author: BOOTY, J.

text:
    William R. Wilder, Resp’t, v. New York Bank-Note Company, App’lt.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    1. Pleading—Counterclaim—Reply.
    _ A reply cannot set up a counterclaim.

      2. Same.
    A reply does not contain a counterclaim, but a denial of a counterclaim, which sets forth new matter, not inconsistent with the complaint, tending to allow that there was no conversion. So held, where, in an action for legal services, the defendant alleged, as a counterclaim, that plaintiff had. collected money for defendant in another case, and had neglected to pay it over, and plaintiff replied, admitting the receipt of the money specified, in the answer, but alleged that it had been applied in satisfaction of other claims for services rendered by the plaintiff to defendant. _ ,
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion to set aside the verdict and for a new trial.
    Lyon & Smith, for app’lt; Rudd & Hunt, for resp’t.
   BOOTY, J.

—This action was brought by the plaintiff, an attorney and counselor at law, as assignee of the firm of Rudd, Hunt & Wilder, attorneys and counselors" at law, of which said firm the plaintiff was a member at the time of its dissolution. When the partnership was dissolved the remaining members of the firm assigned to the plaintiff the cause of action in suit. The plaintiff’s-claim arises out of certain specific services rendered by plaintiff’s former law firm to the defendant, which are particularly set forth in plaintiff’s bill of particulars. The amount of the claim is for $1,159.39, less the sum of $742,34 paid on account thereof, leaving a balance due amounting to $417.05. On the trial of this action no serious attempt was made bv the defendant to dispute the rendition of the services, or the value thereof. The defendant,, however, by way of defense, among other things, set up a counterclaim for $400, for moneys collected by the plaintiff for the defendant from the Shore-Line Railroad Company in settlement of a claim which the defendant had against it, and which had been placed in the hands of plaintiff’s firm for prosecution and collection, and charged the plaintiff with wrongfully retaining and refusing to pay over said sum to the defendant, after demand duly made therefor. The plaintiff, replying to said counterclaim,, denied each and every allegation contained in said answer constituting such counterclaim, but admitted that on or about January 25, 1893, he collected said sum of money from the Shore-Line Railroad Company, to and for the use of defendant; but he alleges that thereafter, and on or about February 11, 1893, he on behalf of his firm, duly accounted for the same to the defendant, and rendered to it a bill or statement of account at or about said last-named date, a true copy of which was annexed to said reply and formed part thereof. The reply, in substance, shows that-plaintiff’s firm claimed there was due it a balance of $234.68 for services rendered in a suit brought in the supreme court by one-Ezekiel O. M. Rand against the New York Bank-Note Company and George H. Kendall; to amount as per bill rendered January 1, 1893, in Re Transfer of Greenwich Street Property, $14.50; and to amount as per bill rendered in suit of New York BankNote Company against Shore-Line Railroad Company, $71.97; total, $321.15,—and that said firm received from said Shore-Lin# Railroad Company the sum of $400, which was applied by said firm on account of said claim for services, leaving a balance in its hands to- the credit of the defendant amounting to $78.85, which amount was sent to the defendant. This amount, however the defendant declined to accept, claiming that plaintiff’s firm had no right to fix its own fees in such manner. On the trial of this action the defendant moved for judgment in its favor upon the pleadings for $38.45; being the difference between the amount of defendant’s second counterclaim and interest, amounting to $433.-45, and the amount of plaintiff’s claim, to wit, $400. The contention of the defendant was that plaintiff could not litigate this claim for $234.68 in the bank matter, unless pleaded in his complaint. This motion was denied, and exception duly taken thereto.

The question which thus presents itself at the outset is, do the matters contained in the reply set up a defense to such counterclaim? Or do they constitute an independent counterclaim against the defendant ? Code Civ. Pro. § 514, prescribes what a reply must contain, viz.:

“Where the answer contains a counterclaim, the plaintiff if he -does not demur, may reply to the counterclaim. The reply must contain a general or specific denial of each material allegation of a counterclaim, controverted' by the plaintiff, or of any knowledge or information thereof sufficient to form a belief; and it may set forth’in ordinary and concise language without repetition new matter not inconsistent with the complaint constituting a defense to the counterclaim.”

This provision does not authorize a counterclaim in express words, nor is any authorized by implication from the permission granted to plead new matter constituting a defense to the counterclaim,” for new matter constituting a defense- is distinguished in the Code from new matter constituting a counterclaim. The omission of the term “counterclaim” from the prescribe contents of a reply must be regarded as prohibiting such a plea in a reply. The plaintiff’s reply, however, does not counterclaim, but a denial of the defendant’s counterclaim, and sets forth new matter, not inconsistent with the complaint, tending to show that there was no conversion. Such pleading is permissible under the Code,' which permits the plaintiff in his reply, to set forth new matter, not inconsistent with the complaint, constituting a defense to the counterclaim.

The defendant contends, however, that plaintiff having.sued for certain services rendered to defendant during certain periods designated in the complaint, which said services are specifically set forth in the bill of particulars furnished by the plaintiff, he was in duty bound to include the charges for services in the Band, Greenwich Street Property, and Shore-Line Bailroad Company cases, rendered by the plaintiff’s firm (which are not embraced in the complaint and plaintiff’s bill of particulars) during said period, and towards the payment of which plaintiff’s firm applied the moneys collected by it in settlement of the Shore-Line Bailroad case. The plaintiff was. under no obligation so to do, as the’services so rendered and paid for were independent of the services for which suit was brought, and constituted no part thereof. It was therefore competent for the plaintiff to plead the application of the moneys which he is charged with having converted by way of defense to defendant’s counterclaim, and to give evidence in substantiation of such plea.

As to the contention of the defendant that the charges in the Rand matter were for services rendered either to Mr. Kendall, or to him jointly with the defendant, it appears from the record that the services rendered were in fact for the benefit of the defendant, and were so regarded by the defendant, through its president and principal stockholder, Mr. Kendall; and the same was therefore properly-submitted to the juiy.

The question as to whether the agreement made between the plaintiff and the defendant, dated July 19, 1891, and marked “Defendant’s Exhibit No. 6,” by the terms of which the plaintiff agreed that his fees for the current litigation, and such other litiigation with which he might be intrusted by the defendant and Mr. Kendall, should be such as should meet the approval of Mr. Kendall, and, if any question should arise regarding the amount of such charges, the said Kendall should be privileged to nominate such sum “as shall be satisfactory to him,” was abrogated between the parties, as well as the question of the rendition of the Rand, Greenwich Street Property, and Shore Line Railroad eases, and its value, and the application in part of the moneys collected by plaintiff’s'firm in the Shore-Line Railroad case towards the payment of such services, was likewise properly submitted to the jury.

The denial of defendant’s motion for judgment upon the pleadings, as well as of the motion for a dismissal of the complaint, and the denial of the motion for the direction of a verdict in favor of the defendant for $452.25, was proper, and the admission and exclusion of evidence were in accordance with the established rules of evidence and practice.

The exceptions taken to the judge’s charge are untenable, as the charge was fair, full and complete, covering all questions of law and fact, and the same was in no wise prejudicial or unfair towards the defendant.

The verdict of the jury being in accordance with the law and facts, the same should stand. The judgment and order appealed from must therefore be affirmed, with costs. All concur.


source: Caselaw Access Project

author: CONLAN, J.

license: Public Domain

text:
    Alexander Klinkowstein, App’lt, v. Samuel Greenberg, Resp’t.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    Replevin—Bond.
    Where chattels, not specified in the affidavit referred to in § 1706 of the Code, are seized, defendant’s remedy is not by giving a bond for the redelivery of such chattels, but he should proceed against the sheriff as trespasser.

