text:
    The People ex rel. Walter J. Bradley v. Stephen B. French et al.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Police—Commissioner of—Finding of fact as to officers’ neglect— Conclusions.
    The commissioners of police are statutory judges, and their finding of fact upon conflicting evidence is conclusive, and their determination will not he reviewed on writ of certiorari.

    Certiorari to review proceedings dismissing the relator from the police force.

      Louis J. Grant, for app’It; J. J. Townsend, Jr., for res’pt.
   Brady, J.

The charge against the relator was neglect of duty, the specification being that he in company with another officer was absent from post during patrol duty and was seated on a chair with his head resting on a table and asleep in the summer garden of Henry M. Botjers, southwest corner of Fifty-first street and Broadway at 4 :45 A. M., on the 31th of August, 188'5.

The testimony of the roundsman who found the relator in the condition stated in the specification is positive, giving as it does all the details of the occurrence. The relator sought to justify his action by a statement that he had been advised of a contemplated burglary and went into the garden mentioned for the purpose of arresting the offenders if it was attempted. His testimony scarcely amounted to a positive denial that he was asleep; but even if it were so, that would not, in view of the decisions affecting proceedings of this character, be of any value. The officer who was with him and also asleep, according to the testimony of the roundsman, testified that he was not asleep; but his cross-examination shows that this statement could not be accepted as absolutely true. The most advantageous view for the relator that can be taken of this proceeding is that there is a conflict of evidence. But it cannot be said that it so preponderates as to justify the conclusion that a palpable error was committed by the respondents, although it may be that even if the converse view could be indulged in. it would not result to the relator’s benefit. The court of appeals have substantially settled the rule that the commissioners are statutory judges and when they find upon conflicting evidence the finding is conclusive; and that the court is not to inquire into the merits of the decision; or the justness of the penalty imposed. It can only look far enough to see that some violation of duty or negligence was charged against the relator and evidence given tending to establish its existence. People ex rel. Hart v. Fire Commissioners, 82 N. Y., 358 ; People ex rel. Masterson v. Same, 96 id., 644; People ex rel. Popp v. French, MSS. op., Gen. Term, May, 1884; People ex rel. Murphy v. French, 92 N. Y., 306. The trial had was under the provisions of the statute; all to which the relator was entitled. He had written notices of the charges and appeared by counsel, and had the opportunity to present his defense.

■ For these reasons the writ should be dismissed.

Van Brunt, P. J., and Daniels, J., concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Bernard Seiler, App’lt, v. Henrietta W. Wilson, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Summons—Service of, by publication—Sufficiency of affidavits.
    The affidavits, upon which an order for publication was based, will be sufficient if they show diligent search, inability to find the person and make service, and that the persons are non-residents on information and belief, although the sources of the information are not stated.
    2. Same—Code Civ. Pro., § 135.
    Section 135 of the Code of Civil Procedure, authorizes the order to be made by the court or judge.
    Appeal from a judgment entered upon a verdict directed for the defendant, and from an order denying a new trial upon the minutes.

      Joseph E. Newburger, for app’lt; Alexander & Ash, for resp’t.
   Van Brunt, P. J.

The plaintiff brought this action to recover a deposit of $100 received by the defendant as part of the purchase money upon an agreement to convey certain premises, and for expenses incurred in examining the title of said premises; the title tendered being alleged to be bad.

A verdict upon the trial was directed for the. defendant to which direction exception was duly taken.

The defect claimed to render the title of the premises in question1 unmarketable was in an affidavit and order of publication made in May, 1860, by which the court was claimed to have obtained jurisdiction of certain necessary defendants in a foreclosure suit.

The affidavit states that the affiant had in good faith made diligent search and inquiry for the said defendants, naming them, but that they could not be found within this state, and that the affiant had been unable to make service of the summons upon either of them.

The affidavit further stated that the summons had been issued to the sheriff, and he had returned that said defendants could not be found, and that as affiant was informed and believes the said defendants were non-residents of and giving their places of residence.

In the order the court certified that it appeared to the satisfaction of the court that the said defendants could not either of them after due diligence be found in this state and ordered a service by publication.

This order is claimed to have been made without jurisdiction because the affidavit did not show what effort was made to serve the papers, the source of information, and why the person who gave the information has not made the necessary affidavits, and because the affidavit as to the residence of the defendants served under the order was upon information and belief.

Several authorities are cited to support the objections, but none seem to be applicable.

In the case of Carleton v. Carleton (85 N. Y., 313), a • motion was made to set aside the service. The affidavit contained only an allegation of non-residence and the court held that such an allegation did not tend to establish that the defendant could not after “ due diligence be found within this state.”

In Lockwood v. Brantley (31 Hun, 155), a motion was made to set aside service, the only allegation in the affidavit being that the defendant was a non-resident and that the sheriff was informed by one Sterling that the defendant was there a day or two before making the affidavit, which motion was denied.

The question in Easterbrook v. Easterbrook (64 Barb., 421), arose upon a similar application and all that was decided was that a certificate of the sheriff alone is not sufficient.

In Bixby v. Smith (3 Hun, 60), is recognized a distinction between cases where an order of publication is attacked collaterally and where it is sought to be set aside directly.

The order in that case was attacked collaterally and held invalid because the only allegation was that of non-residence.

There are numerous cases where affidavits no stronger than the one in the case at bar had been held to confer jurisdiction when attacked collaterally, of which it is only necessary to cite one. Kennedy v. The N. Y. Life Ins. and Trust Co., 101 N. Y., 487.

No authority has been cited showing that the allegation of non-residence although upon information and belief did not confer jurisdiction upon the court.

It perhaps would have been more satisfactory to have had a fuller allegation upon this point, but nevertheless the court acquired jurisdiction.

In the case of Belmont v. Cornen (82 N. Y., 256), the affidavit of non-residence was upon information and belief and the order was upheld, even when directly attacked. It is true that the sources of information were stated but no reason given for non-production of affidavit of informant.

These objections are not therefore well taken.

The order was not defective because it was a court order and not made by a judge, as section 135 of the Code of Procedure under which this application was made, authorized the order to be made by the court or judge.

It is not necessary to discuss the question as to whether the court erred in admitting the stipulation as to adverse possession or not, since we have come to the conclusion that no defect in the title was shown and that the direction of a verdict was correct, entirely independent of the question of adverse possession.

The judgment and order appealed from must be affirmed.

Lawrence and Potter, JJ., concur.


text:
    Alfred M. Seixas et al., Resp’ts, v. George P. Ockershausen et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Contracts—Tender of performance—When second tender proper AFTER REFUSAL TO ACCEPT THE FIRST.
    Where a tender of part performance is made and refused on the ground that the goods delivered are not of the contract quality, and the party to whom the tender was made has notice, or may properly infer, that a second tender, if made, must he of goods of this inferior quality, he will he justified in supplying his wants elsewhere and refusing to accept a second tender. If a second tender is to he made, notice to that effect should he given to the party refusing acceptance of the first.
    3. Insurance—Marine—What title necessary.
    A party has no right to insure property before delivery, if the title until then does not pass.
    On the 4th of February, 1885, bought and sold notes were exchanged between the plaintiffs and the defendants in the following language:
    “Sold for account of Seixas & Pardo, to Geo. P. Ockershausen & Co., 150 hogsheads of choice Ponce molasses at thirty cents per gallon, cost and freight, to be shipped either sail or steam, whichever quickest. Cash on presentation of documents.”
    The first vessel which arrived at this port, after making this contract of sale, from Ponce, was the O. M. Marrett, which vessel arrived here on the 16th or 17th of March, 1885, and had on board 210 hogsheads of molasses consigned to the plaintiffs. On the 18th of March, 1885, the plaintiffs wrote to the defendants as follows:
    “Dear Sirs—We beg to inform you that we have just received the papers of the schooner O. M. Marrett at our office, and find that she only brought 49 (forty-nine) puncheons and 14 (fourteen) tierces of your molasses. The balance will arrive by the Ocean Home, for which we have already the bill of lading.”
    And thereupon the plaintiffs tendered, as part performance of the contract, the forty-nine puncheons and fourteen tierces of molasses to the defendants and accompanied such tender with a bill. On the nineteenth and twentieth of March the defendants sampled the molasses and found that it was not of the quality called for by the bill of lading. They thereupon refused to accept and pay for the said molasses as not complying with the contract, and on the twenty-first went into the market and purchased molasses to supply their wants of other persons. Subsequently, on the same day, plaintiffs tendered to the defendants 161 hogsheads and fifteen tierces of Ponce molasses, which had come upon the schooner O. M. Marrett in fulfillment of their contract of the 4th of February, 1885. The defendants refused the tender upon the ground that the plaintiffs could not makea second tender after the first had been rejected. The plaintiffs, claiming that their tender was a good one, insisted upon the same, and after the defendants had refused to accept such tender, sold the said merchandise on account of the defendants, realizing a certain sum not necessary to be stated in this statement of the case. Afterwards, on or about the 1st of April, 1885, the Ocean Home arrived and the molasses upon the Ocean Home was sampled and found not to comply with the contract of the 4th of February, 1885. The plaintiffs thereupon brought suit against the defendants upon the contract of the 4th of February 1885, and asked judgment for the difference between the contract price of the molasses and that which they realized from the sale thereof. The defendants in answer set up the fact of the tender of the forty-nine puncheons and its rejection and alleged that after such rejection and before the second tender of the plaintiffs, they had supplied their wants with other molasses without any notice or intimation from the plaintiffs that they had or proposed to have any other molasses to offer to the defendants.
    They counterclaimed for insurance upon the molasses alleged to have been paid by them while the same was in transitu.

