text:
    In the Matter of the Petition of JOHN SWENARTON, Appellant, v. WALTER H. SHUPE, an Attorney, etc., Respondent.

      Contempt — punishment for, in an action or special proceeding — what facts must appea/rfrom the order— Code of Civil Procedure, secs. 9,14, 2083, 2266, 2281.
    Upon tie return to a writ of habeas corpus it appeared that one Simpe, an attorney, lad leen committed under an order adjudging lim guilty of contempt in laving willfully disoleyed an order directing lim to deposit $6,500 witl tie clerk of tie court, and fining lim tlat sum for tie indemnity of tie petitioner in tie proceeding, and ordering tlat le be committed to tie county jail until le paid tie fine.

      Meld, tlat as tie punislment exceeded tlat wlicl tie court was autlorized to inflict by section 9 of tie Code of Civil Procedure, for a criminal contempt, it was to le assumed tlat tie proceedings were instituted under tie provision of . tie Code autlorizing tie punislment of a person for a contempt in a civil action for misconduct by which a right or remedy of another may he defeated, impaired, impeded or prejudiced.
    That assuming the order to have been made under such latter provisions, it was void because no adjudication was made that the misconduct complained of was calculated to or actually did defeat, impair, impede or prejudice the rights or remedies of the petitioner, or that the latter had sustained any loss or damage thereby.
    Appeal from an order, made upon tbe return to a writ of habeas corpus, discharging Walter H. Shupe from custody.

      JR. L. Harrison, for the appellant.

      G. W. Stephens, for the respondent.
   Daniels, J.:

The order under which the commitment was issued for the imprisonment of Shupe, was produced upon the hearing of the return to the writ of habeas corpus, and from that it appeared that his commitment was directed for disobeying an order directing him to deposit with the clerk of this court, to await the result of certain proceedings, the sum of $6,500. He was adjudged guilty of contempt, for having willfully disobeyed the order, and fined by the •court the sum of $6,500, for the indemnity of the petitioner in the proceedings. And it was further ordered that he should be committed to the common jail until he paid the fine, and that a commitment should issue to carry the judgment into effect.

While it was adjudged in the order that the attorney Shupe was guilty of a willful contempt in his disobedience of the preceding •order, it is still evident that the proceeding for his fine and imprisonment was not carried on upon that foundation, for where a party is proceeded against for a criminal contempt, the punishment to be imposed upon him by section 9 of the Code of Civil Procedure cannot exceed the sum of $250 and thirty days imprisonment, either or both, in the discretion of the court. The proceeding must, therefore, be construed and held to have been under the other provisions of the Code, authorizing a person to be punished for a contempt in a civil action or special proceeding for misconduct, by which a right or remedy of another may be defeated, impaired, impeded or prejudiced. A proceeding to punish a party for misconduct of this description, has been plainly provided by the Code ■of Civil Procedure (§§ 14, 2266 and 2281). But where proceedings under these sections are taken, it is indispensable for the punishment of the party that it should be made to appear and be determined by the court, that the misconduct complained of was calculated to or, actually did defeat, impair, impede or prejudice the rights of remedies of a party to an action or special proceeding brought in court or before a judge or referee. No adjudication of this character was made by the order directing the commitment or the preceding order, neither was it in any form adjudged that the petitioner in the proceeding had sustained loss or damage to the amount of the fine imposed upon the attorney, or, in fact, in any amount whatever. The order, therefore, failed to exhibit a compliance with what it has been required shall be adjudicated before a party in a civil proceeding shall be punished by way of contempt. A similar provision of the Revised Statutes was examinedin Albany City Bank v. Schermerhorn (9 Paige, 372), where the law was held to be, as it has also been declai’ed by section 2281 of the Code of Civil Proceedure, that to warrant the punishment.of the party it must be adjudged by the order that “ the accused had been guilty of the contempt, and that such misconduct was calculated to and did impair, defeat, impede and prejudice the rights or remedies of the prosecutor or parties in the cause, and imposing a fine sufficient to indemnify them and to satisfy the costs and expenses; ” and “where anything further remains to be done by the party guilty of the contempt, the order should also specify particularly what he is to do and the manner in which it is to be done to entitle him to his discharge upon the payment of the fine imposed.” (Id., 379.) And the same rule was substantially followed in Clark v. Bininger (75 N. Y., 344).

As this order wholly failed to comply with this requirement of the law, it furnished no foundation whatever for the imprisonment of the attorney. The facts upon which this has been made dependent were not determined by or found in the order in any form whatever. And in the absence of this compliance with the requirement of the statute there was no jurisdiction in the court to subject him to the punishment imposed upon him. His imprisonment was consequently unlawful and he was entitled to be relieved from it on habeas corpus under the authority conferred by section 2033 of the Code of Civil Procedure.

Tbe order from which the appeal has been taken should be affirmed, with ten dollars costs, besides the disbursements.

Brady, P. J., concurred.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. THE KNICKERBOCKER LIFE INSURANCE COMPANY, Defendant. (Claim of Estate of JOHN W. LEWIS, Deceased, on Policy.)

      Valuation of the claim, of a policyholder of an insolvent life insuramce compomy — when it should he valued as a death, claim,.

    An order was made directing a claim, under a policy issued by the defendant, to be filed with the receiver as of August 15, 1883, and directing a reference for its valuation. Before the hearing the person upon whose life the policy was issued died, and evidence was given tending to prove that at the time when the company became insolvent and suspended its business he had attained an age and had become subject to a mortal disease which would have precluded a reinsurance or further insurance of his life by any life insurance company in good standing. This disease continued until the time of his death; and was in part the cause of that event. It was shown upon the hearing that no disturbance in the accounts or dividends of the receiver would be made by valuing this as a death claim, and that it could be provided for and disposed of as such without substantial injustice to other claimants.

      Held, that the referee did not err in valuing the claim as a death claim.
    Appeal from an order sustaining exceptions to the report of a referee upon the valuation to be placed upon a policy of insurance issued upon the life of John W. Lewis for the sum of $10,000.

      John B. Green, for the claimant, appellant.

      James M. Gifford, for the receiver, respondent.
   Daniels, J.:

An order was made directing the claim under the policy to be filed with the receiver as of the 15th of August, 1883, and a reference was ordered directing tbe application for its valuation to be beard and decided by a referee. Before the hearing took place upon this reference the person upon whose life the policy was issued died, and evidence was given tending to prove that at the time when the company becatne insolvent and suspended its business, he had attained an age and had become subject to a mortal disease which would have precluded a reinsurance or further insurance of his life by any life insurance company in good standing. This disease continued until the time of his death, and was in part the cause of that event. The referee upon this evidence considered and decided that the claim upon the policy should be valued as a death claim, which would place it at the sum of $1,184.56. The court, on the hearing of the application to confirm the referee’s report, differed with him in this conclusion, and held the claim to be one that should be valued as a running claim, the valuation of which would not exceed the sum of eighty-eight dollars and eighty-four cents.

It was shown upon the hearing that no disturbance in the accounts or dividends of the receiver would be made by the valuation of this as a death claim, and that it could be provided for and disposed of as such without introducing the least confusion in the computations or proceedings of the receiver, and without substantial injustice to other claimants. In that, as well as in some other respects, the case presented was similar to that of People v. Knickerbocker Life Insurance Company (34 Hun, 476). And it materially differed from the case of Henderson, where the claim had been valued as a running claim, and where, after his decease, an application was made to open the proceedings for its valuation as a death claim, it was considered, under these circumstances, as coming too late, and, therefore, not to be permitted to the prejudice or confusion of the proceedings which had already taken place.

In the present case no valuation of this claim had at any time been made before the hearing, but it was referred to the referee to hear the proof and determine upon the valuation which should be placed upon it. The proof was such, and such only, as to indicate the claim upon this policy to have been what the law has permitted to be considered as a death claim. That was the only subject committed to the hearing and decision of the referee. And under the rule which has been applied to the disposition of this class of claims, he was fully justified in regarding this, as the evidence directly tended to- prove it to be, a death claim, and entitled, under the authorities, to be valued as such. (People v. Security Life Ins. Co., 78 N. Y., 114; Attorney General v. Guardian, etc., Ins. Co., 82 id., 336; Attorney General v. Cont. Ins. Co., 88 id., 77.)

As the facts were proven upon the hearing, no other view of this claim than that it was in fact a death claim at the time when the company became insolvent, although that may not then have been fully known or understood, was supported by the evidence. The exceptions taken to the referee’s report should have been overruled, and the report itself confirmed.

The order from which the appeal has been taken should be reversed, with the usual costs and disbursements, and an order to-that effect made in the proceeding.