      Appeal from an order proving defendant’s counter bond.
    A. H. Berrick, for app’lt; Jacob Barnett, for resp’t.
   CONLAN, J.

—This is an appeal from an order approving an undertaking or counter bond on the; part of the defendant, in an action of replevin; to prevent the delivery of chattels to the plaintiff. A careful reading of the undertaking satisfies us that the defendant has mistaken his remedy. Section 1700 of the Code of Civil Procedure provides that, upon the receipt by the sheriff of the affidavit, undertaking, and requisition in replevin, he must take into his possession the chattels described in the affidavit. Section 1704 provides how the defendant may rebond the chattels from the sheriff; and upon the 'approval of a proper undertaking by the court, the sheriff (section 1706) is compelled to redeliver the chattels to the defendant. It will be observed, however, that these sections apply only to chattels or property described in plaintiff’s affidavit, and for the obvious 'reason that the sheriff is limited in his official action to the requisitions contained in the process he has-to execute.

The undertaking given by the defendant on his claim for delivery is as follows:

‘‘Whereas, the plaintiff in this action has claimed the delivery to him of certain chattels, specified in the affidavit made on behalf of the plaintiff for that purpose, of the alleged value of $381.20, and has caused certain other property not mentioned in said affidavit, of the value of $825, to be replevied by the sheriff of the city and county of New York, pursuant to chapter 14 of the Code of Civil Procedure, but as. the same has not yet been delivered to the plaintiff; and whereas, the defendant is desirous of having the said chattels so replevied returned to him: Now, therefore, we, the undersigned, Davis Hitner, of No. 18 Suffolk street, of the city of New York, and Solomon Bluck, of 190 Stanton street, in the city of New York', in consideration of the premises, pursuant to the statute in such cases made and provided, do liereby jointly and severally undertake and become bound to the plaintiff in the sum of $670 for the delivery of the said chattels ■described in said affidavit of the plaintiff, if delivery thereof be adjudged, or if the action abates in consequence of the defendant’s •death, and for the payment to him of any sum which the judgment awards against the defendant.”

The undertaking does not-recite that any part of the property described in plaintiff’s affidavit was taken by the sheriff, but that other and different property was replevied, and that the defendant desires a return of the property so replevied. The obligation of the sureties is to the effect that they undertake to become bound to the plaintiff in a certain sum for the delivery of the chattels described in the affidavit of the plaintiff, if delivery thereof be adjudged. The sureties assume no obligation, except for the property described in the plaintiff's affidavit; and as it is not claimed, in the undertaking, that any chattels so described were taken, the obligation of the sureties is therefore void, and'the order of approval of the sufficiency of the sureties, who have assumed no binding obligation, is nugatory and of no effect. Upon the face of the papers before us, tire defendant’s remedy would seem to be against tire sheriff as a wrongdoer, rather than under the Code, which presupposes the sheriff to have kept within the scope of his official duties.

The order appealed from should be reversed,.with costs, with- • out prejududice to any application the defendant may make to ■correct the undertaking.


author: FITZSIMONS, J.

text:
    Harris B. Adler, Resp’t, v. Germania Fire Insurance Company, App’lt.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    Insurance—Conditions.
    The execution and delivery in escrow of a chattel mortgage on insured property do not constitute a breach of a condition in the policy against incumbrances, where the event in which such mortgage was to become operative never happens.
    Appeal from a judgment in favor of plaintiff,
    Ernest Hall, for app’lt; J. L. Weinberg, for resp’t.
   FITZSIMONS, J.

—In view of the charge of the trial justice, the jury must have determined that the chattel mortgage was delivered by the plaintiff’s assignor to the lawyer Gretsch, and held by him in escrow until the delivery of the indorsed notes, which occurred on October 24, 1893, the time fixed for their delivery. Upon the occurrence of that event, said chattel mortgage was to to be redelivered to the plaintiff's assignor. It would thus appear that said mortgage never had a legal existence, and therefore the provision in the policy of insurance herein sued upon was never violated. There is ample evidence in plaintiff’s behalf that would justify the jury in finding that said instrument was not to have legal vitality unless said- indorsed notes wore not delivered as agreed upon ; that it was merely delivered in escrow, and subsequently became a nullity, because of the compliance by -the plaintiff’s assignor with the condition just mentioned. I think it was proper to allow the testimony which was objected to by the defendant’s attorney, showing that the chattel mortgage was delivered in escrow, as in no other way could that fact be proven. The jury having so determined the question jiist mentioned—i. e. that the mortgage was held in escrow, and subsequently became a nullity, as above shown—their verdict was certainly justified by the evidence, which would have entitled them to find in even a larger amount in plaintiff’s favor. Defendant’s appeal (judging from its brief) seems to be based upon the theory that a reversal should be had herein because the insured property became incumbered by a chattel mortgage while insured. As we have pointed out, the jury must have determined under the judge’s charge, as before stated, that the insured never has so incumbered, and thus it appears to us that the jury found exactly contrary to appellants contention, and they had a right to so do under the evidence.

We have carefully read over the appeal' record, and, in our judgment, it shows no error that would justify us in reversing the' judgment; and it is therefore affirmed, with costs.

All concur.-


text:
    William Nichtauser et al., App’lts, v. Sigmund S. Lehmann, Resp’t.
    ( New York City Court, General Term,

      Filed January 28, 1896.)
    Atta ciiment—Vacation—Reverence.
    Under section 3172 of the Code, a reference maybe ordered to determine disputed questions of fact arising on a motion to vacate an attachment.
    Appeal from an order directing a reference.
    Samuel I. Frankenstein, for app’lts ; Otto Irving Wise, for resp’t.
   FITZSIMONS, J.

—An attachment was issued in favor of the plaintiff, upon the ground that the defendant had assigned, disposed of, or secreted, and is further about to assign, dispose of, or secrete, his property with intent to defraud his creditors. The defendant moved upon the merits to vacate said attachment, and the questions of fact were sent to a referee to hear and determine. He reported in favor of the defendant, vacating the attachment, and his report was duly confirmed, with $10 costs and $660 disbursements, the latter being the referee’s and stenographer’s fees; and from the° order so made, this appeal is taken. The special term justice certainly had the right to refer.the disputed questions of fact upon the motion in question to a referee for his determination. See section 3172, Code Civ. Proc. As to the referee’s and stenographer's fees, it was agreed between the attorneys for the plaintiff and the defendant that the successful party upon the reference would pay the same, and, having done so, it was proper to enter in the order such fees, and tax the same against the unsuccessful party. The referee was right in vacating the attachment, as the testimony certainly shows that the plaintiff failed to sustain the charge made against the defendant, and upon which he received the attachment, and the order appealed from, therefore, is affirmed, with costs.


text:
    Julius Bien et al., Resp’ts, v. John D. Parsons, Impleaded etc., App’lt.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    Evidence —Pabol.
    Where the very nature of the work to be done requires that some one should furnish the contracter necessary information, and the contract fails to show whose duty it is to furnish such information, it is proper to admit oral evidence to establish that fact.
    Appeal from a judgment in favor of plaintiffs.
    George M. Wright, for app’lt, John D. Parsons; Franklin Bien, for resp’t; Walter L. McCoy, for def’t Thurlow Weed Barnes.
   FITZSIMONS, J.

