text:
    MARVIN R. CLARK as a Marshal, etc., Appellant, v. ALBERT G. WOODRUFF and others, Respondents.

      Bond of indemnity — levies made p>ior, and wot those made subsequent thereto are covered by it.

    Where an officer acting- under an execution requires a bond of indemnity from the plaintiff therein it will be presumed, unless the contrary clearly appear, that such bond is intended to relate only to property already levied upon, and not to property which may thereafter be levied upon, especially where the plaintiff in. the execution has not directed such subsequent levy or approved thereof.
    Appeal by the plaintiff from a judgment, entered in favor of the defendants upon the report of a referee.

      E. P. Wilder and A. O. Thomas, for the appellant.

      John B. Leavitt, for the respondents.
   Ingalls, J.:

This action was brought by plaintiff to recover upon a bond of indemnity executed by the defendants to the plaintiff to protect him against loss, in consequence of seizing certain personal property by virtue of au execution issued upon a judgment recovered by Woodruff, Morris & Co. against Henry W. Webber, which bond is as follows:

“Know all men by these presents, that we, Albert C. Wood-ruff, Francis I. Morris and Charles Morgan are held and firmly bound unto Marvin R. Clark in the sum of $1,000, lawful money of the United States, to be paid to the said Clark, or to his certain attorney or attorneys, executors, administrators or assigns for which payment, well and truly to be made, we bind ourselves,, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents.
“ Sealed with our seals.
“ Dated the sixteenth day of March, in the year one thousand eight hundred and seventy-five.
“Whereas, the above bounden Woodruff, Morris and Morgan did obtain judgment in the Marine .Court against H. W. Webber, whereupon execution has been issued, directed and delivered to the said Clark, requiring him, out of the personal property of the said judgment debtor, to satisfy the judgment aforesaid. And whereas, certain personal property that appears to belong to the said Webber is claimed by one Dickson, and also one Hunt.
“ Now, therefore, the condition of the above obligation is such that if the above bounden Woodruff, Morris and Morgan shall well and truly save, keep and bear harmless, and indemnify the said Clark, and all and every person and persons aiding and assisting him in the premises, of and from all harm, let, trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judgments, special proceedings and executions, that shall or may at any time arise, come, accrue, happen or be brought against him, them, or any of them, as well for the levying and making sale under and by virtue of such execution, of all or any personal property which he or they shall or may judge to belong to the said judgment debtor, as well as in entering any shop, store, building, or other premises, for the taking of any such personal property, then this obligation to be void, otherwise to remain in full force and virtue.
“ Sealed and delivered in the presence of
“ WOODRUFF, MORRIS & CO., [l.s.]
“ FRANCIS I. MORRIS. [l.s.]
Oity and Clounly of JSTew York, ss.:
“I certify that on this 16th day of March, 1875, before me personally appeared Francis I. Morris, known to me to be a member of the firm of Woodruff, Morris & Co., plaintiffs in within mentioned action, and to be the individual described in and who executed the within bond, and severally acknowledged that they executed the same.
“ JOHN BROOKS LEAVITT,
(Join, of Deeds.”

Previous to the giving of the said bond the plaintiff, as such marshal, had levied upon certain personal property by virtue of said execution, as the property of Webber, the defendant named therein, which was contained in two stores — one located upon Broadway, the other on Sixth avenue. The goods levied upon in the store on Broadway were claimed by one Barbara Ann Hunt. And those in the store on Sixth avenue were claimed by A. E. P. Dixon (written in the bond Dickson). The goods levied upon in the last named store were after the levy eloined. Subsequent to the execution of the bond, and without the knowledge or direction of the plaintiffs in the execution, the plaintiff herein levied upon other personal property in a store situated on Third avenue, and which was claimed by one Sarah P. Hunt, who sued for and recovered the value thereof, of the plaintiff in this action, amounting to $519.95. And he instituted this action upon the said bond, to be reimbursed for the money, which he has thus been compelled to pay in consequence of the levy upon and sale of said last mentioned goods. There was considerable conflict in the evidence given upon the trial, and the conclusions which the referee has drawn therefrom are so far supported by competent evidence that this court should not interfere with his determination upon such questions of fact. The conclusions of law found by the referee, and contained in his report in this action, are as follows, namely :

I. As conclusions of law, the subscriber, referee as aforesaid, further finds and reports that the negligence of the plaintiff, as a marshal, in the performance of his duty under the said execution by suffering the property levied on by him to be eloined or taken from his possession, arose out of the transactions or matters mentioned in the bond of the defendants to the plaintiff, and constituted a legal counter-claim against any damages or costs sustained by the plaintiffs from any breach of the condition thereof. No damage, however, was sustained by the defendants herein from the said cloinment or taking from the plaintiff of the property levied on as aforesaid at the store in Sixth avenue, inasmuch as the said Webber, the defendant in said execution, had no title or interest therein subject to levy or sale under the said execution.

II. There was no mistake, accident or fraud in respect to the execution and delivery of the said bond of indemnity.

III. The carelessness of the defendants herein, in regard to their Want of knowledge of the terms of the bond, constitutes no ground for reforming its provisions.

1 /. The terms of the bond do not enlarge the power or authority of the plaintiff, as marshal, in respect to his duty.

Y. No levy having been made on the jaroperty in the Third avenue store at the time of the delivery of the bond, it must be presumed that it was not the intention of the parties at that time to give or require indemnity in respect to a levy or sale thereof.

YI. The plaintiff, in this case, having proceeded to make the levy and sale of the property in the Third avenue store without the knowledge or authority of the defendants herein, cannot claim indemnity under the said bond. The assumed commission to him to judge as to the property which might or should belong to the judgment debtor cannot operate to protect him.

VII. The whole force and effect of the bond is to indemnify the plaintiff for what he might do as a marshal under the execution issued to him with the knowledge or approbation of the defendants herein. Whatever he did without such knowledge or approval, he did at his own risk.

VIII. The defendants must have judgment dismissing the complaint with costs.

All of which is respectfully submitted.

New Yoke, November 2, 1877.

WILLIAM H. LEONARD,

Referee.

The learned referee seems to nave placed his decision upon the ground, that in legal effect the bond of indemnity had reference merely to levies made by the plaintiff upon the goods in the stores upon Broadway and Sixth avenue, and did not in terms, and could not have been intended to apply to the levy upon the property in the store on Third avenue, as no such levy was at the time of the execution of the bond contemplated. We deem this view of the case defensible. This action is upon the bond, and is not adapted to the settlement of all the equities which may exist between all of the parties growing out of the entire transactions connected with the effort to collect the money upon the judgment and execution against Webber. The bond must receive a reasonable interpretation in the light of ¿11 the circumstances which attended its execution. At the time it was executed no seizure had been made by the plaintiff of tbe goods in the store on Third avenue. We think the bond shows upon its face quite clearly the subject-matter to which it was intended to apply, as the written part thereof contains the following recital: “ And, whereas, certain property ■which appears to belong to the said Webber is claimed by one Dixon, and also one Hunt.” The evidence shows that the two persons referred to were A. A. B. Dixon and Barbara Ann Hunt, being the persons who claimed the property which had been levied upon prior to the giving of the bond. This recital pointed out the subject to which the following printed portion of such bond must have been intended to refer, and we think it but reasonable to conclude that the bond was intended to indemnify the plaintiff against any loss to which he should be subjected in consequence of the seizure and sale of the property which he had then levied upon, and which was claimed by the persons named in the bond. It can hardly be supposed that the parties who executed the bond intended to create a roving commission by'which the plaintiff would be at liberty to seize, by way of experiment, any property which he might even judge to belong to others, and rely upon such bond for protection against loss. The printed and formal part of the bond should not be allowed to prevail over the written portion thereof, especially so as the latter indicates so clearly the intention of the parties in executing the bond. This construction is also in harmony with the well-established practice in regard to the duty of an officer who is charged with the collection of money by execution. He is required by law to seize the property found in the possession of the debtor, and if another person interposes a claim to it, the officer may call a jury to inquire in regard to the title, and if they find in favor of the claimant, he can then require a bond of indemnity as a condition to his selling such property. (Platt v. Sherry, 7 Wend., 236; Williams v. Loundes, 1 Hall, 579; Bayley v. Bates, 8 Johns. Rep., 185; Van Cleef v. Fleet, 15 id., 147.) Doubtless a bond of indemnity may be executed in anticipation of a levy, but as such is not the ordinary practice, it should clearly appear that such was the intention of the parties before such an effect should be given to the bond. If the plaintiff intended to be indemnified in regard to the seizure and sale of the Third avenue property, he should have specially required it of the defendants, or at least have procured their direction in regard to the disposition of such property, both of ivhich he omitted according to the finding of the referee, which we must assume to be correct. The plaintiff voluntarily assumed the duties and responsibilities of the office of marshal, and should not complain of the burden which it imposed. We conclude that the cause was correctly decided by the referee, and that the judgment should be affirmed, with costs.

Brady, P. J., and DaNiels, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Ingalls, J. :

license: Public Domain

text:
    WILLIAM LINTZ, Respondent, v. CHARLES N. HOWARD AND JULIETTE HOWARD, Appellants.

      Bona fide purchaser for value — when the talcing up of a note does not fwmish a valuable consideration.

    The plaintiff to enable A. to raise money executed a note payable to A., tailing back at the same time A’s note for the same amount, which had not at the time of the trial of this action been surrendered or canceled. A. indorsed and sold the plaintiff’s note, but when it became due, being unable to meet it, to induce the plaintiff to take it up gave him at that time a note for §1,000 made by the defendant, and the balance of his (the plaintiff’s) note in cash. Plaintiff thereupon took up the note and still retains it with the name of A. indorsed thereon.
    Previous to the transfer of the defendant’s §1,000 note to the plaintiff, and before its maturity, the defendant sold certain goods to A. under an agreement that the price thereof should be applied on his (the defendant’s) said note.