BRAdt, P. J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Daniels, J.;

text:
    THE HAT SWEAT MANUFACTURING COMPANY, Appellant, v. WILLIAM H. REINOEHL AND OSCAR WETHERHOLD, doing business as W. H. REINOEHL & CO., Respondents.

      Bill of particulars — when the names and residences of persons, by whom an invention-is claimed by the defendants to have been used before a patent was issued, must be-disclosed by the defendant setting up such a defense, in an action brought to recover royalties by the owner of the patent.

    Appeal by the plaintiff from an order denying a motion for a. bill of particulars.
    The motion was made under section 531 of the Code of Civil Procedure, and particularly the following clause thereof: “The court may, in any case, direct a bill of particulars of the claim of either party to be delivered to the adverse party.”
    This action was brought to recover certain royalties due the plaintiff' for the month of August, 1881, under a license from the plaintiff to the defendants.
    The defendants set up, among other defenses, that the patents-mentioned in said lease or license “ were procured by fraud and misrepresentation, wholly void, invalid and of no ‘force; that the said invention covered by the patents aforesaid is not new, and was not at-the time said letters patent were applied for, but the alleged improvement had long been known and in use by persons other than those applying for said letters patent, and to whom the same were issued, and said sweat bands are now manufactured and sold by many other parties besides the plaintiff, or those to whom the said patents in said contract mentioned were issued, or by whom they were owned, and that said contract was executed by them without any consideration.”
    The court at General Term said: “ It appears, both by the affidavits in the case and the answer of the defendants, that a bill containing some of the particulars required to be supplied by some of the defendants should be ordered to avoid the risk and probability of surprise upon the trial. But these particulars should be by no means as general or extended as they have been required by the plaintiff. As to most of the facts alleged in the answer by the defense it is sufficiently explicit to enable the plaintiffs to understand the extent of the issues and to be prepared by evidence to meet them upon the trial. But as to the persons who are alleged to have used the patented inventions before the time when the patents were issued the answer supplies them with no information. The patents themselves are assailed as invalid for the reasons that the invention had been previously used for such a period of time antecedent to the applications for the patents as legally to render the inventions public property. Where this use was made or by whom are facts not disclosed in the answer, but the statements are general that such use of the inventions had been made. The information supplied by the answer on this subject is so defective as necessarily to leave the plaintiff entirely in the dark as to what evidence may be presented to establish the allegations upon the trial; and it imposes a practical disability upon the plaintiffs to supply themselves with evidence to meet and controvert these allegations when the trial of the action shall take place, if under the contract itself that shall be considered a proper subject for the consideration and attention of the court. To supply the plaintiff with the information it is entitled to have before the action shall be brought on for trial, the service of a bill of particulars appears to become a necessity; and to provide for that necessity the defendants should be required to serve such a bill of particulars as will contain ,a statement of the names and residences of such persons, firms or corporations, as it shall be intended or expected upon the trial to prove that these inventions had been used by, and also a statement of the facts designed to be proven to show that the patents mentioned in the contract were not valid and not sufficient to give to the plaintiff the exclusive right to use the inventions therein mentioned. To that extent, but no farther, does a bill of particulars.seem to become a necessity to enlarge the indefinite and very general allegations contained in the answer.”

      Edward Iynan Short, for the appellant.

      George Wilcox, for the respondents.
   Opinion by

Daniels, J.;

Brady, P. J., concurred.

Order reversed and order to be entered as directed in opinion with costs and disbursements to abide the event.


author: Smith, P. J.:

text:
    GEORGE G. ROE, Appellant, v. WILLIAM D. CAMPBELL, Respondent.

      Conversion — any unauthorized exercise of dominion over the property constitutes a conversion — when an assertion of title and a denial of the demandant’s title constitute it.

    The plaintiff sold a buggy, conditionally, to one Broderick, retaining in himself the title thereto until a note for the purchase-price given by Broderick should be fully paid. Before the note had been paid Broderick sold the wagon to the defendant. Upon the trial of this action, brought by the plaintiff to recover damages for an alleged conversion of the wagon by the defendant, evidence was given tending to show that while the defendant had possession of the wagon the plaintiff notified him of his, the plaintiff’s, title and demanded possession, and that subsequently the wagon was removed from the defendant’s barn, at Wolcott village, to Westbury, six miles distant, by the direction or with the consent of the defendant, and was thei'e stored or kept by him.
    The plaintiff’s counsel requested the court to charge that such removal, under the circumstances, was a conversion. The judge charged that it was a conversion if done by the defendant with any intention or purpose to hinder the plaintiff, and declined to charge otherwise.

      Held, that the judge erred in refusing to charge as requested, as it is well settled that any unauthorized exercise of dominion over the property of another is a conversion without regard to the intent rvith which the act is done. If the rightful owner has been deprived of his property by some unauthorized act of another assuming dominion or control over it, the latter is liable for a conversion. (Smith, P. J., Babkek and Bradley, JJ.)

      The plaintiff’s counsel also requested the court to charge that if, in reply to a demand for the wagon, the defendant said “ if you have any better title to the buggy than I have, take it,” such reply amounted to a conversion. The request was refused, the court charging that it was for the jury to say what the idea to be conveyed was.

      Held, that the court erred in refusing to charge as requested. (Smith, P. J., and Barker, J.)
    Appeal from a judgment of the Wayne County Court, entered upon a verdict in favor of the defendant, and from an order denying a motion for a new trial made on a case.

      Vandenberg dk Saxton, for the appellant.

      J. W. Hoag, for the respondent.
   Smith, P. J.:

The action is for the alleged conversion of a buggy wagon, which the plaintiff sold conditionally to one Broderick, retaining the title in himself until a promissory note, which Broderick gave for seventy-five dollars, part of the purchase-price of the wagon, should be fully paid. The wagon was delivered to Broderick at the time of sale, which was in May, 1881, and in the next spring Broderick went from the country, leaving a part of the note unpaid. Before he went away he sold a buggy wagon to defendant, and, although its identity was disputed, there was evidence to show that it was the same buggy wdiich the plaintiff sold to Brod-erick. The judge correctly charged the jury that if it was the same buggy, the title to it was in the plaintiff, and the defendant acquired neither title nor right to the possession, by his purchase from Broderick.

The only questions which I deem it material to consider arise upon certain exceptions taken by the plaintiff’s counsel to the charge of the judge, and his refusals to charge upon the subject of conversion. There was evidence tending to show that while the defendant had possession of the buggy, the plaintiff notified him of the plaintiff’s title and demanded possession, and that subsequently the buggy was removed from the defendant’s barn, at Wolcott village, to Westbury, six miles distant, by the direction or with the consent of the defendant, and was there stored or kept by the defendant. The plaintiff’s counsel requested the court to charge tlie jury that such removal, under the circumstances, was a conversion. The judge charged that it was a conversion if done by the defendant with any intention or purpose to hinder the plaintiff, and he declined to charge otherwise. The charge and also the refusal •were duly excepted to. In these respects, we think the judge erred.

It is well settled that any unauthorized exercise of dominion over the property of another is a conversion, without regard to the intent with which the act is done. If the rightful owner has been deprived of his property by some unauthorized act of another assuming dominion or control over it, the latter is liable for a conversion.

In Cobb v. Dows (9 Barb., 230), Brown, J., discussing the question of what in law will amount to a conversion, said: “ The proof need not show a tortious taking, or that the defendants acted in bad faith. If if should appear that they obtained the goods fairly from a person whom they had reason to think ivas the true owner, or if they acted under a mistake as to the plaintiffs title, or under an honest but mistaken belief that the property was their own, they would still be liable to the plaintiffs if their acts in regard to it amount to a conversion. If they have taken it into their own hands or disposed of it to others, or exercised any dominion over it whatever, they are guilty of the conversion, and their liability to the plaintiffs is established.” He cites several cases in which the defendants were charged with a conversion upon that principle.