—I think that the contract (marked “Plaintiffs’ Exhibit A”) shows that Hall acted as the agent of the defendants in making it, because they approved of the same. The very nature of the work to be done required that some one should furnish the plaintiffs necessary information, or, as plaintiffs designate it, the “necessary material,” to construct a geological map of New York state, as required by said contract. As the contract failed to show whose duty it was to furnish such information, it was proper to admit oral evidence to establish that fact. It also' appears that the failure of the plaintiffs to finish their work within the time fixed was due to the failure of defendants’ agent to furnish the plaintiffs with the information which it was necessary for him to furnish, and was apparently no fault of the plaintiffs. The evidence shows that he never furnished such information, and for that reason they were not able to complete their contract, and thus were compelled to bring this action for damages caused them by reason of the violation of such contract by the defendants’ default.

As to the question of partnership raised by the answer of the defendant Barnes, I think the evidence submitted justifies the conclusion that he was a partner of the other defendants. The testimony of the defendant Parsons tending to prove such copartnership was admissible, because it corroborated the other testimony upon that question given in the plaintiffs’ behalf. Standing alone, it would, perhaps, not have been sufficient, but was a strong link in the chain of evidence submitted by plaintiffs to prove affirmatively, by a preponderance of evidence, that issue, as they were required to do under the pleadings. The testimony also shows that this action was commenced within six years after the cause of action herein accrued.

The whole record, I think, shows that the case was fairly and fully tried, and that the verdict was justified by the evidence, given to the jury; and we think no error was committed that should entitle the appellant to a new trial, and therefore the judgment is affirmed, with costs.


author: MCCARTHY, J.

text:
    William L. Wolfe et al., Resp’ts, v. George N. Knight, App’lt.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    1. Contempt—Order—Recitals.
    Where an order, which purports to adjudge a party guilty of misconduct constituting a civil contempt, omits to declare that it has been ascertained and determined that the misconduct complained of defeated, impaired. impeded or prejudiced the rights or remedies of the party to the proceeding, it is fatally defective and must be Reversed.

      2. Same—Order op dismissal.
    Where there is any irregularity in the mode of dismissing a proceeding, it can be taken advantage of only by an application to set it aside and revive the proceedings, and not by moving to punish the party as for contempt in disobeying the order made 'therein.
    Appeal from an order, adjudging defendant guilty of contempt.
    Nathan Lewis, for app’lt ; Henry Merzbach, for resp’ts.
   MCCARTHY, J.

—The order of September 17, 1.895, which purports to adjudge the judgment debtor guilty of misconduct constituting a civil contempt, omitted to declare that it had been ascertained and detetermined that the misconduct complained of defeated, impaired, impeded, or prejudiced the rights or remedies of the party to the proceeding; and, because of this alone, it was fatally defective (Wolf v. Buttner, 57 St. Rep. 861), and must be reversed. It is not enough that property is found in the hands-of the judgment debtor.

Besides, the proceedings appear to have been dismissed by an order of Justices Conlan, and in proper form. If there was any irregularity in the mode of dismissal, plaintiff could only take advantage of it by application to set it aside, and revive the proceedings. - Without such, the court had no jurisdiction, and could not punish the defendant.

Order'is therefore reversed, vacated, and set aside, with costs..


author: BOTTY, J.

text:
    Emil Neufeld, App’lt, v. Mollie Block, Resp’t.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    Appeal—Conflicting evidence.
    A judgment, entered on conflicting evidence, will not be disturbed on appeal, where the issues are fairly tried, the disputed questions of fact submitted to the jury under proper instructions from the court, and a verdict rendered in accordance with the evidence.
    Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial on the judge’s minutes and on exceptions taken during the trial.
    William N. Loew, for app’lt; A. H. Berrick, for resp’t.
   BOTTY, J.

—This action was brought to recover the amount of a promissory note and protest fees alleged to have been made by the defendant to the order of one M. Zidwertz, and indorsed and delivered by him to the plaintiff, before maturity thereof, for a valuable consideration. The answer of the defendant denies the making of the note. And, by way of a specific defense, she alleges that an agreement had been made and entered into between her and the plaintiff, wherein said Zidwertz was to return to her 360 assorted garments belonging to her, which she had previously delivered to him to do work on; that she signed-a paper in blank, which was intended as an agreement, to the effect that if Zidwertz returned all the goods the plaintiff would be authorized to pay him, for or on her account, the sum of $200, and that she would reimburse the plaintiff therefore; that Zidwertz failed and neglected to return all of said goods, but instead thereof he returned but 300 garments, and retained the balance of such garments, of which plaintiff was duly informed; and that, if the money was paid over to Zidwertz, the same was so paid without her knowledge or consent. The issues thus raised were fairly tiled, and the disputed questions of fact were submitted to the jury, under proper instructions from the court, and a verdict rendered, in favor of the defendant, which was in accordance with the evidence. No exceptions were taken to the judge’s charge. The plaintiff then moved for a new trial, on the judge’s minutes and the exceptions taken during the trial only. This motion was denied, and exception taken, and an order entered .to that effect, which brings up for review only the exceptions of law. Upon a careful examination of the record, we find that the only exceptions taken by plaintiff were the exceptions to the rulings on the admission and exclusion of evidence, which rulings, in our opinion, were in accordance with the established rules of evidence. The judgment and order appealed from must be affirmed, with costs.


text:
    George S. Weaver, Jr., App’lt, v. Roger V. Bonnell, Resp’t.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    Pleading—Countehclatm—Sueeicency.
    Where, ir an action to recover for coal sold by plaintiff to defendant, the answer alleges, on information and belief, that the coal was not the kind agreed on, but was an inferior quality, whereby defendant was damaged in the sum of $300, and prays that the complaint be dismissed, and that defendant have judgment for his counterclaim, it states a counterclaim and not mere ly ma'ters óf defense, and does not allege facts sufficient to constitute a cause of action.
    Appeal from a judgment entered on an order overruling a demurrer to the answer.
    Frank Walling, for app’lt ; Henry R. Willis, for resp’t.
   FITZSIMONS, J.

—The following are the material allegations of the complaint and answer necessary for us to examine : The complaint sets fort.h a sale and delivery of coal to the defendant, of the value of $127.75. The answer alleges as follows:

“Defendant, further answering, avers that, since said Frank B. Mayhew ceased to be superintendent of said apartment house, one Henry Smith has acted as his agent; that, as he is informed and believes, the coal furnished by this plaintiff has not been of the kind agreed to be furnished, butt has been of an inferior quality, to wit, soft coal; and in consequence thereof defendant has sustained damage in the sum of three hundred dollars; that the fact of the quality of, the Coal so furnished by plaintiff has only come to the knowledge of defendant since the death of Mr. H. Smith, which occurred about two-months ago. Defendant prays that the complaint may be dismissed, and he have judgment for his counterclaim of three hundred dollars and costs.”

The plaintiff demurred to said allegation, on the ground,that it failed to state facts sufficient to constitute a cause of action. The demurrer was overruled.

The respondent contends that said allegation was not intended to constitute a counterclaim, but merely a defense. We cannot understand how such an argument can be seriously made, because he evidently introduced matter therein alleged to constitute a counterclaim, and he so designates it. So, viewed in our judgment, it fails to state facts sufficient to constitute a cause of action, and the-demurrer was proper, and should have been sustained, instead of overruled.

