text:
    HERVEY ROCKWELL and another, Surviving Executors, etc., Respondents, v. FLORENCE GEERY and others, Appellants.

      Claim against deceased—proceedings to enforce payment of, against hei/r and devisees in case of default of personal estate — what constitutes such default—Judgment against executor—conclusive as to what, in proceedings against Jteirs and devisees — Posthumous child— does not occupy position of hei/r as to devisees.

    In an action brought to recover payment of a claim out of real estate belonging to the estate of a deceased debtor, heirs at law and devisees may be properly joined together as parties defendant, if the complaint allege that the real estate which passed to the heirs at law is insufficient to satisfy the claim; and in such case the judgment may be so framed as to direct that the estate which descended to the heirs at law be first exhausted.
    The.fact that a disputed, litigated claim remains in the hands of his executors, does not prevent a creditor from proceeding against the heirs and devisees of the deceased. The fact that subsequently to the commencement of proceedings against the heirs and devisees, the executors recovered judgment in the matter thus in litigation, and sales were had thereunder, in partial satisfaction thereof, does not defeat the proceedings.
    If a judgment is recovered against executors it has the effect of reducing to the amount of such judgment the claim against the deceased when it is sought to be satisfied out of real estate in the hands of his heirs and devisees, although such claim may be proved, in the proceeding against the hens and devisees, to exist for a greater amount than the judgment. The true basis of apportionment in such cases, is the value of the respective pieces of real estate at the time of the death of the testator.
    The design of the statute, in reference to posthumous children, was to give them . the same portion precisely as they would have if the parent had died intestate, and where the children are the devisees, the object of the statute can only be accomplished by requiring each to contribute, in proportion to his devise, to . make up such share of the property as would have gone to the after-born in case of intestacy, and subjecting each devisee to the same burdens as the after-born in proportion to the estate held: i. e., to contribute proportionally toward the payment of any claim against the deceased, to enforce which proceedings are taken against the devisees dnd heir in default of personal property.
    Appeal from a judgment entered on the report of a referee.

      E. T. Rice, Charles B. Rice and Walter L. Livingston, for the appellants.

      Charles H. Mundy, for the respondent.
   Davis, P. J.:

This is an action brought by the surviving executors of Charles O’Neil, to reach the real estate of Isaac Geery, deceased, now held by seven of his children as devisees of separate parcels under his will, and by Florence Geery, a posthumous child, to whom an equal undivided one-eighth of all the real estate of said Isaac Geery is claimed to have descended as heir at law. Isaac Geery was co-executor of the plaintiffs, and the indebtedness which plaintiffs claim to recover is alleged to be for moneys of O’Neil’s estate, secured by him and applied to his own use. On the part of the devisees it is insisted, that a joint action cannot be brought under the statute against both heirs and devisees, because the statute provides, in substance, that no recovery shall' be had against devisees until the creditor shall have exhausted .his remedy against the heirs. (2 R. S. [Edm. ed.], 474, § 52.) In 'the view the learned referee has taken of this question, it is of no importance in the case. He has held, in substance, that all the defendants are devisees, and so are properly joined by the express requirements of the statute. He regards the posthumous child not as heir at law, and taking in that capacity, but as a statutory devisee,” and entitled therefore, in respect of her equal undivided one-eighth of the real estate of which her father died seized, to stand on the same footing as her several brothers and sisters, named in said will as devisbes. Whether*this view can be maintained, will be hereafter considered. But regarding Florence as an heir at law, we see no objection in uniting the devisees with her in the action, under the averments of the complaint. It is distinctly averred that the interest in the real estate which has descended to her, is not sufficient to pay the indebtedness to plaintiff; and this is found as a fact by the referee. If, therefore, she is to be treated simply as an heir at law, there is little difficulty in so framing the judgment as to direct that the estate which Florence has taken as heir at law, be first exhausted, and then apportioning the residue upon lands severally devised to the devisees. In this mode the statute can be executed without the necessity of several actions. This course was approved by the chancellor in Schermerhorn, Exec., v. Barhydt (9 Paige, 28), and seems to be consistent with the language of the statute. (2 R. S., 455, § 56; and see, also, Butts v. Genung, 6 Paige, 254.) The chancellor does not, as' it seems to us, express any views, in Wambaugh v. Gates (11 Paige, 505) which áre in conflict with Schermerhorn v. Barhydt.

On the behalf of all the appellants, it is urged that the plaintiffs had not, at the time of commencing this action, exhausted their remedy against the personal assets of Isaac Geery. The plaintiffs had sued the executors of Isaac Geery, and recovered a judgment upon which nothing had been realized. An accounting had been had before the surrogate, in which this judgment was set down and recognized as an indébtedness of the estate. The accounting showed that nothing remained in the hands of the executors, out of which the judgment or any portion could be paid. It appeared on this accounting, however, that a large disputed claim of the testator against the firm of J. & W. Geery,' nominally sufficient to pay all the debts of the testator, was remaining in the hands of the executors. ¡Nothing had been collected upon it, and the surviving partner disputed and litigated his liability. Three years had elapsed before this action was brought, after the granting of letters testamentary; and at that time nothing remained in the hands of the executors with which the indebtedness to plaintiffs, or any part thereof, could be paid. We think the requirements of the statute were substantially complied with, and that the fact that a disputed and litigated claim remained undecided, was not in itself sufficient to prevent the plaintiffs from proceeding against the heir and devisees.

It appears in the case, and is found by the referee, that while this action has heen pending, a judgment has been recovered by the executors of Isaac Geery against his surviving partner, establishing the liability of the latter, and directing an accounting, and appointing a receiver of the property of the late firm; and that a considerable amount of real estate has been sold under such judgment, which has been bought in by the executors of Isaac Geery, and is in their hands as assets.

These facts, we think, are no defense to this action. The rights of the parties must be determined by the state of facts existing at the commencement of the action; and if the condition of things was at that time such that the right to sue under the statute had arisen, a subsequent change in the assets will not defeat the proceeding. But the court has complete control of the case; and upon its being shown that the representatives of the estate have received assets that ought to be applied to the payment of indebtedness, the court can make such orders touching the execution of its judgment as will enable the defendants to be relieved wholly or in part by the application of such assets. This accords, we think, with the principles laid down by the chancellor in Graham v. Dickinson (3 Barb. Ch., 169) and the cases therein cited.

The rights of the heir and devisees, if the judgment in this case be collected of them, would be protected upon the principle of subrogation, if, after such suit, assets came to the hands of the executors. And if such assets come before the collection of the judgment, there is nó reason why the court should not interfere for their protection, by making such directions as may, upon the facts shown on the application, be shown to be just and equitable. It is quite another thing, however, to arrest or defeat the recovery on such a ground.

The proof of the indebtedness of the estate to plaintiffs was sufficient. The plaintiffs put in evidence the judgment recovered by them against the executors of Isaac Geery. This, perhaps, was not evidence of the indebtedness as against these defendants; but it was competent as tending to show what steps had been taken to reach the assets of the estate, and as bearing on the question whether efforts to collect from the personal estate of the decedent had been exhausted. This evidence was supplemented by proof of the account kept by Isaac Geery himself, which showed certain moneys received and an amount expended by him ; and it is upon this proof of indebtedness that the referee has proceeded in rendering his judgment.

The recovery against the executors was for a less amount than the recovery against these defendants. We think the referee should have limited the recovery to the same sum and interest and the costs of the judgment, because that judgment fixed the amount for which the assets of the estate in the hands of the representatives were liable, and as to which there could be a deficiency of assets. It was competent, we think, for the defendant to use the record in the case to establish that the claim of plaintiffs which could be enforced against them was not greater than that recovery. It is apparent that the indebtedness proved by the account and that recovered in the judgment were identical. We must assume that the sum was reduced by some credit or defense to the amount of the judgment. After the recovery of the judgment all the claims became merged in it, and the judgment was the conclusive evidence, as between plaintiffs and the executors, of the extent of the indebtedness. ¡No greater amount could be collected out of the personal assets; and if that amount had been collected out of personal assets, no action could have been maintained against these defendants for the difference between the judgment and the account for which it was recovered. As to such balance it would be impossible to show that the personal assets had been exhausted, because, for that difference no remedy could have been had by plaintiffs against such assets. The referee should therefore have taken the recovery in the judgment as conclusive of the amount of the indebtedness, when it was shown dehors the record, that it was recovered for an actual indebtedness, identical in its character with that alleged in this action. A reduction must be made in the judgment accordingly.

The referee rightly disposed of the question made as to the widow’s right of dower. It is presumed, after this lapse of time, that she elected the provisions of the will, and had no right of dower; besides, the right is not an estate vested in her until admeasurement, and may never become an estate in any portion of the lands. The defendants who wished to avail themselves of it should have shown more than now appears, in order to make the point of any effect.

This brings us to the question whether Florence Geery takes her estate as heir at law within the meaning of the statute which forbids proceedings against devisees unless the estate descended to heirs shall have been first exhausted. The statute provides that, whenever a testator shall have a child born after the making of his will, either in his lifetime or after his death, and shall die leaving such child so after-born unprovided for by any settlement, and neither provided for nor in any way mentioned in his will, every such child shall succeed to the same portion of the father’s real and personal estate as would have descended or been distributed to such child if the father had died intestate, and shall be entitled to recover the same portion from the devisees and legatees in proportion to and out of the parts devised and bequeathed to them by such will.” (2 R. S., 65, § 49.) Florence Geery comes within the provisions of this section, and, as to her, Isaac Geery, her father, died intestate. Another section of the Revised Statutes provides that, “ in cases where, by the provisions of any statute, a child born after the making of the will shall be entitled to succeed to a portion of the testator’s real and personal estate, such child * * * shall, in all respects, be liable in the same manner and to the same extent to the creditors of his ancestor in respect to the personal property delivered to him and the real estate descended to him, as are herein prescribed in relation to next of kin and heirs.” A keen sense of the hardship which the application of these statutes according to their strict letter would work upon the infant, Florence G-eery, has led the referee to treat her as standing on the same footing toward her brothers and sisters, in respect of the payment of the debts of their father, as though he had died wholly intestate. It is very difficult for me to see upon what grounds this construction of the several statutes can securely stand, but my brethren are of opinion (as more fully expressed in the opinion of Beady, J.), that the spirit of the statute permits and requires a construction that will subject all the real estate of the decedent to bear equally the burden of his debts, and thus prevent the gross injustice of taking from Florence her entire inheritance. They are in favor, therefore, of affirming the views of the referee on this point; and I am quite content that such views should prevail. The true basis of apportionment in such a case is¿ we think, the value of the respective parcels at the time of the death of the testator. Any other rule is too uncertain, and subject to too many fluctuations which may work injustice among the devisees or heirs, to be safely adopted. The “ extent of the estate ” which the heir or devisee receives by will or by inheritance, is the value at the time the same vests by the devise, or by operation of law. The judgment must therefore be reversed and the proceedings remanded to the referee, with instructions to proceed in conformity with the views herein expressed.