      B'eld, in this action brought to enforce payment of the defendant’s note that the plaintiff was not a bona fide holder for value, and that such note was subject in his hands to the deduction therefrom of the price of the goods sold by the defendant to A.
    Appeal by the defendants from a judgment, entered against tbem and in favor of the plaintiff, after a trial by the court without a jury.

      John L. Lindsay, for the ajipellants.
    /S'. II. Thayer, for the respondent.
   Ingalls, J. :

Although the facts were not very fully developed upon the trial, yet sufficient appears to enable us to gather the following as the history of the case. William Lintz, the plaintiff, to enable Joseph Eneas to borrow of George Ketehum $2,180, executed his promissory note payable to the order of Eneas for the above amount, who indorsed the same and delivered it to Ketehum, who advanced the money to Eneas. ' The plaintiff at the time received from Eneas a note for the same amount in exchange for the one which he had executed for the benefit of Eneas. The note which the plaintiff received from Eneas has not been surrendered or canceled. Eneas being unable to pay the money upon the note held by Ketehum when it became due, applied to the plaintiff to aid him in talcing up the note, which was accomplished in the following manner. Eneas delivered to the plaintiff the following note in suit:

“ $1,000. New Yoke, May 1, 1874. Í
* “Three years after date I promise to pay to the order of myself, $1,000, without interest, value received.
“ CHARLES N. HOWARD.”
“ Indorsed — Pay J. Eneas, or order.
“ Juliet Howakd,
“ Challes N. Howakd,
“ J. ENEAS,
“William Lintz,
For Collection.”

Eneas also delivered to the plaintiff his check for $1,180.23, upon which the plaintiff received the money, and with it, and other money which plaintiff advanced, took up the note'held by Ketehum, and retains the same with the name of Eneas indorsed thereon. Previous to the transfer of the note in suit to plaintiff, but before the same became due and payable, Howard, the maker, sold and delivered to Eneas, while he was the owner of the note, goods to the value of $420, under an agreement by which the amount was to be applied upon the note in suit. The plaintiff had no knowledge of such agreement when he received the note, and consequently the price of the goods could not be applied as a payment upon the note as against the plaintiff, if he can be regarded a bona fide holder for value. W e fail to perceive wherein the plaintiff can be held to have parted with money or anything of value at the time ho received the note in question. He received the note and check of Eneas, and took up the note held by Ketchum, which the plaintiff had executed, and upon which he was liable, and retains the three notes as his security. At the time the plaintiff accepted the note in suit he assumed no new obligation, but on the contrary the effect of the transaction was to reduce his liability, and to furnish him additional security. To prevent the application upon the note of the $420 as a payment the plaintiff was required to show that he received the note before maturity in good faith, and at the time parted with value upon the strength of receiving the same. (Weaver v. Barden, 49 N. Y., 287, 294; Bay v. Coddington, 20 Johns., 637; Youngs v. Lee, 12 N. Y., 555.) We deem the result inevitable upon the facts, and the law applicable thereto, that the price of the goods applied as a payment upon the note as against the plaintiff.

There is still another objection raised against the recovery, which is that the note was not properly protested so as to charge the indorser. We think this objection is well taken. There seems to be no proof that the notice was delivered to the indorser Juliet Howard, or that it was even mailed to her. The force of this objection is sought to be avoided, upon the ground that there was an offer of judgment in the action which had the effect to waive any defect in serving notice of protest. In order to constitute such a waiver it must affirmatively appear that the act, insisted upon as creating such waiver, was performed with a full knowledge of such defect. It might well be that the iudorsor was under the impression that such notice had been mailed, and had failed to reach her, or she may have had no recollection in regard to the matter until the evidence at the trial disclosed the defect. Again, by an express provision of the Code of Civil Procedure (§ 737), the offer was not comptent evidence upon the trial. (See also bearing upon the question of waiver, Buckley v. Bentley, 42 Barb., 646, 650.)

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

DANIELS, J., concurred ; Beady, P. J., dissented.

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


author: ■ DANIELS, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, THOMAS M. PETERS and others, Appellants, v. JAMES H. TWADDELL and others, Respondents.

      Trustees of a corporation — when they do not hold over until their successors are elected — Right to vote by proxy — authority must be shown — Right of corpora-tors voluntarily to meet and elect trustees.

    Under the provisions of the statute providing- for the incorporation of benevolent, charitable and missionary societies, the terms of office of the trustees terminate upon the expiration of the year for which they are elected, and they do not, in the absence of a special provision in the constitution or by-laws, hold over until their successors are elected.
    A member of a corporation is not entitled to vote by proxy, unless specially-authorized by law so to do.
    Where a corporation duly organized and existing has for several years failed to elect trustees, and there is no provision authorizing those formerly elected to hold over until their successors are chosen, or requiring the trustees or other officers to preside at or do any act in relation to the election, it is within the power of the corporators themselves, without any new legislative aid, voluntarily to meet at the time designated in the constitution and elect a new board of trustees.
    Appeal from a judgment in favor of tbe defendants, entered on tbe verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of tbe justice before whom the action was tried.

      Charles W. Marsh, for tbe appellants.

      John H. Strahan, for the respondents.
   ■ DANIELS, J.:

This action was brought to. try the title of the defendants, as trustees of a charitable corporation, called the “ Shepherd’s Fold of the Protestant Episcopal Church of the city of New York.” The trustees were twenty-one in number, and the offices were claimed by the plaintiffs, other than the people, as well as by the defendants. The corporation was formed under the general laws of the State, providing for the creation of benevolent, charitable, scientific and missionary societies, and the proper certificates for its creation were made and filed in March, 1869. This constituted the associates, or persons who signed and acknowledged , the certificates, and their successors, a body politic and corporate. (2 R. S. [5th ed.], 623, § 2.) And as such they were empowered to make such by-laws for the management of their corporate affairs as they should deem proper, provided they were not inconsistent with the constitution and laws of this State, or of the United States. (2 R. S. [5th ed.], 624, § 2.)

The trustees who were named in the certificate for the first year of the existence of the corporation it was declared should hold their offices until others might be elected in their places, but no such provision was inserted in the constitution or by-laws of 'the corporation concerning the offices of those elected to succeed them. And without that, it seems to be the result of the provisions of the statute upon this subject that their official functions would terminate at the expiration of the year for which they might be afterwards elected. (2 R. S. [5th ed.], 624, §§ 3 and 4.)

No controversy arose concerning the proceedings of the corporation until alter the election was held in the year 1874. It proceeded regularly in the exercise of its functions and the maintenance of its charities down to that year, and its trustees were lawfully elected in November of that year, for the ensuing year, according to the provision made by its constitution; but after that, nothing seems to have been done in the way of carrying on the operations of the corporation. At the close of that year its home became uninhabitable, and the children in its custody and under its protection were placed in the hands of another institution, and of other persons, and this continued to be the condition of the affairs of the corporation from that time down to March, 1877. It did nothing in the way of dispensing its charities or exercising its corporate functions, but it was apparently in an inanimate condition.

On the 14th of March, 1877, a meeting of some of the associates was held. This was convened by a notice given by William K. Gardner, who was one of the original corporate associates, but was not one of the trustees elected in November, 1874. That was the last board of trustees elected for the corporation before this meeting was held in March, 1877 ; and, under the provisions of the statute contemplating an annual election, and a vacancy in their offices when such election should be omitted, their terms of office appear to have expired at the end of the year succeeding their election in 1874. (2 R. S. [5th ed.], 624, §§ 3, 4.)

These sections seem to be capable of no other construction, than that they were designed to express it to be the intention of the Legislature that the trustees should be elected annually, and when not so elected, that their offices should become vacant. For that reason, provision was made in terms for filling the vacancies resulting from the omission to hold an annual election,' and accordingly it was provided that they might be filled in such a manner as the by-laws of the society directed. This clearly would not have been done, if it had been designed that the trustees should hold over after the expiration of the year for which they were elected. And in this case no provision was made, cither in the constitution or by-laws of the corporation, designed to meet such an emergency. The possibility of its occurrence does not seem to have been contemplated, and for that reason it was left unprovided for. The corporation consequently, after the termination of the official year for which the trustees were elected in 1874, was left without trustees, and no statutory mode was provided for supplying the vacancies. It continued in this state until this meeting was held in March, 1874. It was not dissolved because of the failure to elect trustees, for that omission, it had been declared, should not produce its dissolution. It was still a corporation, consisting of the persons who had become legally associated for that purpose ; but it was in an inactive condition, and the agencies provided for by the statute, through which its functions were to be executed, had ceased for the time being to exist.