Judgment reversed, and demurrer .sustained, with leave to defendant to serve an amended answer, upon payment of costs.


author: F1TZSIM0NS, J.

text:
    Bernhard Campbell, Resp’t, v. Texas Central Railroad Company, App’lt.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    Corporations—Foreign—Actions against.
    A complaint against a foreign corporation on a cause of action, which arose without the state, is not demurrable in that it fails to allege the plaintiff’s residence within the slate.
    Appeal from an order, overruling a demurrer to the complaint.
    Richards & Heald, for app’lt ; Foley & Powell, for resp’t.
   F1TZSIM0NS, J.

—The defendant is a foreign corporation, and the cause of action alleged in the complaint arose without the state. The complaint failed to allege that plaintiff is a resident of the state. For the failure to allege that plaintiff is a resident of the state, the appellant contends that the complaint is demurrable. We think that plaintiff’s complaint is not demurrable, and that it was not necessary to allege the plaintiff’s residence within the state. Hand v. Society for Savings, 44 St. Rep. 785.

The judgment must be affirmed, with costs, with leave to defendant to answer herein.


text:
    Charles S. Stockton, Resp’t, v. Henry Rogers, App'lt.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    Sale—Delivery and acceptance.
    It is immaterial whether the acceptance under a con1 met of sale takes place before or after the delivery, in order to take it from under the statute of frauds.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    John H. V. Arnold, for app’lt ; George A. Heaney, for resp’t.
   CONLAN, J.

—An appeal from a judgment, entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial. This action was brought to recover the value of a quantity of ladies’ belts and toilet sets, sold and delivered by the corporation of Joy & Seliger Company of New Jersey, to the defendant, Rogers. The plaintiff is the assignee of the corporation’s receiver. The answer denies the sale and delivery, and alleges that the defendant examined the goods, and stated that he would purchase the same if delivered forthwith ; that the delivery did not take place until several days thereafter, and that there was no acceptance by Rogers. The answer also pleaded the statute of frauds. ' The defendant concedes that there was sufficient evidence to be submitted to the jury as to whether the contract was for immediate delivery, as maintained by him, or that it was not a condition of the purchase.

The only question of law involved in the case as to whether there was sufficient evidence of an acceptance by the appellant to take the contract out of the statute." The case was submitted to, the jury by the learned trial justice upon the two questions,—■ First, as to whether there was an acceptance by the defendant sufficient to satisfy the statute; and, second, whether the goods were purchased upon a condition of immediate delivery. These questions appear to have been submitted upon a conflict of testimony. The requirements of the statute of frauds are: First, a note or memorandum of the contract in writing, and subscribed by the parties to be charged thereby ; or, second, that the buyer shall accept or receive part of the goods ; or, third, that the buyer shall, at the time, pay some part of the purchase money. The whole case may be said to hinge upon the single proposition as to whether or not there was an acceptance by the defendant at the time of the alleged purchase, or at any time thereafter; and upon this precise question the evidence is conflicting, and it is upon this conflict that the case was sent to the jury. It is claimed in behalf of the appellant that there was no substantial evidence of an acceptance which should have been submitted to the jury, and he cites upon his brief a number of authorities which he claims sustains this view. The case of Stone v. Browning, cited on the appellant’s brief, was not like the one at bar. In that case the court said, “When the uncontroverted facts are such as cannot afford any ground for finding an acceptance, or where though the court might admit that there was a scintilla of evidence tending to show an acceptance, they would still feel bound to set aside a verdict finding an acceptance on that evidence." 68 N. Y. 604, RAPALLO, J. In the case at bar, the evidence on this point was directly in conflict. The'plain tiff’s witnesses swore positively to an-examination and acceptance of the goods, both at the first interview and also upon a subsequent visit of the defendant to the warehouse of Joy & Seliger Company. The case of Norman v. Phillips, 14 Mees. & W. 277, is also to the same effect. There the court said, “ We cannot deny that there is a scintilla of evidence to-go to the jury of an acceptance, yet there is no evidence on which the jury ought to have found an acceptance,—which is equivalent to saying that there was some evidence, but not enough to warrant a submission.” But there is such a conflict of evidence in the case at bar that a refusal to submit upon the precise question would have been ground for a reversal, if the defendant had prevailed. The evidence of the plaintiff’s witnesses is, in substance and in brief: That the defendant selected the belts on his first, visit, and ordered them sent as soon as they could be got ready; on his second visit that he selected other goods, and was told that they would be shipped with those already selected; and that he replied to hurry them along; that his attention was called to the gopds he first .selected, and that he made no statement or objection to their nondelivery, and that they were all shipped together, on ' Saturday of the same week, after his second call on Wednesday, and upon their arriyal at the defendant’s store were receipted for by the defendant’s son, and the express charges paid, amounting to the sum of two dollars. The defendant’s story differed very «materially from the one just given, and it was upon this conflict of evidence that the case was submitted. It is wholly immaterial whether the acceptance took place before or after- the delivery. As it is well stated by Earl, J., in Cross v. O’Donnell, 44 N. Y. 664:

“ There is nothing in the statute which requires that the acceptance and receiving shall be at the same- time. Either may precede the other, and after both have concurred, the statute has been complied with, and the contract becomes operative and valid,”—citing McKnight v. Dunlop, 5 N. Y. 537.

It is proper to state that there was no objection made to the quality of the goods sent. We think the charge of the court eminently fair and just; and we have given due consideration to the various exceptions taken by the defendant thereto, and to his other exceptions in the course of the trial; but we are unable to find any grounds for reversal, and are of the opinion that the judgment and order appealed from should be affirmed.

Judgment and order appealed from affirmed, with Costs. %.

All concur


author: VAN WYCK, C. J.

text:
    William R. Stewart et al., Resp’ts, v. Paul C. Forst, App’lt.

      (New York City Court, General Term,

      Filed February 7, 1896.)

    Pleading—Scandalous, irrelevant and redundant hatter.
    A motion to strike from the answer an alleged defense, upon the ground that it is scandalous, irrelevant and redundant, must stand or fall upon the pleadings, and the rulings upon the evidence, under the pleading, as limited by the bill of particulars, must be left for the judge at the trial.
    Appeal from an order striking out the second separate defense as scandalous, irrelevant and redundant.
    Joel Krone, for app’lt; Bowers & Sands, for resp’ts.
   VAN WYCK, C. J.

—The landlord plaintiffs sue for unpaid rent of the -first flat of-an apartment house, and the tenant defendant sets up, as his second separate and distinct defense, that he was evicted by plaintiffs’ maintaining a disorderly house in and about the premises mentioned in the complaint and demised to him. The plaintiffs, upon an affidavit of their agent denying the maintenance of such disorderly house, and the pleadings, moved to strike from the answer this alleged defense, upon the ground that it was scandalous, irrelevant, and redundant; but such a motion must stand or fall upon the pleadings, and the rulings upon the evidence, under the pleading, as limited by the bill of particulars, must be left for the judge at trial. This alleged defense is not insufficient in law; and, under the same, even as limited by the bill of particulars, defendant may offer evidence, which must be admitted, even though the disorderly house was not maintained in the flat demised to defendant; for it must be remembered that, of an apartment house, the landlord retains control of the hallways and staircases.

The order must be reversed, with costs, and the motion denied, with $10 costs.


author: SCHUCHMAM, J.

text:
    Edward Weston, Resp’t, v. Rupert A. Ryley, App’lt.

      (New York City Court, General Term,

      Filed February 7, 1896.)

