordered plaintiff to procure from Adrianna Bush, as trustee to defendant Waddell, to so much of the premises in question, as Agnes Boerum died seized of.

      Johnson Lamb, for resp’t; L. JE. Gilbert, for appl’ts.
   Clement, J.

We are of opinion that by the will of Agnes Boerum, her executors were vested with the title of the land, not as real estate, but as personal property.

It is clear that on her death, all her real estate was converted into personalty, and therefore that the rules of law applicable to personal property apply.

The effect of an equitable conversion of real “property has Been considered by the appellate courts of this State in many cases. In Kane v. Gott, 24 Wend., 641, 659, Justice Cowen uses the words “ It will be seen . . . that where executors ;are clothed with a trust to sell the real estate for money, and appropriate the avails to the uses of the will in the form of personal property, no doubt was ever entertained that it must be considered in equity, the same as if the testator had himself sold land, and then bequeathed the consideration money. Sitting in a court of equity, therefore, we can no more refuse to consider the whole of the real property in question as personal, than we could in a court of law, if the testator had himself chosen to make it physically so, and then had bequeathed it. By his own act he had the power to throw it into this shape either by sale or by will; and if in either way it be withdrawn from the operation of the statute concerning trusts, it is only in the exercise of a power by the absolute owner of property which no court or legislature ever thought of denying.”

In Fisher v. Banta, 66 N. Y., 468, 476, Judge ANDREWS in construing a will where there was an imperative discretion to sell the real estate says, “ it became the duty of the executor to .sell the land and divide the proceeds . . . From the moment of the testator’s death, the conversion took place, and the land became money for all purposes of administration. The impression of money was fixed upon it; the sons took their interest in the converted property as legatees, and upon their death, before actual sale, it would pass to their legal representatives.”

Chief Justice Rttggles [Meakings v. Cromwell, 5 N. Y., 140] held that, by the settled doctrine of equitable conversion, the Testator gives money and not land . . . and the gift is for all substantial purposes a legacy.”

See also Bogert v. Hertell, 4 Hill, 492. In the present case the executors were required to sell the real estate for the purpose of a division among legatees. There was a positive direction to sell, and although by the terms of the will, the executors were given the rents and profits of the land prior to the sale. That fact in no wise affects the construction of the will as the executors in equity would be entitled to the immediate rents if such words were omitted altogether (Lent v. Howard, 89 N. Y., 169) and the executor must account for such rents before the surrogate. Hood v. Hood, 85 N. Y., 561.

In the case of Stagg v. Jackson, 1 N. Y., 206, which seems directly in point, the testator gave to his executors the rents and profits intermediate tbe sale, the Chancellor holds that “ the-trust to receive the rents and profits of the real estate, by the executor until sales of such real estate can be made, is a mere incident to the direction to convert the real estate into personalty for the purposes of the will” (2 Barber Ch., 86,93), and on appeal from the decision of the Chancellor, the same view is taken by the court of appeals.

The above case is approved by Judge Rapallo in Hood v. Hood, 85 N. Y., 570. See also in matter of Hood, 98 N. Y., 363.

It makes no. difference that the executors were vested with a discretion as to the time of sale. Lent v. Howard, supra.

The executors after a sale of the land were to hold one-thircL of the proceeds in trust for Mrs. Bush, but before a sale their title as executors was paramount to that as trustees. Lockman v. Reilly, 95 N. Y., 64.

In DePeyster v. Clendening, 8 Paige, 294, 310, where a bill was filed, praying for the appointment of a trustee, the Chancellor appointed the administrator with the will annexed, trustee, and holds “ there can be no doubt, therefore, that in cases where the execution of a trust, or a power in trust, is confided by the testator to his executors, as such, they cannot execute the trust without also taking out letters testamentary and assuming the office of executors.”

Judge FlNCH (Mott v. Ackerman, 92 N. Y., 539, 553) says r “We have no doubt,. therefore, that where a power of saléis given to executors for the purpose of paying debts and legacies, or either, and especially where there is an equitable conversion of land into money for the purpose of such payment and for distribution, and the power of sale is imperative and does not grow out of a personal discretion confided to the individual, such power - belongs to the office of executor, and under the statute, passes to and may be exercised by the administrator with the will annexed.”