It was to supply this deficiency that the meeting of the 14th of March, 1877, was called by Mr. Gardner, whose own official existence had long before expired. At that meeting, the defendants in this case were elected trustees of the corporation. But it appeared that the corporators at that time consisted of at least twenty persons, and eleven only are shown to have been in attendance at this meeting, and of those, the evidence of the witness, detailing its occurrence, discloses that two, namely, Mr. and Mrs. Gardner, were not present in person, and also that Mrs. Cowley only made her appearance as the meeting was adjourning. This showed less than a majority in attendance upon this occasion, and for that reason an election could not regularly be had by those assembled. (Angel and Ames on Corporations, § 499.) For no legal authority existed empowering Mr. and Mrs. Gardner to appear there through the agency of any other person, and without that it could not legally be done. See Philips v. Wickham, (1 Paige, 590, 598), where the proposition is declared to be the law, that the right of voting by proxy is not a general right, and the party who claims it must show a special authority for that purpose. No such special authority was shown in this case, and the consequence is that this meeting, at no time, had a majority of the associates in attendance. At the most, but eight persons appear to have participated in the proceedings of this meeting, and in the election of the defendants as trustees of the corporation. To supply this defect, it was stated that the minutes of this meeting wore approved and adopted at a subsequent meeting, held on the 14th of September, 1877 ; but, as it was not shown that a majority of the corporators was then actually in attendance at that meeting, its action did not produce that result. The approval made adds no force to the proceedings of the meeting of March, 1877. Upon this proof it is evident that the defendants were not legally elected trustees of this corporation, even if the meeting should be held to have been lawfully convened. So small a number of the corporate associates could not regularly supply the omission to make the annual election of trustees. But, even if- this meeting should be conceded to possess the power which the persons convened endeavored to exercise, and the defendants were lawfully elected by it as the trustees of the corporation, they were still elected only to fill the vacancies then existing in these offices, and as such, they could not extend their terms beyond the unexpired portion of the year for which their election took place. They would necessarily be superseded by the action of the corporation at the next regular election, taking place conformably to the provisions made upon this subject in the constitution, which, for this purpose, seems to have been adopted as a part of the by-laws of the corporation.

By this constitution, the annual meeting of the institution for the election of its officers was required to take place on the first Monday of November in each .year, or at such time or place as the executive committee should appoint, and such a meeting was in fact convened in November, 1879, by the executive committee which had been created by the trustees elected in November, 1874. It was called for the first Monday of November, but a quorum, owing to a severe storm, failed at that time to appear, there being but nine members in attendance. The meeting, after becoming organized, adjourned until the twelfth day of the same month, and on that day more than a majority of the corporators appeared in attendance, and they then proceeded to elect a new board of trustees, and the result of their action was that the plaintiffs in this case, other than the people, were elected as the trustees of the corporation for the ensuing year, and under that election they claimed to have been legally placed in the offices of trustees of the corporation. It is not necessary to hold, and perhaps that could not be properly done, that this meeting was regularly called by the old executive committee, whose functions must have terminated with the year for which they had been elected as trustees. Their action was not necessary for the purpose of sustaining the legality of the defendants’ election, for, as the corporation continued to exist, it was within the power of the corporators themselves, without any official action, voluntarily to meet at the time designated in the constitution for that purpose, and elect a new board of trustees. This resulted from the fact that the statute secured to them a corporate existence and corporate succession for the time specified in the charter or certificate of organization, even though the election of trustees for any year should be omitted.

It has also been substantially so held in a work of standard authority on this subject. (Angel and Ames on Corporations [4th ed.], §§ 138, 771.) There it is stated to bo the law, that the stockholders compose the company, and the managers, directors or officers are their agents, necessary for the management of the affairs of the company, but they are not essential to its existence as such, not forming one of the integral parts. The corporation exists, per se, so far as requisite to the maintenance of perpetual succession and the holding and preserving of its franchises. The non-oxistonce of the managers does not suppose the non-existence of the corporation. The latter may bo dormant, its functions may be suspended for the want .of means of action, but the capacity to restore its functionaries by means of now elections may remain. When, therefore, the election of its managers, directors or other officers is by charter to be conducted solely by the stockholders, the charter or act of incorporation not requiring the managers, directors or other officers to preside at, or to do any act in relation to, the election, a failure to elect such officers on the charter day will not dissolve the corporation, but the election of officers may take place on the next charter day, without any new legislative aid. These principles seem to bo amply sustained by the authorities referred to in their support; and, as to corporations of this description, they have been practically sanctioned by the provisions of the act under which this one was created. Substantially the same point was held In re Wheeler (2 Abb. [N. S.], 361). In' that case the inspectors who were required to preside at the election unlawfully refused to do so, and the election was still held to bo a valid one, although their functions were exercised by other persons. Under these authorities, this meeting of the corporators, in November, 1877, may well be hold to have been lawfully convened, even though the persons calling it together had ceased to be capable of exercising the functions of an executive committee. All that such a committee was authorized to do, in any event, was to designate the time and place whore the corporators should convene to hold their annual election, when the meeting should not be held on the first Monday in November. If they should voluntarily meet on that date, then the constitution rendered such a meeting a lawful one. They were then, without the intervention of any officers, empowered to elect a legal board of trustees, and on the adjourned day, when more than a majority were in attendance, they exercised that authority by electing the plaintiffs. For that reason, even if these defendants had been lawfully elected by the meeting of the fourteenth of March, their functions ceased with the expiration of the official year, and they wore then superseded as trustees by those elected at the meeting held in November.

It has been claimed that the time for the annual meeting was changed in March, 1877, and that this meeting in November was without authority. But the resolution, if one was then adopted, for the purpose of changing the annual meeting to March, instead of November, was without authority, for the reason that no majority of the corporators was in attendance at this meeting, as that has already been shown, and besides that, no attempt was made to amend the provision of the constitution upon that subject, pursuant to its own authority. By article 9, that could only be done by a meeting of the board of trustees, and then only by a two-thirds vote of those who were present, and no such action as this is shown to have taken place. Notwithstanding the action of the meeting hold in March upon this subject, the provision of the constitution requiring the meeting to be held in November still remained in force ; and, as more than a majority of the associate corporators were present upon that occasion, and concurred in the election of the plaintiffs as trustees, they lawfully became entitled to these offices, and from that time they were empowered to manage the affairs of this corporation. For these reasons, the second election of the defendants, held in March, 1877, was-unauthorized and inoperative. The time for holding the annual, election under the constitution was still the first Monday in November of each year, and the plaintiffs being elected at such a meeting, were the lawful trustees for the year following that election, and they and their successors, and not the defendants, were the trustees of tills corporation.

For these reasons, it becomes unnecessary to examine the numerous and needlessly minute propositions submitted to the court at the close of the charge. It is enough that the plaintiffs wore entitled to a direction of a verdict in their favor, which, under the circumstances, should have been given to the jury, and for the refusal to give that direction, the judgment and order should be reversed and a 'new trial ordered, with costs to abide the event.

Brady, P. J., concurred.

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

Judgment and order reversed and new trial ordered, with costs.


author: Daniels, J.:

text:
    In the Matter of the Petition of HENRY P. McGOWN and others to Vacate an Assessment.

      Assessment for a sewer — when not vacated because of its having been laid in private property.

    On an application to vacate an assessment for laying a sewer, it appeared that the land in which it was built had been opened and graded by some of the adjoining owners; that the city had constructed a dock at the foot of it, and that it had been actually used asa street by all persons desirin g so to do; that the petitioners saw or heard of the sewer while it was being constructed, and made no objection to it. After the assessment for the work had been completed, the street was regularly and completely opened by legal proceedings. Subsequently, an application was made to vacate the assessment on the ground that no assessment could be laid for constructing a sewer through private property. Held, that the application was properly denied.
    Appeal by the petitioners from an order, denying a motion to vacate an assessment laid for the construction of a sewer in One Hundred and Tenth street, between First avenue and the Harlem river.

      Irving Ward, for the appellants, the petitioners.

      II I. (Jóle, for the respondent, the city of New York.
   Daniels, J.:

It is urged that this application should have been permitted to succeed, because the street in which the sewer wras laid had nol at that time been formally opened and acquired by the city authorities. And the case of Rhinelander (68 N. Y., 105) is relied upon as sustaining that position. But the facts appearing on the hearing of the present application differ very materially from those which were considered as controlling in the decision of that case. It ivas shown in the course of the examination of the petitioners themselves, who owned the property at the time when the sewer was constructed, that the land in which it was built had been opened as a street. That it had been graded by the Harlem Gas Light Company, which owned a block of land on the north side, and by Henry P. McGown, one of the petitioners, who owned an undivided interest in the land intended to be relieved from the assessment, and who had actual charge of the entire property. That the city had constructed a dock at the foot of the street, and that it had been actually used as a street by any persons desiring to pass over it as such. The petitioner Zabriskie stated that he presumed it was a street, and Wakeman, another petitioner, testified in unqualified terms that it was a street. And all of the petitioners who were sworn stated that they either saw, or heard of the work in question being in progress, and never made the slightest objection to its performance, except that Wakeman on one occasion did say to one of the men at work upon it, that ho thought it to be unlawful. With this exception there was an apparent and complete acquiescence in what the city was doing for the performance of this work. There was nothing shown which in any way tended to impugn the good faith of the city authorities. But on the other hand it was made to appear that the records had been examined, and the conclusion reached that the owners-of the adjacent lands designed to and had devoted this portion of the property to the uses and purposes of a public street. And. it was improved by the city to render it proper and convenient, for that use, and to benefit the property bounded upon it. This must have been understood by the owners when they saw the* work in progress, and after silently acquiescing in its performance- and permitting their property to be benefited by it, there would be neither justice nor equity in allowing them to shift the expense upon the general property of the city, instead of paying for it themselves as a benefit conferred upon that owned by them. That they should not be allowed to do that, under these circumstances, seems to have the sanction of what was held in the case of Ingra-ham, both in this court and by the Court of Appeals (4 Hun, 495). In that case it was said by Beady, J.: “That it is not necessary that there should be a formal act of acceptance or adoption of the street by the public authorities. It may be done by acts in pais. A common user under circumstances showing a clear intent to accept and enjoy it as such is sufficient." (Id., 498.) And the entry by the city upon the land, with the silent acquiescence of the adjacent owners, for the purpose of improving the portion designed for the street, to render it useful to them as well as the public, as the work of constructing a sewer plainly was, would clearly be an act of that nature. In the case of Ingraham (64 N. Y., 310), it was stated that “a permission from the owner or owners would be sufficient authority ” to construct a sewer, “ and as it is not shown that no such permission was given, and as it does not appear that these owners object, the legal presumption is that the city authorities were acting under a proper license, and had ample power to perform the work. (Id., 313.) An effort was made to show, and several of the petitioners stated, that they gave no permission to do this work. But according to this authority, that of itself was not sufficient, as long as no dissent was expressed, and while when they saw and knew of the work, they wholly omitted to object to it. That warranted the inference of assent, and should preclude them now from asserting the contrary, after the work has been entirely completed.