    1. Pleading—Lease.
    In an action on an express covenant to pay rent, the landlord in his complaint need not allege or prove that the tenant occupied or enjoyed the premises.
    2. Same—Affirmative defense.
    Where the tenant sets up an affirmative defense in such action, which did not arise until the middle of the first month in dispute, and the rent for that month was due and payable in advance, the landlord is entitled to have a verdict directed for that month.
    S. Same—Direction , of verdict.
    Where the defendant in such action takes a general exception only to a motion for judgment for the rent of two months, he fails to raise the specific question of defense to the second month’s rent.

      Appeal from a judgment on a verdict directed for plaintiff.
    John J. Adams, for app’lt; Wm. H. Sweney, for resp’t.
   SCHUCHMAM, J.

—This is an appeal from a judgment directed upon the pleadings in favor of the plaintiff and against the defendant. The action is brought by the plaintiff to recover from the defendant rent of a flat, in the premises kqown as No. 23 West Twentieth street, in the city of New York, for the months of August and September, 1895, covenanted to be paid by de-° fendant, in a written lease, for the term of two years from November 1, 1894. The action is brought on express covenant to pay rent. In such an action, plaintiff in his complaint need not allege or prove that the defendant occupied or enjoyed the premises. Gilhooley v. Washington, 4 N. Y. 217. For that reason, the denial in the" first paragraph of defendant’s answer does not avail him. It appears, therefore, that the plaintiff’s cause of action, as set up in his complaint, is fully admitted by the answer. Defendant must therefore rely upon the affirmative defense set-up in the third paragraph of his answer, to wit, surrender and acceptance. This defense, as pleaded, did not arise until August 12, 1895, while the rent for the month of August was payable on August 1st, in advance, so that plaintiff was clearly entitled to a direction for one month’s rent. To the motion for judgment on the answer, which was granted, defendant took a -general exception, thereby disputing that plaintiff was entitled to any judgment at all, when he was clearly entitled to judgment for one month’s rent, and wholly failed to raise the specific question of defense to the rent for the month of September. Defendant omitting to call the attention of the court to the question of the liability for the rent forth e month of September upon the trial, it is too late fly raise it on appeal. Tuers v. Tuers, 100 N. Y. 196.

Judgment is therefore affirmed, with costs.

All concur.


author: SCHUCHMAN, J.

text:
    James G. Timolat, Resp’t, v. S. J. Held Company, App’lt. Oakland Chemical Company, Resp’t. v. Same, App’lt.

      (New York City Court, General Term,

      Filed February 7, 1896.)

    APPEAL—F.INDINGS OF REFEREE.
    An order, denying a motion to set aside the service of process upon a corporation, on the ground that the person served was not its officer, was affirmed on appeal where the question of fact was submitted to a referee who, after elaborate investigation, reported in the affirmative, and such report was adopted by the judge who denied the motion,
    Appeal from an order in each case denying a motion to set aside the service of process.
    H. B. Wesselman, for app'lt ; W. R. Beach, for resp’ts.
   SCHUCHMAN, J.

—This is an appeal from two orders denying the defendant's motions to set aside the service of the summons, and complaint, on the ground that the person on whom the process, was served was not at the time of such service (November 2, 1895) an officer of the defendant company. The question of fact whether the person served was an officer of the company at the time of service was referred to a referee, who reported in the affirmative, after the, most elaborate investigation, both as to questions of fact and of law. The report is so exhaustive that the court could not improve on it. It was adopted by the judge who denied the motions. ,,

Orders affirmed, with costs.

All concur.


text:
    Edward Quarch et al., Resp’ts, v. Joseph Metz, App’lt.

      (New York City Court, General Term,

      Filed February 7, 1896.) .

    1, Replevin—Surety—Release.
    An order of the court, releasing one of two sureties on a replevin undertaking given by defendant upon reclaiming the property, does not bind the defendant or the cosurety, where neither is served" with notice of motion.
    2. Same—Consent of plaintiff.
    As soon as such undertaking is approved, after examination of the sureties, it becomes a fixed contract between the sureties and the plaintiff, which cannot be changed or disturbed by the court, or otherwise, except upon the consent of the plaintiff.
    Appeal from an order, permitting one of the sureties on defendant’s undertaking given on reclaiming the property to withdraw therefrom.
    Myers & Bronner, for app’lts ; Grossman & Vorhaus, for appellee.
   VAN WYCK, C. J.

—The plaintiffs replevied chattels, and

under the writ in replevin the sheriff took the same from defendant, who reclaimed the property, and gave an undertaking executed. by one Pius and one Reitman as sureties. After the justification, on examination, of these sureties, the undertaking was duly approved, and the sheriff returned the property replevied to defendant. _About a month thereafter-, the surety Reitman moved at special term, in this action, for leave to withdraw as a surety on the undertaking; and this motion was granted, againt plaintiffs’ objection, by the order from which they now appeal. This order provided for Reitman’s withdrawal, and directed the defendant, within three days after entry of order, to deliver the property replevied to the plaintiffs, and that defendant might thereafter reclaim and repossess himself of the same upon giving a new undertaking to plaintiffs, to be approved by a justice of this court, and further, directed that, upon such approval, Reitman be released from all liability except for such damages as plaintiffs had sustained before such approval of the new undertaking.

The surety Reitman’s notice of motion was directed to the attorneys for plaintiffs and to the attorney for defendant. The plaintiffs appeared, and opposed the motion; but the defendant did .not appear, and no proof of service upon him is made. The notice was not directed to, or served upon, Reitman’s cosurety, Pius, and she did not appear. Both the defendant and this co-surety should have been brought into court before either of them could be bound by the order. As soon as this reclaiming defendant’s undertaking had been approved, after examination of the sureties, it became a fixed contract between the sureties and the plaintiffs, which could not be changed or disturbed by the court, or otherwise, except upon the consent of the plaintiffs, for whose protection it was given, ' .

The order appealed from is reversed, with costs; and the motion is denied, with, $10 costs.

All concur.


text:
    Sanford B. Stifter, Resp’t, v. William Boggs, App’lt.

      (New York City Court, General Term,

      Filed February 7, 1896.)

    1. Bills and notes—Kbaud.
    Where a promissory note is obtained from the maker by fraud, or diverted from the purpose for which it was given, and is sued upon by a holder from tlie payee, and the maker makes proof of the fraud or diversion, the plaintiff then must make proof of the bonajides of his holding, and the burden to do so is upon him.
    2. Same.
    In such case, it is reversible error to require defendant to' show that plaintiff had knowledge of the fraud, or that the notes came into his possession after maturity, before proving the fraud.
    Appeal from a judgment in favor plaintiff.
    Thos. McAdam, for app’lt; Ed. F. Stern, for resp’t.
   VAN WYCK, C. J.

—The action is upon two promissory notes made by defendant to order of one Tuck, who indorsed same to plaintiff. Defendant’s alleged defense was that these notes were obtained from him by fraud. The record shows that plaintiff’s attorney tried the cause upon the theory that, after he had marked the notes-in evidence, the defendant could .not make any proof of the alleged fraudulent obtaining of the notes by the - payee until he first proved that plaintiff had knowledge of the fraud, or show that the notes came into plaintiff’s possession after maturity. However, lie mow concedes that defendant could first show the fraud, and that thén the burden would be shifted to the plaintiff to show that he obtained the notes before maturity for value; and he now concedes that if the defendant made proper effort to prove his affirmative defense of fraud, was prevented from doing so, and excepted, then that defendant is entitled to a reversal and new trial.