The executor can be charged by the surrogate for the loss to-the estate for negligence on his part in failing to execute a power of sale of land. Haight v. Brisbin, 100 N. Y., 219.

On the foregoing authorities we think that the title-of the .land in question was in Falkert R. Boerum as executor, and that he, prior to a sale was not a testamentary trustee, because he was not acting in the execution of a trust which was separable from his functions as an executor. In the Matter of Clark, 5 Redfield, 460, it is claimed that the supreme court has inherent jurisdiction'over all trusts and that such power can be exercised ' by petition.

While the supreme court has jurisdiction over trusts it has no power by petition to remove an executor or appoint his sue-, cessor.

In re Van Wyck, 1 Barbour Ch., 565; Quackenboss v. Southwick, 41 N. Y., 117.

Tbe order appointing tbe new trustee if it be considered a judgment by consent of all parties in being, would not operate as an adjudication on this question because it does not purport to discharge Mr. Boerum as an executor except for acts done and may be good as to tbe trust of tbe fund — after sale of the land— a point which is not before us to decide. ¥e think the order appointing a new trustee would not bind the interest of an unborn child. Monarque v. Monarque, 80 N. Y., 320, 326.

It is also claimed that the defendants cannot object to the title because they did not offer to surrender possession when the defect was discovered. This point is not well taken as to the cause of action of plaintiff, because he. is seeking to enforce a contract which he has failed to comply with. When the defendants seek to recover of plaintiff the amount paid on the consideration of the deed the question will arise whether they can so do until they surrender the possession.

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

VAN Wyck, J., concurs.


author: REYNOLDS J.

text:
    William H. Meader, Resp’t v. Thomas Brown and another, Appl’ts.

      (City Court of Brooklyn, General Term,

      Filed September 27, 1886.)
    Eixtdbes — Bight to bemove — Summary proceedings for rent.
    Where a tenant is evicted for non-payment of rent by a judgment in summary proceedings, lie bas a reasonable time after sucb ending of bis lease to remove trade fixtures.
    Appeal from judgment in favor of plaintiff entered on verdict of a jury and from an order denying a new trial.
    About May 1, 1885, one Wilson leased from defendant Brown a piece of land on the west side of Washington Street, 8 by 12 feet, and fronting on said street.
    From the evidence, it appears that the time when the said lease was to terminate, was not fixed or determined. Thereafter Wilson employed plaintiff to erect or build a wooden structure upon said ground, and that thereupon plaintiff placed and erected upon said ground a small building constructed entirely of wood, and resting upon the said ground, and adhering to the soil merely by its own weight, and was used for boot blacking business and the sale of cigars and soda water. On or about July 31, 1885, said Wilson sold said building to the plaintiff herein, and shortly thereafter plaintiff _ duly demanded possession of said building from defendants, which was refused, whereupon this action was brought to recover for the conversion of the same.

      P. J. Phelps for resp’t; I. 8. Gatlin for appl’ts.
   REYNOLDS J.

The building in question was erected by-Wilson who was a tenant of Brown. It was a small building and could easily have been removed. Still it was annexed to the soil in such a way as to make it a part of the freehold, unless it was erected by the tenant for the purposes of trade. If such a building had been erected by the owner of the soil, and he had sold the land without reserving the building, it would have passed to the purchaser as part of the freehold. It rested on sleepers, partly let into the ground, and was in no sense a mere portable chattel. But it is called a stand, which would seem to imply that it was erected for carrying on some trade, and that seems to have been the assumption on the trial. It being a trade fixture the tenant would have had a right to remove it during the term, or upon its expiration, and not afterward, but for the fact that his lease was sooner terminated, against his will, by a judgment of eviction in summary proceedings for the non-payment of rent. That judgment was rendered and executed on the 13th of July, and the tenant [or the plaintiff as his grantee] had a reasonable time after such ending of the lease to remove the building. Wood’s Landlord and Tenant, 907; Ewell on Fixtures, 147; Ombony v. Jones, 19 N. Y. 238.

The plaintiff, as grantee of the tenant, swears that he attempted to exercise the right of removal by making a demand of the defendants very early in August. It might have been a question for the jury whether the demand was made within a reasonable time after the tenancy was ended, but the defendants did not suggest that any such question should be submitted, or make any requests looldng toward that point.