This sewer was constructed under a contract dated on the 16th ■of May, 1871. The assessment for the expenses of it was confirmed on the 13th of July, 1875. And'the street was completely and regularly opened by legal proceedings instituted, carried on .and confirmed for that purpose the 13th of July, 1876. After that and on the 11th of April, 1877, the petition which was the foundation of these proceedings was verified. Before that time the land in which the sewer was constructed was lawfully established as a public street. And in that, as well as the other respects, this case materially differs from that of Rhinelander. For, by these proceedings, the full legal advantages of the work, forming the subject of the present complaint have been permanently secured to these petitioners. Assuming that when it was constructed, it was irregularly authorized, yet as its performance had the silent acquiescence of the petitioners, and the benefits of the sewer have been fully secured to them by the subsequent establishment of the premises in which it was laid as a street, they evidently could not have been materially injured by the irregularity. At least as much as that, is required to justify an order vacating an assessment for the expenses of an improvement of this description. The statute for that purpose has required that either fraud or substantial error shall first be shown. (Laws 1874, chap. 312, § 1.) And an error that has not and cannot work any substantial injury cannot properly be included within this description. The order denying the application seems to be sufficiently sustained, and it should be affirnied, with costs.

Beady, P. J., and Ixo-alls, J., concurred.

Order affirmed, with costs.


author: Daniels, J.;

text:
    EVAN JONES, Appellant, v. JOHN JONES, Respondent.

      The scope of a litigation is not necessarily limited' to the case presented in the complaint, nor to the relief ashed for — A verbal agreement, distinct and collateral to a writing, may be enforced.

    Appeal by the plaintiff from a judgment dismissing tbe complaint.
    The action was brought to compel a specific performance of the following agreement, entered into between plaintiff and defendant who had been co-partners in business in the city of New York and tenants in common of certain real estate.
    “This agreement made this 25th day of May, 1875, between John Jones and Evan Jones, both being owners of property equally one-half, do hereby agree to divide the same by appointing Henry McCaddin to receive our bids on said property or part of it, the gross bids to be divided equally if there be any difference over each other’s half the other to take a mortgage for the same. The expenses of the conveyancing, each to bear half, each party to be entitled to possession on the first of Juno, and to assume the tenants in possession and their leases and agreements and the mortgage on the property.
    RÍ8
    “JOHN X JONES, [l. s.]
    mark.
    “EYAN JONES. [l. s.]
    “ Witness,
    Louis BottNer.”
    In pursuance of the foregoing agreement the property in question was bid for by the respective parties.

      The amount of difference between the plaintiff’ and defendant upon said bidding and award, after adjusting the mortgages upon the respective properties, amounted to $2,824.50, to be paid by the defendant to the plaintiff, which was to be paid by the said defendant in three years from June 1, 1875, and secured by a second mortgage upon the property bid in by and awarded to said defendant and known as 512 Pearl street, and 56 Centre street, New York city, subject to the prior mortgage then upon said property.
    The complaint set forth in substance the following matters: That in pursuance of the said agreement and the said bidding and awards, the said plaintiff and defendant each entered into the possession, control and enjoyment of the respective properties as awarded and to be deeded by the one to the other, and are now in such possession, control and enjoyment thereof, and that the plaintiff caused a good and sufficient deed of conveyance in the law to be made and executed by himself and wife to said defendant of the premises bid upon and awarded to said defendant, and the same was tendered to said defendant on the 10th day of June, 1875, and that at the said time plaintiff demanded from the defendant a deed of the property awarded to him, and that said defendant refused to accept said deed from the plaintiff, or to execute and deliver a deed of the property awarded to him by said McCaddin pursuant to said agreement, said bidding and said award.
    The answer, among other things, alleged “that the plaintiff as co-partner of this defendant in business has heretofore collected various sums of money duo to the said partnership firm, and holds possession of certain personal property belonging to said firm and has also collected various sums for the rent, use and occupation of the aforesaid premises or some parts thereof, and continues to collect money therefor, one-half part of which belongs to this defendant. That at or after the signing of the alleged agreement dated on or about May 25, 1875, hereinbefore referred to, it was agreed between the plaintiff and defendant as a part and modification thereof that a due accounting should be had between the plaintiff and defendant of all moneys received and paid out by each for the joint account or by either for account of the other, and that such accounts should be adjusted between them, and the amount found due by the plaintiff to this defendant should be thereupon paid to him. That the plaintiff has neglected and refused and still neglects and refuses to render any account of moneys collected or received or property held by him,” etc.
    The court at General Term said : “ The scope and extent of the litigation is not now necessarily limited to the case presented in the complaint, but it may be enlarged and extended by the answer in such a manner as to require the investigation and determination of other subjects of controversy than those set forth by the plaintiff, and where that is the case it is the practice to require the entire controversy, whether presented by the complaint or answer, or by both together, to bo settled and determined by the judgment to be rendered in the case. Upon this subject it was provided by the Code of Procedure, which was in force when the pleadings in this case were made, and has not been substantially changed in the now revision, that where an answer has been interposed, the court may grant to the plaintiff any relief consistent with the case made by his complaint, and embraced withm the issue. (Code, § 275.) The dispute of the parties concerning these accounts was within the issue created by these allegations contained in the defendant’s answer, for they were to be deemed contx-overted by the plaintiff, under the provisions of section 168 of the Code of Procedure, and in that way they become a portion of the issues in the action, and under section 275 they should have been heard and determined by the court, upon the evidence submitted to its consideration, or by a reference ordered for that purpose. That the court had the power to determine them is clear from the nature of this section, and it has been so considered in Van Santvoord’s Pleadings (by Moak), 278, 274. (Belknap v. Bealey, 2 Duer, 270.)
    “The modern practice is materially changed, in this respect, from that previously existing, and it has, for that reason, been held that a suit docs not now fail, as it did formerly, because the plaintiff has made a mistake as to the form of the remedy, but, if the case he states entitles him to any remedy, either legal or equitable, his complaint is not to be dismissed because he has prayed for a judgment to which he is not entitled. (Emery v. Pease, 20 N. Y., 62, 64, 65.) And the same principle should be applied to whatever forms a portion of the real issue between the parties. Upon this subject it was said, as to somewhat similar pleadings, in Wood v. Brown (34 N. Y., 337), that11 the complaint is not very artistically drawn to compel the defendant to render an account; but the facts stated, I think plainly show that it is a case where he should render an account of his proceedings, and such remedy nlay be obtained under the prayer for general relief.”
    “A similar principle was declared in the case of Guff v. Borland (55 Barb., 481, 496), and it has been quite uniformly applied, , under the broad provisions of the Code, by the courts of the State. If that could not be done in a case of this description, where the issue has been sufficiently enlarged and extended for the purpose by the answer, as it has been in this ease, then the party entitled to the property awarded to him would be entirely without remedy to obtain it, or ho would be obliged to institute a new suit to secure the determination of disputes presented in the one actually commenced by him. This would be unjust and involve the parties in endless litigation and expense. Upon the facts disclosed by the complaint, and the answer taken together and found to be established by the court, there was no need of a dismissal of the complaint in this case. Under the agreements made, and what had transpired for the purpose of acquiring the title to the real estate, the plaintiff had become entitled to the conveyance of the premises awarded to him, as soon as these accounts could be arranged and adjusted. That was the only dispute which the arbitration had left open between the parties, and it was as competent for the court to settle it in this action as it possibly could be in any other suit which might have been brought by either against the other.
    “It has been claimed, in behalf of the plaintiff, that evidence of an oral agreement between the parties that their accounts should be settled, before the real estate should be conveyed under the written agreement, was not properly received upon the trial. But that position is not capable of being sustained under the authorities, for the reason that the verbal agreement, that the real estate should not be conveyed under the terms of the written agreement, until these accounts were settled, was entirely consistent with all that the parties chose to put into their writing. That writing was upon its ffice an incomplete and imperfect contract, and it was, for that reason, within the power of the parties to agree between themselves; by a verbal and collateral stipulation, that it should not be performed until these disputed accounts had been completely adjusted.
    “ The law upon this subject is that if the instrument shows-that it was meant to contain the whole bargain between the parties, then no extrinsic evidence can bo admitted to introduce a term which does not appear there, but if it be clear that the written instrument does not contain the whole, and the fact be shown that there was a distinct, collateral, verbal agreement, between the parties, not inconsistent with the written contract, the law does not prohibit such distinct, collateral agreement from being enforced. This principle is exceedingly well settled by the authorities. (Pym v. Campbell, 6 Ellis & B., 370 ; Wallis v. Liltell, 11 C. B. N. S., 369; Lindley v. Lacey, 17 id., 578; Morgan v. Griffith, 6 Exch. Law Reports, 70; Angelí v. Duke, 10 Q. B. Law Reports, 174; Allen v. Pink, 4 M. & W., 140; Butler v. Smith, 35 Miss., 457, 463; Parle v. Rice, 111 Mass., 17, 20; Grierson v. Mason, 3 N. Y. Supreme Court [T. & C.], 185; affirmed 60 N. Y., 394.) Under this rule sustained, as it clearly is, by these authorities, the evidence of the verbal agreement wss pi’operly admitted, showing that the deeds were not to be made until these accounts should be settled. But, as already remarked, the existence of this stipulation did not present such a legal obstacle to the plaintiff’s case as to justify a dismissal of the complaint. Upon the facts so established and found by the judge the action should have been retained until • a proper accounting could have been secured, and this portion of the dispute determined between the parties, and upon that determination a direction could then be made for the payment of the balance found due on the accounts, and the consummation of the written agreement by the execution and delivery of the proper deeds for the conveyance of the real estate.
    “ The judgment which was directed in the case should, for these reasons, be reversed and an interlocutory judgment entered upon the facts proved and found by the court, directing a reference to a suitable referee, before whom the parties should be required to appear and submit their disputed accounts for decision. And upon the filing and confirmation of his report, a judgment can then, be entered for the final disposition of the entire controversy between these parties.”