Daniels, J., concurred.

Brady, J.:

The design of the statutes in reference to posthumous children, was to give them the same portion precisely as they would have if the parent had died intestate, and hence the provision that descendants and relatives of the intestate begotten before his death but born thereafter shall in all cases inherit in the same manner as if they had been born in the lifetime of the intestate and had survived him. (3 R S. [5th ed.], 43, § 18.) And hence the fur-, ther provision, that whenever a testator shall have a child born after the making of his will, either in his lifetime or after his death, and shall die leaving such child so after-born unprovided for by any settlement, and neither provided for nor in any way mentioned in his will, every such child shall succeed to the same portion of the father’s real and personal estate as would have descended or been distributed to such child if the father had died intestate, and shall be entitled to recover the same portion from the devisees and legatees in proportion to and out of the part devised and bequeathed to them by such will. (3 R. S. [5th ed.], pp. 145, 146, § 44.) When the children are the devisees, the object of the statute can only be accomplished by requiring each to contribute in proportion to his devise to make up such share of the property as would have gone to the after-born in case of intestacy, and subjecting each devisee to the same burdens as the after-born, in proportion to the estate held.

To carve out of the devised estate a portion for the heirs at law, and to subject it to the grasp of the creditors, would defeat the benign intent of the legislature, and destroy that quasi equality which it was obviously designed to accomplish.' When, therefore, the children are the devisees, they become, under its operation, heirs at law to the extent of their devise, so far as the after-born child is concerned, and, as to him, must bear the burdens of their estate. The statutory object in view, makes it wholly immaterial whether the posthumous child is called heir or devisee, and equally immaterial whether the devisees are regarded as such eo nomine or heirs at law.

The legislature appropriates asan act of justice, and in presumed accord with what would have been done by the testator, such parts of their devise, consistent with the whole estate, as may be necessary to give the after-born an equal share of the whole of the testator’s property, subject to distribution and division; and it operates as a repeal, by implication, of all conflicting statutes.

It was not intended that any one child should bear a heavier burden than another, except so far as there might be an inequality in the value of the devise, and then it would result from the will of the testator, and not so much from legislative intent.

This view is in perfect harmony with the spirit of the statute, and what is within the spirit is within the letter, and is the true •exposition of its meaning and design. I think the children should contribute ratably to the payment of the plaintiffs’ claim; and that this action should, in its result, attain such object, all parties being present in court.

Judgment reversed and case remanded to referee.


source: Caselaw Access Project

author: Davis, P. J.: Van Brunt, J.:

license: Public Domain

text:
    RHESA BRONSON, Appellant, v. ANTHONY W. DIMOCK, Respondent.

      Trustee of manufacturing corporation—failure of to jUe report—when action cannot be maintained against.

    An action cannot be maintained against a trustee of a mining company for a failure to file the report required by section 13 of the act of 1848, by the assignee of a demand, which, at the time of the failure to file the report, belonged to the president of the company who was one of the trustees.

      Briggs v. Easterly (62 Barb., 51) followed; Bolen v. Crosby (49 N. Y., 183) distinguished.
    Appeal from an order sustaining a demurrer.

      A. J. Perry, for the appellant.

      Geo. Putnam Smith, for the respondent.
   Davis, P. J.:

The appellant’s points concede in substance that the plaintiff’s assignor was president, and á trustee of The New York and Pennsylvania Petroleum and Mining Company at the time of the neglect of the president and trustees of the company to make and file the annual report as required by the twelfth section of the act. It is averred in the complaint that the company did not make the report for the years 1869, 1870 and 1871, as required by section 12 of the act, and as that section requires the report to be signed by the president and a majority of the trustees, and verified by the oath of the president or secretary,” the averment involves a charge of negligence upon all the trustees which of course includes the plaintiff’s assignor. Upon the allegations of the complaint the assignor of plaintiff stands as fartic&ps eriminis in the neglect of duty which under the provisions of the act makes all the trustees jointly and severally liable. If any facts existed which took him out of that relation they should have been averred. It was with this view that the learned justice at Special Term upheld the demurrer. We think his conclusion was correct and adopt his opinion as our own.

The order appealed from should be affirmed with costs, with the usual leave to amend, on payment of costs.

Daniels and Brady, JJ., concurred.

The following opinion was delivered at the Special Term.

Van Brunt, J.:

The question involved in this case is: Can an action be maintained upon a demand by an assignee thereof against a trustee of a mining company for failure to file the annual report, which demand belonged, at the time of the failure to file such report, to the president of the company, who was, of course, one of its trustees ? The case of Briggs v. Easterly (62 Barb., 51), decides the precise point, and it is held that such an action cannot be maintained. That, although such claims may be within the letter of the act, yet, not being within the mischiefs intended to-be prevented or remedied by it, nor within its spirit and intention, they are not within its provisions. One trustee cannot be made liable for the demands of his co-trustees against the corporation, on account of the failure of the trustees to file the annual report, because where both are equally at fault, the condition of the defendant is preferable. In answer to the above case, my attention has been called to the case of Bolen v. Crosby (49 N. Y., 183), which decided that such an action could be maintained by the assignee of a secretary of a company. The decision of that case seems to have been placed upon the ground that the secretary of the company was but its servant, performing such duties as were incident to his office. That, although under the-direction of the trustees, he might prepare the paper and verify it, yet he could not in any way make it the act of the corporation and a compliance with the statute so as to relieve the trustees from their liability. .

The court say that there is no evidence that the plaintiff omitted to perform any duty which devolved upon him, or that the failure of the trustees to make the report was in any way caused by or attributed to him.’ In other words, he was not in duty bound to make the report, and he was not in fault because it had not been made. In the ease now under consideration, as in the case of Briggs v. Easterly, already cited, the assignor of the claim was a trustee; upon him had devolved the duty of seeing that the annual report was filed, and the cause of action, if any, arose partly through his own neglect to perform a duty which the law devolved upon him. The president of these corporations must be selected from the number of its trustees, and, the complaint showing that the assignor was president, we must presume that he was also trustee. I think, therefore, that the case of Bolen v. Crosby is distinguishable from the case of Briggs v. Easterly, and that the decision in the latter case must control. Of course, if the complaint should show that the assignor of the cause of action had ceased to be a trustee or president before the failure to file the annual report, the reasoning of the case of Briggs v. Easterly would not apply.

The demurrer must be sustained, plaintiff to have leave to amend his complaint upon payment of costs.

Order affirmed, with costs, with leave to amend on payment of costs.


author: Davis, P. J.:

text:
    EDMUND COFFIN, Appellant, v. RICHARD COKE and OTHERS, RESPONDENTS.

      Extra allowance—may be granted when no trial is had— Code, § 309.
    In difficult and extraordinary cases an additional allowance may tie made under section 309 of the Code, where the plaintiff discontinues the action before trial on payment of costs.
    Appeal from an order made at the Special Term granting an extra allowance to the defendants.
    In this action the summons and complaint had. been served on some of the defendants; demurrers had been put in by the same, attorneys for all; a motion had been made for a preliminary injunction and denied, and on appeal to the General Term the order denying the injunction had been affirmed. The plaintiff thereupon offered to give to the defendants a consent of discontinuance, and to pay them their taxable costs and disbursements. Whereupon the defendants made this motion, and an extra allowance was-granted them.

      Edmund Coffin, Jr., for the appellant.
    No allowance under section 309 of the Code, can be given until the final determination of the matter in controversy. (Powers v. Wolcott, 12 How., 565 ; Merchants’ Exchange Bank v. Commercial Warehouse Co., 3 Jones & Spencer, 214.) And this final determination must be by the recovery of a judgment on the part of the party claiming the allowance. The plaintiff can have no extra allowance where he is prevented from obtaining a judgment by a tender of amount due and costs. (Brace v. Beatty, 7 Abb., 445; Pratt v. Conkey, 15 How., 27; Bostwick v. Tioga R. R. Co., 17 How., 456.) Nor unless the determination of the action gives him an actual recovery. (Commissioners of Pilots v. Spofford, 3 Hun, 57, 59.) The plaintiff had a right, at any time before judgment, to discontinue, as a matter of course, on payment of the taxable costs up to that point in the litigation. (2 R. S., p. 613, § 1; Rees v. Van Patten, 13 How., 258; Cooke v. Beach, 25 id., 356; Seaboard and Roanoke R. R. Co., v. Ward, 18 Barb., 595; Pennel v. Wilson, 5 Robt., 661.)

      Rastus S. Ransom, for the respondents.
   Davis, P. J.:

The only question on this appeal is whether an additional allowance may be granted by the court where the plaintiff discontinues the action on payment of costs.

It is not doubted that this case was difficult and extraordinary • within the meaning of the Code. A defense had been interposed.. The merits were involved in the motion for injunction which came before this court on appeal, and was fully discussed by the respective counsel and considered by the court. After a decision adversely to the plaintiff, he served notice of discontinuance on payment of costs. This entitled the defendant to tax final costs in the action. An additional allowance when properly granted becomes a part of the costs of the action awarded by the Code to the successful party. (Commissioners of Pilots v. Spofford, 10 S. C., 57.) Such allowance when granted is within the word costs,” as used in section 385 of the Code. (Coates v. Goddard, 2 Jones & Spencer, 118.)