Defendant Brown [the owner of the premises and the lessor of the other defendant], on the trial, disavowed any ownership of the building. This of course is inconsistent with the idea of the plaintiff or his grantor having abandoned the property to his landlord, or lost the right of removal by neglect to exercise it within the proper time.

On a review of the testimony it would appear to have been a serious question whether the plaintiff was the owner of the building at the time he says he made the demand.

But there was no request to charge which directed the attention of the judge to that point. The request made rather tended to divert attention from it; nor was there an exception to the charge, submitting the case on the question of demand.

We might disregard this, if it was apparent that injustice bad been done, bnt it seems to be quite right that the plaintiff should have the building, or the value of it, and as no good exceptions seem to have been taken, the judgment should be affirmed.

CLEMENT, J. concurs.


text:
    Charles Durant, an infant, etc., Resp’t, v. Catherine Lipsius, Appl’t.

      (City court of Brooklyn, General Term,

      Filed September 27, 1886.)
    1. NeGXI&ENCE — EVIDENCE OF, WHAT SUFFICIENT.
    In an action for damages for running over a boy, the plaintiff, the mother of the hoy, testified that he came in from the street suffering from injuries. A neighbor testified to seeing him on the same day knocked down and run over by a brewery wagon, and that he got up and ran to the gate of the house where he lived; and two other witnesses testified to seeing the boy on that daygettingup immediately in the rear of one of the defendant’s brewery wagons. Held, that there. was sufficient evidence to sustain a verdict in favor of plaintiff.

      2. Streets — Eoot-teavblers — Duty of drivers as to.
    The driver of a vehicle in a street is bound to use ordinary care to avoid running over foot-travelers, whether they are or are not on the crosswalk.

      J. S. Qatlin, for resp’t; Ashhel P. Pitch, for appl’t.
   Clement, J.

There was evidence in this case sufficient to justify the submission to the jury of the question whether the wagon of the defendant ran over the plaintiff. Eliza Durant, the mother, says, the boy between half-past two and half-past three in the afternoon of September 21, came in from the street to the house where they lived, suffering from injuries.

Kate Jones who lived on the opposite side of the street, testified that on the afternoon of that day she saw a brewery wagon pass along the street, and that the plaintiff was knocked down by the horse and run over ; that the boy got up and ran to the gate of the house where he lived. It was therefore proven that the plaintiff was run overby a brewery wagon in the street and that he suffered injuries.

William Stevens, driver of a street car, said that the on 21st of September, at ten minutes past three o’clock in the afternoon, while driving through the block where the plaintiff was injured, he saw a boy in the street, getting up from behind a brewery wagon, and that the boy ran into the gate where the plaintiff lived.

Henry A. Brown, the conductor of the car, testified that he saw a brewery wagon ahead of the car and that he took the name and letter on the same. The testimony of Brown and Stevens taken together, shows that a brewery truck owned by the defendant passed the point where, and about the time, the plaintiff was injured, and that a boy was seen by them in the roadway, getting-up immediately in the rear of the truck, who ran into the yard where the parents of the plaintiff lived.

It is a fair inference for a jury to draw, that the boy who was seen by Brown and Stevens was the plaintiff. On such testimony, it would not have been proper to have dismissed the complaint.

The verdict of the jury is therefore conclusive on this question. Assuming that the truck which ran over the plaintiff was the one described by the witness Brown, the question of the negligence of the driver was properly submitted to the jury.

The facts are substantially the same as in the case of Murphy v. Orr, 96 N. Y., 14, except that in that case the plaintiff was on a cross-walk. If the driver failed to see the child or knew that he was run over, he was clearly inattentive to his duties, as there was nothing in the street to obstruct the view. The driver of a vehicle in a street is bound to use ordinary care to avoid running over foot-travelers whether they are or are not on the cross-walk.

The question of contributory negligence of the parents of the plaintiff was also properly submitted to the jury.

We think that the exception at folios 184-186, was not well taken, as the motion was made too late and the.same matter had been gone into by the counsel for the defendant.

While the testimony had no bearing on the liability of the defendant and should have been excluded if objected to on the direct examination, yet the defendant had the right to bring out the testimony to test the witness and ascertain why he took the name on the truck.

The judgment and order denying new trial must be affirmed with costs.

REYNOLDS, J., concurs.


author: Reynolds, J.

text:
    Joseph A. Ferguson, Resp’t, v. George Baker, Appl’t.