      John A. Bryan, for the appellant. Jacob F. Miller, for the respondent.
   Opinion by

Daniels, J.;

Beady, P. J., concurred.

Present — Brady, P. J., and DaNiels, J.

Judgment directed as per opinion.


text:
    In the Matter of ARTHUR McGOLDRICK, Appellant, v. The Executor of JAMES W. WILSON, Deceased, Respondent.

      Memoranda made on a slate, and then transferred to an account book — admissibility in evidence of the accomt book.

    Appear by the plaintiff, the claimant, from an order made at Special Term, confirming the report of the referee, appointed under the provisions of the Revised Statutes as to claims rejected by executors, to hear the above matter.
    The action was brought to recover payment of a sum alleged to have been due from James W. Wilson, in his lifetime, for horse shooing.
    The court at General Term was of opinion that the plaintiff’s books, offered in evidence before the referee, had been erroneously excluded, and in reference to such exclusion of them said :
    “The entries were, generally, first made upon a slate, at the time, by the persons who did the work, and on the same day or the following day were transferred from the slate to a day-book, and finally entered upon a ledger. Most of the entries are shown to have been made by McGoldrick, as he performed much the greater share of the work. Several witnesses were examined, who were employed by McGoldrick in the business, and testified in regard to the manner the accounts were kept. McGoldrick testified as follows, which does not appear to have been objected to.
    “ Q. State the wray in which these accounts got in those books ?
    “ A. The work was done in the day, and at night it was entered on the slate, and taken off the slate, put on the day-book, every day generally, and every two or three days, or sometimes once a week, transferred into the ledger; it was put on the slate and transferred into the day-book every day generally; I was acquainted with this mode of doing the business ; the prices were put in when the account was transferred to the ledger and fixed by me ; that was the conclusion of the entries ; nothing more was doné after that.”
    We discover nothing in the case which should create suspicion in regard to the honesty or accuracy with which the accounts were kept. We are convinced that the books of account should have been received as evidence by the referee, and considered by him in connection with the other testimony in the case. One prerequisite was wanting to constitute them sufficient evidence to establish the account independent of the other proofs, viz.: the failure by McGoldrick to show that other persons had had dealings with him, and settled their accounts from the books and found them correct. They were, nevertheless, competent evidence, as original entries or memoranda, having been made at, or about the time, the work was performed, and by parties who did the work, and by whom the accuracy of such entries upon the books is satisfactorily established. It was the province of the referee to determine the value of the books as evidence when once received, but he rejected them absolutely, whereby, in our judgment, error was committed prejudicial to the case of McGoldrick. The courts of this State, by their decisions, have extended the doctrine very far in favor of the reception of this class of evidence, and suffi ciently so to have justified the admission of the books of account as evidence, in conjunction with the other proofs in the case. (JTrom v. Levy, 1 Hun, 171; Filldns v. Baker, 6 Lans., 516; Merrill v. I. and Owego R. B., 16 Wend., 599; Guyv. Mead, 22 N. Y., 462; Marcly v. Shulls, 29 id., 346, 351.) The order should be reversed and a new trial ordered before another referee, with costs to abide the event of the action or proceeding.”

      John M. Martin, for the appellant. Chas. Matthews, for the respondent.
   Opinion by Ikgalls, J.; Daniels, J., concurred; Beady, P. J., dissented.

Order reversed, and new trial ordered before another referee, costs to abide event.


author: INGalls, J.;

text:
    In the Matter of the Petition of JOHN W. DE PEYSTER to Vacate an Assessment for Building a Sewer.

      JYew York city, assessments in — the department of public woi'lcs is not deprived * by chapter 335 of 1873 of the authority over the eonstmation of sewers given by chapter 137 of 1870.
    Appeal from an order made at Special Term, denying a motion of tbe petitioner above named to vacate an assessment in the above matter.
    The court at General Term said : “We deem the decision of the Special Term correct within the doctrine established by the case In the Matter of Zborowslci (68 N. Y., 88). That case embraces substantially the questions which are presented by this appeal, with one exception, viz. : whether the charter of 1873, chapter 335 (Laws 1873), has changed the law, so as to deprive the department of public works of the authority which it possessed in regard to the construction of sewers under the charter of 1870, chapter 137. We are satisfied, from an examination of the statutes referred to, that no such change was intended, or accomplished by the Legislature. The one hundred and eighteenth section of the statute of 1878 contains the following significant declaration : 11 The several departments shall continue to possess the same powers, and perform the same duties as heretofore, except as herein otherwise provided.” We fail to discover any provision of the charter of 1873 which deprives the department of public works of the authority which it possessed, in this respect, under the charter of 1870. We therefore regard the decision above cited decisive of this appeal, and consequently the order must be affirmed, with costs and disbursements.

      Elliott Sandford, for the appellant. Hugh L. Oole and J. A. Beall, for the mayor, etc., respondent.
   Opinion by

INGalls, J.;

Brady, P. J., and Daotels, J., concurred.

Order affirmed, with costs and disbursements.


author: Per Curiam:

text:
    EDWARD J. CHAPIN, Appellant, v. JOSEPH THOMPSON, Impleaded, etc., Respondent.

      Appeal in an equity cáse whet'e the issues have been tried before a jv/ry — evidence given before the jury may be included in the case on appeal.

    The issues in an equity action were framed and submitted to a jury; a vei’dict was rendered thereon; the whole case was afterwards heard before the same judge before whom the jury trial was had; he made his decision on which judgment was entered; a case was served on appeal containing the testimony and the plaintiff’s exceptions to evidence taken on the jury trial, for which the judge on the settlement of the case substituted the specific questions of facts submitted to the jury and their answers thereto. The appellant then moved for a new trial of the issues of fact.

      Held, that the party appealing had a right to include in the case the evidence given on the jury trial as well as any subsequently given before the judge alone.
    Appeal by the plaintiff from an order made upon the settlement of a case on appeal by the justice before whom the action was tried, and from an order denying a motion made after such settlement to set aside the verdict of a jury, upon, issue framed and submitted to them, and for a new trial.
    The action was brought to foreclose a mortgage.
    Issues were framed and heard before a jury. The case then came on for a hearing before the justice before whom the jury trial was had, and upon his decision a judgment was entered in favor of the defendant.

      No motion for a new trial of any of said issues, or specific questions of fact was made or entertained before said judgment was entered, nor were the exceptions, taken at the trial of said issues submitted to the jury, directed to be heard at General Term.
    After the entry of said judgment the plaintiff made and served a case containing, among other things, the testimony, and the plaintiff’s exceptions to the admission and rejection of evidence taken upon the trial of said issues before the jury. The defendant proposed an amendment thereto striking out all said evidence and exceptions, and another amendment, inserting in place thereof, the specific questions ,of fact, and the answers of the jury thereto. Thereupon the court made an order, allowing said amendments.
    Subsequently a motion was made by the plaintiff upon the case alid exceptions, and upon the minutes of the court taken upon the trial of the action, and upon the exceptions taken upon said trial, for a new trial of the issues of fact settled in this action, and to set aside the answers of the jury to said issues or their verdict therein as contrary to evidence and contraiy to law, which was denied. From these orders this appeal was taken.

      Magone & Holbrook, for the appellant.

      Edward O. James, for the respondent.
   Per Curiam:

In an action triable by the court, where issues have been framed and have been submitted to a jury and a verdict thereon has been rendered, and the whole case has afterwards come on to be heard before the same judge before whom the jury trial was had, and he has made his decision and judgment has been entered thereon, we think that the party appealing therefrom has a right to include in his case the evidence given on the jury trial as well as any subsequently given before the judge alone.

Whatever may have been the practice when the courts of law and equity wore separate, it is not necessary under the present practice, for any reason which we can discover, to require in such a case that a motion to set aside the verdict on such issues should be made before the final hearing and judgment. Errors or omissions which occurred at the trial might perhaps be corrected or supplemented on the hearing before the judge. And if this should be done it would be useless for such omissions or errors to grant a new trial.

We see no evil in making the practice of reviewing these cases similar to that which exists whore a case is tried throughout by the court, as far as this can be done ; and our construction of section 1003 of the New Code is not inconsistent with this view. Part of a rule of the court which formerly existed (rule 40 of 1875) ivas stricken out at the last revision, so that there is nothing in the rules contrary to the practice here approved.

The evidence, therefore, ought not to have been stricken out, and the motion for a new trial should have been heard.

The orders, therefore, must be reversed, with ten dollars coste and printing disbursements in each.

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

Orders reversed, with ten dollars costs and printing disbursements in each.


author: LEARNED, P. J. :

text:
    THEODORE F. HAGER, Respondent, v. HENRY B CATLIN, Appellant.

      A promise of a public officer to appoint a person to a public office is void — As between private persons a promise to accept an office and perform the services constitutes a consideration for a promise to appoint.