In Boyce v. Brockway (31 N. Y., 490) the defendant, a dealer in butter, received from one Brown, who bought butter for him and also for the plaintiffs, a lot of butter in firkins, some of which belonged to the plaintiffs. The defendant had a large quantity in his warehouse, and afterwards shipped the whole to New York as his own. At the trial, having given evidence tending to show that he received the butter in good faith, supposing it to be his own, and without any knowledge that it belonged to the plaintiffs, he requested the court to charge that “ in that case if he took the same care of it as of his own and it was lost without his fault, this action was not sustained.” The request was declined. On review in the Court of Appeals the ruling was sustained, Davis, J., speaking for the whole court, said: “ The charge as requested would have been proper if the defendant had, under such circumstances, simply received the butter and stored it in his warehouse. Such an act would not have been the exercise of such dominion over it as would amount to a conversion without proof of á demand and refusal. There would be no sufficient assumption of ownership by a mistaken acceptance of the property so delivered, to render him chargeable for any relation beyond that of bailee; but quite a different question arose when he shipped the butter to New York as Ms own. That was an assumption of dominion, which, whether founded on mistake or not, was in hostility to the ownership of plaintiffs.” The language of Judge Brown, in Cobb v. Dows, above referred to, was cited with approval. The same doctrine is asserted in Spraights v. Hawley (39 N. Y., 441) and Laverty v. Snethen (68 id., 522, 527). Applying that principle to this case, if the defendant, on being notified of the plaintiff’s title and demand of possession, had simply stored the wagon in his barn at Wolcott, where it was at the time of the demand, while ho was availing himself of the plaintiff’s consent to take time to consider whether he would comply with the demand, he would not have been liable. But by removing the wagon, or permitting it to be removed to a distant point, and there used or kept as his own, he exercised such dominion over it as made him liable for a conversion, without regard to his intout or purpose in so doing. It was not a mere asportation, as the respondent’s counsel suggests; it was an asportation for the use of the defendant, and that is a conversion. (Addison on Torts, 131.) A very slight agency or interference will make one liable in trover. (5 Denio, 532.)

The plaintiff’s counsel also requested the court to charge that if, in reply to a demand, the defendant said if you have any better title to the buggy than I have, take it,” such reply amounted to a conversion. The request was declined, and the court charged that it was for the jury to say what the idea to be conveyed was; it was for them to say whether it was a conversion. There was no question but that such reply was made, and it was not claimed that the defendant delivered or tendered the buggy. The defendant testified that in the several interviews with Roe and his attorney, Saxton, he made that reply in substance.

Wo think the plaintiff was entitled to the instruction requested by him. The reply was an assertion of some title in the defendant and a setting of it up in opposition to the plaintiff’s claim. It was a proposal to try titles with the plaintiff, and a refusal to give up the property until the plaintiff should establish his to be the better title. That, of course, could only be done by a resort to the law. In Davies v. Nicholas (7 Carr. & Payne, 339), the defendant, when the goods were demanded of him, said that lie should do nothing but what the law required, and he did not produce or tender the goods.’ Held, sufficient evidence of a conversion. (Addison on Torts, 136.)

It is unnecessary to consider the other questions discussed by counsel.

Por the reasons above stated, the judgment and order should be reversed, and a new trial had in the Wayne County Court, costs to abide event.

Barker, J., concurred; Bradley, J., concurred in result on tho ground first stated; Haight, J., not voting.

Judgment and order reversed and new trial ordered in the Wayne County Court, with costs to abide event.


author: Smith:, P. J.:

text:
    In the Matter of the Petition of STEPHEN A. ROBERTS, Appellant, for a Peremptory Writ of Mandamus, v. EDWARD W. HATCH, Respondent.

      Game laws —power of the game protectors to bring action's — right of, to receive a share of the surplus of moneys recovered —1880, chap. 591, as amended by chap. 317 of 1883 — duty of the district attorney to give a certificate.

    Section 1 of chapter 591 of 1880, as amended by chapter 317 of 1883, authorizes the governor to appoint game and fish protectors, to enforce the statute for the preservation of game, and to bring or cause to be brought actions to recover penalties, and directs that “ such actions may be brought in the name of the people, in the like cases, in the same courts, and under the same circumstances as they might now or may hereafter be brought by any individual, under or by virtue of any existing, or hereafter enacted, statutes for the protection of deer, game and fish, or any of them.” The act then directs that the district attorney of any county shall, at the request of any of such protectors, bring actions in the name of the people, to recover penalties for a violation of the game laws, and that witness and other fees and disbursements, and full costs, without regard to the amount of the recovery, shall be included in the judgment.

      It further directs that all money necessary for witness fees and disbursements shall he advanced by the county treasurer, and that all moneys l'ccovered, except costs, which are to belong to the district attorney, shall be paid to the county treasurer; one-half of the said moneys, after deducting all outlays-or expenses made by the county, to be paid into the State treasury, and the remaining one-half of all such moneys, over and above the amount necessary to reimburse the county for any outlays or expenses paid out by the county treasurer under this act, shall be paid to and belong to the game and fish protector who brings, or causes to be brought, the action or proceeding in which such fine or penalty shall be recovered, and shall be paid to him by the county treasurer, within thirty days after the same shall be received by said county treasurer from the district attorney, upon the certificate of the district attorney that such action or proceeding was brought, or caused to he brought, by such fish and game protector.
    Upon an appeal from an order denying a motion made by the relator, a game protector, for a writ of mandamus compelling a district attorney to sign a certificate, as required by the said act:

      Held, that the act did not relate to criminal proceedings commenced by indictments, as no authority to institute, or to cause to be instituted, such proceedings was conferred upon the game protectors.
    That in order to ascertain the sum, to one-lialf of which the game protector was entitled, the disbursements properly incurred must he first deducted from the amount collected; such disbursements being those only which were incurred in the actions in which the money to be divided was recovered.
    That these questions were to be determined by the county treasurer and not by the district attorney, and that the relator was entitled to the certificate of the district attorney as to the actions, other than those commenced by indictment, in which the moneys in question had been recovered,
    Appeal from an order of tbe Erie Special Term, denying a motion for a peremptory mandamus.

      Moses Shire, for the appellant.

      Edward W. Hatch, respondent, in person.
   Smith:, P. J.:

This proceeding was instituted to compel Edward W. Hatch, as district attorney of Erie county, to sign a certificate that certain fines and penalties mentioned in the relator’s affidavit had been recovered in actions and proceedings brought, or caused to be brought, by the relator as a game and fish protector, under and in pursuance of section 1 of chapter 591 of the Laws of 18S0, entitled “An act for the appointment of game and fish protectors,” as amended by chapter 317 of the Laws of 1883.

It appears that the whole amount of such fines and penalties is $160, of which the sum of $110 was paid upon convictions under indictments for criminal violations of the game laws.

"We are of the opinion that section 1 of the act referred to does not relate to criminal proceedings by indictment. The authority given thereby to game protectors, in respect to bringing “ actions or proceedings,” is the same, we think, as that conferred by then existing statutes upon private individuals, or which may hereafter be conferred upon private individuals by subsequent statutes for the protection of deer, game and fish. “ Such actions,” says section 1, “ may be brought in the name of the people in the like cases, in the same courts and under the same circumstances as they might now or may hereafter be brought by any individual under or by virtue of any existing or hereafter enacted statutes for the protection of deer, game and fish, or any of them.” Under the general game law of 1871 (chap. 721), any person might sue in his own name for all penalties given by that act, but he could not proceed by indictment nor cause it to be done. If we are right in this, the sums realized in proceedings by indictment are to be laid out of view.

In the next place, we think that, in order to ascertain the sum, to one-half of which the game protector is entitled, the disbursements properly incurred must first be deducted from the amount collected. Such disbursements are those only which were incurred in the actions in which the money to be divided was recovered.

But in our view neither of the questions above considered is conclusive upon the right of the game protector to the certificate of the district attorney sought by this proceeding. Whenever a fine. or penalty is collected and paid over to the treasurer, as the fruit of an action or proceeding brought or caused to be brought by the game protector by virtue of the authority conferred on him by the act, he is entitled to the certificate of the district attorney, irrespective of the question whether any part of the proceeds of such action or proceeding remains in the treasurer’s hands. That fact is for the treasurer to ascertain and determine when the certificate is presented to him. The statute contemplates that the fact will appear by the treasurer’s books. All moneys received, except the district attorney’s costs, and all fines collected are to be paid to the treasurer, and he is to pay all money necessary for witnesses’ fees and disbursements in the action, upon the requisition of the district attorney. So that the treasurer’s books, if properly kept, will show the amount of the fund, if any, in his hands, to which the game protector is entitled.

For these reasons we think the relator is entitled to the certificate of the district attorney that the action in which the sum of fifty dollars was received, was brought or caused to be brought by him, it being undisputed that such was the fact. A writ of mandamus may issue to that effect, but without costs, as none are asked for.

JBaRKER, IIaigUt and Bradley, JJ., concurred.

Order reversed, and motion for mandamus granted, without costs.


text:
    THOMAS MOORE, Appellant, v. HENRY A. TAYLOR, Respondent, Impleaded, etc.; SAME v. SAME.

      Cleric of the court, cannot he appointed a receiver unless all parties consent— Code of Civil Procedure, see. 90— a failure to obtain such consent is an irregularity only— ' the authority of the plaintiff's-attorney ceases on the entry of judgment.