The following cases seem to justify an allowance when a plaintiff voluntarily submits to a nonsuit or discontinues after issue joined: Allaire v. Lee (4 Duer, 609); Danenhover v. March (4 Abb., 254); Woods v. Illinois Central R. R. (20 How. Pr., 285).

As the Code now stands a t/rial is not a necessary element when a defense has been interposed in a difficult and extraordinary case; nor do we deem it necessary that a judgment should be actually entered.

It is enough if the plaintiff has terminated the action in such form that the defendant can lawfully claim the payment of his costs on such termination and enforce their payment in any mode known to the practice.

The order should be affirmed with ten dollars costs, besides disbursements.

Brady and Daniels, JJ., concurred.

Order affirmed with ten dollars costs, besides disbursements.


author: Daniels, J.

text:
    CAMBRIDGE LIVINGSTON, Executor of, etc., Respondent, v. AGNES MURRAY, Impleaded, etc., Appellant.

      Will — life estate — trustee of.

    The plaintiff's testator by his will provided: “ Secondly. All the rest of my estate, of whatsoever kind, I hereby direct shall be divided equally among all my children, and in case of their death before me, among their lawful issue, the share of the child or children so dying shall go and be divided among his or her children; and it is my wish that my executors cause the portion that may belong to my daughters to be secured to them for their separate use during their natural lives, free from the control of any husband with whom they have been or may at any time be intermarried, and in case of their dying without issue, such portion of their said property as may remain at the time of her or their death, shall revert to her or their surviving brothers and sisters, or their issue in case of their death, as hereinbefore provided for. Subject, however, to the right of such daughter to dispose of one-half of such property by will in such manner as she may think proper.”
    By a codicil thereto he further directed: “Sixth. Inasmuch as there may be some obscurity in my said last will and testament, as to the title to the portions given to my children, I do hereby give, devise and bequeath * * ' * to my daughters, an estate for life, remainder to the lawful issue of each respectively, if any such they leave, in fee simple and absolutely, subject to the right of my said daughters to dispose of one-half of their share by will, as in my said last will and testament provided, and also subject, however, to the power in trust to sell and convey given to my executors, or such as may qualify, and the survivors or survivor of them. * * * In case any of my said daughters die without leaving issue, then such portion of her share as she shall not have devised or bequeathed, as herein or therein provided, shall pass to her or their brothers and sisters, or to their issue, in case of their death, as in said will provided.”

      Held (1), that each daughter took an estate for life in her share, without the right to control or reduce the capital except by her will; (2), that the court had power to appoint a trustee for the protection of the daughters and those in remainder.
    Appeal from a judgment entered on the report of a referee. This action was brought to secure the judicial construction of the will of James B. Murray, deceased. By the judgment entered in the action, the appellant was declared, entitled to a life estate only, and her share was directed to be transferred to the New York Life Insurance and Trust Company, to be held by it as her trustee; and the income thereof paid to her during her natural life.

      Joseph H. Choate, for the appellant.

      Grosvenor P. Lowery, for the respondent.
   Opinion by

Daniels, J.

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

Judgment affirmed, with costs.


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

text:
    EDWARD VAN RANST, Respondent, v. THE NEW YORK COLLEGE OF VETERINARY SURGEONS, Appellant.

      Injunction — laches.

    The charter of the defendant (chap. 269 of 1857, as amended by chap. 346 of 1862), authorized the board of trustees to declare vacant the place of any trustee who should refuse or neglect to attend six regular meetings. At a meeting of the board held August 5th, 1863, a resolution was passed declaring the place . of the plaintiff vacant, for not attending six regular meetings. He had then been absent from three successive meetings, and from that time until May 13th, 1874, he never attended a meeting or claimed to act as a trustee. This suit was commenced to restrain the defendant from preventing him from acting as such trustee, and from filling his place in the board. Held, that he had slept too long on his rights, if he had any, to justify the granting of a temporary injunction.
    Appeal from an order made at the Special Term, continuing a temporary injunction.

      John J. Macklin, for the appellant.

      Wm. H. Arnoux, for the respondent.
   Opinion by

Davis, P. J.

Daniels, J., concurred.

Brady, J.,

concurred in the result, holding that the plaintiff’s remedy was by quo wa/rrcmto.

Order reversed and motion denied, with ten dollars costs of this appeal besides disbursements, and ten dollars costs of opposing the motion below.


text:
    JOEL W. MASON, Respondent, v. CHARLES PARTRIDGE, Impleaded, etc., Appellant. EDWIN SAWYER and others, Respondents, v. THE SAME, Appellant. LEVY KILBURN and others, Respondents, v. THE SAME, Appellant.

      Partnership — Imitation upon power of managing partner — waiver of.

    An agreement, in writing, was entered into between the defendants Partridge and Whitney, by which the former placed $2,000 in the hands of the latter to be used in the business of buying and selling chairs and the materials therefor; Whitney having no authority to sign any note or obligation of indebtedness for Partridge, but to conduct the business for cash only; Partridge in no event to be liable for more than the $2,000 advanced. Whitney was to have one-half of the profits and was to render quarterly statements showing the condition of the business. Whitney subsequently purchased of the plaintiffs in the above actions, who had notice of the conditions of the agreement, large amounts of goods upon credit. By the statements which were regularly furnished as required by the agreement, it appeared that debts had been created, in the course of the business, largely in excess of the $2,000. Held, that Partridge by failing to object to the business being carried on upon credit, held Whitney out as authorized to transact the business in that way, and was liable for the debts so contracted.
    Appeals from judgments in favor of the plaintiffs in the above entitled actions, entered upon the reports of a referee.

      William F. Leonard, for the appellant.

      Joseph H. Choate, for the respondents.
   Opinion by

Daniels, J.

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

Judgment in the first action modified by reducing the recovery from $696.10 to $180.50 and interest, as specified in opinion, if plaintiff so stipulate, and as modified affirmed, without costs.

Judgment in other actions affirmed.


text:
    BENNO SPEYER, Respondent, v. JAMES B. COLGATE AND OTHERS, APPELLANTS.

      Broker—duty of—measure of damages.

    The defendants, acting as plaintiff’s brokers, having purchased for him $40;000 in gold, he entered into two agreements with one Meyberg, by one of which he sold $20,000 to be delivered,'at his option, between the first and twentieth of February; and by the other he sold $20,000 to be delivered at Meyberg’s option, between the twenty-first of January and the twenty-first of February. The contracts signed by Meyberg were sent by the plaintiff to the defendants, with a letter requesting them to deliver the amounts to the buyer. An agent of Meyberg called on the thirtieth of January and demanded the $20,000 deliverable at his option, which'was accordingly delivered to him. The agent at the time stated that he had the other contract in his possession. The defendants did not tender the $20,000 sold under the other agreement during the time, specified. In an action brought to recover the damages sustained by the loss of the opportunity to sell the gold, held, that it was defendants’ duty to have made the tender, and that they were liable to the plaintiff for the damages sustained by him from their failure so to do.
    The plaintiff was .first informed of their failure on the third of April. Held, that it was his duty to at once take the necessary steps to secure himself against further loss; and that the defendants were not responsible for any loss sustained by him in consequence of the subsequent fall in the price of gold.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      C. W. Town, for the appellants.

      James P. Lowrey, for the respondent.
   Opinion by

Daniels, J.

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

Judgment modified, and'as modified affirmed, with costs.


author: Brady, J.

text:
    AMOS S. ROGERS, Assignee, etc., Appellant, v. GEORGE SCHMERSAHL and another, Respondents.

      Code, § 348 — notice required Iry.

    Where, in an action brought upon an undertaking given in pursuance of section 348 of the Code, a notice had been served by the plaintiff upon the defendant, informing him that judgment was duly entered on the 18th of January, 1866; “that on the 13th July, 1866, the said judgment was duly affirmed on appeal to the General Term of said court, and that the appeal to the Court of Appeals taken herein by the defendant was duly dismissed and judgment duly entered on the remittitur from the Court of Appeals on 21st of June, 1869, affirming the said judgment,” with costs of the appeal: Reid, that the notice was sufficient, although it did not state specifically that the judgment of affirmance by the General Term had ever been entered.

      Qumre, whether any notice is required to be given in cases where an appeal has been taken to the Court of Appeals.
    Appeal from a judgment in favor of the defendant, entered upon an order dismissing the' complaint.
    In this action, brought upon an undertaking given in pursuance of section 348 of the Code, the complaint was dismissed on the ground that the requisite notice of entry of judgment had not been given.

      R. H. Underhill, for the appellant.

      Wm. B. Aitken and Joseph M. Dixon, for the respondents.
   Opinion by

Brady, J.

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

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


author: by Brady, J.

text:
    In the Matter of the Petition of SOPHIA R. C. FURNISS AND OTHERS, APPELLANTS, TO VACATE AN ASSESSMENT.

      Chapter 388, Laws of 1858; chap. 312, Lams of 1874—when application to vacate assessment camrwt be made under.

    When an assessment has been made to pay the compensation awarded for land taken to open streets in the city of Hew York, in pursuance of 2 Revised Laws of 1813, page 409, section 178, as amended by chapter 483, 'Laws of 1862, an application to vacate it under chapter 338, Laws of 1858, as amended by chapter 312 of 1874, can only be made for fraud or substantial error, in cases where no investigation could be had in the first instance or in the proceeding itself.
    The statute does not apply to assessments imposed when no fraud is alleged, and when no error is urged other than that the land assessed is not subject to assessment.

      In matter of Aaron Arnold (Court of Appeals, Feb. 1875) followed.
    Appeal from an order made at the Special Term, denying an application to vacate an assessment for opening Twelfth avenue from Fifty-ninth to One Hundred and Thirty-third street; and for opening One Hundred and Fourth, One Hundred and Fifth and One Hundred and Sixth streets, from Eighth avenue west to the public drive. The petitioner alleged that the lots were all below high-water mark, and actually covered by water, being in the navigable portion of the Hudson river, and that for this reason they were not subject to assessment.

      Daniel Lord, Jr., for the appellants.