      (City court of Brooklyn, General Term,

      Filed September 27, 1886.)
    1. Partnership, dissolution of — Division of assets — Practice.
    The parties who were partners entered into a written agreement to dissolve their partnership. The goods were divided and the only debt provided for. All the affairs of the firm were settled except the debts due them. Such debts it was agreed defendant should collect and pay over to plaintiff one-half of each as collected. Held, that this was a division of those claims and that plaintiff could maintain an action for his portion of the money-collected without an accounting.

      2. Same — Evidence, admissibility.
    The agreement to dissolve did not embrace the agreement as to the money to be collected and the latter could he proved by parol testimony as it in noway contradicted the written agreement.
    Appeal from judgment entered on the verdict of a jury in favor of plaintiff.

      Foster L. Backus, for resp’t; John B. Tressidder, for appl’t.
   Reynolds, J.

The plaintiff and defendant being partners agreed upon a dissolution.

Tins action is brought to recover one half of the amount collected by defendant since the dissolution, on the debts due the firm. It is claimed by defendant that the plaintiff’s only remedy was by an action for an accounting between the partners.

According to the testimony on behalf of the plaintiff, (which,, after the verdict of the jury, under the charge given by the-court, must be assumed to be true,) at the time of the dissolution, they settled the affairs of the partnership, so far as to divide the stock on hand, (except as hereinafter stated) and the-money, defendant taking all of the plant and allowing the plaintiff for one half of the sum agreed upon as its value, and giving the plaintiff a check for the amount coming to him upon such settlement. There was but one debt owing by the firm,, and the payment of that was provided for out of the money in the bank before striking the balance. It is true that defendant, has since paid several hundred dollars for goods which had then been purchased by the firm, and which were then on hand, a portion of them in a manufactured state; but such goods were not taken into account in the division of the stock, and it was agreed that defendant should take them, and that they should be re-billed to him individually, which was done.

Thus all the affairs of the firm were settled, except the debts, due them. As to such debts it was agreed that defendant should collect them, and pay over to plaintiff one half of each debt as it should be collected by him. This was virtually a division of those claims, leaving the defendant to collect the plaintiff’s half as well as his own. As he collected one half, the amount was so much money received by him to plaintiff’s use.. We see nothing in the way.of the plaintiff’s maintaining an action at law for the same. The money becomes no part of any partnership funds, and involves no partnership accounts. The fact that there are several items to be divided in this way,, makes it no different in principle from the case of a single debt.. It is no longer a partnership but an individual account between plaintiff and defendant. We apprehend the action is maintainable upon authorty a is well as reason. See Crosby v. Nichols 3 Bos. 450. Howard v. France, 43 N. Y., 593. Crater v. Binninger, 45 N. Y., 545.

The point is made that the court erred in admitting evidence of the agreement to pay plaintiff one lialf of the debts collected by defendant, on the ground that the dissolution was in writing. We see no error in the ruling. The written agreement was in no way contradicted by the oral proof; it did not cover the ground of the oral agreement. The agreement to dissolve was one thing, what should to be done thereafter with the moneys collected on claims due the firm was another and distinct thing, and was not embraced in the agreement of dissolution. It was competent to prove what the parties agreed upon as to such money. Chapin v. Dobson, 78 N. Y., 74. Brigg v. Hilton, 99 N. Y., 517.

The judgment must be affirmed with costs of appeal.

Clement, J., concurs.


author: REYNOLDS, J.

text:
    Louis V. D. Hardenburgh and another, Appl’ts, v. Jacob Schmidt, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed September 27, 1886).
    YeNDOR AND VENDEE — SALE AND DELIVERY, WHAT CONSTITUTES.
    Where the vendor takes back goods to be replaced by others, the sale and delivery of said goods is rescinded by consent, and no action will lie upon that transaction. If the goods are taken back to make them perfect, the previous acceptance by the vendee is waived. In neither case can the vendor recover for goods sold and delivered.
    Appeal from a judgment in favor of defendant on verdict directed by the judge at trial term;
    tr. M. Stafford, for appl’ts ; Abel Groolc, for resp’t.
   REYNOLDS, J.

This action is brought for the sale and delivery of a parlor carpet. The answer admits the sale and delivery of the carpet, but sets up a warranty and a breach thereof. It also alleges a surrender and return of the property, and an acceptance thereof by the plaintiffs.