The court ruled, at folio 87, in addressing defendant’s counsel, ■“You must first show that the plaintiff had knowledge of the defense, or show that they [the notes] came in possession of plaintiff after maturity,” and to which defendant excepted. And again, at folio 44, when defendant was endeavoring to prove the circumstances under which the notes were obtained from him, the plaintiff’s counsel said to the court, “He cannot show any knowledge on the part of Mr. Stifter [plaintiff] ; ” and defendant’s counsel frankly said, “I cannot show my absolute knowledge on the part of the plaintiff.” The courti “Then I sustain the objection.” “Exception taken.”

'If a promissory note is obtained from the maker by fraud, or diverted from the purpose for which it was given, and is sued upon by a holder from the payee, and the maker (defendant) makes proof of the fraud or diversion, the plaintiff then must make proof of the bona tides of his holding, and the burden to •do so is upon him.

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

All concur.


text:
    Jennie Getzelson, App’lt, v. Harry Bernstein, Resp’t.

      (New York City Court, General Term,

      Filed February 7, 1896.

    1. Pleading—Complaint—Breach op promise op marriage.
    Allegations in a complaint of mutual promise of marriage by plaintiff and defendant, on request, readiness and willingness of plaintiff to fulfill her promise, a request by her on defendant to fulfill his promise, and his refusal and subsequent breach of liis promise, make a good complaiut,of a cause of action of “breach of promise of marriage.”

      Ü. Same—Seduction.
    Allegations as to seduction, in a complaint for breach of promise of marriage, are merely an aggravation of damages, and do not constitute a cause of action in plaintiff “for seduction.”
    Appeal from an order sustaining a demurrer to the complaint.
    Emil A. Klein, for app’lt; Alexander Finelite, for resp’t.
   SCHUCHMAN, J.

—This is an appeal from an order sustaining a demurrer interposed by the defendant to plaintiff’s complaint, specifying two grounds of demurrer : First, that two causes of action have been improperly united in one action, to wit, one for breach of promise of marriage, and one for seduction; second that the said amended complaint, upon the face thereof, does 'not state facts sufficient to constitute a cause of action. The first paragraph of the complaint contains an allegation of the mutual promises of marriage,l<on request,’’ made by plaintiff and defendant. The second paragraph alleges the readiness and willingness of the plaintiff to fulfill her promise. The fifth paragraph alleges a request made by plaintiff on defendant to fulfill his promise, and his refusal to comply, and consequent breach of his promise. These allegations make a good complaint of a cause of action of “ breach of promise of marriage.”

The allegations in paragraphs 3 and 4 are set up in aggravation ©f damages. Wells v. Padgett, 8 Barb. 323. They do not constitute a cause of action in plaintiff for seduction because a person seduced cannot maintain an action for seduction. Hamilton v. Lomax, 26 Barb. 615. She can only maintain an action for personal injury when a rape has been committed upon her, and that action is given her by statute. Koenig v. Nott, 8 Abb. Prac. 384, 388. The complaint contains but one cause of action., It follows, therefore, that the order appealed from must be reversed, with costs, and the demurrer overruled, with costs, and leave is given to defendant to answer plaintiff’s complaint within six days after service of the order to be entered on this appeal, on payment of said costs.


text:
    James G. Timolat, Resp’t, v. S. J. Held Company, App’lt. Oakland Chemical Company, Resp’t, v. Same, App’lt.

      (New York City Court, General Term,

      Filed February 7, 1896.)

    1. Service and proof—Attorney—Order for stay.
    Under subdivision 3, section 797 of the Code, service of an order to show cause, containing a stay, by depositing a copy through a slit in the door of an attorney’s office having no letter box, in his absence is insufficient to give effect to the stay.
    2. Judgment—Rendition pending stay—Vacation,
    A judgment will not be vacated on the ground that it was rendered pending a stay, where, in addition to an improper service of the order for the stay, the defendants appear to have no defense upon .the merits of the cause of action; and the motion to set aside the summons in which the stay had been given Was afterwards, on a deliberate investigation by a referee, denied, and by the vacation of the judgment subsequent creditors would gain an undue advantage over the plaintiffs.
    Appeal from orders, denying motions to set aside judgments in favor of the plaintiffs.
    H. B. Wesselman, for app’lt; W. R. Beach, for resp’t.
   SCHUCHMAN, J.

—These are appeals from orders denying motions to set aside the judgments herein entered on November 9, 1895, on the ground that, they were irregularly and improperly entered because a stay of proceedings was in force at the time of the entry of said judgments, granted in the same actions, on a motion instituted by order to show cause “ to vacate and set aside the service of the summons” on the ground that J, Julian Held, upon whom the summons was served, was not an officer of the defendant company at the time of the service. The summons was served on November 2, 1895. On November 8, 1895, at six o’clock p. m., Justice Botty granted an order to show cause, with a stay, which was attempted to be served on November 9, 1895, at 8:55 o’clock a. m., at plaintiffs’ attorney’s office, by inclosing copies thereof with affidavit upon which-they were granted, in an envelope addressed to plaintiffs’ attorney’s office, and depositing them, through a slit in the door of said attorney’s office, into his office. .Plaintiffs’ attorney had then no letter box in his office, and his office was closed. At 9:50 a. m. of that day, plaintiffs’ attorney, without having had any' notice whatever of the stay, as granted by the coart, entered up judgment.

Under this statement of facts, I hold that the service of the orders to show cause, with the stay, was not served in compliance witii subdivision 3 of section 797 of the Code, and was not binding on the plaintiffs or their attorney. Livingston v. N. Y. El. Railroad Co., 33 St. Rep. 818.

Considering, in addition, that defendants appear to have had no defense upon the merits of the cause of actions, and the. motions to set aside the summons in which the stay had been given were afterwards, on a deliberate investigation by a referee, denied, and considering further, that by' vacating these judgments subsequent creditors would gain an undue advantage over these plaintiffs, it would be an injustice, instead of justice, to reverse these orders.

Order appealed from affirmed, with costs.

All concur.


author: FREEDMAN, J.

text:
    In the Matter of the Atlas Iron Construction Company.

      (New York Superior Court, Special Term,

      Filed September, 1895.)

    1. Corporations—Receiver.
    A court of equity has no power to appoint receivers for corporations except as conferred liy statute.
    2. Same.
    Such court is without jurisdiction to appoint a receiver of a solvent corporation in contemplating dissolution, for the purpose of preventing crodtors from collecting their claims hy action.
    Motion by certain creditors of the company to vacate an order appointing a receiver.
    Almet R. Latson, Thomas D. Rambout, and Henry E. Frankenberg, Jr., for motion; S. Van Wyck, opposed.
   FREEDMAN, J.

—The proceeding in which the order appointing a receiver of the property and - assets of the corporation was made was instituted by petition. Upon its face, it is not an action. If anything, it is a special proceeding. As such, it should be justified by some statutory provision. Unless it can be found to fall within some statute, it is a serious question whether the court had jurisdiction, and had power to appoint a receiver. It is not a proceeding for the voluntary dissolution of the corporation, under sections 2419 2431 of the Code. It does not fall within sections 1784-1796, for they apply to creditor’s actions for the sequestration of the property of a corporation, atid for its distribution. Nor does it fall within any provision of section 1810, for the first three subdivisions of that section apply only to actions, and the fourth subdivision applies to a special proceeding for the voluntary dissolution of a corporation. The present proceeding is not of that character, for no dissolution is sought to be had. Indeed, no statutory provision can be found which justifies the institution of the proceeding. The question then remains whether this court, as a court of equity, possesses inherent jurisdiction to entertain it. It has been the settled law of this state, for many years, that chancery has no jurisdiction over corporations, either in common-law principles, or through its genera] equitable powers, and that it is only by the statute, and for particular causes there enumerated, that the court acquires jurisdiction. A court of equity has no visitorial power over corporations, except such as is expressly conferred on it by statute. Latimer v. Eddy, 46 Barb. 61; Belmont v. Railway Co., 52 Barb. 668. Nor has a court of equity, by virtue of its general or inherent powers, the right to dissolve a corporation, but such right is entirely statutory. Bliven v. Iron Co., 9 Abb. N. C. 205. In Hitch v. Hawley, 132 N. Y. 212; 43 St. Rep. 625, Van J., said:

“Whether courts of equity have inherent power to dissolve corporations, it is unnecessary for us to consider, as the method of effecting corporate dissolution, when prescribed by statute, as , in this state, is exclusive, and must be substantially followed.”