      E. Delafield Smith and William Barnes, for the respondent.
   Opinion

by Brady, J.

Daniels, J., concurred.

Order affirmed.


text:
    EDMUND COFFIN, Appellant, v. THE CHICAGO AND NORTHERN PACIFIC CONSTRUCTION COMPANY, Impleaded, etc., Respondent.

      Order of publication — when granted — Foreign corporation—jurisdiction over.

    This court has jurisdiction of an action, in which the plaintiff is a resident of this State and the principal defendant a corporation created and existing under the laws of the State of Wisconsin, brought to procure the sale of certain bonds delivered by the corporation as collateral security for the payment of promissory notes made by it.
    By the agreement under which the bonds were transferred as security, the party of the second part was, in case of any default on the part of the corporation, authorized to sell the bonds upon giving certain notice therein specified. Held, that this stipulation simply conferred the right to sell and prescribed the mode in which the sale could be summarily made, without either expressly or by reasonable implication excluding other lawful proceedings for the attainment of the same object.
    Appeal from an order vacating an order of publication, and setting aside service of summons and complaint made under it.

      Edmund Coffin, Jr., for the appellant.

      Henry Day, for the respondent.
   Opinion by

Daniels, J.

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

Order reversed with ten dollars costs, besides disbursements.


text:
    JAMES GOPSILL, Respondent, v. DAVID R. DECKER AND ANOTHER, APPELLANTS.

      Undertaking—approval of sureties not indorsed upon—justification —waiver.

    Upon appeal to the Court of Appeals an undertaking was given with two sureties, to whose sufficiency the plaintiff excepted; upon examination one of them was approved, and the other not being considered sufficient, an adjournment was had to give the defendant time to give additional surety. Subsequently it was agreed by the attorneys of the respective parties, that both the said sureties should be accepted, defendant’s attorney promising to have it so marked upon the undertaking by the court; which, however, was never done, although the appeal was taken as though it had been.
    In this action brought upon, the undertaking against the sureties thereto, they claimed that it could not be maintained for the reason that the approval of the sureties had never been indorsed on the undertaking as required by section 196 of the Code. Held, that the objection could not be sustained: 1. Because it would enable the defendants to take advantage of their own wrong. 2. That the consent in writing by the plaintiff’s attorney, to accept the surety first objected to, was a waiver of the justification and no indorsement was necessary.
    Appeal from an order made at the Special Term, granting a new trial.

      Hatch & Van Allen, for the appellants.

      E. A. Doolittle, for the respondent.
   Opinion by

Brady, J.

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

Order affirmed with ten dollars costs, besides disbursements.


author: Davis, P. J.

text:
    WILLIAM B. WAIT, Respondent, v. AUGUSTUS N. WELLER, Appellant.

      Injunction.

    In 1870 the W. and F. R. R. Co. executed a mortgage upon their road for $125,000 to the Union Trust Company, as trustee. In 1872, desiring to increase their funded debt, another mortgage for $175,000, described as a first mortgage, was executed to the appellant, the company intending to take up the $125,000 mortgage. This project failed, as some of the holders of the first bonds refused to surrender them. Subsequently the property of the road was sold under a judgment and a new company organized. An action was then commenced by the appellant, the trustee of the second mortgage, to foreclose it, the new road and the Union Trust Company being made parties to the suit. The plaintiff, the holder of some of the bonds issued under the second mortgage, applied for and obtained an injunction restraining the appellant from proceeding in that action until he procured the surrender of all the bonds issued under the first mortgage. Held, that the injunction was improperly granted and should be vacated.

      Appeal from an order made at the Special Term continuing an injunction restraining the appellant from foreclosing a mortgage until the conditions on which the bonds were issued should be fulfilled.

      H. J. Schenck, for the appellant.

      Waldo Hutchins, for the respondent.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Order reversed with ten dollars costs, besides disbursements, and motion for injunction denied, with ten dollars costs.


text:
    WILLIAM E. DEMAREST and another, Appellants, v. WILLIAM H. WICKHAM, Mayor of the City of New York, Respondent.

      Chapter 335, Laws of 1873 — assistant aldermen in the city of New Tork—power of legislature to abolish office — State Constitution, art. 10, § 2.
    The power of the legislature over the office of assistant alderman in the city of Mew Tork, as it existed prior to the passage of the act of 1873, was unrestricted, except that during its continuance it could only be filled by election or appointment in the mode prescribed by section 2 of article 10 of the Constitution. Accordingly held, that chapter 335 of 1873, abolishing this office and transferring its powers and duties to the board of aldermen, was constitutional and valid.
    Appeal from an order sustaining a demurrer to the complaint herein, and from a judgment entered pursuant to the same.

      W. S. Wolf, for the appellants.

      T. B. Clarkson and E. Delafield Smith, for the respondent.
   Opinion by

Daniels, J.

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

Judgment and order affirmed, with costs.


text:
    BENJAMIN P. LAMBERTSON, Respondent, v. GEORGE W. VAN BOSKERCK and another, Appellants.

      Order of arrresl—-when granted—tort—waiver of—estoppel.

    The defendants having been directed to purchase, with money of the plaintiff then in their hands, $4,000 of United States bonds, wrote to the plaintiff’s agents advising them of the purchase and the cost attending it. Held, that this letter operated as an estoppel upon the defendants, and prevented them from thereafter denying that they had purchased the bonds as therein stated.
    After the alleged conversion of the bonds, defendants paid a part, of the claim made for their value. Held, that the receipt of this money did not waive the tort or absolve the wrong-doer from the consequences of his wrongful act (Murray v. Burling, 10 Johns., 172; Sedg. on Dam., 492; Reynolds v. Shuler, 5 Cow., 323; Hibbard v. Stewart, 1 Hilt., 207; Burns v. Morris, 4 Tyrw., 485; 2 Greenl. on Ev., 639; Robbins v. Seithel, 20 How., 366; Person v. Civer, 29 id., 432), hut merely operated in mitigation of the damages to be given.
    Appeal from an order made at the Special Term, denying a motion to vacate an order of arrest.

      Theo. F. Miller, for the appellants.

      Seargent P. Stearns, for the respondent.
   Opinion by

Brady, J.

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

Order affirmed with ten dollars costs besides disbursements.


text:
    FRANCIS VOSE, Respondent, v. DAVID L. YULEE, Appellant.

      Removal of cause to United States cow't—order of court or aceeptam.ee of sureties essential — Collateral security — improper disposition of— burden of proof.

    The mere filing of the papera on an application for the removal of a cause to the United States court, does not have the effect of removing the action. The court must act upon them either by order or by accepting the sureties offered. (Bell v. Dix, 49 N. Y., 233; Cooke v. State Nat. Bank, 52 id., 96; Suydam v. Smith, 1 Denio, 263; Fairchild v. Durand, 8 Abb. Pr., 305; Bristol v. Chapman,
      34 How., 140; Gordon v. Longest, 16 Peters, 97; Kanouse v. Martin, 15 How. [U. S.], 198; Ins. Co. v. Dunn, 19 Wall., 222.)
    Where an indorser of a note is sued upon it, if the plaintiff has received any collateral security for its payment, the burden of proof is on the party sued to show that such collateral security has been improperly disposed of.
    This action was originally commenced against the defendant Yulee, jointly with the Florida Railroad Company, Edward R. Dickerson, Marshall O. Roberts and Isaac H. Roberts, who were joined as co-defendants, and was founded upon an indebtedness of the Florida Railroad Company to the plaintiff upon certain notes made by the company, upon a part of which David L. Yulee was indorser. It was originally tried in 1869 at Special Term, without a jury. That court dismissed the complaint as to all the defendants. The General Term affirmed the action of the Special Term, but on the plaintiff’s appeal to the Court of Appeals, that court, affirming the judgment as to all the defendants but Yulee, reversed it and ordered a new trial as to him alone. (50 N. Y., 369.)
    After the decision of the Court of Appeals the defendant Yulee filed a petition for the removal of the case into the United States Circuit Court, under the act of July 27th, 1866. (14 Stat., 306.) The motion was denied. When the case was called for trial at Special Term, he again moved that that court proceed no further, basing his motion on the same ground. This was also denied.
    The plaintiff rested upon the pleadings and proof of the amount due on the notes.
    The court ordered a verdict for the plaintiff for the amount admitted to be due on the notes indorsed by the defendant. The General Term was of opinion that the defendant offered no evidence sufficient to show an improper disposition of certain securities held as collateral to the notes.

      E. N. Dickerson, for the appellant.

      T. G. Strong, for the respondent.
   Opinion by

Brady, J.

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

Judgment affirmed, with costs.


text:
    HORACE H. BAXTER, Respondent, v. THE MISSOURI, KANSAS AND TEXAS RAILWAY COMPANY.

      Code § 236 — right of attaching creditor to examination of defendant's debtor under.

    An order requiring a debtor of the defendant to appear and be examined, made on account of his refusal to give the certificate required by section 236 of the Code for the benefit of an attaching creditor, will not be vacated on an affidavit of such debtor stating that- the funds in his hands are held in trust and cannot be applied in payment of the plaintiff’s debt. The attaching creditor is not bound to take the statement of the debtor as to the character in which the money / is held by him, but is entitled to the examination provided for by the Code.
    Appeal by L. H. Meyer from an order made at the Special Term, directing him to appear and be examined concerning property alleged to be held by him for the benefit of the defendant.

      John E. Burrill, for the appellant.

      Coles Morris, for the respondent.
   Opinion by

Brady, J.

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

Order affirmed, with ten dollars costs besides disbursements.


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

text:
    THE CHRISTOPHER AND TENTH STREET RAILROAD COMPANY, Respondent, v. THE CENTRAL CROSS-TOWN RAILROAD COMPANY OF NEW YORK, Appellant.

      Chapters 160 and 301 of 1873—injunction—who may apply for.

    Chapter 160, Laws of 1873, confers upon the corporation thereby created the right to extend its tracks to the North river at the foot of Christopher street.
    Chapter 301, Laws of 1873, did not confer upon the plaintiff any exclusive rights, nor did it confer upon it the power or duty of interfering to protect the public interest either in behalf of the city or of the general public. If the defendant had no right to run its tracks to the foot of Christopher street, the public alone could interfere to restrain it by injunction, unless the defendant had actually interfered with the tracks of the plaintiff at that point, or was about to do so.