      Upon the trial of the case the learned justice directed a verdict in favor of the plaintiff and ordered the exceptions in the first instance to be heard at the general term.

      Geo. W. Ellis, of counsel, for def’ts; Joseph A. Shoudy, of counsel, for pl’ffs.
   Van Brunt, P. J.

The only question which seems to be involved in this case is whether the plaintiffs had a right to make the second tender to the defendants after the rejection of the forty-nine hogsheads of molasses as not complying with the terms of the contract. In the disposition of this question it is not necessary to determine whether in any case such a second tender might not be permitted, because the facts in the case at bar are peculiar. It appears from the correspondence which was exchanged between the plaintiffs and defendants in reference to this molasses that at the time of its arrival the defendants were notified by the plaintiffs that only forty-nine puncheons and fourteen tierces of molasses suitable for their contract had arrived upon the O. M. Marret, and that the balance would arrive by the Ocean Home, for which the plaintiffs already had a bill of lading. These forty-nine puncheons and fourteen tierces were tendered and were rejected. From this letter the defendants had a right to assume that the plaintiffs had purchased a particular lot of molasses in order to fulfill this contract, that forty-nine puncheons were upon the 0. M. Marrett, and that the balance was upon the Ocean Home; and the forty-nine puncheons having failed to comply with the contract in consequence of its inferior quality, that the whole lot was of the same quality, and that no proper tender could be made of the molasses so purchased. As to the quality of that contained upon the Ocean Home, the evidence shows that that was of the same quality as that shipped by the O M. Marrett, and that neither fulfilled the contract. They thus having been informed that these particular lots were the ones which the plaintiffs intended to apply upon their contract, and the tender having been made and refused upon the ground of the failure to comply with the contract in respect to quality, they had a right to assume that the plaintiffs in this action could not comply with the contract, and to go into the market and supply their wants if they felt so disposed, and after they had done this the plaintiffs certainly could not compel them to accept other molasses, even though it came by the first vessel which arrived after the making of the contract, because they notified the defendants in this action that all the molasses which they could apply to the contract in question which had come by the 0. M. Marrett was forty-nine puncheons and fourteen tierces, and in their subsequent action the defendants had the right to rely upon this representation. It was equivalent to a notice by the plaintiffs that they had no other molasses except such as would arrive by the Ocean Home, and that that was of a quality similar to that which was tendered as coming from the O. M. Marrett.

These facts and circumstances clearly distinguish the case at bar from the case of Barrowman v. Free (L. R., 4 Q. B. D., 500). In that case a tender was rejected from a certain ship because the tender was not accompanied by the proper shipping documents. The tender was immediately renewed from another ship accompanied by the proper shipping documents, and the court held that if the first tender was not good the party making the tender had a right to withdraw it and tender anew. There was no pretense in that case that there was any notification given to the defendant that this was all the merchandise which they had which would comply with the contract, and that thereupon the party to whom the tender was made went into the open market and supplied his wants, assuming as he had a right to do that no sufficient tender could be made under the contract. In the case at bar, just such a notice was given, and the defendants had a right to assume from the notice which was given, and the merchandise which was tendered, that the plaintiffs could not comply with their contract, they having been notified that the only molasses which could be applied to their contract, and which had come by the O. M. Marrett was forty-nine puncheons, and that the balance was to arrive by the Ocean Home. The forty-nine puncheons tendered being of an inferior quality, they had a right to reject and to assume that the balance of the lot would be of the same quality, as the evidence seems to show it was. It does not seem that the plaintiffs in this case had the right to make tender after tender, and certainly if the position of the defendants was changed after the rejection of the first tender, the plaintiffs having given no intimation that they intended to renew the same, they could not be compelled to accept that which was subsequently tendered.

The claim of the defendants for insurance does not seem to have any foundation in fact. The delivery of the molasses was to be made in New York. The title to the molasses was in the plaintiffs until its arrival here; the defendants had no interest in it until it was tendered and accepted by them as complying with the contract, the title remained in the plaintiffs. There was, therefore, no necessity for them to insure the molasses, having no title to it, and running no risk in its loss, their only insurable interest really being the profits which they might make upon the contract. They therefore were not called upon to insure, and if they did so, it was at their own peril, and for the loss arising therefrom a recovery cannot be had.

We, however, being of the opinion that under the circumstances of the case if the jury found that the defendants had in good faith changed their position after the rejection of the first tender, the defendants could not be called upon to accept the molasses subsequently tendered by the plaintiffs.

The exceptions, must, therefore, be sustained and a new trial ordered, with costs to abide the event.

Lawrence and Potter, JJ., concur.


author: Daniels, J.

text:
    Marietta Sanford, Ex’x, etc., Resp’t, v. Joseph Crocheron, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Practice—Reduction of the verdict—Conflicting evidence
    Where the.evidence is conflicting as to how a payment has been applied, and the question of fact is passed upon by the jury and the verdict rendered for the amount due in accordance with the facts as they find them proven, the court will not interfere and reduce the verdict.
    Appeal from an order denying the defendant’s motion to reduce the verdict to the sum of $679.71.

      James M. Lycldy, for app’lt; Theron G. Strong, for resp’t.
   Daniels, J.

The action was upon a promissory note made by the defendant on the 2d of November, 1871, by which, on demand, he promised to pay to the order of D. Sanford, $2,153.55. The making and delivery of the note were admitted, and the inquiry upon the trial was directed to the question whether anything, and if anything, what amount was due upon it.

The jury by their verdict found for the plaintiff the sum of $1,290.33. After the verdict was rendered, the defendant’s counsel believing it to be larger than a proper computation justified, moved to reduce it before the judge presiding at the trial, but the motion was denied, apparently for the reason that the alleged error in computation was not established. Whether it was, or not, depends upon the application of a $400 note transferred by the defendant to Daniel Sanford, the holder of the note in controversy, on the 5th of February, 1876. The position taken by the defendant is, that this was to be applied in part payment of the principal mentioned in his note; while it was indorsed by the holder Sanford, upon the note in suit, on account of interest. If this indorsement was rightly made, then the verdict of the jury seems to have been sustained by the evidence.

Of course, interest did not commence to run upon the note, until payment was demanded, but it appeared from the evidence of the plaintiff, Mr. Sanford, who was then living, as it was repeated by the court in the charge to the jury, that he demanded payment on the note as early as the year 1873, and perhaps, as he stated, in 1872, and that he asked the defendant for the debt whenever he saw him. The defendant’s evidence controverted this statement, but at the same time, it left the case in such a condition as to render it proper for the jury to determine it, and they must have determined this fact against the defendant, before they could render the verdict which they did at the close of the trial. And if the plaintiff was right in his statement, that so early a demand had been made of the note, then there probably was such an amount of interest payable upon it as would absorb the note of $400, at the time when it was applied. That this may have been the case was further supported by the testimony of the plaintiff, who stated that the defendant was present when the indorsement of the $400 note was made, and that he saw it indorsed, and merely remarked upon that subject that he would rather it would have been on the principal, than on the interest; but according to the testimony of the plaintiff, there was no denial of the fact that an amount of interest had accrued on ■ the note, justifying the making of the indorsement, as that was done. And it was upon the basis of this indorsement having been correctly made against the interest, that the computation was made by the plaintiff’s counsel, stating the amount due upon the note to be the sum of $1,290.33. That, evidently was done by applying the $400 note upon the interest, and then computing the interest upon the note in suit, after the deduction of the two preceding payments, amounting in the aggregate to the sum of $250, and those afterwards made upon the principal. As the case was presented, and is exhibited by the evidence included in the charge of the court, it was a question for the jury whether this $400 should be applied as interest upon the note, or whether it should have gone upon the principal, for the reason that no demand had been made for the payment of the note, previous to the time of this application. And this court cannot say as the case was disclosed, that the jury were in error in taking the view which they did of the evidence, and for that reason the order was rightly made denying this motion, and it should be affirmed, with the usual costs and disbursements.

Van Brunt, P. J., concurs.


author: Per Curiam.

text:
    Zachariah E. Simmons, App’lt, v. Sarah M. Henry, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Evidence—Code of Civil Peo., § 829.
    The testimony of a party as to a personal transaction with the deceased is rendered incompetent by section 829 of the Code when the opposing party claims title through the deceased.
    2. Same—Admission of incompetent evidence without objection.
    The objection to certain evidence will be overruled if previously the same has been admitted without objection and no motion to strike it out has been made.
    Appeal from judgment of the special term.

      John Graham, for pl’ff and app’lt; Charles H. Wood-bury, for def’t and resp’t.
   Per Curiam.

We are of the opinion that the judgment appealed from should be affirmed, upon the opinion of Mr. Justice Donohue, who tried the case in the court below.

None of the exceptions taken to the admission of evidence seem to be well founded.

The exclusion of the evidence of the plaintiff as to transactions with Bernstein, he being dead, was proper. It being conceded that the defendant claimed through Bernstein, and he being dead, § 829 Code Civ. Pro., made the plaintiff an incompetent witness to prove any transactions had between himself and Bernstein.