1 And, in a late case decided by the court of appeals,'Bartlett, J., said:

“It has long been the settled law of the state that the jurisdiction of chancery does not extend to the sequestration of the property of a corporation by means of a receiver.” In re Binghamton General Electric Co., 143 N. Y. 263; 62 St. Rep. 154, and cases cited.

Even where all of the stockholders, joined by the creditors and accompanied by the attorney general, come voluntarily before the court, and request the appointment of a receiver, the court does not possess the power to grant the relief asked for, unless the statute has been strictly complied with. In re Mart, 5 N. Y. Supp. 82. In the case at bar it is not claimed that the company is insolvent, nor does the proceeding contemplate dissolution. Upon a petition showing sufficient assets to meet all liabilities eventually, and that some creditors whose claims have matured threaten suit,' and that the institution of such suits would be prejudicial to the interests of the creditors whose claims are not yet due, the court was asked to appoint a receiver to take charge of the property and assets of the corporation, and to continue the busihess. No other ultimate relief was sought The appointment of the receiver upon' the presentation of the petition at once terminated the proceedings according to the prayer of the petition. Nothing else remains to be done under the petition. The only power possessed by the receiver is that conferred by the order of his appointment, and under that order he has no power to sell or distribute, but simply to take charge and to continue the business. When the receivership is to terminate, and what is to be done eventually with the property and assets held by the receiver, are matters left to conjecture. If such a proceeding could be sustained, it might readly be used to hinder, delay, or defraud the creditors of every corporation; and in the case at bar it is evident that it was instituted for the very purpose of hindering and delaying, if not to defraud certain creditors who threatened suit. Under all the authoritities, there was neither statutory nor inherent power in the court to assume jurisdiction, and the order appointing the receiver is null and void. I have looked at all the eases cited by the counsel for the, receiver, and satisfied myself that they are wholly inapplicable. Even if the proceeding, as instituted, could be held tantamount to a proceeding for the dissolution of the property and assets of the corporation, the order appointing a receiver would nevertheless be void under the statute, for the reason that no notice was given to the attorney general. Laws 1888, c. 378.

The conclusions already reached render it unnecessary to discuss other points which were made and argued. The corporation, the petitioning officers of the corporation, and the receiver having been duly served with notice of this motion, Gfeorge W. Tice and Jacob Jacobs, who, pursuant to leave granted to them, have specially appeared as creditors for the purpose of the motion, are entitled, for the reasons above stated, to an order declaring the proceeding, as to them, null and void, and vacating and setting aside the order appointing a receiver. They are also entitled to $10 costs of this motion. For the samesreasons the motion made by the receiver for an order vacating the lien filed by Tice & Jacobs, and the lien filed by the Pennsylvania, Steel Company, etc., must be denied, with $10 costs to each of said creditors.


author: McADAM, J.

text:
    Edward M. Muller, Pl’ff, v. Scandinavian and Finlander’s Emigrant Company, Limited, et al., Def’ts.

      (New York Superior Court, Special Term,

      Filed May, 1895.)

    Assignment fob creditors—Corporation.
    The fact that a corporation, shortly prior to the assignment, while insolvent and contemplating such assignment, did, to prevent the passing to the-assignee thereunder, transfer to persons, other than the assignee moneys and property of the said corporation to a large amount, and did witnhold from the said assignee moneys and property which ought to have gone to him to pay the creditors of such corporation, this, independent of the question whether a domestic corporation can by general assignment dispose of its entire property, constitutes a fraud upon judgment creditors and renders the assignment, as to them, void.
    Action by Edward M. Muller against the Scandinavian & Finlanders’ Emigrant Company, Limited, and others, to set aside an assignment for the benefit of creditors. Judgment for plaintiff! ■Another creditor then moved for a reargument, and to set aside the judgment for want of consideration.

      R. J. Moses, for motion; E. Jacob and W. M. Rosebault, opposed.
   McADAM, J.

—The issues in this action having been tried before me, after hearing the proofs and allegations of the parties I" decide that the plaintiff is entitled to judgment declaring the general assignment referred to in the complaint fraudulent and void as against the plaintiff, a judgment creditor of the assignor. Belgard v. McLaughlin, 44 Hun, 558 ; 9 St. Rep. 38. The reasons for this decision, briefly stated, are that upon the whole case the plaintiff has established to my satisfaction, by a preponderance of evidence, that said assignment was made and delivered'for the purpose of hindering, delaying, and defrauding the creditors of the said assignor; that it purports to transfer all the property of tiie corporation; that shortly prior to the transfer the said corporation being insolvent and contemplating the making of said assignment, did, to prevent the passing to the assignee thereunder, transfer to persons other than the assignee moneys and property of the said corporation to a large amount, and did withhold from the said assignee moneys and property which ought to have gone to him to pay the creditor's of said corporation; and that such acts, independent of the question whether a domestic corporation can by general assignment dispose of its entire property (see People v. Ballard, 134 N. Y. 269; 46 St. Rep. 166; Vanderpoel v. Gorman, 140 N. Y. 563 ; 56 St. Rep. 503 ; Sibell v. Remsen, 33 N. Y. 95 ; Compton v. Mellis, 46 St. Rep. 563, constitute a fraud upon judgment creditors, and render the. assignment, as to them, void. See Shultz v. Hoagland, 85 N. Y. 464 ; White v. Benjamin, 3 Misc. Rep. 490. 1 therefore direct that judgment be entered as aforesaid, with costs. The plaintiff will be allowed to conform- the complaint to the facts proved. Code, § 723. The facts developed were proved by persons connected with the corporation,'and the proof in no manner misled the defendants to their prejudice, nor could it have surprised them. The form of the judgment to be settled on notice.


author: McADAM, J.—

text:
    Hopper, Pl’ff, v. Ersler et al., Def’ts.

      (New York Superior Court, Special Term,

      Filed October, 1894.)

    1. Set-off—Judgment.
    ' Whore both judgments are recovered in the same action, the rule is that the equities of the parties are superior to the lien of the attorney or the rights of assignees.
    2. Same.
    A judgment for costs recovered against plaintiff, though assigned, will he^set off against the judgment subsequently recovered in the same action by plaintiff'against defendant.
    Judgment for costs for defendant on appeal to the, general term. Thereafter plaintiff recovered judgment, and moved to set off a judgment for costs against the second judgment The judgment for costs had in the meantime been signed.