      Appeal from an order made at the Special Term, making absolute a temporary injunction granted in this action.

      Simon Sterne, for the appellant.

      John M. Scribner, Jr., for the respondent.
   Opinions by

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

Daniels, J., concurred with Davis, P. J.

Order reversed with ten dollars costs, besides disbursements; and motion below denied with ten dollars costs.


text:
    JOHN WHITE and others, Appellants, v. JACKSON C. FULLER, Respondent.

      Agency — Custom—who bound by.

    This action was brought to recover damages for the breach of a contract for the purchase of coal, alleged to have been made with an agent of the defendant, the coal to be delivered at various times covering a period of four months. The defense was that the party making the contract was not the agent of the defendant. Upon the trial evidence was given to show that by a custom existing in reference to agencies for coal, the agent had not, unless specially authorized, the right to make a time contract such as the one in question. Held, that as the plaintiff would be presumed to have dealt with reference to the custom (Easton v. Clark, 35 N. Y., 232 ; Story on Agency, §§ 334, 335), it was incumbent upon him to have ascertained whether the agent had the special power to make the sale in question, and that as he had failed to do so, the defendant was not liable upon the contract, the agent not being in fact authorized to make it.
    Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury.

      William W. Goodrich, for the appellants.

      Aaron J. Vanderpoel and Joseph A. Welch, for the respondent.
   Opinion by

Brady, J.

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

Judgment affirmed.


text:
    EUGENE KELLY, Respondent, v. THE MARIPOSA LAND AND MINING COMPANY and others, Appellants.

      Corporation — when enjoined from, transferring its property.

    Tlie plaintiff owned, and held as security, a large quantity of the stock of the Mariposa Land and Mining Company, a corporation organized under the laws of this State, to which a large tract of land had been conveyed, constituting the bulk of its property. A new company was afterward organized in California, to which it was proposed to convey all the property of the former corporation. The plaintiff, claiming that such transfer was made with the intent to render his stock worthless, and to deprive him of all control of the company, brought this action to restrain the defendant from carrying such transfer into effect, and to secure the appointment of a receiver. ■ Held, that a temporary injunction was properly granted and a receiver appointed.
    Appeal from an order continuing an injunction and appointing a receiver.

      C. Bainbridge Smith, for the appellants.

      Aug. F. Smith, for the respondent.
   Opinion by

Daniels, J.

Brady, J., concurred.

Order modified, and as modified affirmed, with costs to abide the event of the action.


text:
    JAMES B. RYER, Respondent, v. THOMAS WIBERLEY, Appellant.

      Agreement for commissions— construction of.

    This action was brought to recover commissions claimed to be due under a written agreement by which the defendant promised to pay to the plaintiff ten per cent on all sales made to customers that he solicited, or that might be made through his influence. Held, that by a fair interpretation of the agreement, whenever the solicitation was of, or the influence was exercised upon, a person who had already dealt with the defendant, the commission should be confined to the transaction accomplished, thus requiring separate sales by the plaintiff to entitle him. to a continuing benefit under the agreement, unless from the length of time during which the customer had ceased to deal with the defendant, it would be a fair inference that he had discontinued his patronage; while, if the customer were made such by the intervention of the plaintiff’s solicitation or influence, the commissions should be payable on all sales to him as long as the agreement continued unbroken.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      F. G. Salmon and James R. Angel, for the appellant.

      Peabody & Baker, for the respondent.
   Opinion by

Brady, J.

Daniels, J., concurred.

Judgment modified, and as' modified affirmed, without costs to either party.


text:
    THE GERMANIA BANK OF THE CITY OF NEW YORK, Respondent, v. GEORGE DISTLER, Impleaded, etc., Appellant.

      Date of insti’ument only presumptive evidence of time of its execution —mistake in — may be shown by pa/rol evidence, by indorsee as well as payee.

    The date of an instrument in writing is only presumptive evidence of the time of its actual execution, and such presumption, whenever fraud or mistake is alleged, may be contradicted by parol evidence. (Drake v. Rogers, 32 Maine, 524; 1 Parsons on Bills and Notes, 41; Draper v. Snow, 20 N. Y., 331; Breck v. Cole, 4 Sandf., 80.)
    Such mistake may be shown as well by the indorsee as by the payee of a promissory note.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury.
    This action was upon a promissory note, made by the defendant, payable to the order of Altenbrandt Brothers, and by them indorsed to the plaintiff. It was dated on the 18th of December, 1872, and was due in three.months after its date. The complaint alleged that the note was dated in 1872 by mistake, and that it was designed to have been dated in 1871. The answer denied these allegations, and the parties went to trial on this and another issue in the cause ■ not considered on the appeal. It was objected by the defendant that the alleged mistake could not be shown by the plaintiff, or under the pleadings.

      Dailey & Perry, for the appellant.

      Geo. W. Carpenter, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Donohue, J., concurred.

Judgment affirmed.


text:
    THE UNITED STATES, Appellant and Respondent, v. LAFAYETTE GRAFF, Appellant and Respondent.

      Jurisdiction of State court of action by United States to recom' unpaid duties — Attachment—when may issue in action on contract for recovery of unliquidated damages—-tangible property — how attached—Safe in Trust Company's mult— when may be opened by sheriff.

    Where an action is brought in a State court by the United States for the recovery of duties unpaid on imported goods, the primary object of the action being not simply to execute the laws of the United States but to collect a debt by enforcing an obligation due to it, the court has jurisdiction of the cause of action.
    Whether a State court can entertain an action brought- simply to enforce the laws of the United States not decided.
    The principle of implied contracts is applicable to the payment of duties under the United States internal revenue statutes. (Meredith v. United States, 13 Peters, 486.)
    Attachments may issue in actions on contracts for the recovery of unliquidated damages, when a proper disclosure of the grounds of the claim supplies practicable means for determining its amount. (Lawton v. Reil, 34 How. Pr., 465 ; Clews v. Rockford R. R. Co., 2 Hun, 379.)
    Personal property, tangible in its character, can only be attached by the sheriff’s taking it into his custody. (Wait’s Code, 407, §232, and note; Haggerty v. Wilber, 16 Johns., 287 ; Goll v. Hinton, 8 Abb., 120 ; Smith v. Orser, 42 N. Y., 132.)

      A safe in a trust company’s vault is not within the protection which the law affords to a person’s dwelling-house against the execution of civil process.
    Appeals from an order made at Special Term, denying a motion to vacate an attachment, and directing the sheriff to open a safe of the Mercantile Trust Company, and remove therefrom certain securities.
    The defendant appeals from so much of the order made by the Special Term at chambers, as denied his motion to vacate an attachment issued against his property in this action, and directed the sheriff to open a safe of the Mercantile Trust Company and a tin box, in which it was claimed he had property and securities on deposit. The Mercantile Trust Company appeals from so much of such order as directs the sheriff to open the safe and tin box, and take from them, and safely keep the property and evidences of debt liable to attachment found therein; and the plaintiff appeals from the part of the order directing the exclusion of counsel and agents of each party, at the time of opening such safe by the sheriff.

      Edmund H. Smith, for the plaintiff.

      S. G. Clarke, for the defendant.

      Alexander & Green, for the Trust Company.
   Opinion by

Daniels, J.

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

Order affirmed, without costs.


text:
    In the Matter of the Petition of THE NEW YORK BRIDGE COMPANY, TO ACQUIRE REAL ESTATE.

      Section 15 of chap. 140, Laws of 1850 — Upon whom burden of proof rests in appplications undm' — chap. 601, Lams of 1874.
    Where an application is made to take real estate under the general railroad°act (chap. 140, Laws 1850) the burden of proving, by legal evidence, that the facts alleged in the petition are not true, is, by section 15 of the said act, cast upon the owner of the land, and an affidavit or answer is not sufficient for that purpose.

      Buffalo and State Line R. R. Co. v. Reynolds (6 How., 96) followed.
    Section 26 of said act, providing that when the title is vested in any trustee not authorized to sell, or in any infant, idiot or person of unsound mind, the Supreme Court shall have authority to direct the sale of the land, is for the benefit of the trustee and infant or idiot owner, and is not compulsory upon the railroad company.
    By chapter 601 of the Laws of -1874, the forfeiture of the charter of the New York Bridge Company, occasioned by its failure to complete the bridge within the time limited by law, was unconditionally waived.

      People v. The President, etc., of the Manhattan Co. (9 Wend., 380, 381) followed.
    Appeal from an order appointing commissioners to determine the compensation to be made by the Hew York Bridge Company for certain lands proposed to be taken by it.

      Wm. F. Shepard, for the appellant.

      Edgar McCullen, for the respondent.
   Opinion by

Brady, J.

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

Order affirmed.


text:
    THE PEOPLE ex rel. EMMA LEE and others v. BUTLER H. BIXBY AND OTHERS, CONSTITUTING A COURT OF SPECIAL Sessions, Respondents.

      Indecent exposure — ‘ ‘ Public place ’ ’ — Joint comiction.

    Where six women made an indecent exposure of their persons for hire, in the presence of five men, in a room in the rear of the second story of a house of prostitution, the doors, windows and shutters being closed, held, that the room where it occurred was a “ public place,” and that the women were properly convicted of the crime of indecent exposure.
    The offense being a misdemeanor committed by all the relators at the same time, each aiding and abetting every other, held, that they might be jointly prosecuted and convicted. (Rex v. Orchard, 3 Cox, 248; Rex v. Harris, 11 id., 659.)
    Certiorari to review the conviction of the relators of the crime of indecent exposure.

      William F. Howe, for the relators.

      B. K. Phelps, district attorney, for the respondents.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Proceedings affirmed and writ dismissed.


text:
    ANDREW SMITH, Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.

      Overflow from sewer ■— when city not liable for.