The objection to the admission of the check and stub of the check book of Mr. Flanagan was made too late; the check and stub had some time before been read in evidence without objection, and no motion was made to strike them out.

It is, therefore, not necessary to consider the question whether the objection would have been well founded if taken in time.

The objection that conversations between the plaintiff and defendant were not admissible, upon the ground that they were private, and a secret of the marriage, has no foundation in view of the rights of property conferred by law upon married women; nor is the exception to the receipt of Mr. Flanagan; upon receipt of the note of $3,000, well founded.

The defendant had a right to show what was done with the notes she received; and even if she did not have that right, the receipt in question could in no way whatever prejudice the plaintiff.

The judgment appealed from should be affirmed, with costs.


text:
    Ferdinand Redlein, as Adm’r, etc., App’lt, v. The Long Island Railroad Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Practice—Setting aside verdict as against the weight of evidence.
    To justify the court in setting aside the verdict, there must be a preponderance of evidence against the facts as found by the jury. It is not a question of the number of witnesses, and especially so if some of their evidence tends to corroborate the testimony of the plaintiff. The court has the power so to act where a verdict is clearly against the weight of evidence.
    This is an appeal from an order setting aside a verdict upon the grounds that the verdict was against the evidence and that the damages were excessive.

      Mr. Fine, for pl’ff and app’lt; Mr. Hinsdale, for def’t and resp’t.
   Van Brunt, P. J.

The trial court has undoubtedly the power to set aside a verdict where such a verdict is clearly against the weight of evidence, and such action should not be interfered with by the appellate court where the record shows good ground therefor.

In the case at bar, the plaintiff’s intestate seems to have told a plain, consistent, straightforward story as to the happening of the accident.

She fell from the steps of the cars and was injured, and the only question submitted to the jury, was whether the cars of the defendant were in motion when she attempted to alight.

Mrs. Eedlein swears positively that they had come to a stop before she attempted to get off.

It is claimed upon the part of the defendants that seven witnesses contradicted Mrs. Eedlein in this particular and testified that the cars did not come to a full stop at the time of the happening of the accident, but were moving along slowly.

If this contention had been borne out by the record it would seem that although the number of witnesses is not to control the verdict of juries, and although six of the seven witnesses were employees of the company, that the verdict was against the weight of the evidence.

But the evidence of two of these witnesss seem to corroborate the evidence of the plaintiff that the train stopped for a moment, and then moved on again.

Joseph Bass, the switchman, testified as follows:

Q. Do you remember the stopping of the train?

A. Yes, sir.

Q. What did you observe or hear with reference to that?

A. The notice I took of it was the train came to an uncertain stop, and that is what made me look around.

Now what did he mean by an “uncertain stop ? ” Could it mean anything else than that the train stopped and then moved on in an instant ?

If that is what he meant, then it corroborates Mrs. Redlein, who says she was standing on the platform ready to get off and the train stopped; she attempted to do so, the train started and she fell.

It is true that the witness subsequently states that the train had not stopped at that station.

There is another circumstance in this evidence which is worthy of note.

The claim of the defendants is that the train was moving very slowly but steadily along, never having stopped.

The witness testified that the train came to an uncertain stop, and that is what made me look around.

If the train was moving slowly all the time it would seem that that would not have attracted the attention of the witness, but the uncertain stop is what caused him to look around.

Now what was there in the uncertain stop to attract the attention ? Was it not the noise occasioned by the starting of the train again after coining to this uncertain stop, and was not the stop uncertain only because of its short duration ?

It would seem that these are fair inferences to draw from this testimony, and if so they sustain Mrs. Redlein.

The witness Jane Krauss, the wife of the brakeman, was asked:

Q. When the train came up, did it stop before Mrs. Redlein fell ?

A. It had been stopped.

The next question put was, “How was the train moving?” to which she replied, “Very slowly; ” and subsequently she testified that the train had not stopped.

In considering this testimony the most favorable construction for the plaintiff must be put upon it, and the witness had previously stated that the train had been stopped before. Mrs. Redlein fell.

Thus the jury had a right to assume that two of the witnesses upon the part of the defendant sustained Mrs. Redlein in her statement that the train had stopped.

Such being the fact, there was no such preponderance of testimony as would justify interference with the verdict upon the part of the court.

The order appealed from must be reversed, with costs.

Daniels and Brady, JJ., concur.


text:
    Edward M. Tyler, App’lt, v. The Mayor, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. New Yoke (city of)—Croton water rents—Nature of the contract with the city.
    The agreement of the city is simply to supply the water in consideration of the payment of the charge, and if this is fulfilled, it makes no difference in liability for the assessment whether a person continues to have the use of the water or whether his use is interrupted in consequence of some cause for which the city is not responsible.
    2. Same—Payment in advance—Chapter 383, §§ 18, 19, Laws 1849.
    By chapter 383, §§ 18,19, of the Laws of 1849, the common council were vested with ample authority to prescribe rules and regulations on the subject, and the requirement of the payment in advance is proper.
    3. Same—Action to recover may be barred by the Statute of Limitations.
    There is no trust connected with the monies received in payment of water rents, and consequently nothing prevents the Statute of Limitations from barring an action for the recovery of improper payments.
    4. Evidence—Immaterial.
    Questions are properly ruled out when there is no disclosure or proposal of any pertinent proof expressly to be elicited by the answer.
    Appeal from a judgment recovered on the verdict of a jury directed by the court.

      É. T. Wood, for app’lt; D. J. Dean, for resp’t.
   Daniels, J.

The plaintiff in the years 1867-8 and 1869, carried on the business of a distillery in the city of New York. He was supplied with water for its uses by the commissioners of the Croton Water, and paid in advance of such use by himself the sum of. $2,400 in 1867, the sum of $2,551.31 in 1868, and the sum of $1,069.80 in the year 1869. During a large part of the time for which the water was to have been supplied to him for these payments, his distillery was not in operation, but was seized and held by the internal revenue officers of the United States. And for the time during which the seizure continued, and the business was suspended by means of it, the plaintiff by this action claims to recover back from the city the amount of money which had been received for the unused water.

There was no contract entered into on behalf of the city to refund any portion of either of these sums of money in case the distillery should not be in operation during the times or periods for which the water was to be supplied. What the city did was to agree to supply the water in consideration of the payment of the charges, and no inability or refusal to fulfil its part of the obligation has been alleged by the plaintiff in the case. The only contingency to which the city subjected itself was by a memorandum on the back of the receipt, stating that the charge for extra water was subject to such addition or reduction as any subsequent examination by the engineer of the department might indicate or determine. But no examination of the engineer appeared at any time to have been made, upon which a reduction could be claimed under this memorandum. But the case as it was presented proved the payments or deposits of these sums of money for the use of the water, and an inability on the part of the plaintiff to enjoy such use through no act or default of the city or its authorities. When the plaintiff applied for and obtained the agreement to supply the water, it was wholly at his own option whether he would use it or not. If he failed to use it for any cause not attributable to the defendant, it was necessarily his own loss, the same as it is of every party who is entitled to receive the use of water from a municipal corporation. It has been urged that the water commissioners had no right to exact these sums of money in advance, but by sections 18 and 19 of chapter 383 of the Laws of 1849, the common council were vested with ample authority to prescribe rules and regulations over this subject. And it appeared upon the trial that an ordinance had been adopted directing that the water rents for the use of water should be paid in advance, at the time of applying for the water, and before any permit should be issued. And this was complete authority for the commissioners to require the water rents to be paid or provided for in advance, and to sustain them in receiving these sums of money for this purpose.

During the trial the plaintiff was asked to state what' took place at the water department at the time he made his first deposit. Also, whether he remonstrated, or made any objection, and whether he paid any of these moneys under protest, and what was said at the time when a paper which he received was presented to him, and at the time when other and further payments were made by him. These questions were severally objected to and excluded by the court. And as there was no disclosure or proposal of any pertinent proof expected to be elicited by the answer to the questions, there seems to have been no error in sustaining the objections. The questions were not of such a character as to indicate the expectation that material proof would have been elicited by securing their answers, but they simply inquired for statements, or conversations, not apparently of thé least importance as evidence in the case. The plaintiff also proposed to show what had been the custom of the department in taking moneys on deposit and afterwards paying them back in case the water was not used. But it was not proposed to be shown that any such practice had prevailed between the plaintiff and the water commissioners. And without such offered proof it could not be important to bring into the case evidence of the dealings with other persons having no relations whatever to the business of the plaintiff.

These moneys were paid over and placed in the hands of the commissioners, or the person representing them, over ten years prior to the commencement of this suit, the summons being dated on the 9th of July, 1880, and the action was in part defended by the answer relying upon the Statute of Limitations. And this defense was maintained by the proof taken upon the trial, and the application of the statute, which was required by the unreported case of Mehan v. Mayor, etc., and Dickinson v. Mayor, etc., 92 N. Y., 584. There was no trust connected with these moneys in any form preventing the running and application of the statute, and as no legal reason is presented for disturbing the judgment, it follows that it should be affirmed.

Van Brunt, P. J., and Brady, J., concur.


text:
    In the Matter of the Petition of Courtlandt Palmer to Vacate an Assessment.

      (Supreme Court, General Term, First Department,

      Filed, March 3, 1887.)