    Upon an affidavit in tlie usual form, made by one of the attorneys cf the plaintiff who had recovered the judgment, an order was made by a justice of the Supreme Court requiring the defendant to appear and be examined concerning his property. Thereafter this order was vacated, on motion, by the justice who granted it, upon the ground that before the proceedings were instituted a receiver of the property of the plaintiff had been appointed in supplementary proceedings instituted against him, by an order made in the Superior Court of the city of New York which had been duly filed.
    The motion was resisted upon the ground that the person so appointed the receiver was at the time a clerk of the court appointing him, for which reason it was claimed that the appointment was void as made in violation of section 90 of the Code of Civil Procedure, which provides that no person holding the office of clerk of a court of record within either of the counties of New York or Kings shall hereafter be appointed by any court or judge a receiver, except by the written consent of all the parties to the action or special proceedings, other than parties in default for failure to appear or to plead.

      Held, that as the Superior Court had jurisdiction over the action and the parties, and could properly appoint the clerk a receiver upon the written consent of all tlie parlies appearing, its failure to obtain such consent was a mere irregularity of which the plaintiff could not avail himself in this collateral proceeding.
    It was further urged by the appellant that inasmuch as the receiver had not heen substituted for the plaintiff he could not take the case out of the bauds of the plaintiff’s attorneys.

      Held, that the objection was not tenable; that the authority of the plaintiff’s attorneys ceased on the entry of the judgment, and after that the receiver could employ another attorney without substitution.
    That a suggestion of the attorneys for the plaintiff that they had a lien upon the judgment upon which these proceedings were based, which gave them a right to continue the proceedings to enforce their lien, was met by the fact that they were not parties to the original proceedings or to the appeal, and that all their rights could he fully protected in all proceedings taken by the receiver.
    Appeal by the plaintiff in each action from an order entered in Monroe county, made by a justice of this court, on motion, vacating an ex parte order made by him in supplementary proceedings requiring the defendant Taylor to appear and be examined concerning his property.

      J. & Q. Van Voorhis, for the appellant.

      MeNaughton ch Olmstead, for the respondent.
   Smith, P. J.:

These proceedings, in each action, were instituted upon an affidavit in the usual form, made by one of the attorneys of the plaintiff, who had recovered the judgment. It appeared upon the motion to vacate tire preliminary orders, that before the proceedings were instituted a receiver of the property of the plaintiff had been appointed in supplementary proceedings against him, by orders made by the Superior Court of the city of New York, and duly filed, and the motion to vacate is understood to have been granted upon the ground that, by the operation of such appointment, the title to the judgments herein passed to such receiver, and consequently that the plaintiff could not maintain the proceedings. The receiver duly qualified and, assuming that his appointment was valid, he became vested with the title to the personal property of Moore, from the time of filing the order appointing him. (Code of Civil Pro., § 2468.)

It appears that the person appointed such receiver was, at the time, the clerk of the court appointing him, for which reason the .appellant’s counsel contends the appointment was void. lie relies upon section 90 of tlio Code of Civil Procedure, which provides that no person holding the office of clerk of a court of record within either of the counties of New York or Kings, shall hereafter be appointed by any court or judge a receiver, except by the written consent of all the parties to the action or special proceeding, other than parties in default for. failure .to appear or to plead. It is a general rule that the jurisdiction of any court, exercising authority over a subject, may be inquired into in any court where the proceedings of the former are brought by a party claiming the benefit of them. (Elliott v. Piersol, 1 Pet., 328, 340; Chemung Canal Panic v. Judson, 8 N. Y., 254; Dobson v. Pearce, 12 id., 164; Craig v. Town of Andes, 93 id., 410.) But we regard the defect pointed out as an irregularity merely and not a lack of jurisdiction. The ■Superior Court had jurisdiction of the subject, the proceeding and the parties. It had jurisdiction to appoint a receiver. It could properly appoint its clerk such receiver upon the written consent of all the parties appearing. It seems that such appointment, without .such consent, would be a mere irregularity which the parties might waive. The statute does not say such appointment shall be void. For aught that appears Moore, the defendant in that proceeding, has waived the irregularity by acquiescing in the appointment. It is not shown that he has moved to vacate it, or sought in any way to .avail himself of the irregularity. The appointment is, therefore, valid as to him, we conceive, and being so no third person can dispute its validity. Besides, it cannot be assailed collaterally, the defect alleged being an irregularity merely. (See Wright v. Nostrand, 94 N. Y., 31, 45, and cases there cited.) The case of Whitney v. New York and Atlantic Railroad Company (32 Hun, 165), cited by the appellant’s counsel, was a direct proceeding to set aside the order complained of, and by the express terms of the statute under which the order was made, the defect pointed out made it void. (Laws 1883, chap. 378, § 8, p. 559.)

Some other alleged irregularities are specified by the appellant’s •counsel and claimed by him to render the appointment of the receiver invalid. It is not necessary to refer to them particularly; the ■contention in respect to them is met by the views already expressed.

It is urged by the counsel for tbe appellant that inasmuch as the receiver has not been substituted for the plaintiff, he cannot take the case out of the hands of the plaintiff’s attorneys. The case of The Glenville Woolen Company v. Ripley (43 N. Y., 206) is cited in support of that proposition. It is clearly distinguishable from the present ease. There the receiver of the plaintiff was appointed after-the commencement of the action, and when the suit was begun the plaintiff was the owner of the demand on which he sued. As the receiver had not called on the defendant for pay, or taken any steps to possess himself of the cause of action, it was held that the facts constituted no defense. It is unnecessary that the receiver be substituted for the plaintiff in this action. The action has proceeded to judgment. The receiver is in the position of an assignee cf the judgment. The authority of Moore’s attorney ceased on the entry of judgment, and after that the receiver could employ another attorney without substitution. (Lusk v. Hastings, 1 Hill, 656; Egan v. Rooney, 38 How. Pr., 121.)

The attorneys for the plaintiff Moore suggest that they have a lien upon the judgments upon which these proceedings are based, and that they have a right to continue the proceedings to enforce their lien. It is an answer to that position that they are not parties to the original proceeding or the appeal. Their rights, as lienors, can be fully protected in all proceedings taken by the receiver, and if the receiver fails to proceed with reasonable diligence, or neglects his duty in other respects, any party interested in the assets or funds in his hands ean apply to the court for appropriate relief.

We think the orders appealed from should be affirmed, with the costs of the appeal in one case only, and disbursements in both.

BaeKEr, Haight and Bradley, J J., concurred.

So ordered.


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    JOHN RAYNOR, Appellant, v. WILLIAM BRENNAN, Respondent.

      Pleading — improper joinder of causes of action— Oode of Omil Procedure, sec. 484.
    Tile complaint in this action contained two causes of action, the first of which alleged that the plaintiff bet money with the defendant upon the event of a horse race and lost it. The second alleged that he was induced to make the bet by false representations respecting the horse that won the race, made by the defendant and others with whom the defendant conspired to defraud the plaintiff.

      Held, that as the first cause of action was on contract and the second in tort, and as, although arising out of the same transaction they could not.be united because not belonging to either of the subdivisions specified in section 484 of the Code of Civil Procedure, a demurrer to the complaint was properly sustained.
    Appeal from a judgment, entered upon an order of the Erie Special Term sustaining a demurrer to the complaint.

      Giles E. Stilwell, for the appellant.

      Tabor c& Sheehan, for the respondent.
   Smith, P. J.:

The complaint contains two counts. The first alleges that the plaintiff bet money with the defendant upon the event of a horse race and lost it; the other, that he was induced to make the bet by false representations respecting the horse that won the race, made by the defendant and others, with whom the defendant conspired to defraud the plaintiff. The first cause of action is clearly on contract; the second, as clearly, in tort, and although they arise out of the same transaction, they cannot be united, for the reason that they do not belong to either one of the subdivisions specified in section 484 of the Code.

The cases of Keep v. Kaufman (56 N. Y., 332), Wiles v. Suydam (64 id., 173) and Nichols v. Drew (19 Hun, 490; S. C., 94 N. Y., 22), hold such a complaint bad on demurrer.

The contention of the appellant’s counsel that the second count is upon contract, and that the allegations of fraud and conspiracy are not of the gist of the action, cannot be maintained. (Ross v. Mather, 51 N. Y., 108; Barnes v. Quigley, 59 id., 265.) If the fraud and conspiracy are not the elements of the cause of action in tbe second count, then no cause of action whatever against the defendant is set out in that count, as it does not allege that the money wagered was paid to or received by him, and he is not liable under the statute. (1 R. S., 662, § 9.) The case of Graves v. White (59 N. Y., 156), cited by the appellant’s counsel, did not arise on demurrer. The complaint, as is to be inferred from the report of the case, contained a single count, which, after verdict, was held to state a good cause of action on contract, and that cause of action having been proved, the court refused to disturb the verdict, because certain irrelevant allegations of fraud were not proved.