    This action was brought to recover damages sustained by the plaintiff in consequence of water setting back into his basement from a sewer constructed and maintained by the defendant. The overflow occurred on the 4th of July, 1872, and was preceded by a heavy rain, which conveyed so much sand into the sewer as to completely obstruct and prevent the water from passing through it. ■ The evidence did not show it to have been in any manner obstructed before, nor was it improperly constructed or out of repair. Before the sand was washed into it, and after its removal, it appeared to be sufficient to carry off the water flowing into it. • Held, that the defendant was not liable.

      Nims v. Mayor, etc., of Troy (3 N. Y. S. C., 5) and McCarthy v. Syracuse (46 N. Y., 194) distinguished.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      Henry Parsons, for the appellant.

      E. Delafield Smith, for the respondent.
   Opinion by

Daniels, J.

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

Judgment affirmed.


text:
    JOSEPH P. MANTON, Respondent, v. J. MORTON POOLE, AND OTHERS, APPELLANTS.

      Attachment—affidavit fen', must state a cam.se of action—mere reeital of facts insuffient.

    The affidavit on which an attachment is granted must show that a cause of action exists in favor of plaintiff.
    It must state the facts out of which the cause of action arose.
    A mere recital of facts without-a direct statement of their existence is insufficient.
    Appeal from an order denying a motion to set aside an attachment.
    The affidavit set forth, that the defendants were indebted to the plaintiff in the sum of $20,000 damages, and that the grounds.of the plaintiff’s claim were as follows, to wit: “The breach and violation by the said defendants of the covenants, agreements and conditions, on their part to be kept and performed, contained in a certain agreement and patent license, duly made on or about ,the 26tli day of August, 1872, in writing, under seal, of that date duly executed by and between deponent, this plaintiff, as party of the first part thereto, and said defendants as parties of the second part thereto, and particularly the breach and violation by the said defendants of their covenant and agreement therein contained, to use all proper and reasonable efforts, by the employment of agents and canvassers, and by advertising, to make sales of the boilers in the territory, in and as in said agreement and license specified and provided, and to make the patent therein specified remunerative to this plaintiff, said party of the first part thereto, to the damage of the said plaintiff to said sum of $20,000.” This was all that was stated for the purpose of showing the grounds of the claim, or the existence of a cause of action.

      James C. Carter, for the appellants.

      John S. Washburn, for the respondent.
   Opinion by

Daniels, J.

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

Order reversed with ten dollars costs, besides disbursements, and motion granted, with ten dollars posts.


text:
    DAVID W. SWEET, Respondent, v. JAMES L. TITUS and ANDREW R. TITUS, Appellants.

      Payment—when delivery of cheek is not—creditor not bound to receive either check or money.

    The delivery of a check is not a payment, unless there be an agreement to that effect, or unless the drawer, in consequence of some laches on the part of the holder, has sustained loss or injury in respect thereof, and then only pi'o tanto. (The Syracuse, Binghamton and N. Y. R. R. Co. v. Collins, 3 Lansing, 29 and cases cited ; Hill v. Beebe, 13 N. Y., 566; Bradford v. Fox, 38 id., 289.)
    The creditor is not bound to accept a check, even if it be for the entire amount of his claim. He is not bound to receive money. He may, although it be sent to him, refuse to accept it and leave the debtor to his plea of tender when sued for the claim. He may do this even though, having received the money, he keeps it subject to the order of the debtor. The latter must withdraw the money and plead a tender, and thus save himself from the costs of the controversy. (The Kingston Bank v. Gay, 19 Barb., 460.)
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      J. H. & W. L. Van Derzee, for the appellants.

      E. E. Harding, for the respondent.
   Opinion by

Brady, J.

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

Judgment affirmed.


text:
    MARGARET E. DEFOREST v. TERENCE FARLEY and others.
    2 R. S., 193, § 165 — sale of moi'tgaged premises.

    Upon the foreclosure of a mortgage covering several houses, the court has power to direct a sale of all the property therein described, though the amount due upon the mortgage may be raised by a sale of a portion thereof.

      Livingston v. Mildrum, (19 N. Y., 440, 443) followed.
    Appeal by .Thomas D. Stetson, a purchaser at a sale on the foreclosure of a mortgage, from an order of the Special Term denying a motion to relieve him from such purchase.

      M. S. Thompson, for the appellant.

      Walter Edwards, Jr., for the respondent.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Order affirmed.


text:
    ANNA K. GILMAN, Executrix, etc., Appellant, v. CAROLINE G. REDINGTON and others, Respondents.

      Appeal from order of surrogate — costs allowed on— Gode; section 318.
    Upon appeal to the General Term from an order of the surrogate, the costs which may be allowed under section 318 of the Code, are only those which may be recovered in an action at issue on a question of law from the time the proceeding is brought into the Supreme Court, viz., twenty dollars for the argument and ten dollars for each term the appeal is necessarily on the calendar, and the disbursements.

      Morgan v. Morgan (1 Abb. [N. S.], 40) approved.
    Appeal from an order made at the Special Term readjusting a bill of costs.

      Wellesley W. Gage, for the appellant.

      Charles E. Whitehead, for the respondents.
   Opinion by

Brady, J.

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

Order modified, and as modified affirmed, without costs to either party.


author: Donohue, J.

text:
    PEOPLE ex rel. CHARLES LEWIS and others v. J. F. DALY and others, Judges of the Court of Common Pleas, and ISAAC GOLDSTEIN.

      Discharge of vmpn'isoned, debtor—publication of notice necessm'y to give court jmisdic- • tion—Certiorari.

    Isaac Goldstein, an insolvent and imprisoned debtor, applied to the respondent for a discharge of his person from imprisonment. On the day the order to show cause was returnable, there being no opposition, the order was granted. The proceedings were removed into this court, in pursuance of section 47 (2 R. S. [Edm. ed.] 50). The relators sought a reversal, on the grounds that the notice directed by section 4 (2 R. S. [Edm. ed.], 29), was, by the order of the judge, to be published in the Daily Register and Albany Evening Journal, and was directed to be given for the 6th of June, 1874, at 11 a. m. ; that^ in fact, the publication of the notice in the Register was of an application to be made on the 3d of June, 1874, at 11 a. m., and so the proof before the officer disclosed the fact to be. The General Term held, that until the publication of the notice was made as directed, and proof of such publication was before the officer, he was without jurisdiction. (16 Barb., 319.)
    It was claimed on the part of the respondent, that the relator having the right of appeal in the Common Pleas, the remedy by certiorari should be denied him; but the General Term held, that the statute (2 R S. [Edm. ed.], 50, § 47) was positive as to the relator’s right, and the court had no right to withhold what the statute gave to a party.

      James R. Adams, for the relators.

      H. Morrison, for the respondents.
   Opinion by

Donohue, J.

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

Proceedings reversed, with costs.


text:
    KATE KENNEDY, Respondent, v. GEORGE BARANDON and JOHN BARANDON, Appellants.

      Creditor's bill to reach real estate fraudulently conveyed — sale by shm'iff instead of receiver— when proper.

    Appeal from a judgment of the Special Term, in an action in the nature of a creditor’s bill to reach the real estate of the defendant George Barandon, alleged to have been mortgaged and conveyed to the defendant John Barandon, with intent to hinder, delay and defraud the creditors of the former. The court found that the mortgage and conveyance were fraudulent, and gave judgment declaring the same fraudulent and void as against plaintiff and other creditors, and setting the issue aside, and directing that the real estate be sold on execution by the sheriff, and that the judgment of plaintiff and the costs of this action be paid out of the proceeds of the sale, and the surplus be brought into court. The question in the case was purely one of fact.
    The court at General Term held, that it was the usual, and, it thought, the better practice, in this class of cases, to direct the appointment of a receiver, and a sale by him, but that it was not improper to adjudge that the sale be made on execution by the sheriff. (2 Van Sant. Eq. Pr., 158; Orr v. Gilmore, 7 Lans., 345; 5 Wait’s Pr., 655.) ■ As it did not appear thaf there were any other creditors, the judgment should have only declared the mortgage and conveyance fraudulent and void as to plaintiff’s judgment, and directed the sale for the payment of that alone, with the costs.
    The provision of the judgment directing that the surplus on the sale be brought into court, was not appropriate to the case made by the pleadings and proofs. (Wilder v. Keeler, 3 Paige, 164; Kerr v. Blodgett, 48 N. Y., 62; Wait’s Pr., 653-654.) The judgment was modified by striking out that direction, and, as so modified, affirmed, with costs.

      Edward Van Ness, for the appellants.

      C. C. Bigelow, for the respondent.
   Opinions by

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

Daniels, J., concurred.

Judgment, as modified, affirmed.


text:
    SAMUEL P. DINSMORE and others, Respondents, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Answer—when not frivolous.

    Appeal from an order striking out the defendant’s answer as frivolous.
    The plaintiffs alleged that they performed work, labor and services for and at the request of the defendant, its agents and servants, in printing and advertising for it in a newspaper called “ The Stockholder.” The defendant, by the first paragraph of its answer, denied that it requested' or employed the plaintiffs to print or publish the.notices and advertisements named in the complaint and specified in the bill of particulars. In addition to this denial other matters were set up as a further and separate defense. The General Term held, that the denial recited struck at the very foundation, of the plaintiffs’ case, and could not be stricken out as frivolous.

      E. Delafield Smith, for the appellant.

      S. P. Dinsmore, for the respondents.
   Opinion by

Brady, J.

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

Order reversed with ten dollars costs, besides disbursements.


text:
    TERENCE P. SMITH, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.
    1869, chap. 876, § 11 — “ puMio officw'.”

    Appeal from an- order overruling a demurrer to the complaint.
    Respondent was appointed messenger to the president of the board of aldermen, on the 1st day of January, 1869, and performed the duties of said messenger until the 6th day of June, 1870.
    On the 23d day of October, 1869, his salary wás increased from $1,500 to $2,500 per annum. Appellant refused to pay the difference between the original salary and the increased salary, and this action is brought to recover such increase.
    Appellant demurred to the complaint, and the demurrer was Overruled, and judgment ordered for plaintiff.
    The position taken by- appellant was that the increase was in violation of section 11, chapter 876 of the Laws of 1869, passed May 12, 1869, which provides as follows: “ The common council of the city of New York are hereby prohibited from .creating any new office or department, or increasing the salaries of those now in office, or their successors, except as provided by acts passed by the legislature.” The court at General Term held, that a messenger to the president of the board of aldermen in New York, was not a public officer within the. meaning of section 11 of chapter 876 of 1869.