    1. Taxes and assessments—Proceeding to vacate—Special proceeding—Abatement op on death op party.
    Proceedings taken to vacate or reduce an assessment are special proceedings, and not being within the provisions of the law relating to the revival of actions, abate after the decease of the party prosecuting or defending it.

      2. Same—Payment op.
    The payment of an assessment before proceedings are taken to vacate or reduce it, is a legal answer to the application. Following Matter of Santiago Dima, 77 N. Y., 170.
    Appeal by the mayor, etc., from an order reviving the proceedings and reducing the assessment by deducting the sum of $3,714.27 therefrom.

      O. L. Sterling, for app’lt; P. A. Hargous, for resp’t.
   Daniels, J.

The proceeding was commenced by Courtlandt Palmer, in December, 1873. He conveyed away the property affected by the assessment in June and November of that year, and he himself died on the 10th of May, 1874. Letters testamentary were issued to his executors in June of that year, and they applied in December, 1885, for an order continuing the proceedings in their names as executors of the deceased testator. They paid the assessment on the 21st of March, 1874.

This was a special proceeding. Matter of Jetter, 78 N. Y., 601. And not being within the provisions of the law relating to the revival of actions after the decease of the party prosecuting or defending, it abated by the decease of the testator. People v. Oswego Court, etc., 2 Thompson & Cook, 731; Leavy v. Gardner, 63 N. Y., 624. And it consequently, under these authorities, could not be revived or continued in the names of the executors. But what they should have done, inasmuch as the payment or removal of the assessment was necessary to complete the title to the property which had been conveyed, was to have commenced a new proceeding to set it aside or reduce it in its amount before making payment of the assessment. By that payment they deprived themselves of even this right, for a payment of the assessment before proceedings are taken to vacate or reduce it has been held to be a legal answer to the application. Matter of Santiago Lima, 77 N. Y., 170.

The proceeding is not saved by what was decided in Pursell v. Mayor, etc. (85 N. Y., 330), for it had abated, and was necessarily thereby out of the court. If the executors had the authority to revive it, it would consequently, from its revival, be practically a new proceeding and capable of being legally answered by this fact of the payment of the assessment. Without, therefore, considering the effect of the long period of time intervening between the decease of the testator and the application for the revival of the proceeding, this order, under the authorities, seems to have been erroneously made, and it should be reversed and the motion denied, together with the usual costs and disbursements.

Van Brunt, P. J., and Bradley, J., concur.


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    Josephus Plenty, Resp’t, v. Arthur E. Rendle, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Practice—Opening case to juey—Substantial eight.
    The right to open the case is a substantial one. Following Conselyea v. Swift, 4 NT. Y. State Rep., 378. Where the burden of proof is upon the defendant, and the court refuses the defendant the substantial right of opening and closing to the jury, it is error, upon which a new trial will be granted.
    Appeal by defendant from judgment entered on verdict and from order denying motion for new trial on the minutes.

      Henry H Man, for app’lt; F. E. Parker and G. L. Prentiss, for resp’t.
   Van Brunt, P. J.

The plaintiff in his complaint in this action sets up in haec verba a promissory note, and alleged that the said promissory note was given by the defendant to- the plaintiff as evidence of an indebtedness then existing from the defendant to the plaintiff. Then follows an allegation of the circumstances under which such indebtness arose. The defendant in his answer admittted the making of the promissory note in question, and alleged certain facts tending to show that nothing was due thereon. Upon the opening of the case by the plaintiff at the trial, the counsel for the plaintiff stated that he relied solely upon the note set forth in the complaint, the making of which was not denied by the answer. Thereupon the defendant’s counsel moved that he be allowed to open and close the case, which motion was denied and an exception taken.

That the right to open is a substantial one, is recognized by the court of appeals in the case of Conselyea v. Swift, decided on the 7th of December, 1886, (4 N. Y. State Rep., 278), in which case the judgment was reversed because the right to open was denied to the defendant, and solely for that reason. In the case at bar, the plaintiff, relying solely upon the promissory note which was admitted in the pleadings, had nothing to prove, and the defendant was entitled to the affirmative. The objection was taken in time, because from the nature of the allegations in the complaint, the defendant had reason to suppose that the plaintiff intended to rely for his right to recover upon proof of the contract between the plaintiff and defendant, out of which the note in question arose; and the first notice .that the defendant had that he intended to rely solely upon the promissory note, was given when the plaintiff opened the case stating that to be his sole cause of action. It also appears from the requests of the plaintiff’s counsel to charge that that was his position, because he requested the court to charge the jury that having put the note in evidence (which was an entirely unnecessary procedure as the note was admitted by the pleadings) it made a prima facie case for the plaintiff, and that the burden of proof was on the defendant, which the court substantially charged. Thus it appears that the court, having determined that the burden of proof was upon the defendant, nevertheless refused the defendant the substantial right of opening and closing to the jury. This seems to have been error.

The case of Claflin v. Baere (28 Hun, 204), is not opposed to this view. The court construed the complaint in that case to allege that the amount agreed to be paid for the goods mentioned therein became due prior to the commencement of the action, and that the answer denied this allegation in the complaint and required the plaintiff to prove that the price for the goods became due prior to the commencement of the action before a recovery could be allowed, thus throwing the burden of proving the contract upon the plaintiff, which was not the case in the action at bar.

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

Bartlett and Lawrence, JJ., concur.


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    The Lehigh Coal and Navigation Company v. The Central Railroad Co. of New Jersey.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Corporations—Appointment of receiver—Proceedings to be brought by WHOM.
    The authority of the court to appoint a receiver is conferred by statute, which does not provide for the bringing of such a proceeding by a creditor at large. •
    Appeal from an order denying a motion made by one Hotchkiss, a judgment creditor of the defendant, to vacate an order entered in this action appointing a receiver of the defendant.

      Robert Sewell, for Mr. Hotchkiss, app’lt; Robert W. Re Forest, for the receiver, resp’t.
   Van Brunt, P. J.

The order appointing a receiver in the case at bar is claimed to have been made in this action, brought by the plaintiffs, creditors and stockholders of the defendant, and that the action was similar in character to the case of Woerishoffer v. The North River Construction Company, in which the appointment of a receiver has been sustained.

In the case of Woerishoffer, the bill was filed by a stockholder, but in the case at bar, although the points of the respondent claim that the bill was filed by the plaintiffs as stockholders as well as creditors, an examination of the complaint shows that the bill was filed by the plaintiffs as creditors, and as creditors only of the defendant, there being no allegations in the bill that the plaintiffs were stockholders of the defendant.

It is not pretended that the plaintiffs were judgment creditors of the defendant, but the only allegations in the complaint are that they hold claims against the defendant which have not been established by judgment.

It is thus seen that the facts in the case of Woerishoffer were essentially different from the case at bar, and that case is no authority to sustain the proposition that this court has any general power to appoint receivers of the property of any corporation, whether domestic or foreign, except such as is derived from our statute. This statute distinctly provided that a receiver of a corporation could only be appointed by the supreme court, arid in one of the cases enumerated therein, and the case of a creditor at large is not mentioned therein.

It would seem, therefore, that the plaintiff filing his bill simply as a creditor at large on behalf of himself and of all others similarly situated, conferred no jurisdiction upon the court appointing the receiver.

This question, however, should not. be finally adjudicated perhaps, without formal notice to the plaintiff, although probably it has had full notice of these proceedings, because the counsel appearing upon this appeal for the receiver.was the attorney for the plaintiffs herein when the bill was filed, and verified the same as such attorney.

The order appealed from should be affirmed, but without costs, and leave should be given to renew the motion upon giving notice to the plaintiffs in this action.

Brady and Daniels, JJ., concur.


author: Brady, J.

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    Annie R. Fox, App’lt, v. Richard K. Fox, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Divorce—Alimony—When amount agreed upon by articles of separation HELD SUFFICIENT.
    Where previously, in articles of separation, an amount to be paid by the husband for the maintenance of the wife and her children has been agreed upon, upon a final decree of divorce, the sufficiency of such provisions may be considered, and if inadequate the deficiency may be made up.
    Appeal from so much of the decree of absolute divorce which awards the sum to be paid to plaintiff for her support and that of her four children.

      F. A. Burnham, for app’lt; Howe & Hummel, for resp’t.
   Brady, J.

The defendant appeared in this action, but did not interpose any defense. He contested the amount of alimony chiefly upon the ground that before- the commencement of the action he and the plaintiff had entered into articles of separation which provided for the amount the plaintiff should receive for the maintenance of herself and four of the six children of the marriage. It appears that there were two male children and the expense of their education and maintenance was provided for independently of the sum allowed the plaintiff. The learned judge in signing the decree adopted the amount which was agreed upon in the articles of separation and substantially repeated its provisions. It also appears that the motion that a reasonable provision for the support of the plaintiff and the maintenance and education of the children out of the property of the defendant, was made at the Same time the motion to confirm the report of the referee was made, and it appears from the affidavits of the plaintiff that the defendant’s income arising from his business was very large, indeed munificent and justified a much larger allowance than that agreed upon by the articles of separation. Those articles were not conclusive upon the plaintiff inasmuch as the court of appeals in Collins v. Collins (80 N. Y., 1)," declared that on a final decree of divorce the sufficiency of such provisions might be considered, although if they were adequate the wife was entitled to nothing more, but if inadequate the deficiency might be made up. It is true that the defendant was in Europe at the time the application was heard and had no opportunity, therefore, personally to make a statement; but the general manager of his business made an affidavit in which he attempted to make an exposition of the defendant’s business, but which for that purpose must be regarded as extremely unsatisfactory, and, therefore, unsuccessful.