The judgment and order should be affirmed, with leave to the plaintiff to amend his complaint on payment of the costs of this appeal and of the demurrer.

BARKER, Haight and Bradley, JJ\, concurred.

Judgment and order affirmed, with costs, with leave to amend within twenty days on payment of the costs of the demurrer and of this appeal.


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    ABNER BUCKLAND, as Administrator, etc., of WARNER BUCKLAND, Deceased, Respondent, v. WILLIAM GALLUP, Appellant.

      Practice — when an administrator is personally liable for the costs of an unsuccessful action brought by him— Code of Civil Procedure, sec. 1814.
    This action was brought by the plaintiff, as administrator with the will annexed of one Warren Buckland, to recover property alleged to have belonged to the deceased. The property consisted of a real estate mortgage and a promissory note, which were executed and delivered to Matilda Buckland, the widow and executrix of Warren, after the latter’s death, being payable by their terms to her personally and individually, and being claimed to belong to her in her own right under the will of her husband.
    Held, that the plaintiff having failed in the action was chargeable personally with the costs thereof.
    That the action was not brought “ upon a cause of action belonging to him in his representative capacity,” within the meaning of section 1814 of the Code of Civil Procedure.

      Thompson v. Whitmarsh (1 East. Rep., 719, Ct. of App.); Ferris v. JDisbrow (23 N, Y. Weekly Dig., 330) followed; Bean v. Txoseboom (37 Hun, 310) distinguished.

      Appeal from an order of the Monroe Special Term, amending-tbe judgment herein against tlie plaintiff, personally, for costs, by mating it payable out of the assets in his hands as administrator.

      J. & Q. Van Voorhis, for the appellant.

      G. H. Humphrey, for the respondent.
   Smith, P. J.:

The plaintiff is the administrator de bonis non, with the will' annexed, of Warren Buckland, deceased, who left a will appointing his wife, Matilda Buckland, sole executrix, and she having entered upon the executorship and died leaving property, which came toiler from her testator’s estate. Matilda Buckland claimed such property, in her own right, under the will. That claim was disputed by the plaintiff herein and others, and the present, action was brought to determine that contention. The complaint alleged that after the death of Matilda, the defendant took or retained possession of certain personal property belonging to the testator and remaining in the hands of Matilda, at the time of her death, which he refused to deliver to the plaintiff, on demand. It appears that the property referred to consisted of a real estate mortgage and a promissory note, which were executed to the said Matilda, after the death of the testator, andwere payable by their terms to her personally and individually.

Upon these facts, we are of the opinion that the plaintiff, having failed in his action, is chargeable personally with the costs, and they cannot be charged on the estate of the testator. The cause of action did not belong to him in his representative capacity. The gist of the action is the alleged conversion, evidenced by the defendant’s refusal to deliver the property on demand. Not only did that occur after the death of the testator and of his executrix, but the choses in action, which were the property demanded, did not exist during the life-time of the testator, but were executed to the executrix and were payable to her personally, and not in her representative capacity. Had she sued for their conversion in her representative capacity and failed, she would have been liable for costs. (Mann v. Baker, 5 Cow., 267, and cases cited; Bedell v. Barnes, 29 Hun, 589.) The plaintiff is in no better position. It was said in Ketchum v. Ketchum (4 Cow., 87, 89) that the case of Goldthwayte v. Petrie (5 T. R., 234, 235) draws the correct distinction. The distinction is between actions by executors, as such, upon transactions arising in the lifetime of the testator, and those where the whole transaction sued on took place after the testator’s death. In the former the costs incurred by failure are chargeable upon the estate; in the latter upon the plaintiff personally. (Goldthwayte v. Petrie, 5 T. R., 234; Ketchum v. Ketchum, 4 Cow., 87.)

The respondent’s counsel relies upon section 1814 of the Code of Civil Procedure, which provides, among other things, that “an action * * * hereafter commenced by an executor or administrator upon a cause of action belonging to him in his representative capacity * * * must be brought by * * * him in his representative capacity.” That section does not aid the respondent. The cause of action in this case having accrued wholly since the death of Warren Buckland, does not belong to the plaintiff in his representative capacity within the meaning of that section of the Code. It was held by the Court of Appeals, in Thompson v. Whitmarsh (1 East. Rep., 714), that “the effect of the section, and the change produced by it, is upon the class of cases in which the action could have been maintained in either form, as where upon a contract made with the testator the cause of action accrued after his death; or where, upon a debt or obligation duo to the deceased, the executor or administrator has taken a new security or evidence of debt. In these cases, before the Code, the action might be in the individual or representative name, but now must be in the latter.” Following that ruling the Supreme Court in the Second Department have held recently that, notwithstanding section 1814, an action cannot be maintained against an executor in his representative capacity upon a transaction which occurred after the testator’s death. The executor is liable in such case individually only. (Ferris v. Disbrow, 22 N. Y. Weekly Dig., 330.) The case of Dean v. Roseboom (37 Hun, 310), cited by the respondent’s counsel, has no bearing on the question as it arose before section 1814 was passed, and the court held that that section did not apply.

The order should be reversed, with ten dollars costs and disbursements.

Barrer, Haight and Bradley, JJ., concurred.

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


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    In the Matter of the General Assignment of ABRAHAM M. WITMER and Others to FRANKLIN SPAULDING for the Benefit of Creditors.

      County Court —jurisdiction of, over claims made against an assignee for file benefit of creditors —1877, chap. 4G6, sea. 25.

    One Hertzog procured from a County Court an order directing an assignee of Witmer and others, who had been carrying on business as bankers, to pay to him a certain sum of money, with costs. The application was made upon the ground that Hertzog had deposited a check for the sum named with Wit-mer, to purchase drafts, which, owing to the lateness of the hour at which the money was deposited, were to be delivered on the next morning. On the next morning the firm made a general assignment for the benefit of creditors, the proceeds of the check so deposited by Hertzog being subsequently collected and received by the assignee.

      Held, that the County Court had no jurisdiction to entertain the application or make the order.
    That section 25 of chapter 4GG of 1877 was not intended to enlarge the scope of the jurisdiction of the County Court, or to extend it to subjects not embraced in the provisions of the act which define the powers of the court, but merely to make the County Court a court of general jurisdiction in respect to the powers given to it by the act, and to vest it witli equity powers in reference to the trust and any matter involved therein, which may be brought before the court by a proceeding under the act.
    That the, remedy of the petitioner, if he had one, was by action.
    Appeal by Franklin Spaulding as assignee of Witmer and others from an order and judgment of the Niagara County Court, directing him to pay a certain sum of money to Oliver G. Hertzog, the petitioner herein, with costs.

      L. F. <& G. W. Bowen, for the appellant.

      Day <& liomer, for the respondent Hertzog.
   Smith, P. J.:

Witmer and bis partners were bankers at Suspension Bridge. Hertzog bad a bank account with tliem, and on the 1st day of August, 1884, be delivered to them at their banking office a check drawn by Benjamin Plagler, as collector of the port of Suspension Bridge, upon the Farmers and Mechanics’ National Bank of Buffalo, for the sum of $124, payable to O. Gr. Hertzog or bearer. He also delivered to them sixteen dollars in money. The delivery was made by handing the check and money to Abraham Witmer, one of the firm, who was then in charge of the banking office. At the time of the delivery Hertzog said, as he testified: “ I came in to purchase some drafts, but I see that the time is all consumed; I wish to take a train for Buffalo ; I will come in to-morrow morning and get the drafts, and bring in my book and have it written up.” The evidence shows that Witmer, at the time, filled up a deposit slip in the usual form, stating the transaction as a deposit, placed the money and check with the other like funds of the bank, and soon after caused the transaction to be entered in the books of the bank to the credit of Hertzog’s account. On the same day the check was transmitted by mail to the drawee for account and credit of Witmer’s bank, and it was received by the drawee and so credited. Hertzog did not state to Witmer the number or amount of the drafts that he had intended to buy. The receiving of deposits and the sale of drafts was part of the ordinary business of the firm.

On the next morning the firm made a general assignment to Spalding for the benefit of their creditors, and Spalding received from the Buffalo bank, a few days thereafter,the proceeds of said check.

In a proceeding commenced by the petition of Hertzog setting out these facts, the County Court made the order and judgment appealed from, directing the assignee to pay to the petitioner, from the assigned property, the amount received by him as the proceeds of such check, with costs.

The appellant’s counsel contends that the order and judgment in question exceeded the jurisdiction of the Oounty Court, and we are of the opinion that the contention is well founded.