    It is the duty of a sheriff, having power to appoint deputies, to make the best appointment in his power, according- to his judgment at the time when he makes it, and a promise by him, though for a valuable consideration, to appoint a certain person to the office of deputy sheriff is void as against public policy.

      Quaere, as to whether, in any event, such a contract could be enforced at law, if the officer could, without cause, immediately remove the person from the office to which he claimed the right to be appointed.
    In the case of a contract between two private persons for the hire of the services of one, the promise of the one to accept the office and render the services is a good consideration for the promise of the other to appoint him to it.

      Appeal from an order overruling a demurrer to the complaint, and from a judgment in favor of the plaintiff entered thereon.
    The complaint alleged that at the general election, in November, 1877, the defendant was duly elected sheriff of the county of Schuyler, and on January 1, 1878, took the oath of office and entered upon and has ever since discharged his duties as such sheriff.
    That at the request and earnest solicitation of the defendant, the plaintiff in or about the month of February, 1878, entered into a contract or agreement with the defendant, whereby in consideration that the plaintiff would rent or dispose of his residence and farming lands, and- sell off and dispose of his farm stock, tools, implements, hay, grain and farm produce, and prepare and be in readiness by the 1st day of April, 1878, to move his family into the jailor’s residence in said county buildings, and board the defendant at a reasonable price to be paid therefor by defendant, and take the care and charge of the jailor’s residence, the jail and prisoners confined and to be confined in said jail, the defendant would appoint the plaintiff jailor or turnkey of said jail, and a deputy sheriff of the county of Schuyler, and the plaintiff should have the free use of the jailor’s residence, barns and stables, and should board, feed and care for the prisoners confined in said jail, and have and receive to himself all of the proper costs, charges and fees therefor.
    That pursuant to such agreement the plaintiff disposed of his residence and farming lands, stock, produce, etc., at a great sacrifice, and was on the first day of April, 1878, prepared and ready to move into said jailor’s residence and take charge of the jail and prisoners and accept the appointment of deputy sheriff, and discharge his duties thereunder, and fully carry out the agreement on his part.
    That the defendant wholly refused and neglected to perform said agreement on his part.
    The defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action.

      O. P. Hurd, for the appellant.

      M. J. Sunderlin, for the respondent.
   LEARNED, P. J. :

The alleged contract of the defendant was to appoint the plain-.iff a deputy sheriff and jailor. The plaintiff’s agreement was to accept that office. All the other matters were incidental and could not be performed without the making of the appointment.

The allegation as to the disposing of the farm is important, only as it may show a consideration for the promise and may increase the damages. If the contract is legal in its nature, any ■ valuable consideration is enough. If this were the case of a contract between two private parties for the hire of services, the mutual agreements would be a sufficient consideration for the contract. Hence it follows that, if the present contract were legal in its nature, the promise to accept would be a good consideration for the promise to appoint. And thus the question here involved amounts to this : if a public officer having a power to appoint to office, promises to appoint a certain person, and that person promises to accept, is that contract legally binding on the officer having . the power of appointment ? Suppose a vacancy should occur in the Court of Appeals, and the governor should promise to . appoint a certain lawyer, and that lawyer should promise to accept, and in anticipation of so doing should give up his profes- : sional business, and suppose the governor should not make this .appointment, would he be liable for damages ?

I think not. It is the duty of the officer having a power of appointment to make the best appointment in his power according to his judgment at the time when he malees the appointment. The public have a light to demand this. And it is against pub- • lie policy that he should be deprived of the exercise of his best judgment by a contract previously made. If he has promised the office to one person and has since discovered that the public will be better served by another, he must be at liberty to make the better appointment. And that too, although no such absolute disqualification may exist in regard to the person to whom it was first promised, as would form a defence to an action for damages, if such action could be maintained on the promise.

Whatever may be the practice, appointments are in theory made for the public good. That is the reason why the appointee may not purchase his office. In a similar way, though not to the same extent, the public good would be injured if a promise to make an appointment were held to be legally binding, so as to control the exercise of that judgment which the appointing officer ought to exercise when he makes the appointment.

This is not a question as to the lawfulness of arrangements between the sheriff and his deputies as to their fees. (Mott v. Robbins, 1 Hill, 21; Becker v. Ten Eyck, 6 Paige, 68.) The fees may be his. But the right of appointment is not the property of the appointing officer. And he has no right to barter it, or to dispose of it. It is merely a political power entrusted to him ; to be exercised, not to be sold.

In this particular case there is, I think, another difficulty. It is admitted that the sheriff, having appointed the plaintiff might, without cause, remove him the next moment. In the view of the court below this right affects only the question of damage. But can that be called a contract enforceable at law, on which, under no circumstances, can anything but nominal damages be recovered ? If the alleged promise would be fulfilled by an appointment which would last only a moment and which would be utterly valueless to the plaintiff, will the law treat this as a contract on which an action can be maintained ?

But however this may be, in my opinion this contract is against public policy and void for the reason I have given. It is not necessary to examine whether the agreement to board the defendant at a reasonable price, as a consideration for the appointment, may not bring the eontract within the statute. (2 R. S. [m. p.], 696, sec. 35.)

The judgment should be reversed and judgment given fob defendant on demurrer, with costs.

BoardmaN, J., dissented.

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

Judgment reversed and judgment given for the defendant on the demurrer, with costs, with leave to plaintiff in twenty days to amend on payment of costs.


text:
    FRANK L. JONES and others, Appellants, v. BENJAMIN ENNIS, 2nd, MOSES T. BARNES AND OLIVE NILES, Respondents.

      Compound Interest — when, an agreement to pay it will not he implied from indorsements made by the creditor on the debtors copy of the contract.

    On March'9, 1846, one Livingston contracted to sell the defendant Ennis a tract of land, the purchase price to he paid as therein provided with interest annually. After the whole purchase money was due, Livingston sold the fee and assigned the contract to one Pumpelly. On April 12,1868, at Ennis’ request the contract was brought by one Barnes to Pumpelly, who indorsed thereon
    ■ that there was then due $1,082, $300 to be paid in October next, and time to be given for the balance. The contract was then returned to Ennis, who retained it without objection. This amount was arrived at by compounding the interest. At simple interest the amount due was $669.14.
    In an action to enforce the contract, held, that Ennis, by retaining the contract without objection, did not agree to pay the amount stated in the indorsement to be due, and that it could only be enforced for the amount actually due, computing simple interest only.
    A party paying money on a contract of sale, and taking a receipt therefor, is not concluded as to the amount due on such contract by a statement in the receipt that a certain sum is due thereon.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    The action was brought to foreclose the interest of a vendee in a contract for the purchase of lauds.
    . On the 9th day of -March, 1846, a contract was made by one Livingston for the sale to the defendant Ennis and one Niles of fifty acres, of land situate in the town of Cayuta, for the sum of three hundred and forty-five dollars, fifty dollars to be paid on the 1st day of July, 1846, and the residue in three equal annual payments, with interest annually ; the south half of the fifty acres to go to Ennis and the north half to Niles. Nothing was paid on the contract until the 7th day of September, 1849, after the whole purchase money had become due, when the sum of $120 was paid and indorsed, and in the month of September, 1862, the further sum of twenty-five dollars was paid.
    In February, 1867, Livingston conveyed the fee of this land and assigned the aforesaid contract to George J. Pumpelly.

      On the 12th day of April, 1868, and after Pumpelly became the. owner, the defendant Barnes, at the request of Ennis, took the contract to Owego and left it with Mr. Pumpelly. Barnes was absent a day or two, and upon his return Pumpelly handed him back the contract with the following indorsement thereon :
    “ April 12, 1868.
    “ Settled the amount duo on this contract at $1,082, and it is understood that a payment of say $300 shall be made, say October first next, or before, so that the widow Niles can have her deed of her north half, and then further time is to be given for the balance. GEORGE PUMPELLY.”
    Both the contract and receipt were received by Ennis and retained without objection or dissent on his part.
    The amount due on the 12th of April, 1868, at simple interest, would be $669.14; with yearly rests it would amount to the above sum of $1,082.
    In November, 1872, there was paid upon the contract the sum of $300, and after the application of this sum Pumpelly gave a receipt or made a statement that there was still due the sum of $1,185.
    In the month of April, 1877, this action was commenced, claiming that there was due on the contract on the 12th day of November, 1872, the sum of $1,185, which it is asked to have declared a lien upon the south half of the fifty acres, the part owned by Ennis, and in case the proceeds of a sale of the land are not sufficient to realize this amount, that a personal judgment be entered against Ennis for the deficiency.
    After the action was commenced and on the third and fourth days of May, 1877, the defendant Ennis paid to the plaintiff the sum of $600.
    The Special Term found that the contract' was paid in full and gave judgment in favor of the defendants ; the decision being that simple interest only was recoverable on the contract.

      George Sidney Gamp, for the appellants.

      McGuire & Tabor, for the respondents.
   LEARNED, P. J. :

The plaintiffs insist that, as the defendant Ennis received and retained the indorsement upon the contract, he assented to the terms ; and that the indorsement is to be regarded as expressing the agreement of the parties. But the answer to this argument is that the original contract expressed the agreement of the parties ; and there is no doubt whát that contract was. One party thereto could not change it by merely making an indorsement thereon and sending it back to the other party so indorsed. The other party, Ennis, had a right to the contract, as it wras originally made; and by his retaining the contract so indorsed he did not assent to any proposed modification.

By the terms of the contract there was a certain amount, being in fact about $669, owing thereon April 12, 1868, including the interest. On that day Pumpelly indorsed thereon a statement that the amount was settled as due that day at $1,080; that $300 was to be paid in October, and further time given for the balance, He made this amount by compounding the interest.