On the statements made it would seem that by the articles of separation the sum of $2,600 per annum in money was to be paid to the plaintiff. She was also to have the rental of three dwelling houses (one of which she occupies) free from the payment of interest, taxes and insurance. The rental value of the two houses not occupied by her is estimated by the respondent’s counsel at $1,800; but in the .affidavit of the plaintiff it is stated that those two houses rent for forty dollars a month each, which would make the rental $960, and as this is the best evidence on the subject contained in the record it must be assumed to be correct. The money received therefore by the plaintiff for her own support and that of her four children, which includes clothing, fuel, food, gas, and other indispensable expenditures for housekeeping, would be the rental of the houses already stated, and the allowance which united amount to $3,560. . This sum under all the facts and circumstances appearing-in this case seems to us to be too small. The amount should, we think, be increased and the sum of $2,600 contained in the decree, enlarged to the sum of $6,000. But if the defendant be dissatisfied ■ with this, and therefore will not consent to this modification of the decree, an order of reference wifi, be entered for the purpose of ascertaining what would be a proper sum to allow for the purposes indicated, and the sum suggested in this opinion shall not be permitted to restrict the referee in the exercise of his judgment as to the amount to be allowed inasmuch as upon ex animation he might regard that as altogether too small, The suggestions in this opinion of the increase of the allowance only to the sum of $6,000 is based upon some statements contained in the affidavit of the defendant’s manager, from which the inference may be drawn that his income is much less than it was in 1882, arising from the outlay and increased expenses of a new and extensive business which has not yet been firmly established.

Ordered accordingly with the usual costs and disbursements to the appellant.

Daniels, J.—The alimony allowed by the judgment is ample for the wants as well as luxuries of the plaintiff and the children who will be dependent upon her. If it should at any time prove insufficient then she will be at liberty to apply for an additional amount, but as no deficiency now appears the judgment should be affirmed, without costs.

Van Brunt, P. J., concurs, with Brady, J.


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    Mary Schmittler, Resp’t, v. Adam Simon, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Bills and notes—Oral evidence not admissible to prove agreement AS TO THE MAKING.
    After the agreement, in the form of a bill or note, has been reduced to writing, and it has been signed and accepted, oral evidence is no longer admissible to prove what agreement was proposed to be made as to the payment of the money.
    Appeal from a judgment recovered on a verdict directed by the court, and from an order denying a motion for a new trial.

      Michael C. Oroos, for app’lt; William W. Jenks, for resp’t.
   Daniels, J.

The recovery in this action is for the amount due on a draft drawn by William J. Scharen, upon the defendant, and accepted by him, he adding to his signature the word “executor,” and it was held in Schmittler v. Simon (25 Hun, 76), that he would be liable on the draft only in that capacity.

Upon a second trial of the action under the direction following this decision, the complaint was dismissed, and the judgment dismissing it was affirmed by the general term. An appeal was then taken in the action to the court of appeals, where the judgment was reversed, that court holding that the defendant was individually and personally liable upon the draft. Schmittler v. Simon, 101 N. Y., 554.

And it was under that decision, that the trial took place upon which the judgment was recovered from which the defendant has again appealed. By the decision which was then made, the court held that the party executing the instrument was absolutely liable for the amount stated therein. Id., 563. But by the answer which was interposed, the defendant set forth what was alleged to have been the agreement under which the instrument was drawn, and was accepted by the defendant, and averring also that he received no consideration whatever for his acceptance. There was no attempt, or offer, on the trial to prove this last averment of the answer, but questions were put to the witnesses, having a tendency, if they had been allowed to be answered, to prove what the oral agreement was which was made between the parties before the draft was drawn and accepted. The evidence proposed to be given by the answers to these questions was excluded by the court, and rightly so too. For after the parties had reduced their agreement to writing, as they did, and the bill was signed and accepted, oral evidence was no longer admissible to prove what had been their negotiations, or what was the agreement which they proposed to make for the payment of this sum of money. 2 Parsons on Notes, etc., 501-3.

It appeared that the plaintiff gave to her husband, the payee in the bill, a sum of money on' the day on which it was made and accepted, and that he returned with it, and indorsed and delivered, the bill to her. The defendant proposed to prove the conversation between the plaintiff and her husband, to show what was to be done with the money when it was given to him, but this was excluded by the court.

And while the evidence might very well have been admitted, its exclusion did not injure the defendant, for it is to be presumed, from what was before stated, and the acts of the parties, that the money was given to him to loan it upon this security. If it had been designed to prove anything different from this, that would have been within the range of the defendant’s defense, some offer, or suggestion, to that effect should have been made to the court. The proceedings upon the trial were quite summary in the exclusion of evidence, and the case would have been more satisfactorily presented for the plaintiff, if some of the questions objected to had been allowed to be answered. But it does not appear that any answer would have been elicited to either of the questions which would have been of the least benefit to the defendant, under the construction and effect given to this instrument by the court of appeals.

There is no ground disclosed by the case upon which the judgment or the verdict can be disturbed, and both should be affirmed, with costs.

Van Brunt, P. J., and Brady, J., concur.


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    William Williams, App’lt, v. Robert W. Freeman, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March, S, 1887)

    1. Practice—Separate grounds for action—Failure in the proof of one. ,,
    Where the complaint sets forth two grounds for action, the failure to prove one will not affect the other allegations of the complaint.

      2. Pleading—Complaint in action for money had and received— Sufficiency of allegations.
    The allegations in the complaint will be sufficient in an action for money had and received when the plaintiff alleges his interest in the money, the receipt of the same by the defendant, the amount justly owing the plaintiff and the defendant’s promise to pay, and his failure to do so.
    Appeal from a judgment recovered on the report of a referee.

      J. S. Wood, for app’lt; Henry P. StarbucJc, for resp’t.
   Daniels, J.

The action was brought by the plaintiff, as the master of and owing a one-third interest in the brigantine Lola, for his share of the earnings of the vessel, between the years 1869 and 1874 inclusive. She was built and owned in Nova Scotia by the plaintiff and defendant and Joshua Snow, each of them owning an equal one-third interest. She was under the charge and direction of Freeman and Snow as ship’s husband, while she was navigated and managed by the plaintiff as her master. Snow died on the 8th of January, 1871, and during her management and navigation by the plaintiff her net earnings were remitted to the firm while it existed, and afterwards mostly to Nathaniel W. White, the executor of the estate of Joshua Snow. Proof was given upon the trial, of the business and earnings of the vessel, and of the plaintiff’s compensation as her master, and of the moneys remitted from her earnings to these respective parties. And according to the report, as well as the opinion of the referee upon the evidence, the defendant was probably proven to be indebted to the plaintiff. But while there is good reason to believe that a balance was established in his favor, his action was rejected and the complaint dismissed because of the informality or insufficiency of the complaint; the referee considering that it should have been for an accounting instead of, as it was, for the recovery of distinct sums of iponey.

As the complaint was first drawn, it alleged the statement of an account between the defendant and the personal representatives of Snow, and that a balance was found in his favor amounting to the sum of $2,318.16, which the defendant promised to pay. In the judgment of the referee the plaintiff failed to prove the truth of these allegations, and it was for that reason he considered that the action could not be maintained. But this was not all that was alleged in the complaint, as legal grounds for the plaintiff’s recovery." It was in addition thereto alleged in the original complaint that between the dates already mentioned the plaintiff advanced divers sums of money to the firm of Snow & Freeman on account of said brigantine Lola. It was further alleged that no part of the balance claimed had been paid. And by an amendment to the complaint, allowed to be made by stipulation after the trial commenced before the referee, it was further stated that during the same time the plaintiff was the owner of one-third part of the vessel, and that the firm of Snow & Freeman, who were co-partners in business, owned the remaining two-thirds, and had received the net earnings on freight and otherwise, amounting to the sum of $13,473.63, of which one-third was justly owing to the plaintiff; that they had promised to pay that third to him, but had not done so. Another cause of action was also added, which does not require to be considered in the disposition of the appeal. For by the allegations made to present the other two causes of action it was distinctly set forth that the defendant and his partner had received from time to time sums of money from the earnings of the vessel, which, to the extent of one-third, should be paid over to the plaintiff, and that they had failed to make such payment These allegations are distinct and separate from those alleging a settlement of the accounts between the parties, and the deduction of a balance in favor of the plaintiff. And they present a clear and distinct right of action against the defendant for the recovery of the plaintiff’s one-third of the moneys, even though no statement of account had ever been made, accepted or settled.

The defendant by his answer also set forth the claims to which he considered himself entitled in the determination of this controversy, and with those allegations, having no connection with the statement of account, presented clear and distinct -issues to be tried and disposed of for the determination of the plaintiff’s rights. His complaint contained a statement of the money alleged to have been received by the defendant and his partner, and the sums claimed to be due and owing from them to the plaintiff, and proof of the payment of these sums, and of his compensation as master of the vessel indicated with reasonable, clearness the amounts demanded by him in the action. And if the referee was right in considering that no statement or settlement of account had ever taken place, the plaintiff was still entitled to maintain the action so far as it was included within these allegations, and they seem to have been sufficient to include all the relief that he could be entitled to by' any possibility in the suit. If the amounts stated to have been paid over were more than the defendant had received, or was liable to account for, the denial of the plaintiff’s right afforded ample scope, as well as the account made a part of the answer, for proof of these facts. And no difficulty accordingly stood in the way of hearing and determining and settling the rights of these parties under the pleadings which had been served in the action. And when an issue of fact has been joined in this manner it is the duty of the court, or of the referee before whom the trial may be had, to hear and determine it as the issues have been, framed. Lewis v. Mott, 36 N. Y., 395, 398-9; Barlow v. Scott, 24 N. Y., 40, 45.