The claim that the jurisdiction of the County Court is sufficiently broad to uphold the order and judgment appealed from, rests solely upon the provisions of section 25 of the act in relation to general assignments. (Laws 1877, chap. 466.) That section provides that any proceeding under the act is to be deemed a proceeding had in the court, as a court of general jurisdiction, and the court shall have full jurisdiction to do all and every act relating to the assigned estate, the assignees, assignors and creditors, and jurisdiction shall be presumed in support of the orders and decrees therein unless the contrary be shown ; and after the filing or recording of an assignment under the act, the court may exercise the powers of a court of equity in reference to the trust and any matters involved therein. The amendments of the act in 1878 (chap. 318) do not touch that section.

We think the intent and effect of the section are merely to make the County Court a court of general jurisdiction in respect to the powers given to it by the act, and to vest it with equity powers in reference to the trust and any matters involved therein, which may be brought before the court by a proceeding under the act. The County Court is a court of limited jurisdiction, except as otherwise prescribed by st atute, and although it is provided by the Code of Civil Procedure (§ 348), that where a County Court has jurisdiction of an action or a special proceeding, it possesses the same jurisdiction over the same which the Supreme Court possesses in a like ease; that section did not apply to proceedings authorized by the act of 1877, for the reason that the Supreme Court had not jurisdiction of proceedings of that nature, either at the time of the adoption of the Code, or of the act of 1877. Jurisdiction of such proceedings has, however, been conferred on the Supreme Court by a later act (Laws 1885, chap. 380), but that does not affect the question in hand.

Section 25, while making the jurisdiction of the County Courts general, was not intended to enlarge the scope of the jurisdiction or to extend it to subjects not embraced in those provisions of the general assignment act which defined the powers of the court. If it was designed to give the court power to do any conceivable act relating to the “ assigned estate, the assignees, assignors and creditors,” the act of 1878, already referred to, was a work of supererogation so far as it enlarges the powers of County Courts in assignment proceedings.

The proceeding instituted by Mr. Hertzog was adverse to the assignment executed by the Witmers, and it sought to cut out a part of tbe assigned estate and withdraw it from the operation of the assignment and the trust created thereby. It was a proceeding against Spalding, not as an assignee to compel him to execute a trust in which the petitioner was beneficially interested, but as a wrong-doer, to compel him to restore property which, it is alleged, never belonged to the assignors, and was wrongfully converted by the assignee. The proceeding is in the nature of an action for conversion, and it seems very clear to us that it is not authorized by the assignment act. The remedy of the petitioner, if he has one, is by action.

These views render it unnecessary to consider the other questions discussed on the argument.

What we have said as to the powers of the court under the assignment act harmonizes, as we understand the matter, with the views of the Court of Appeals upon that subject expressed in the Matter of the Assignment of Holbrook and others (99 N. Y., 539). The case is distinguishable from that of In re Morgan (99 N. Y., 145), cited by the respondent’s counsel. There the petitioners claimed under the assignment, and not adversely to it, and the only question decided was one as to the order of distribution of a part of the proceeds of the assigned property.

The judgment and order should be reversed. We think the appellant, as assignee, is entitled to recover his costs of the appeal and of the proceeding in the court below, to reimburse the fund in his hands ; and as the Code provides that the costs in such cases shall be at the rates allowed for similar services in actions (Code, § 3240), the costs hereby allowed are to be taxed accordingly.

Bareer, Haight and Bradley, JJ., concurred.

Judgment and order reversed, with costs of the appeal and of the court below to the appellant.


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    AGNES KING, Respondent, v. GEORGE H. VAN VLECK, Appellant.

      Assignment of a policy of life insurance — when a mortgage and not a pledge — right of the mortgagor or his repi'esentatives to redeem — when the claim of the mortgagee is satisfied by the receipt of the amount due — the surplus may be recovered in an action for money had and received.

    Ia Marcia, 1879, King assigned, to tlie defendant a policy of insurance upon his own life, taken out in 1868, as collateral security for the payment of a promissory note executed by King and held by the defendant, of even date with the assignment, for $500, payable one year from its date, the right to redeem being reserved to “the undersigned or his personal representatives.” In October, 1882, King died leaving a will, under which, and assignments from other legatees, the plaintiff, the widow of King, became entitled to the interest of the testator in the policy and its proceeds. After the death of King the defendant received from the insui-ance company the whole amount due on the policy, being the sum of $1,939.43, which he l'etained and refused to pay any part thereof to the plaintiff on being requested so to do.
    In this action, brought by her to recover for money had and received by the defendant for her benefit, a general verdict was rendered in her favor for the amount received by the defendant after deducting therefrom the debt and interest and the expenses incurred by him in collecting the amount from the company.

      Held, that the transaction between King and the defendant was to be treated as a mortgage and not as a sale of the policy.
    That the mortgagor had a right to redeem within a reasonable time after the law day had passed and before his rights were foreclosed by a sale on the part of the mortgagee, which right passed to his legal representatives.
    •That the acceptance by the defendant of the sum due on the policy, he not having taken any steps to cut off the right of redemption, was a satisfaction of his debt which obviated the necessity of a resort by the plaintiff to legal steps to enfoi’ce her right to aedeem and entitled her to recover the surplus in the equitable action of money had and received.
    Appeal from a judgment in favor of the plaintiff, entered on a verdict rendered at the Erie Circuit and from an order denying a motion for a new trial made on the minutes of the court.

      Williams <& Potter, for the appellant.

      Osgoodby <& Loveridge, for the respondent.
   Smith, P. J.:

The cause of action set out in the complaint is, in substance, for money had and received by the defendant to the plaintiff’s use. The circumstances under which it was received, as shown by the case, were as follows: The plaintiff is the widow of Sidney JB. King, deceased. In August, 1868, her husband procured from the Connecticut Mutual Life Insurance Company its policy of insurance upon his life for the sum of $2,000, payable to his executors or administrators at his death. In March, 1879, King assigned the policy to the defendant as collateral security for the payment of a promissory note executed by King, and held by the defendant, of even date with the assignment, for $500, payable one year from its date. King died in October, 1882, leaving a will bequeathing the interest of the testator in the said policy and the proceeds thereof to the plaintiff and others who subsequently assigned their interests to the plaintiff. The debt owing by King to the defendant was not paid, nor, so far as appears, did the defendant take any legal steps to collect it or to foreclose the interest of King in the policy during King’s lifetime. After the death of King the defendant received from the insurance company the whole amount due on the policy, being the sum of $1,939.43, which he retained to himself, and he refused to pay any part of it to the plaintiff on being requested to do so. The defendant incurred some expenses and made some advances in and about the policy. The court left it to the jury to say what the advances amounted to and also to render a general verdict. The jury rendered a verdict in favor of the plaintiff for $1,270.10. .

The appellant’s counsel contends that King, having mortgaged the policy and made default in payment, his right, at law, to the policy was extinguished ; that the only remedy, if any, which the plaintiff had was an equitable one to be permitted to redeem; that the action was triable by the court and not by a jury; that the court erred in taking a general verdict, and that the verdict is against evidence:

As the possession of the policy was transferred by King to the. defendant, the transaction might possibly be regarded as a pledge ; but treating it as a mortgage, which is the most favorable view for the defendant, the mortgagor, and his legal representatives had a right to redeem, notwithstanding his failure to pay the debt at maturity. (Hart v. Ten Eyck, 2 Johns. Ch., 100 ; Pratt v. Stiles, 17 How. Pr., 211; S. C., 9 Abb. Pr., 150.) That right might be exercised in any reasonable time. (Id.)

The first question to be considered is whether the transaction, between King and the defendant, was a mortgage or a pledge. Ordinarily, when a chose in action or chattel is deposited by the owner with a third person, as security for the payment of a debt or the. performance of some other obligation, the transaction is a pledge. But in this case, the written instrument by which the deposit was accompanied declares the transaction to be a sale, coupled with a defeasance, and we think it must be treated as a mortgage, by which the title passed, subject to the right of the mortgagor to redeem. (See McLean v. Walker, 10 Johns., 471; Barrow v. Paxton, 5 id., 258.) That being the nature of the transaction, the mortgagor had a right to redeem within a reasonable time, after the law day had passed and before his rights were foreclosed by a sale on the part of the mortgagee. (2 Story’s Eq. Jur., § 1031; Pratt v. Stiles, 17 How. Pr., 211; S. C., 9 Abb. Pr., 150.) That right, I have no doubt, descended to the legal representatives on the death of the mortgagor. That such right so passes in the case of a pledge was said by Kent, J., in Cortelyou v. Lansing (2 Cai. Cas., 200), in an opinion which, although never delivered (5 J. R., 260), has frequently been recognized by the courts as good law. (See McLean v. Walker, supra; Garlick v. James, 12 Johns., 146.) I can see no reason why the same rule does not apply in the case of a mortgage of chattels or choses in action. But whatever may be the general rule on the subject there can be no doubt of the right of the representatives to redeem in this case, as it is given to them by the mortgage. The proviso secures that right to “ the undersigned or his personal representatives.”