On the trial the defendant made a point under the statute of frauds, but on the pleadings and testimony nd such question arises.

If the case had depended upon the question of warranty, it would have been the duty of the judge to submit it to the jury. But it appears that after the carpet was laid, and while the defendant was complaining of its alleged defects, the plaintiffs took it up and removed it to their store, and it has never since been returned or tendered to the defendant. Just previous to such removal, defendant’s wife had written to plaintiffs requesting them to take away the carpet,saying she would call and select another in place of it. Sbe did call for that purpose, but plaintiffs refused to put down another unless she would first examine every yard of it, which she declined to do, and no other carpet was ever selected. -Plaintiff King says he agreed to take the carpet up, take out one breadth, which had a hole in it, put in a new one, and re-lay it, and make it a perfect carpet — -and that it was taken up for that purpose. In either case we do not see how the plaintiffs can recover. If the carpet was taken back, to be replaced by another, the sale and delivery were rescinded by consent of the parties, so that no action will lie upon that transaction — if it was taken back for the purpose stated by plaintiff, any previous acceptance of the carpet by defendant was thereby waived, and the plaintiffs were put back where they were before the delivery. They have never carried out the agreement; no new breadth has been put in, and no offer of the carpet to defendant has since been made. They are not therefore in a position to recover as for goods sold and delivered.

Our conclusion is that the trial judge was right in directing a verdict for defendant, and there should be a judgment in his favor with costs, including the costs of the appeal.

VAN Wyck:, J., concurs.


text:
    Henry Patton, as Assignee, etc., Resp’t, v. David Whitney, Jr., Appl’t.

      (City Court of Brooklyn, General Term,

      Filed September, 27, 1886.)
    PRACTICE — Bill oe particulars — Code Civ. Pro. § 531.
    It is within the discretion of the court under Code Civ. Pro., § 531, to order a hill of particulars of the frauds alleged to have been committed in connection with the transfer of property.
    Appeal from an order for defendant to serve a bill of particulars.
    This is an action originally brought by the plaintiff against the sheriff of the county of Kings, to recover the sum of fifty-five thousand dollars, for the alleged unlawful conversion of certain personal property, formerly belonging to Oscar F. Hawley, and which is claimed by the plaintiff under an assignment to him by said Hawley, in trust for the benefit of his creditors. The defendant justified'the seizure under an execution issued by David Whitney, jr., a judgment creditor of said Hawley, upon the ground that the alleged assignment was fraudulent and void, and was made by Hawley with fraudulent intent. Subsequently - to the joining of issue the said judgment creditor was by an order of this court substituted as defendant in place of the sheriff. On plaintiff’s motion the special term made an order requiring the defendant to furnish a bill of particulars, showing generally the grounds upon which he will claim upon the trial of this action that, the assignment referred to in the complaint in this action is fraudulent, and was made with fraudulent intent.
    And it is further ordered that if the defendant shall claim that said assignor has secreted a part of his estate with intent to prevent it from coming to the hands of the assignee, that the defendant shall specify what property, whether real or personal, was transferred with a view to subtract it from the assignee. And it is further ordered that if the defendant shall claim that any of the prefer enees contained m the said assignment, are fraudulent or fictitious, that he shall specify the same in said bill of particulars, etc. And that at any time before the trial of the action, the defendant may apply on notice of two days to amend his bill of particulars, and the plaintiff on like notice for a further bill. .From this order defendant appealed to the general term.

      Jackson Burr, for respt’s ; Hawes Bishop, for appl’t.
   REYNOLDS, J.

The case of Dwight v. Germania Life Ins. Co. settles the power of the court to make the order appealed from. The term “ claim” in § 531 of the Code includes whatever is set up by a defendant, based upon facts alleged as a reason why judgment should not go against him.

We think the discretion of the court was properly exercised in this case. The order is very carefully guarded, and, leaves the defendant the opportunity of setting up any ground of avoiding the assignment, which may be discovered by him almost down to the day of trial. It does not require him to disclose the ■evidence upon which he relies, but only to state in what respect it is claimed the assignment is fraudulent. The terms of the order are only fair to the plaintiff and quite liberal to the defendant. The order should be affirmed with ten dollars costs of appeal and disbursements.

Yan Wyck, J., concurs.