In Emery v. Pease (20 N. Y., 62), the plaintiff had informally set forth his right to recover a balance of account, as was more clearly done in the present instance, but that was held not to preclude him from proving and recovering in the action upon the other allegations of his complaint, the same as though this statement had not been made. What the complaint in this suit as it was amended did was to set forth two grounds of action, one dependent upon the earnings being in fact paid over and received by the defendant and his partner, and the other upon settlements and promises of payment of the balances. The failure to prove the latter in no manner affected the other allegations of the complaint, and they were sufficient to present the plaintiff’s right to recover upon the facts as they had transpired between these parties.

An attachment had been issued at the time of the commencement of the action under which a seizure of the defendant’s property had been made, and so far as the action was to recover for an accounting the attachment would be an improper proceeding. Thorington v. Merrick, 101 N. Y., 5.

And reliance has been placed upon this authority and those actions affirming the statement and settlement of the parties’ accounts. As there was sufficient outside of and beyond those allegations to present the plaintiff’s case intelligently and clearly, it should have been heard and decided on those allegations, although the others may not have been established by the proof. The judgment should be reversed and a new trial ordered, with costs to abide the event.

Brady and Bartlett, JJ., concur.


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    The People ex rel., Henry D. Nicholl, App’lt, v. The New York Infant Asylum, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Corporations — Illegal election of directors—No prescriptive right.
    The presence of one at a meeting who claims then to have been elected, cannot be counted when the question is as to whether a quorum were present. The mere fact that one was present at subsequent meetings, when a quorum was present, in no way affects the rights of the corporation, for there is no rule of law by which a title to an office can be acquired by prescription.

      2. Mandamus—When not to be entertained—Question of title to office.
    A proceeding by mandamus will not be entertained when there is serious question in regard to the rights of the relator. The title to an office as to which there is any question must be inquired into in an action of quo wa/rranto.

    Appeal from judgment dismissing the relator’s proceedings by mandamus herein.

      Edward C. Perkins, for app’lt; F. P. Coudert & Clark Bell, for resp’ts.
   Van Brunt, P. J.

Although it appears very much as though the irregularity in the election of the relator was used by his co-trustees as a pretext to get rid of their associate in a somewhat summary way, we do not see how any relief can be afforded him in this proceeding.

It is conceded that the relator was never legally elected to the board, only twelve members being present, but it is claimed that his associates could not inquire into the validity of his election, and that their action was illegal because without notice to him, and that the relator’s title cannot be tried in this proceeding; that the election and re-election to the offices of secretary and of members of the executive committee by a majority competent to- elect to membership, and his recognition as a .member by such a majority cured any defect if any, in his original election.

The evidence in the case fails to show that the relator was ever elected to the office of secretary and of member of the executive committee by a majority of the board of managers, unless the relator is counted as one of such board.

His attempted election being illegal because of the want of a quorum, it is difficult to se,e how he could lift himself into office as a member of the board of managers by counting himself as a member of such board, there being no quorum, if he was not counted at subsequent meetings in which action was taken electing him secretary or member of the executive committee.

It is true that he was present at meetings at which a majority of the board was present without the relator, but the mere fact that the relator was allowed to act as a member of the board in no way affected the rights of the corporation to prevent further action upon his part especially as there is no evidence that the members of the board who went to make up the majority of the board present at these meetings, knew of the fact that the relator had never been elected manager.

Indeed we know of no rule of law by which a title to an office can be acquired by prescription.

Section 3 of the act under which the respondents are incorporated precluded such an idea.

This section provides that all vacancies in the board shall he filled by an election held for that purpose. The mere coming in of a person in the board without any election merely because he is not at once put out, cannot clothe him with the office.

But the ground taken by the relator that his title to this office cannot be tried in this proceeding disposes of this appeal.

It is undoubtedly true that the title to an office as to which there is any question, must be inquired into in an action of quo warranto.

But the relator seeks to demonstrate in this proceeding his right to this office, which remedy is entirely inappropriate.

His election was illegal and the board have refused to allow him to act as one of their members and the only way in which he can compel them to admit him to their counsels is by proving his due election and right to the office in an action appropriate to that purpose.

A proceeding by mandamus will not be entertained for such a purpose when there is serious question in regard thereto.

In re Gardiner (68 N. Y., 467), and in the case at bar there is not only serious question as to the relator’s right to the office, but it would seem that his election being confessedly illegal, he has no right to the office, it being impossible to obtain such right except in the manner prescribed by the charter of the relator.

The case of The People ex rel., Swinburne v. Albany Medical College (10 Abb. New Cases, 122), is no authority upon the point in dispute.

It is the mere statement that it is clear that the acceptance of services for four years of a professor cured the irregularity of the original appointment without stating any principle by which it is made clear.

The learned court seems to found his conclusions upon a somewhat novel use of the maxim “two wrongs do not make a right.”

The appointment in the case cited however was merely irregular because no notice was published of the meeting at which the appointment was made, but the appointment was not void because there, no quorum was present as in the case at bar.

In the case at bar the election was void ab initio and the relator could acquire no rights by reason of a procedure absolutely void.

There could be no waiver or ratification by acquiescence because the board of managers have no power to violate their organic law in the constitution of their board.

The judgment appealed from must be affirmed, with costs.

Bartlett, J., concurs.

Lawrence, J. (concurring).—In this case I am of opinion, that the original election of the relator was void; and. that no subsequent action of the corporation or its officers, has validated it.

It seems clear therefore, that the judgment below should be affirmed, with costs.


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    In the Matter of the Application of Jacob H. Conklin and ano., as Trustees, for Authority to Mortgage the Trust Estate.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Trustees—Power to mortgage under chap. 275, Laws 1882—Ex-tent op authority.
    Under chapter 275, Laws 1882, the court is authorized to allow a mortgage to be executed upon the trust estate to raise money when necessary to enable the trustees to pay off taxes and assessments and redeem the estate. The extent of the authority is to permit the trustees to mortgage the trust estate.
    2. Practice—When not necessary to pile exceptions to referee’s REPORT.
    Under rule 80 of the rules of general practice, unless exceptions are presented, the referee’s report becomes final. But where the court- has no jurisdiction over the matter passed upon, no exceptions' are necessary, for an order made without jurisdiction may be brought in question whenever the proceedings affected by it are presented to the court.
    Appeal by Garrett Z. Snider, executor, etc., and Edward Horace Straut from an order confirming the report of a referee and authorizing the trustees to mortgage property situated upon Horatio street, in the city of New York.

      Irving Brown and George H. MeAclam, forapp’lts; W. J. Hardy, for resp’ts.
   Daniels, J.

The applicants, who are trustees under the will of Jacob Straut, deceased, applied under the authority of chapter 275 of the Laws of 1882, for leave to mortgage the property in controversy to raise money to pay off taxes, interest and charges against the trust estate. This they were authorized to do by the act of 1882, whenever it shall appear to the satisfaction of the court that it is for the best interests of the trust estate so to do, and it is necessary for the benefit of the estate to raise by mortgage thereon funds for the purpose of preserving or improving the estate. This necessity was set forth in the petition, and it was proved by the evidence taken upon the hearing before the referee and found by his report upon such evidence. And the court, under the statute, was authorized to allow a mortgage to be executed and delivered upon the trust estate to raise the money which it had become necessary the trustees should raise to enable them to pay off the taxes and assessments and to redeem the trust estate, and in that manner preserve and maintain it for the benefit of the persons entitled to the proceeds of the trust. As to the sufficiency of the evidence and the conclusions of the referee upon these subjects, no exceptions were presented at any time to his report, and it so far accordingly became final under the operation and effect of rule 30 of the general rules of practice. But as to one-seventh of the «estate devised by the testator to his son, Edward J. Straut, and four-fifths of another seventh, the title to which was afterwards acquired by him, the order appears to have been unauthorized. For the utmost extent of the authority provided by the act of 1882 was to invest the court with power to permit the trustees to incumber by mortgage the trust estate. And the estate of the trustees extended no further than to five-sevenths and three-fifths of a one-seventh of the property described in the proceedings.

To justify the order including the additional seventh and four-fifths of a seventh of the estate, reliance has been placed upon the fact that the owner of that part of the property had in his capacity as executor and trustee, so far misappropriated the estate of the testator as to entitle the trustees to appropriate his interest in this property to the benefit of the trust, or in other words, to charge upon his interest the liability he had incurred to the estate in the course of his mismanagement and the misappropriation of the funds. But until that shall be done, the devisees of Edward J. Straut, who was deceased before the time of the making of this application, must be legally divested of their title, or interest, in these portions of the property. Until then they remain its legal owners, and the trust extends no further than to the five-sevenths already mentioned and three sevenths of another seventh. As to the other interests, the court had no jurisdiction over them under the act of 1882, for that has been limited solely to the trust estate, and as these were in reality no part of the trust estate, they cannot be affected by the order made in this proceeding.