In the next place the acceptance by the defendant of the sum due on the policy, he not having taken any steps to cut off the right of redemption, was a satisfaction of his debt which obviated the necessity of a resort by the plaintiff to legal steps to enforce her right to redeem. There are numerous cases which I think support that position. Among them are Patchin v. Pierce (12 Wend., 61); Charter v. Stevens (3 Denio, 33); Hinman v. Judson (13 Barb., 629); Barry v. Bennett (7 Metc., 354). In Patchin v. Pierce, it was held that tender and acceptance of the debt after the law day reinvests the title in the mortgagor. In Charter v. Stevens, it was said that the same result would follow from full payment being made at any time. In that case after default the mortgagee had taken possession of the chattels mortgaged and. proceeded to sell under the authority given by the mortgage. Before he sold the horse, the title to which was involved in the action, enough money had been raised to satisfy the debt, including interest and expenses. It was held that his right to the residue of the property was thereby extinguished, and it was said that in equity, after satisfying the mortgage debt by the avails of the sale, he would have been a trustee of the residue of the property and must have accounted for it to the mortgagor. In Hinman v. Judson, it was held that a mortgagor of personal property, or those standing in his shoes, can, when sued for the property mortgaged, claim the right to redeem in his defense to that suit; and where he has not been foreclosed, he may mitigate the recovery against himself by reducing the judgment to the amount actually due on the mortgage. Applying that principle to this case, if the mortgagor had retained the possession of the policy and his representatives had received the whole sum insured from the company, and had been sued by the mortgagee for the money, they might have reduced the recovery to the amount of the debt. Why, then, should the mortgagee be permitted to retain more than the amount of his debt and necessary expenses, he having been enabled to receive the whole amount of the policy from the circumstance that it was in his possession ? We think that as to the surplus, he is to be regarded as the debtor of the plaintiff and liable to her in the equitable action of money had and received for her use.

It follows from these views that the recovery is right on the merits; that the case was properly tried as a law action, and that the judgment should be affirmed, unless, as the appellant’s counsel contends, the verdict is against evidence. That contention relates to the disallowance of the defendant’s claim for $200 paid to Greenwood, the agent of the company, in and about making the proof of death and securing the money. It is not apparent that the whole amount of the claim was disallowed. At the foot of the policy was a note to the effect that no agent of the company has authority to charge any fee or commission for the payment of the amount due under the policy. It is in the following words : The payee should receive the entire amount stated opposite the term {eashj’ without deduction.” The defendant and Greenwood must be pre-surnecl to have known of that limitation, upon tlie authority of the agent, when they dealt with each other. Greenwood paid out ten dollars to the doctors and undertakers for making affidavits to be used as proofs of death, and charged $190 for bis services. His statement of what his services were was not explicit. There was no proof of the value of his services. His own testimony and that of the defendant authorized the jury to find that whatever he did,, was, to a great extent, unnecessary. We cannot say that the jury went against evidence in fixing the amount of their verdict.

The judgment and order should be affirmed.

BaeKek, Haight and Bradley, JJ., concurred.

Judgment and order affirmed, with costs.


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    LOREN F. KRILL, Respondent, v. KINGSLEY BROWNELL, as Executor, etc., of CLINTON D. BROWNELL, Deceased, Appellant.

      ^Reference of a claim against an estate — right of the prevailing party to recover Ms disbursements— Code of Procedure, sec. 317, as amended by chapter 479 o/1851.
    The prevailing party, upon the reference of a claim, against the estate of a deceased person, is entitled to recover the fees of referees and witnesses, and his other necessary disbursements, as a matter of right.
    That clause of section 317 of the Code of Procedure, as amended by chapter 479 of 1851, which gives this right, is still in force.

      Hall v. Edmunds (67 How., 203), and Button v. Newton (2 How. Pr. [H. S.], 56) followed ; Daggett v. Mead (11 Abb. N.C., 116); Miller v. Miller (32 Hun, 481) overruled.
    Appeal from an order of the Monroe Special Term confirming the report of a referee allowing a claim against the estate of a deceased person, and adjudging that the claimant is entitled to recover his disbursements.

      T. L. HulbuH, for the appellant.

      Homy <& Parsons and George A. Benton, for the respondent.
   Smith, P. J.:

' The only question in this case is whether the prevailing party, upon the reference of a claim against the estate of a deceased person, is entitled to recover the fees of referees and witnesses and his other necessary disbursements, as matter of right. There are conflicting decisions upon the question. The point of difference is whether that clause of section 317 of the Code of Procedure, as-amended by chapter 479 of the Laws of 1851, which gives the right, is still in force. The clause provides that whenever any claim against a deceased person shall be referred, pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other-necessary disbursements, to be taxed according to law. In Daggett v. Mead (11 Abb. N. C., 116), disbursements as well as costs were disallowed to a prevailing party. That case was decided at Special Term in one of the districts of the Third Department. Subsequently the General Term in that department held, in the case of Miller v. Miller (32 Hun, 481), that in such cases disbursements do not belong to the prevailing party as matter of right. That case is incorrectly reported in 67 Howard’s Reports (135), as having been decided in the old Fourth Department. In Hall v. Edmunds (87 How., 202) Mr. Justice Angle, at Special Term in the Seventh District, came to a conclusion adverse to that of Daggett v. Mead, and held that the clause of section 317, above referred to, is still in force. Mr. Justice WbstbRooK held the same way at Special Term, in Sutton v. Newton (2 How. Pr. [N. S.], 56), in a careful opinion, in which he stated correctly, as we think, the effect of subsequent legislation upon the clause in question. It may be briefly restated here. The act of 1877 (chap. 417), which repealed chapter 379 of the Laws of 1848 (§ 1, sub. 22) (the original Code) and also so much of the then existing laws as expressly amended the same (§ 2) (including, of course, the amendments of 1851), excepted from its operation sections 311 to 322, inclusive, of the Code (§ 1, subs. 3, 8). The second general repealing act (Laws 1880, chap. 245), again in express terms repealed the Code of 1848, and also the Code of 1849 (§ 1, sub.. 4). It also repealed so much of every provision of the existing laws not previously specified in the first section above cited, relating to fees- or other compensation of an officer or other person, as is inconsistent with or the subject matter whereof is fully provided for in the Code of Civil Procedure, whether such provision has been heretofore generally repealed or not.” (Sec. 1, sub. 55.) And it provided in the next section that the repeal, by the last preceding section, of the Code of Procedure * * * effects also the repeal of all of the ■existing laws which expressly amend the said Code of Procedure * * * by adding to or otherwise altering the text thereof. (Sec. 2.) Put it is provided by the third section that the repeal effected by the first section “ does not affect the right of a prevailing party to recover the fees of referees and witnesses and his other necessary disbursements upon the reference of a claim against a •decedent, as provided in those portions of the Revised Statutes left unrepealed after this act takes effect.” (Sec. 3, sub. 8.) Thus the •right to disbursements recognized by the order appealed from is •expressly saved.

The appellant’s counsel contends, however, that the effect of the -eighth subdivision just now quoted is merely to save to the prevailing party the right to recover disbursements as provided in the Revised Statutes. That is a misreading of the statute. The words “as provided, etc., in the Revised Statutes” relate to “ the reference” and not to the “ right ” to recover disbursements. No absolute right to disbursements is given by the Revised Statutes. The provision for a reference is contained in the Revised Statutes (vol. 2, pp. 38, 89, §§ 36, 37), and is “left unrepealed.”

It was said in Miller v. Miller (supra) that section 32.46 of the ■Code of Civil Procedure takes the place of section 317 of the •old Code, and does not give disbursements as a matter of right. With great respect for our brethren by whom that case was decided, we think the better opinion upon that point was expressed by Judge Westbkooe in Sutton v. Newton (supra), namely, that as section 3246 relates to costs in actions merely, it does not supersede section 317 of the old Code so far as the latter relates to costs and disbursements in a reference under the statute. The section is found in an “ article ” which is entitled “ Regulations respecting the awarding of costs in particular cases,” and as “ special proceedings” as well as “actions” are expressly mentioned in some of the sections in that article (§§ 3241, 3243), it is fairly to be assumed that where special proceedings are not mentioned in other sections of the article they are not intended to be affected. References under the statute of claims against the estates of deceased persons have been held to be “special proceedings.” (Young v. Cuddy, 23 Hun, 249; Mowry v. Peet, 13 W. Dig., 16.)

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Barrer, Haight and Bradley, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    CHARLES G. DOUGLASS, Respondent, v. JOHN H. MAINZER, Appellant.