      Carpenter & Hassett, for motion ; Joseph Kearney, opposed.
   McADAM, J.—

The action was commenced in this court prior to November, 1892, and on April 12, 1893, the defendants recovered judgment against the plaintiff for $90.80, costs of an appeal to the general term. The action thereafter proceeded, and the plaintiff, on August 28,1894, recovered a judgment against the defendants for $1,651.46, which he has been unable to collect. The. present motion is by the plaintiff to set off the first judgment (as far as practicable) against the second. Objection is made that the first judgment was for costs only, and was equitably the property of the attorney,; that it was assigned to him by his clients; and that he in turn transferred it to one Foss, who lias made an affidavit claiming to own the judgment. Set-off is of equitable origin, and depends upon the equitable control which every court may exercise over its own suitors and process. Where the judgments were in different actions, the fact that one had been assigned before the application for set-off was made was generally regarded as a complete answer to the application. See cases cited" in 3 Wait. Law & Prac. 745. But where, as in this case, both judgments were recovered in the same action, the rule is that the equities of the parties are superior to the lien of the attorney or the rights of assignees. Hoyt v. Godfrey, 11 Daly, 278 ; Smith v. Chenowith, 14 id. 166 ; Davidson v. Alfaro, 80 N. Y. 660 ; Warden v. Frost, 35 Hun, 141 ; Hayes v. Carr, 44 id. 372 ; 8 St. Rep. 824. Besides, the defendants are insolvent, and every principle of equity requires the set-off claimed. The assignment held by Foss was subject to this prior equitable right, and does not defeat it.

Motion to set off granted, without costs.


author: GILDERSLEEVE, J.

text:
    People ex rel. Connolly, Pl’ff, v. Murray et al., as Excise Commissioners, etc., Def’t.

      (New York Superior Court, Special Term.)

    1. Excise—Discretion.
    Where the commissioners exercise the discretion vested in them by law, and such discretion is not abused, the refusal to grant a license is not arbitrary or capricious under the act.
    3. Same.
    The fact that the relator is about to purchase and surrender to the hoard an outstanding license for another place, does not deprive the board of its discretion to determine whether, in view of all the surroundings, the license for this particular place ought to be granted.
    Certiorari by the people on the relation of Connolly against Murray and others, constituting the board of excise, to compel said board to grant a liquor license,
   GILDERSLEEVE, J.

—The relator applied to the board of ex>cise for a license to sell strong and spirituous liquors, also wines and beer, tobe drunk on and off the premises No. 335 Amsterdam avenue, being the southeast corner of that avenue and'Seventy-Sixth street. The board denied the application for the following' "reasons: (1) That considering the rights and interests of the property owners and residents of the neighborhood, as well as the number o£ existing lióensed places in the vicinity of the place for which the license is sought, the board of excise is satisfied that there is no immediate public necessity or convenience to be served in granting such a license at this time. (2) That in the judgment of the board the public interests will not be served by increasing the number of saloon liquor licenses for the sale of liquors to be drunk on the licensed premises, the number of such class now in existence being in excess of 6,500, most of which are in active business operation. This number, in the opinion of the board, is sufficient to meet all the requirements of the inhabitants of the city at the present time. (3) That the relator applied for a liquor license on March 4, 1895, and that the reason above given were considered by the .board as sufficient, from the fact that several • prior applications had been rejected for the same premises, on protests made against the granting of a license at said place applied for. And the board enumerates in its return these different ap- - plications. It appears, therefore, by the return, that the commissioners exercised the discretion vested in them by law; and, that discretion not having been abused, the refusal to grant a license to the relator is not arbitrary or capricious, under the act. See People ex rel. Ryan v. Dalton, 7 Misc. Rep. 558 ; 57 St. Rep. 360 ; In re Excise License, 72 St. Rep.—; Board v. Barrie, 34 N. Y. 657 ; People v. Wright, 3 Hun, 306 ; People v. Perry, 13 Barb. 206 ; and kindred cases.

, The fact that' the relator is about to purchase and'surrender to the board an outstanding license for another place does not deprive the board of its discretion to determine-whether, in view of all the surroundings, the license for this particular place ought to be granted.

Application denied, and writ of certiorari dismissed.


author: TOMPKINS, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Eliza J. Arkenburgh et al., as Executors, etc., of Robert H. Arkenburgh, Deceased.

      (Surrogate’s Court, Rockland County,

      filed January, 1896.)

    1. Exeoutob—Contempt.
    An executor should not he compelled to comply with the directions of a decree, where he is promptly advised that an appeal is to be taken, until at least a reasonable .time is allowed within which to take and perfect such an appeal.
    2. Same.
    If an executor is satisfied, and satisfies the court, that an appeal will be taken which may result in a reversal of the decision of the surrogate, or some part of it, and necessitate a modification of the decree, he should not be punished for contempt for failure to comply therewith until the time for appeal expires.

      Judicial settlement of the accounts of Eliza J. Arkenburgh as executrix, and another as executor, of the estate of ¡Robert H. Arkenburgh, deceased. The executor moves to punish the executrix for contempt in refusing to comply with the decree of the surrogate directing payment of various amounts for costs and on account of legacies,
    Robt. F, Little, for executor ; Charles E. Souther, for executrix.
   TOMPKINS, S.

—The decree settling the account of the executor and executrix was made on the 30th day of December, 1895, after a prolonged contest, and many delays in effort to settle the decree after the decision was filed. Two accounts were filed,—one by the executor, and one by the executrix. Numerous objections were filed by legatees to items of the executor’s account. The decree directs payment of various amounts for costs, and on account of legacies. An order was made, during the contest over the account, requiring all moneys to be deposited in the Farmers’ Loan'& Trust Company, in the name of the estate, to be drawn only on orders or checks signed by both the executor and executrix. A certified copy of the decree was served upon the attorney for the executrix on the 2d day of January, 1896. and on the same day a like copy was personally served upon the executrix. The executor, on the 3d of January, requested the executrix to sign certain checks with which to pay certain amounts ordered to be paid by the decree. This the executrix refused to do. In brief, she refused to make or participate in any of the payments directed by the decree. On the oth day of January, 1896, the executor procured an order directing the executrix to show cause on the 9th day of January, 1896, why she should not unite with the executor in making payments required to bé made by the decree, and why she should not comply with the decree, and why she should not be punished for her alleged contempt, etc. • The executrix, for answer to the motion, says that she has been informed that certain of the legatees, who were contestants on the accounting, intend to appeal from the decision of the surrogate, and from the decree. In fact, the executrix alleges that she lias been informed by counsel for some or one of the contestants that an appeal would be taken and perfected within the statutory time. I think this is a sufficient answer to the motion. An executor should not be compelled to comply with the directions of a decree, where he is promptly advised that an appeal is to be taken, until at least a reasonable time is allownd within which to take and perfect such an appeal. Here only three or four days elapsed between the service of the copy of the decree and the making of this motion. If an executor is satisfied, and satisfies the court, that an appeal will be taken which may result in a reversal of tbe decision of the surrogate, or some part of it, and necessitate a modification of the decree he should not be punished for contempt for failing to comply therewith until the time to appeal expires. Of course, the surrogate can compel compliance but should not punish for contempt unless'there is evidence of bad faith or a willful refusal. It might very easily and naturally occur that on a modification of the decree, if payments were now made under it, there might not be assets enough to comply with the decision of the appellate court. The executrix should not be forced into such a position, where she would be Jikely to suffer a personal loss, by an order of the court at this time. There has been no willful refusal on the part of the executrix to comply with the executor’s request; hence she should not be punished. Nor should she be compelled to pay out moneys undei; the decree while she is satisfied that a timely appeal, in good faith, is to be taken.

Motion denied, with $10 costs against the executor.