It has been alleged, however, that the appellants are not in a condition to insist upon this objection, for the reason that they have filed no exceptions to the report of the referee; but that was not necessary to entitle them to question this part of the order. For as the court under the statute had no authority to extend it so far as to include these interests not affected by the trust, it was without jurisdiction, and when an order has been made without jurisdiction, it may be brought in question whenever the proceedings affected by it are presented to the court for its consideration. Dudley v. Mayhew, 3 Com., 9; Chemung Bank v. Judson, 4 Seld., 254; Roderigas v. East River Savings Inst., 63 N. Y., 460; Craig v. Tovm, etc., 93 N. Y., 405, 410-11.

The authority of the court to extend the order over the. property represented and owned by the appellants is, therefore, open to consideration, although no exception was taken to the report of the referee, formally presenting it, and to that extent the order which has been made was unauthorized. Whatever power the court possesses over this subject has been conferred by the statute, and on the application of /the trustees, no more can be done than to permit them to mortgage the trust estate. So far as the order includes this one-seventh and the four-sevenths of one-seventh, it should be reversed with ten dollars costs and also disbursements, and as to the residue of the property mentioned in it, the order should be affirmed.

Van Brunt, P. J., and Bartlett, J., concur.


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    John S. Stubbs et al., Executors, etc., App’lts, v. Jane Stubbs et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed March 3, 1887.)

    Evidence—Depositions within the state—§ 885 Code Civ. Pro.
    The deposition of a party to an action fcannot be taken under section 885 Code Civ. Pro.
    Appeal from an order setting aside an order for the taking of a deposition, and suppressing the deposition taken under it.

      Nelson J. Waterbury, for appl’ts; Alburtus Perry, for resp’t, and James C. Clark, for Mrs. Stubbs.
   Daniels, J.

The order was obtained under section 885 of the Code of Civil Procedure to take the deposition of Jane Stubbs, to be used upon a motion to set aside or vacate a power of attorney, given by her to Edward C. Ripley. She was a party to the action, and the order for that reason, under this section of the Code was unauthorized, and the decision in King v. Leighton (58 N. Y., 383), also supports this view. And being unauthorized, it was entirely right that it should be set aside, together with all the proceedings taken under it.

The case of McCue v. Tribune Ass’n (1 Hun, 469) is relied on as supporting a different ruling, but it does not, for there the order at most was an irregular one, and the right to complain of it had been waived by the proceedings allowed to be taken under it. While here it was made without authority, and that want of authority was not supplied by the simple circumstance that the party herself submitted to the examination directed to be taken by the referee.

Why the plaintiff should interfere between the party and her attorney, or should desire to set aside the power of attorney, does not clearly appear, neither is it necessity that it should in this proceeding, for it is sufficient to sustain the disposition made of it by the order that it was made without authority.

The order should be affirmed with ten dollars costs, and also the disbursements.

Van Brunt, P. J., and Brady, J., concur.


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    Otto L. Oppe, Resp’t, v. Henry Webensdorfer, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Partnership—Dissolution of—Accounting—What is capital.
    Where, on the formation of a partnership, one partner contributes as capital a stock of goods; on the dissolution of the firm and in an action for an accounting the partner furnishing the stock in being allowed interest on the capital contributed, must be allowed interest on the whole amount of stock, and not simply on the sales. Whatever represents money in stock is capital.
    2. Same—How profits are to be estimate!).
    In estimating the profits on goods sold, the profits will be the difference between the cost and the gross receipts.
    Appeal from judgment entered on report of referee.

      William Man, for app’lt; J. T. Langan, for resp’t.
   Brady, J.

This action was instituted to obtain a decree of dissolution of co-partnership and for an accounting as to profits.

The learned referee is charged with having committed three errors, but two of which it will be necessary to consider, as there must be a new trial.

The defendant at the time of the formation of the co-partnership, was established in business, with a stock on hand of which the cost seems to be conceded at $15,773, which is accepted as a true statement of its value, no testimony appearing in the record to the contrary. The referee in allowing interest upon the capital which the defendant contributed to the co-partnership, restricted it to the amount of sales from this stock, on the theory that those sales represented the capital that was used in the business. This is an error. The stock on hand represented the capital used in the business, all of which it must be presumed was ready for sale and formed part of the business assets of the copartnership. Whatever represents money in stock is capital, and especially is this so when such was the understanding between the parties. The defendant was, therefore, entitled to interest upon the whole amount of stock during the continuance of the copartnership. _ _ •

_ _ The other error presents itself thus: In estimating the profits upon fancy goods sold, the referee has calculated the profits upon the total amount of sales of that character. Fol* example, it was stipulated that the profit upon the sale of those goods was 41-| per cent. The whole amount of sales is $5,927.74, and the .referee has calculated 41| per cent of that sum as profits; thus" allowing a profit upon the profits which were contained in and represented by the total amount of sales. What he should have done would have been to have ascertained by proper arithmetical calculation the amount of the cost of the goods, and then, if necessary, by a similar process, have ascertained the amount of profits over and above such costs, and to have declared the result to be the amount of profits to be divided between the parties. This was not done, and the failure to do so was error,' for which there must be a new trial.

It may not be inappropriate to suggest that the lease of the premises, having been taken in the firm name, was partnership property, and any advantage growing out of its possession was one for which the plaintiff was entitled to indemnity from the defendant. In other words, it was one of the firm assets which should be taken into account in the accounting. This, forming the third chief objection to the referee’s report, is thus disposed of.

This case, it is thought, to avoid the expense of a new trial, may properly go back to the referee for the purpose ' of having the suggested calculations made upon the theories herein stated.

Ordered accordingly. Both parties having succeeded in part on this appeal, we think that no costs should be awarded to either party on the appeal.

Daniels and Bartlett, JJ., concur.


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    James H. Scobie, Trustee, etc., App’lt, v. Stephen V. R. Hoes, Surviving Executor, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Practice—When dismissal of complaint is improper—Evidence.
    In an action by a trustee to recover for the estate of the decedent certain property claimed to belong to the cestui que trust, the complaint should not be dismissed where the evidence is uncontradicted and by its fair construction and effect sustains .the right of the trustee to the property sought to be recovered.

      Appeal from a judgment recovered on the dismissal of the plaintiffs’ complaint at the special term.
    /S'. Jones, for app’lt; Garrett Z. Snider, for resp’t.
   Daniels, J.

The action was brought to obtain the transfer of two certificates for shares issued by the Mutual Benefit Ice Company. They appear to have been owned during her life-time, by Elizabeth Stevens, and after her decease they were transferred on the books of the company to her surviving husband George W. Stevens. This transfer took place in January, 1876, and Stevens died in 1884, and it was not until after his decease that this action was commenced. To support .the plaintiff’s right to maintain it, proof was given tending to show that the shares had been delivered to her by her sister Mrs. Stevens, in trust for Amy W. Brown, who was the grand-niece of Mrs. Stevens, and that the object of this delivery was for her to hold the shares for the benefit of Amy, who was an infant under the age of twenty-one years. At the close of the proof the court considering the evidence to be insufficient to sustain the plaintiffs’ title dismissed the complaint, to which her counsel excepted. And the only question in the case is, whether the view taken at that time of the effect of the evidence was, or was not, erroneous.

To maintain the action, evidence was given very directly tending to establish the fact that Mrs. Stevens was the owner of these shares during her life-time, although they were imperfectly described by the witnesses. It did, however, appear that these shares stood in her name prior to . her decease, and their transfer on the books of the company to her husband, the defendants deceased testator. And the evidence indicated the fact to be that she had no other bonds or stock in any ice company, or enterprise, than these. And the reasonable presumption from the proof was that these shares were referred to by her in the conversations ptoved to have taken place with her, and also with her husband, and that she intended that her grand-niece Amy, should have the benefit of, and be the recipient of these shares. Before the decease of Mrs. Stevens, the shares were shown to have passed into the possession of the plaintiff, but being a party to the action she was not competent to state the conversation, or transaction, between herself and Mrs. Stevens, through which she obtained their possession.