      Collins v. The Mayor, etc. (10 S. C., 680), in which case it was held that the plaintiff was an officer, was distinguished because the office of his principal was one created by law, and its duties were official, and his deputy or assistant clerk was appointed to perform some portion of the official functions of the clerk himself. But a “ messenger to the president of the board of aldermen ” could not be supposed to perform the official functions of the president. He serves him in no official capacity in carrying messages and running errands, and is clothed with no power to perform any official duty of that office.

      D. J. Dean, for the appellant.

      C. E. Miller, for the respondent.
   Opinion by

Davis, P. J.

Daniels and Brady, JJ., concurred.

Order affirmed with costs, and with leave to defendants to answer on payment of costs.


text:
    SAMUEL PHILIPS, Appellant, v. ELIZA WALKER and OTHERS.

      Foreclosure—referee's fees on sale in.

    Appeal from an order fixing the fees of the referee on a sale of mortgaged premises in the above entitled action. The property at the sale was bid off by plaintiff at $3,000. The referee retained, out of the ten per cent paid on the sum bid at the sale, the sum of $129.65 for his fees and charges, over and above disbursements.
    The court, referring to chapter 192 of the Laws of 1814, amending chapter 569 of the Laws of 1869, say a very singular question of constitutionality might be raised upon the act of 1814; but it is not "necessary to pass upon it, because the appellant’s counsel says, in his points, he will be “ quite content to have the fees of the referee taxed under this statute,” under which he was entitled to thirty dollars as the aggregate of the several items given by the act, besides his disbursements.

      A. C. Thomas, for the appellant.

      E. J. Shandley, referee, in person.
   Opinion by

Davis, P. J.

Daniels and Brady, JJ., concurred.

Order reversed, and an order entered fixing the referee’s fees at thirty dollars and his disbursements, without costs.


text:
    DANIEL B. BUSH and others, Appellants, v. HENRY R. TREADWELL, Respondent.
    Appeal from a judgment of the Special Term, in favor of the defendant.
    The plaintiffs are collateral heirs of Chauncey Bush, who died intestate, October 27, 1865, leaving no widow or child him surviving.
    They bring this action, claiming to redeem certain lands described in the complaint, on the ground that a conveyance of the premises by quitclaim deed, executed by said Chauncey Bush to the defendant, on or about the 11th day of August, 1856, was in fact intended as a mortgage; and they allege that the conveyance was executed under an agreement by and between the intestate and the defendant, that the intestate should convey the lands to the defendant, and that the same should be held by the latter as security for the repayment by said Chauncey, of such moneys as he, the said Treadwell, should advance on account of said lands upon said mortgage, assessments and taxes, and that he, the said defendant, would, upon being repaid the same, reconvey the said premises to him; the said Chauncey Bush, or to his heirs or assigns.
    The principal question of the case was one purely of fact, and the General Term was of opinion, that the learned justice before whom it was tried, having heard all the evidence on both sides, and decided that upon all the evidence in the case he was unable to find that the conveyance was made or intended by said Ghauneey Bush, or accepted by said defendant, as a trust as' alleged in the complaint, the judgment below should not be disturbed.

      James Emott, for the appellants.

      B. K. Phelps, for the respondent.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Judgment affirmed.


text:
    THE PEOPLE ex rel. DENNIS HOGAN, and DENNIS HOGAN, Plaintiffs, v. CORNELIUS FLYNN, Defendant.
    1872, chap. 438 — clerics and assistant clerics of District Courts—how appointed — tenure of office of.

    Exceptions ordered to be heard in the first instance at the General Term. A verdict in this case was directed for plaintiff, and the entry of judgment thereon suspended.
    The act of 1872 (chap. 438), by section 1, provides - that there shall he a clerk and an assistant clerk in each of the District Courts of the city of New York, who shall be appointed by the justices of .said courts, and that they shall hold office and perform the same duties and possess the same powers as now prescribed by law.
    It also provides that they shall receive the same salary, and that it shall be paid by the comptroller.
    The General Term held, that, under the statute, the clerk and assistant were to be appointed by each justice of each of the courts, and that the legislature did not intend to confer upon a number of justices combined, the right to interfere with or control in any way the selection of the officers of the court in which each presided—officers strictly local and whose duties were limited to the court for which they were appointed (1 Edm., 71; 3 R. S. [5th ed.], 1106; Sedg. on Stat., 219, and cases cited); and that such office was held during the pleasure of the authority making the appointment. (1 R. S. [Edm. cd.], 107.) As to the tenure of the office of clerk, the decision of- the General Term in The People ex rel. Dolan v. Lane was overruled. (This case on appeal is reported in 55 N. Y., 219.).

      Roscoe H. Channing, for the plaintiffs.

      Wheeler H. Peckham, for the defendant.
   Opinion by

Brady, J.

Davis, P. J., dissented.

Daniels, J., concurred.

Motion for new trial granted, costs to abide event.


text:
    THE EXCELSIOR PETROLEUM COMPANY v. AUGUSTUS EMBURY AND OTHERS.

      Manufacturing corporations — frustees of.

    Appeal from a judgment entered on the report of a referee.
    The defendants in this action were charged with a violation of the provisions of the second section of the eighteenth chapter (title 4) of the first part of the Revised Statutes (voí. 1 [4th ed.], 1175), in having paid dividends, not from the surplus profits of the plaintiff, but by withdrawing and dividing a part of the capital stock without the consent of the legislature.
    They were the trustees of a manufacturing corporation, organized under the act of 1848 and the acts amendatory thereof. The General Term was of opinion that, by the thirteenth section of the act of 1848, the legislature substantially designed to provide for the cases in which individual liability should result from the acts prohibited. (Rochester v. Barnes, 26 Barb., 657.) That the two statutes were repugnant to each other, and that it was not the meaning or object of the law makers to apply both of these statutes to trustees of a Corporation created under the law of 1848. (Sedgw. on Stat. and Const. Law, 124; Rochester v. Barnes, supra, and cases cited; Dash v. Van Kleeck, 7 Johns., 477; Columbian Manufacturing Co. v. Vanderpoel, 4 Cow., 556; Livingston v. Harris, 11 Wend., 329; Harrington v. Trustees of Rochester, 10 id., 547.)

      W. H. Dickinson, for the plaintiff.

      John E. Parsons, for Lacey’s executors.

      Benj. T. Kissam, for the defendant Embury.

      Geo. C. Blanke, for defendants Fancher and James McChesney.

      G. P. Androus, for defendants Dayton and Patchen.
   Opinion by

Brady, J.

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

Judgment affirmed.


text:
    JOHN HADEN and another, Respondents, v. CHARLES A. BUDDENSICK and others, Appellants.

      Mortgage — cormderation.

    Appeal from a judgment for plaintiff, entered on a referee’s report.
    The object of this action was the. foreclosure of a mortgage executed by the defendants Charles A. Buddensick and wife, to Gustav A. Sturtzlcober, to secure the payment of $8,000 and interest, and assigned by him to the plaintiffs and Samuel Wilson, the latter of whom afterward assigned his interest to the plaintiffs. Before the execution of the mortgage, the mortgagee, Stnrtzkober, had entered into contracts with the defendant Charles A. Buddensick, for supplying materials and the performance of labor, in erecting and finishing certain buildings on premises situate in the city of New York. The plaintiffs and Wilson, then their partner, had furnished and, supplied to Sturtzkober, the contractor, sashes, blinds and doors, for such buildings, at his request, for which he had become indebted to them in the sum of $8,000, and they had filed a lien for the debt on the buildings and the land they stood upon. By the terms of the contracts, nothing appears to have been due to the contractor when the mortgage was given. And whether anything more would afterward become due to him under their terms, depended upon the completion of the work; upon that being done, a much larger amount than that mentioned in the mortgage would become due from the mortgagor to the mortgagee. The former, for some reason, desired to remove the lien from his property, which had been placed upon it by the plaintiffs and Wilson, and for that purpose agreed to give the mortgage, and the bond secured by it, to the contractor, with the understanding that it should be assigned to them upon their discharging their lien. In conformity to that agreement, the bond and mortgage were executed, delivered and assigned, and the plaintiffs and Wilson discharged and satisfied their lien. The defendants Buddensick and wife claimed, upon the trial, and insisted upon the argument of the appeal, that, as long as nothing was actually payable by the terms of the contracts when the bond and mortgage were given, they were without consideration, and could not be enforced,' for the reason that the contractor had since failed to complete his work.
    The General Term held, that, to create a consideration sufficient to support an obligation for the security or payment of money, nothing further was required by either law or equity, than benefit to the party obligated, or harm to the person designed to receive it. (1 Parsons on Oont. [2d ed.], 357; Freeman v. Freeman, 43 N. Y., 34, 39.) That it undoubtedly was beneficial to Buddensick, the mortgagor and owner of the property, to have the lien appearing against it discharged. And, after receiving the stipulated benefit, and giving the bond and mortgage for it, he could not be exonerated from the obligation to pay what he expressly covenanted for as its price. That if the contractor failed to perform his agreements, the remedy against him was confined to an equivalent by way of damages, not by resisting the enforcement of the security not rendered dependent on his future fulfillment.

      Benjamin M. Stillwell, for the appellants.

      Osborn E. Bright, for the respondents.
   Opinion by

Daniels, J.

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

Judgment affirmed.


text:
    JEREMIAH S. DEVLIN and another, Respondents, v. JOHN S. DEVLIN, Appellant.

      Injunction—restraining use of name.