Now, it may very well be true that, if Pumpelly had computed the amount then owing at simple interest, and had stated it on the contract, the simple interest might have been then added to the principal, so as to form a new principal, and to draw interest for the future. (Van Benschooten v. Lawson, 6 Johns. Ch., 313.) But that was not what he did. He computed compound interest for the past twenty-two years and stated an amount to be then owing on the contract which was not owing.

If he had only stated the amount which was then actually owing, about $669, and the parties had agreed to pay interest on that amount for the future, a different question would have been presented.

But, as the case is, it must be governed by the decision in Young v. Hill (67 N. Y., 162), -which is very closely analogous with the present, and which seems to overrule Stewart v. Petree (55 N. Y., 621). The compounding of the interest and the statement of a balance upon such compounding were in that case made by the debtor himself, so that it was more obligatory on him than the indorsements made by the creditor in the present case.

The same reasoning applies to the receipt given by Pumpelly November 12, 1872. This was given at the time that Ennis, by the hands of Barnes, made a payment of $300. It stated the balance due on the contract to be $1,185, while in fact the amount owing, according to the terms of the contract at simple interest, was only about $486. Ennis could not safely send back this receipt, for it was his evidence of the payment of $300. And the statement therein by Pumpelly of the balance due did not form any new contract.

The equitable title to the land was in Ennis. Pumpelly held the legal title as security for the amount payable on the contract. Eunis made a payment on the contract and Pumpelly gave a receipt for the amount paid, stating also the balance payable, and that it was to be paid in five annual payments.

There is no other evidence of assent thereto or agreement, oi* the part of Ennis, than this, that he did not return the receipt The holder of the land could not by inserting in that receipt a statement of the balance, made, as it appears, by compounding, impose upon Ennis terms of payment different from those of the contract.

The judgment should be affirmed, with costs.

Present — LeakNED, P. J.. and BoaudmaN, J.; Follett, J., taking no part.

Judgment affirmed, with costs.


text:
    DANIEL RAWLEY. Respondent, v. NATHAN R. BROWN, Appellant.

      Purchase)' at a sale under execution — when not liable to an action by the real ownei', until demand made and refused.

    One purchasing’ in good faith, at a sheriff’s sale, under execution, goods in the possession of the judgment debtor, is not liable to an action brought by the true owner to recover the goods, or their value, until a demand therefor has been made and refused.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury. The action was brought to recover certain goods, purchased by the defendant at a sheriff’s sale, or their value..

      M. Goodrich, for the appellant.

      Waters & Knox, for the respondent.
   LEARNED, P. J. :

The defendant purchased the goods in question at a sheriff’s sale under execution. The execution was issued on a judgment recovered in the Supreme Court by one Chapin against James H. Rawley, to which the defendant was not a party, and in which he had no interest. James H. Rawley was in possession of the goods, and the defendant’s purchase was made in good faith. The sherift did not act under the defendant’s direction. The plaintiff was not present and did not forbid the sale. The plaintiff now claims to own the property and brings this action to recover the same or the value. The plaintiff made no demand for the property upon the defendant, and there is no evidence that the defendant had disposed of the property before the commencement of the action. On that ground the defendant moved for a nonsuit.

In Storm v. Livingston (6 John., 44) the defendant had purchased a horse at a constable’s sale, which belonged to the plaintiff. The court held that the action of trover could not be maintained, because there had been no demand of the defendant before the action was commenced; and a sale of the horse by the defendant, after suit brought, was not sufficient.

Berrett v. Warren (3 Hill, 348) was an action of replevin; and it was there held, that, though goods had been tortiously taken a bona fide purchaser was not answerable in trespass, but only in trover or in replevin in the detinet, after demand, etc. The same doctrine is stated in Pierce v. Van Dyke (6 Hill, 613). It is also applied in Twinam v. Swart (4 Lansing, 263) to the case of a levy and sale of exempt property, where the action was brought against the purchaser at the sale by the judgment debtor. It is repeated in White v. Brown (5 Lans., 78).

There are no cases cited by the plaintiff which are in conflict with this doctrine : that where the defendant did not come into possession of the property tortiously, then, before an action will lie by the owner, the defendant must be shown to have converted the property; of which conversion a demand and refusal is the usual proof. And on the evidence in this case it does not appear that the defendant had ever converted any of the property before the commencement of the action.

For this reason, without an examination into any of the other questions, the judgment should be reversed and a new trial granted, costs to abide the event.

Present — LeakNed, P. J., BoaedmaN and Follett, JJ.

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


author: BoaedmaN, J.:

text:
    ERVING TAINTOR, Respondent, v. ISAAC D. HEMMINGWAY AND CHARLES D. HEMMINGWAY, Appellants.

      Verbal agreement to assume mortgage, not inserted in deed — when enforceable.

    Where, at the time of conveying land, it is orally agreed that the grantee shall assume and pay a mortgage for the payment of which the grantor is liable, the latter may, if subsequently compelled to pay it, recover the amount so paid • from the grantee, though the conveyance contains no agreement on the part of' the grantee to assume the mortgage, but is only made subject to it.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury. The action was brought to recover the amount, paid by the plaintiff, of a deficiency arising upon the' foreclosure of a mortgage upon lands, one-fourth of which was sold to the defendants by the plaintiff, subject by the terms of the deed, to the said mortgagee. The plaintiff claimed that the defendants, at the time of the sale, had agreed orally to pay one-fourth of the mortgage.

      Warren & Kellogg, for the appellants.
    There was no such reference made to the bond and mortgage in the deeds as created any personal liability on the part of the defendants to pay the same, (Belmont v. Oomee, 22 N. Y., 438; Binsse v.JPage, 1 Keyes, 87.) The deeds constituted the contract between the parties and could not be contradicted or varied by parole. (Hunt v. Amidon, 4 Hill, 345; lid., 147; Duncan v. Blair, 5 Denio, 196; Miller v. Avery, 2 Barb. Ch., 582; Benard v. Sampson, 12 N. Y., 561; Durgen v. Ireland, 14 id., 322.)

      Waters & Knox, for the respondent.
    The consideration of a deed may be shown by oral evidence, notwithstanding the recital in the deed. {Murray v. Smith, 1 Duer, 413; Me Orea, v. Pur-mort, 16 Wench, 460; Wheeler v. Billings, 38 N. Y., 263; Murdoch v. Gilchrist, 52 id., 242; Fryer v. Rochefeller, 63 id., 274; Hébhard v. Haughian, 70 ich, 54.) Oral evidence was competent to show that the defendants agreed to pay plaintiff’s one-fourth of the mortgage debt, although that agreement is not recited in the deed to defendants. (Murray v. Smith, 1 Duer, 413; Minor y. Perry et al., 6 How., 208, 212; Thomas v. Dickinson, 2 Kern., 364; Sherman v. Willett, 42 N. Y., 146; Barker v. Bradley, id., 316; Bemmington v. Palmer, 62 id., 31, TIebbard v. Haughian, 70 id., 54; Arnot v. JE. 11. R. Company, 67 id., 321; Thomas on Mortgages, 185.) The oral agreement to pay plaintiff’s portion of the mortgage did not merge in the deed. It was an independent contract of itself. (Remmington v. Palmer, 62 N. Y., 31; Hope v. Baden, 58 id., 380; Sherman v. Willett, 42 id., 146; Wheeler v. Billings, 38 id., 263; Barker y. Bradley, 42 id., 316; Lewis y. Seabury [Court of Appeals], 7 Weekly Digest, 359.)
   BoaedmaN, J.:

The plaintiff was the owner of an undivided fourth of certain premises, which had been mortgaged by the owners to secure a debt to one Bradley. The defendants owned another undivided fourth of the same premises subject to the mortgage. The plaintiff sold and conveyed his one-fourth to the defendants subject to said mortgage, but the defendants did not by the terms of the conveyance assume or agree to pay the same. Plaintiff’s share of the mortgage was deducted from the value of his share of the property — the equity of redemption alone being sold. The transaction between the parties was an exchange of land. The plaintiff claims, and the jury has determined, that at the time when the conveyance was made the defendants, in consideration of the bargains and transfers then made, agreed by parol that they would pay plaintiff’s share of the mortgage and save him harmless therefrom. Afterwards the mortgage was foreclosed and the plaintiff was compelled to pay a deficiency. Under such parol agreement the plaintiff now seeks to recover the amount paid, from the defendants. The jury found the existence of the parol contract which was the only question of fact submitted. The defendants appeal from the judgment entered in favor of the plaintiff.

It is not claimed that the language of plaintiff'’s deed created any personal liability on the part of the defendants to pay the bond and mortgago upon the land. The authorities in that respect may be found collected in a note to Collins v. Rowe (1 Abb. New Cases, 97), and note to Binsse v. Paige (1 Abb. Ct. of App. Dec., 138).

The defendants insist, however, that it was error to allow proof of this parol contract because (1), any cotemporaneous parol com tract was merged in the deed ; (2) such proofs contradicted and varied the terms of the deed ; (3) parol proof can not be allowed to contradict the consideration expressed in the deed.

These positions cannot be maintained. The contract to assume and pay this mortgage was wholly independent of the contract embraced in the deed. The deed was good as far as it went by way of partial performance. The verbal agreement was in addition thereto and in no respect contradictory. It did not vary the terms of the contract as contained in the deed and was not merged therein. (Barker v. Bradley, 42 N. Y., 316; Remington v. Palmer, 62 id., 31; Reed v. McCourt, 41 id., 435; The Champlain, etc., Co. v. Valentine, 19 Barb., 484.) The consideration pf a deed or other contract is always open to inquiry. So it was proper to show that plaintiff’s obligation to pay one-quarter of the mortgage entered into and constituted a part of the consideration which the defendants agreed to pay in the transaction. The plaintiff’s deed did not express the full consideration which, by virtue of the agreement, the defendants were bound to pay. So far as the value of the property conveyed by plaintiff was incumbered by this mortgage it became assets in the defendants’ hands with which to pay the mortgage. So long as the proof of amount of consideration does not destroy the validity of the grant it may be shown. (Murray v. Smith, 1 Duer, 413, and cases above cited.)