But it was made to appear by the testimony of a witness examined upon the trial, and whose evidence was not contradicted, that Mr. Stevens a few months after his wife was.buried said to the witness “I went to Mrs. Scobie to get Lib’s papers that she gave to Jane for Amy, I says “Oh! what did you do that for? He says “to keep them for Amy Brown.” Isays “you have them for her?” and he says “I will take care of them; Amy will have them, I expect to put them away for Amy.” And the same witness testified that Mrs. Stevens having her money and her papers said they were for Amy Brown. She added, “ She always told me so. I always understood that they were for her when she died. After she died George called and told me that he had taken care of Lib’s papers.” The witness was unable to describe the papers, but stated that Mrs. Stevens informed her that they were papers that had dividends upon them, and that she thought the Ice Company had been mentioned, and knew “they were ice bonds, or whatever papers the name was. ” That Mrs. Stevens said she had ice bonds or papers. It seemed to be mixed up. She had ice papers or ice stock. It further appeared that they were in the possession of the plaintiff for seven days prior to the decease of Mrs. Stevens, and that she surrendered them to the testator the next day after the funeral, and had no other certificates of stock at any time in her possession. While it is true that this evidence was to some extent indefinite the fair import of it still established the fact by a very strong probability, that these shares were designed by Mrs. Stevens their owner for her grand-niece Amy W. Brown, and that they were placed in the possession of the plaintiff to carry that design into effect, and that it was recognized and acknowledged by her husband, the deceased testator, who obtained the shares from • the plaintiff avowedly to keep them for the benefit of this individual. And that sufficiently established her title to the shares to entitle the plaintiff who was entrusted with them for the benefit of Amy to a recovery in this action. It is true that the lapse of time was a circumstance against the plaintiff, but the beneficiary, who was a minor of the age only of sixteen years on the 10th of June, 1885, should not be prejudiced or deprived of her property, because of the neglect of the plaintiff to bring an earlier action for the vindication of her rights. The beneficiary is chargeable with no laches, or delay, in this respect, and the trustee may very well have been induced to delay her action by the circumstance that the testator Mr. Stevens had avowed his design to be to hold the shares for the benefit of Amy, and could have been expected to do so by the plaintiff up to the time of his decease, which did not take place until the 10th of February 1884. As the case was presented, and the evidence given to sustain it was uncontradicted, and by its fair construcr tion and effect sustained the right of the plaintiff as trustee to these shares, it should not have been dismissed as it was at the close of the trial. And judgment should be reversed and a new trial ordered with costs to abide the event.

Brady and Bartlett, JJ., concur.


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    The People v. The Knickerbocker Life Ins. Co.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Receiver—Corporations, dissolution of—Revival of action—Proof of CLAIMS.
    On the dissolution of a corporation, all actions then pending against the corporation must, to be effectual, be revived in the name of the receiver. But this procedure will be rendered unnecessary when the receiver voluntarily makes himself a party to the action, and a judgment recovered against the corporation after this participation by the receiver should be allowed to be proved as a claim against the assets in his hands.
    Appeal by Pleasant H. Pendleton and others from an order affirming the report of a referee, disallowing a claim presented by them to the receiver of the defendant and against its assets.

      A. Walker Otis, for app’lts; Leslie W. Russell, for receiver resp’t.
   Daniels, J.

The receiver was appointed to settle the affairs of the insurance company Under an interlocutory judgment recovered on the 29th of December, 1882, by which the company was dissolved and its corporate rights, privileges and franchises forfeited. The judgment which was the foundation of the claim presented to the receiver was recovered in the circuit court of the United States, including the western division of the western district of Tennessee on or about the 25th of ■ January, 1886, and it was rejected by the referee as unauthorized and incapable-of legally sustaining the claim, by reason of the fact that it was recovered against the company after it was so dissolved.

■ But it appeared further from the evidence before the referee, whose report was confirmed, that a preceding judgment had been recovered on the trial of the issues in the same court on the 19th day of May, 1881. From this judgment, on the 28th of the same month, a writ of error was taken from the supreme court of the United States, and a supersedeas bond for the stay of proceedings was given by the company in the sum of $20,000, the sureties in which were secured to the extent of $21,000. After the appointment of the receiver he took charge of the proceedings in the action on the writ of error and employed counsel to argue the cause before the supreme court of the United States. It was so argued by the counsel in 1884, and in January, 1885, the court reversed the judgment and directed a new trial, but retained the mandate until the adjournment of the term. Before such adjournment the counsel for the plaintiff in the action filed a petition for a reargument, and while that was pending it was discovered by the court that the writ of error. and citation thereon had been addressed to but one of the plaintiffs in the action, and on that discovery the court ordered the parties to show cause why the judgment of reversal should not be vacated and the writ of error dismissed. The receiver filed a petition stating what had been done to secure the sureties in the bond, and asking for an amendment of the writ of error by bringing in the other plaintiffs in the action. This was allowed by the court, and the writ of error was amended and the other plaintiffs made parties upon the condition that there should be a reargument of the case. That condition was accepted, the cause was afterwards reargued, and the judgment was again reversed and a new trial ordered, and on that decision a mandate to that effect was issued to the circuit ■ court. This was filed on the 11th of December, 1885, and an order entered on the authority of the mandate directing “that the cause be docketed to stand for trial at this term.” And it seems to have been tried and the judgment recovered pursuant to this direction.

The referee considered that this interference in the litigation by the receiver did not authorize the circuit court afterwards to try the cause, and'direct judgment in favor of the plaintiffs. And whether that was the correct view to be taken of the effect of his interference in the litigation, is the point which must control the disposition of this appeal. If he made himself a party to the proceeding by taking charge of the writ of error and employing counsel, who represented him upon the argument and in the other proceedings before the supreme court and afterwards in the circuit court, then he could not by subsequently abandoning the action, prevent the plaintiffs from bringing it to trial, and obtaining a judgment in it entitling them to participate in the distribution of the proceeds of the assets of the company. That he was not named in the title of the cause as the receiver of the company, was not important, for a person may become a party to a legal proceeding without that formality, as was held in Jay v. De Groot (2 Hun, 205), and in Castle v. Noyes (14 N. Y., 329), to make himself a party to the action and to conclude him by the judgment, no more was required than the enjoyment of the right to appear and control it, to appeal from the judgment, and produce and resist evidence upon the trial of the issues. Id., 332. And the receiver was allowed to place himself, as he voluntarily did, in a position where he secured these rights. For, while he did not himself, bring the writ of error from the judgment, he took charge of it after his appointment, and while it was pending, and controlled and directed all the proceedings under it, including their extension so far as to bring in the other plaintiffs in the action and which as to them, had the effect of a new writ. -Beyond that the mandate of the court "reversing the judgment and directing a new trial was filed under his authority, and the cause was in like manner directed to stand for trial, and as he had been allowed by the court to take charge of the litigation in this manner, he undoubtedly was in a position where he had the right to contest the plaintiffs’ cause of action upon the trial. And the fact that he voluntarily failed to do that cannot be permitted to relieve him from the effect of his preceding conduct by which he made himself a party to the action. In the proceedings carried on at his instance and under his authority, the supreme court of the United States must have taken this view of his relation to the litigation, and that his proceedings were regular for that purpose, without being himself substituted, as the nominal defendant in the action. For if that view had not been adopted the receiver would not have been permitted to carry on the litigation as he did and to be represented in the argument of the cause as that was done while it was pending in the supreme court. No other view can reasonably be taken of what there transpired than that the court considered him regularly entitled to proceed with the litigation as he did, as the receiver of the company, although the company itself had previously been dissolved, and in what he did he has as completely made himself the defendant in the litigation as though he had been named as such in the action.

This case differs in these material circumstances from that of McCulloch v. Norwood (58 N. Y., 563), for there was no participation there on the part of the receiver in the action in the state of Ohio, in which the judgment sued upon was recovered, and beyond that the illegality of the judgment was determined upon the concession that the law of the state of Ohio relative to the abatement and revival of actions was the same as that prevailing in this state, which required the receiver regularly to be made a - party after the corporation itself had been dissolved. There was neither no such concession in the present case, nor was it made to appear that by the law of the state of Tennessee, in which the action was pending and was tried, there was any irregularity in carrying the litigation to a final termination when the company had during its pendency been dissolved and a receiver of its effects had been appointed. The presumption, on the other hand, would be from the course of the proceeding before the supreme court of the United States that it was regularly conducted in the name of the company notwithstanding its dissolution during the pendency of the action. This circumstance also distinguished this case from that of Matter of Norwood (32 Hun, 196), and it is supported to some extent at least by a' decision which was made in Hibernia Bank v. Mechanics’ Bank (21 Hun, 166), and Cruger v. H. R. R. R. Co. (2 Kernan, 190) warrants no other or different view, for in that 1 case the conduct held not to be a waiver of the proceeding carried on in the absence of legal authority consisted of ■ mere objections, while here the receiver took charge of, and himself conducted, the litigation upon the writ of error, the filing of the mandate, and the entry of the direction for another trial. That was a litigation of the action upon its merits which, according to this authority, would have been a waiver in the proceedings under consideration. Id., 201.

The receiver proceeded so far with the litigation as to deprive by his efforts the plaintiffs of the judgment which they had recovered against the company before it was dissolved, and in that manner he obtained the securities provided for the indemnity of the sureties in the bond on suing out the writ of error. After that he had nothing to gain by continuing to resist the plaintiff’s action, unless he might have made a successful defense upon the trial. But that he elected not to attempt, but left the action to be tried under the order entered in the circuit court, containing the necessary direction for that purpose. By this abandonment of the litigation after he had made himself for all practical purposes a party to it, and had secured , its control, direction and disposition, he could not relieve i himself legally from the result of the proceedings.

The action had become for legal purposes an action against himself' as' receiver by these proceedings taken under his authority with the sanction of the supreme court.

After that no necessity existed for a more formal revival of the action by inserting his name as defendant in place of the company, for he had sanctioned the regularity of the litigation in the shape in which it was terminated by himself continuing it in the name of the company. This rendered the judgment finally recovered legally effectual against him as receiver, and it should have been permitted to be included with the other claims to be paid as far as that might be done,- out of the proceeds of the assets of the company to be disposed of and distributed by the receiver. The order should be reversed with the usual costs and disbursements, and an order entered directing the allowance of the claim made, and the receiver to include it with those of the other claims against the assets of the insurance company.

Van Brunt, P. J., and Brady, J., concur.