    Appeal from an order of Special Term, adjudging defendant in contempt for violating the injunction of the court.
    The defendant had been enjoined from making use of the firm name of the plaintiffs, to attract custom to his shop by deception. The injunction restrained the defendant from using the firm name “ Devlin & Co.’,” in any form or manner; and it further ordered “ that the said John S. Devlin be, and he is hereby confined — whenever the word Devlin appears or is used in his advertisements, signs, placards, slips or other means and modes of making known his business or place of business, or offering for sale or selling his goods, wares or merchandise — to his own proper Christian, middle and surname conjoined, and without monograms, signs or other devices, which may tend to mislead or induce the public or any other person as aforesaid; and it is further ordered that the said John S. Devlin be and he hereby is confined to the use of his own name, John S. Devlin or. J. S. Devlin, without the use of a monogram containing the initials J. S. or other device as aforesaid; but nothing herein is to be construed or interpreted as preventing the said defendant from using his own name in his advertisements, signs or placards.” It was not claimed that the firm name “ Devlin & Co.” had been used ; but that a sign which contained the name J. S. Devlin, had been so arranged that it tended to mislead and deceive the public, in a manner forbidden by the injunction. The justice below came to the conclusion that that was the intent, of the arrangement of the figures, letters and words of the sign.
    The General Term was of the same opinion, and affirmed the order appealed from, with ten dollars costs besides disbursements.

      Walter Edwards, Jr., for the appellant.

      John E. Devlin, for the respondents.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs besides disbursements.


text:
    CHARLES H. SMITH, Respondent, v. GEORGE S. WRIGHT, Appellant, and others.
    Appeal from a judgment in favor of .plaintiff, entered upon the report of a referee.
    This action was brought to recover a balance due upon a written contract to do joiner and other work on the steamship Vixen. By the terms of the contract and specifications, all the materials and workmanship were subject to the approval of the defendant Lewis. The payments were to be made on the order of Lewis. The plaintiff neither gave evidence of an order from the defendant Lewis, nor John T. Wright, Jr., the agent of the defendants, the owners, and who made the contract as such, nor of an application for it, as required by the contract to enable him to demand payment. Held, that it was necessary to show, in the absence of the order, that it was obstinately and unreasonably or fraudulently refused on application. Performance of the contract when the order is refused will excuse its non-production, because that proof will demonstrate the unreasonable conduct of the person in refusing to give it, but it will not obviate the necessity of applying for it. (Smith v. Brady, 17 N. Y., 176; U. S. v. Robeson, 9 Peters, 319 ; McMahon v. N. Y. and E. R. Co., 20 N. Y., 466 ; Thomas v. Fleury, 26 id., 26 ; see, also, Hurst v. Litchfield, 39 id., 380; Wyckoff v. Meyers, 44 id., 143; Glacius v. Black, 50 id., 145.)

      Albert Smith, for the respondent.

      John N. Whiting and Foster & Thomson, for the appellant.
   Opinion by

Brady, J.

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

Judgment reversed and a new trial ordered, with costs to abide event.


text:
    AMANDA O. VAIL and others, Surviving Executors, etc., Appellants, v. JOHN W. LANE, Respondent.

      Service of answer — when irregular.

    Appeal from order of Special Term, setting aside a judgment.
    The attorneys for the appellants and all other persons connected with their office, had left the office at five and a half o’clock, p. m., and the office was closed and locked for the night. Between that time and six o’clock, the clerk of defendant’s attorney came to make service of the answer in this action; but, finding the office closed and locked, he procured the janitor of the building to unlock the door, and then left the answer on the table of the managing clerk. The janitor had no authority to open the office for that purpose, and the court held that his act in doing so was that of the clerk who procured him, and the entry of the clerk, under the circumstances, was irregular and unlawful.
    The General Term concluded that the order vacating the judgment was granted as a favor, in the discretion of the court; and that the respondent was not charged with costs, as is usual in granting such favors, because the court discovered some slight acidity of practice in the proceedings of plaintiff’s attorneys. That this was a legitimate stimulant to the exercise of judicial discretion, and this court was not to be called upon to interfere with its exercise.
    As by the order below, vitality had not been given to the irregular service of the answer, nor leave to serve a new answer, the General Term directed that the order should be modified by giving leave to re-serve the answer as of the date of the attempted service, so far as affected the date of the issue, with leave to reply to the answer if necessary, or to demur, or to make any motion in respect of the answer on any ground except the regularity of its service; as thus modified the order was affirmed, without costs to either party.
    Tracy, Olmstead & Tracy, for the appellants.

      R. H. Huntley, for the respondent.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Order modified, and as modified affirmed.


text:
    ASA F. MILLER, Appellant, v. THE NATIONAL STEAMSHIP COMPANY, Respondent.
    Appeal from a judgment of the Special Term, dismissing the complaint.
    This appeal is taken from a judgment dismissing the complaint with costs. The bill of exceptions states that at the trial the plaintiff applied for and had leave “ to amend his complaint by striking out such matters as might be inconsistent with such amendment, and by inserting instead thereof allegations that the defendant and the National Steam Navigation Company were separate and distinct corporations; and that the defendant accepted the National Steam Navigation Company’s property with distinct agreement to pay the last mentioned company’s debts and liabilities.” The answer of the defendant was then “ so amended as to set up a general denial of these allegations.” The plaintiff gave evidence to show that his assignor, on the 23d day of June, 1868, recovered a judgment in the Superior Court of the city of New York against the National Steam Navigation Company for $3,289.05, damages and costs, on which execution had been duly issued and returned unsatisfied. The judgment roll showed that the recovery was for an injury to the intestate of plaintiff’s assignor, which caused the death of such intestate, and that such injury was produced by the wrongful act and negligence of the National Steam Navigation Company in the navigation of the ship Pennsylvania, on the 24í/¿ day of October, 1867, at which time it was alleged the said ship belonged to that company. It showed also that the Navigation Company appeared and by its answer admitted its own incorporation, and that a collision occurred at the time mentioned between the ship Pennsylvania and the boat on which the intestate was injured ; but put in issue the ownership of the Pennsylvania and all other allegations of the complaint. The plaintiff then gave evidence tending to show that the defendant in this action was incorporated under the laws of Great Britain, on the 1st day of July, 1867, by the name of “ The Steamship Company limited,” and that on the 8th day of August, 1867, its name was changed to “ The National Steamship Company limited.” That the National Steam Navigation Company, preparatory to a dissolution of that corporation, transferred all its property to two liquidators, under the provisions of the act of parliament, known as “ the companies act, 1862,” and that said liquidators transferred all of said property to the corporation now sued, on the 16th day of August, 1867, and on that day the Navigation Company ceased to do business, and commenced to wind up its affairs; that such transfer was made substantially upon the agreement and condition that The National Steamship Company should take and accept such real and personal property subject to the rights and equities therein subsisting, and in particular to the discharge of the several liabilities appearing in the books, papers and documents of the Navigation Company, and to all other liabilities of the last named company, to which the said real and personal property was then subject, and would bear, pay and discharge in due course the several liabilities disclosed in said books, papers and documents aforesaid, and all other debts, if any, of the National Steam Navigation Company, and would devote and apply the real and personal property, so to be made over to them, for that purpose. The General Term was of opinion that, as the liability to the plaintiff’s assignor for an injury which occurred to her intestate on the 24th of October, 1867, could not appear in the books, papers and documents of the Steamship Navigation Company on the sixteenth of August preceding, nor be then a debt or liability of that company which was or could be assumed by the present defendant; and as, when the injury occurred, the National Steamship Company was the owner of the steamship Pennsylvania, engaged in its navigation, and the alleged wrongful act and negligence were its own, and not those of the corporation which was sued, neither on sound law nor logic could it be held that by the agreement made on the transfer of the property, defendant bound itself to pay its liabilities that might thereafter spring out of the wrongful acts and negligence of its own servants; nor did the agreement contemplate or provide for liabilities of that kind which might be asserted by actions improperly brought against the company, which had ceased to do business, and was existing only in the process of winding up its affairs; and that therefore the complaint was properly dismissed, and that the judgment should be affirmed, with costs.

      Albert Cardozo and Henry Morrison, for the appellant.

      John Chetwood, for the respondent.
   Opinion by

Davis, P. J.

Daniels, J., concurred.

Judgment affirmed, with costs.


text:
    THE UNION DIME SAVINGS INSTITUTION OF THE CITY OF NEW YORK v. EMMA LOUISA OSLEY and others, Respondents, and ADDISON P. SMITH, Executor, etc., Appellant.

      Surplus moneys—m'der of reference—object of.

    Appeal from an order vacating and setting aside the report of a referee, made in proceedings relative to surplus moneys. In this matter, the claims presented, except one for funeral expenses, were seriously contested. The order of reference was made, however, without objection.
    The court at General Term held, that the order of reference usually made to ascertain and report the amount of surplus money remaining, after a sale on foreclosure, and the liens and claims against the same, and their priorities, is not granted for the investigation and determination of contested' claims, but for the purpose of ascertaining liens and claims about which there is no dispute, and to settle the priorities of the liens, that each may be adjusted according to its legal status.
    That though the rule is in favor of a referee’s report in actions regularly commenced as such, when conflict in. the evidence and proof exists, unless the preponderance of evidence is against its propriety, or it is apparent that the referee has clearly misunderstood the evidence; yet the rule is not conclusive even in such cases, and each' proceeding stands upon its own elements, to be disposed of as they affect the appellate tribunal.
    In this matter, which was a summary proceeding and not an action, and under the circumstances which marked its progress, and the doubt which existed in relation to the counter-claim urged, the court thought it better to compel the parties, claimants, to proceed by action in the usual way, and thus afford the devisees all the benefits arising from the advantages of pleadings, and the tribunals which are by law designated for the investigation and adjudication of disputed claims.
    The precedent of submitting such demands to determination on an application to ascertain liens upon surplus funds, does not commend itself. (See King v. West, 10 How. Pr., 333; Husted v. Dakin, 17 Abb. Pr., 137.) And when the reference is made, as in this case, to ascertain and report, the court should be satisfied by the result, beyond all doubt, before adopting the report that the claims are just and should be paid. The court was not so satisfied, and it directed the funds to be kept in court, or rather on deposit, until the claims should be determined.

      R. F. Andrews, for the appellant.

      Andrew Blake, for the respondents.
   Opinion by

Brady, J.

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

Order affirmed, and proceedings referred to a referee to hear and determine the claims.