The case of Murray v. Smith (supra) is directly in point and is decisive of this case, holding that the evidence objected to was proper, that the contract was valid, that it did not contradict, impair or vary the terms of the conveyance and was not affected by the statute of frauds. No case has been cited or found questioning that authority.

The judgment might perhaps be sustained upon the authority of Lawrence v. Fox (20 N. Y., 268) and kindred cases. The claim is that the defendants for a valuable consideration, in the conveyance of this property to them by the plaintiff, promised and agreed to pay plaintiff’s debt upon this mortgage, whereby the defendants became the principal debtors and the plaintiff their surety. Upon this principle the plaintiff would have been entitled to a verdict for a greater amount than was obtained.

But that is a view of the case not specially taken by counsel and not now necessary to be considered.

We conclude that the defendants have no just cause to complain of this judgment and it should be affirmed, with costs. The motion for a new trial upon exceptions appears to have been abandoned.

Judgment affirmed, with costs.

LeaeNed, P. J., concurred; Follett, J., not acting.'

Judgment affirmed, with costs.


author: BoaudmaN, J.:

text:
    ANDREW J. CRANDALL, Respondent, v. ROBERT BROWN, Appellant.

      Chattel mortgage— constructive possession cannot be taken under.

    Constructive possession cannot Tie taken under a chattel mortgage. To be effectual actual possession in fact must be taken.
    Appeal from a judgment in faVor of the defendant, entered upon a verdict directed by the court after a question of fact had been, by consent of counsel, submitted to the jury.

      M. Fillmore Brown, for the appellant.

      Chapman <& Lyon, for the respondent.
   BoaudmaN, J.:

This action was brought for the conversion of a wagon. The complaint alleges an unlawful taking of the wagon from plaintiff’s possession by the defendant, and also a demand by the plaintiff of the defendant that he return the property, which the defendant refused to do, and alleges that defendant still wrongfully detains the property.

The answer sets up (1) a general denial; (2) a chattel mortgage; (3) possession, custody and control of the wagon at all times in plaintiff, and that defendant never had the possession thereof.

Upon the trial there is evidence of admissions and declarations that defendant had a chattel mortgage, held by Allen & Co. upon this wagon. Defendant and plaintiff had gone together to plaintiff’s barn, where the wagon was kept, and defendant did what he considered making a levy — his idea was it was a taking of possession, but no possession in fact was ever taken by defendant or control exercised over this wagon. All the facts touching this so called levy are proved. The plaintiff and defendant do not essentially differ. Both agree that no actual possession was taken. The legal effect of the conduct of the parties was to leave the ivagon in plaintiff’s possession, with notice of Allen & Co.’s claim upon it by virtue of their chattel mortgage. The chattel mortgage, in fact, was not a lien upon the wagon, having been given •)j Johnson & Avery, the former owners of the wagon, after they rad sold it to the plaintiff. So plaintiff had the title, the right to 'he possession and the actual possession of the wagon. Defendant, or Allen & Co., had no title to or lien upon the wagon, no possession or right of possession. The possession of plaintiff was subject to the lien, if legal and valid, of the chattel mortgage, and being responsible the property was left by defendant with the plaintiff with notice of the claim.

It is not believed this is such an interference with the possession as will make defendant liable as a wrong-doer for the value of the wagon. Nor will the admissions or declarations of possession be permitted to outweigh and overcome the conceded facts upon which the law determines the question of pqssession. We con-jlude, therefore, there was no original wrongful taking of this wagon for which defendant should be held liable, at most, beyond nominal damages, if at all.

If this conclusion be right, it would not be necessary to consider the alleged demand made' by plaintiff for the return, and the refusal by defendant to make return. But, conceding the making of such demand and refusal, and that there was a proper basis for vhe making of the demand, the jury by its verdict has defeated iny cause of action founded on such demand and refusal. The jury has found that the defendant, before the service of the summons in this action, notified the plaintiff that the defendant relinquished all claim to the wagon. The wagon then being in plaintiff's' possession, such notice was a compliance with the demand, and all that could be done by defendant by way of restoring plaintiff to his full rights. • This was just before the action was begun.

The plaintiff's error consists in claiming a return of property which has always been in his possession and under his control, property with the possession of which he has never parted, and in bringing this action after being notified that no claim was made to the property by virtue of the chattel mortgage or otherwise.

A levy under a valid execution, though no actual possession is taken, vests a title sub modo in the officer, for interference with which he can maintain an action. Such title in the officer gives him constructive possession. Hence he may be sued for his levy under his execution. (Greene v. Burke, 23 Wend., 490.)

But constructive possession cannot be taken under a chattel mortgage. The right to possession is by virtue of the contract and not, as in an execution, by virtue of the law. Possession must be taken in fact. There was not, therefore, any constructive possession by virtue of any act done by the defendant which would support this action. A chattel mortgage is not an execution. Possession cannot be taken by words and inspection. It would seem peculiarly harsh that an officer should, while acting in perfect good faith under a chattel mortgage, be required to pay the value of the property at all times in the plaintiff’s custody and possession, while conceding that he makes no claim upon it.

We think the judgment is unjust and should be reversed and a new trial granted, costs to abide the event.

LEARNED, P. J., concurred ; Follett, J., not acting.

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


text:
    HENRY EVANS, Appellant, v. AMANDA HILL and others Respondents.

      Creditor’s action — a simple contract creditor cannot maintain it — right of a judgment creditor to ’maintain it after ten years from the doclteting of his judgment.

    A simple contract creditor cannot maintain an action to set aside as fraudulent a conveyance made by his debtor; nor will such an action lie by a judgment creditor where more than ten years have elapsed since the docketing of th, judgment, and no new lien upon the land has been acquired by the levy of a?s execution thereon.

      QucBre, as to the power to sell land under an execution, issued upon a judgment after the lapse of ten years from the time of its docket.
    Appeal from a judgment in favor of the defendants, enterq 1 upon a nonsuit, directed on the trial of this action at Special Tern..
    The action was brought to set aside as fraudulent a conveyanc e from one Theodore B. Evans to Jehial Evans, his father, and one from Jehial Evans to Ann Prudence Evans. Theodore Evans died in 1870, ■ intestate, and Ann Prudence Evans, his infant daughter, died in 1871, leaving her mother, the defendant Amanda Hill, her only heir at law. The conveyances in question were made on May 10 and May 11, 1870. The plaintiff claimed to be a creditor of Theodore Evans for money loaned to him, and also as assignee of a judgment recovered by Thaddeus Newton against Charles B. and Theodore B. Evans, and docketed August 15, 1860. This action was commenced in March, 1875.
    The nonsuit was moved for and granted on the grounds:
    “ First. That the judgment in favor of Thaddeus Newton is not a lien upon this land, and could not be because of the provisions of section 282 of the Code; that a lien expires at the end of ten years, and that the lien having expired, the judgment must be sued over the same as any other debt, before an action can be based upon it. That as to the other debts and claims, they could not be the foundation of an action in equity, to charge this land, until they were put into judgment, or until legal proceedings, for the ascertainment of the existence and amount of the debts, were taken in the surrogate’s court. That the claims as they exist cannot be the foundation for this action.
    Second. That if the judgment be a lien for twenty years, that that lien still continues, and that it exists as perfectly as this suit could make it exist, without an action at law, and that their remedy is by selling the land.”

      Henry A. Clark, for the appellant.

      Isaac 8. JSTewtan, for the respondents.
   Per Curiam:

Notwithstanding some prior decisions, we think that the cases of Allyn v. Thurston (53 N. Y., 622) and of Estes v. Wilcox (67 N. Y., 264) have settled the doctrine that the plaintiff, as a mere simple contract creditor, cannot maintain an action of this kind. The latter cause seems to overrule McCartney v. Bostwick (32 N. Y., 53) and also, by implication, Loomis v. Tifft (16 Barb., 541). See also Geery v. Geery, cited in Milton v. Miller (14 Sup. Ct. [N. Y.], 208).

Next as to the judgment. .The Old Code, section 282, by the amendment of 1851, declared that a judgment should be a lien for ten years from the time of docketing. Scott v. Howard (3 Barb., 319) was decided before this amendment was enacted. We must consider this section of the Old Code, thus amended, to be a substitute for section 5 (4) (2 R. S. [m. p.], 359). It is unnecessary to decide whether or not, after the lapse of ten years, and before the presumption of payment by the expiration of twenty years, a plaintiff can issue an execution and sell real estate.. (Old Code, sec. 289, sub. 1; secs. 283 and 284.) It is possible, that an execution might be levied, although the judgment were; no longer a lion. See remarks of Judge Bronson in Wood v. Colvin (5 Hill, 230). The New Code, section 1252, has provided a special mode of levying an execution upon land after the lien of the judgment has expired.

It is enough, however, for the present case that the lien acquired by docketing the judgment had expired ; and that the judgment creditor had not acquired (if he could acquire) any lien upon the land by tbe levy of an execution thereon. He was, therefore, in no position to maintain this action.

The judgment should be affirmed, with costs.

Present- — - Learned, P. J., and Boardman, J. ; Follett, J., taking no part.

Judgment affirmed, with costs.