      Supplemental^ proceedings — the affidavit should state the amount then unpaid upon the judgment — the order must he made hy a judge and not by the court— Oode of Ovoil Procedure, sea. 2434.
    The plaintiff procured from the county judge of Steuben county an order requiring the defendant to appear before a referee, in proceedings supplementary to execution, upon an affidavit which stated that the plaintiff had recovered a judgment against the defendant in a Justices’ Court, and had caused a transcript to he filed and an execution to he issued, which had been returned partly unsatisfied. The affidavit specified the amount of the judgment, but not the amount remaining unsatisfied. A motion paade hy the defendant to the County Court to vacate the former order was denied.

      Held, that although the failure of the plaintiff to state in the affidavit the amount then unpaid upon the judgment did not deprive the county judge of jurisdiction to entertain the motion, yet its omission was such an irregularity as required the order to he vacated.
    It appearing upon the hearing of the motion in the County Court that the defendant had not been examined on the day named in the first order hy reason of the absence of the referee, the County Court inserted in the order, denying the motion, a direction that the defendant appear on a subsequent day for examination.

      Held, .that the County Court had no power to require him to so appear, as -power to make such an order is given, by section 2434 of the Oode of Civil Procedure, to judges only, and not to any court.
    Appeal from an order of the Steuben County Court denying defendant’s motion to vacate an order made by the county judge, in supplementary proceedings, requiring him to appear before a referee on a day named and be examined, and also directing the defendant to appear at a subsequent day for examination.

      Leslie W. Wellington, for the appellant.

      Edwm C. English, for the respondent.
   Smith, P. J.:

Tbe affidavit presented to the county judge stated that the plaintiff had recovered a judgment against the defendant in a Justicesr Court, and had caused a transcript to be filed and an execution to be issued, which had been returned partly unsatisfied. The affidavit specified the amount for which the judgment was rendered, but did' not state what amount remained unsatisfied. The appellant’s counsel contends that by reason of that omission the affidavit was insufficient to give the judge jurisdiction. We think otherwise. The statement of the amount for which the judgment was rendered was enough to give jurisdiction under sections 2435 and 2448 of the Code.

Put, although the judge had jurisdiction, it seems to us that the omission to state the amount remaining unpaid was an irregularity which furnished good ground for the defendant’s motion to set aside the order. It is not enough to aver, in the words of the statute, that the execution was returned “ partly unsatisfied,” the amount remaining unsatisfied should be specified. The amount may be SO' small that, if it were stated, it would be unjust and oppressive to institute the proceeding. De minimis non curat lex. A statement of the amount is necessary to enable the court to make an order under section 2446 (if there should be occasion for it), permitting payment to a sheriff of a sum “ not exceeding the sum which will satisfy the execution.” Such an order, which merely followed the words of the statute just now quoted, and did not specify the sum needed to satisfy the execution, would be irregular for its vagueness and uncertainty.

The order of the County Court not only denied the defendant’s motion with costs, but turned his own motion against him, by directing him to appear at a subsequent day before the referee and be examined. No motion appears to have been made to that effect by the plaintiff on notice. We are inclined to the opinion that the County Court had not jurisdiction to entertain a motion for such relief, either with or without notice. Jurisdiction to make an order requiring a debtor to appear before a referee and be examined in supplementary proceedings, is given by tbe Code to a, judge, and not to any court. (Sec. 2434.) This was an order de novo, of that nature. The original order had spent its force. It had been made more than a month previously, and the day fixed by it had passed, and there had been no examination before the referee, although the defendant had duly appeared for that purpose. The day had passed without the ■examination, because the referee was not present. There was no way, then, of getting the defendant before the referee except by a new order requiring him to appear, and that could only be made by a judge. The order appealed from does not purport to have been made by the county judge, but is a court order. It is not a modification of the original order, such as is authorized by section 2433 of fhe Code, as it was not made on motion, and is an original order.

For these reasons we think the order appealed from should be reversed in all respects, and the motion granted, with ten dollars costs and disbursements!

Barker, Haight and Bradley, JJ., concurred.

Order reversed and motion granted, with costs and disbursements.


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    ABRAM DUNN, Appellant, v. Cornelius Parsons, Respondent.

      .Accommodation indorser — not absolutely discharged by the holders releasing real estate of the maker from the lien of a judgment on the note.

    This action, brought against the defendant as an accommodation indorser of a note, was defended upon the ground that the plaintiff, by voluntarily releasing certain real estate owned by the makers of the note from the lien of a judgment recovered upon it, had discharged the defendant from all liability as indorser. Upon the trial the evidence was conflicting as to whether or not the premises released were of sufficient value to pay in full or in part the plaintiff’s claims after deducting the amount due upon prior liens.
    The court refused to submit to the jury the question whether said releases had in any manner injured the defendant or impaired his security, and if so, to what extent, and directed a verdict in favor of the defendant.

      Held, error.

      Vose v. The Florida Railroad Company (50 N. Y., 369) followed, and Fielding v. Waterhouse (40 N. Y. Supr. Ct., 434) distinguished.

      Held, further, that it would he incumbent on the plaintiff on the new trial to show clearly that the property released could not have been made available at all, or not beyond a certain amount, to the payment of the judgment on the note by reason of the prior incumbrances, and that to the extent of the value of the part released, the defendant was discharged.
    Appeal from a judgment in favor of the defendant, entered on a verdict directed by tbe court at the Erie Circuit.

      N. Morey, for the appellant.

      George Clinton, for the respondent.
   Smith, P. J.:

The plaintiff was sued as indorser of a promissory note made by J. Getz & Co. The defense litigated was, that the creditor had voluntarily released certain real estate belonging to the makers from the lien of a judgment which he had obtained against them on said note before suing the indorser. .The real estate consisted of three parcels, one of six and acres of land in the city of Buffalo, and two in the town of Tonawanda, containing eighty-three and acres and 141 and acres of land, respectively. The claim in suit was for $5,000, and interest from dune, 1872. At the trial evidence was given on the part of the plaintiff tending to show that the premises release d were incumbered by prior liens to the extent of the full value of the premises. The defendant gave evidence tending to show that the premises released were of sufficient value to pay the judgment and the prior incumbrance in full.

The defendant’s counsel moved the court to direct a verdict for the defendant. The plaintiff’s counsel objected, and askéd the court to submit to the jury the question whether said releases, or either of them, had in any manner injured the defendant or impaired his security; and if so, to what extent. The judge declined to submit said question to the jury, and directed the jury to render a verdict for the defendant, to which refusal and direction the plaintiff’s counsel duly excepted. Upon those exceptions arises the only question in the ease.

The defendant was an accommodation indorser, and consequently was a mere surety for the makers of the note. And the holder of the note having obtained a judgment upon it, which became a lien upon the real estate of the makers, or one of them, the defendant,. as surety, was entitled to regard the judgment and its lien as security for the principal debt, and to be subrogated in the place of tbe creditor in respect to the j adgment and its lien, in case he paid the debt. The creditor having voluntarily released the lien of the judgment upon the real property of the principal debtor, it is now contended on the part of the defendant, as it was at the trial, that he is absolutely discharged from liability, without reference to the question whether he was actually damnified by the release, or, if damnified, to what extent. And it is claimed that there is a distinction in this respect between cases where the release is the voluntary act of the creditor and those in which it is the result of mere laches on his part.

The case of Vose v. The Florida, Railroad Company (50 N. Y., 369), is an authority adverse to that contention. It was held in that case that a sale by a creditor of collateral securities, placed in his hands by the principal debtor, in violation of a stipulation for a particular notice of sale contained in the contract under which they were pledged, does not, per se, discharge a surety, in tofo, who is liable for the debt, but by such sale the creditor makes the securities his own to the extent of discharging the surety to an amount equal to their value. Andeews, J"., speaking for all the members of the court who voted in the case, said : The act of the creditor did not change the contract upon which Yulee was surety, and the rights of all parties will be fully protected if it shall be held that the debt was discharged to the extent of the value of the bonds sold in contravention of the contract. It is not difficult to measure the loss ' actually sustained by the conversion or misapplication by the creditor of the securities in his hands. It would be contrary to equity to discharge the surety in tolo, in consequence of a release by the creditor of a security without reference to its value.” And he cited the following authorities confirming this view: Story’s Equity Jurisprudence (§ 326); Capel v. Butler (2 Sim. & Stu., 457); Law v. East India Company (4 Ves., 833); Payne v. Commercial Bank of Natchez (6 Sm. & Marsh, 24); Neff's Appeal (9 W. & S., 36).

The learned counsel for the respondent places his contention upon another ground, also, that even where a surety would ordinarily be discharged p/ro tanto only, yet, if the act of the creditor has rendered it impossible to estimate correctly what would be the value of the security affected, through the time it could be kept alive, the surety becomes absolutely discharged. He cites the case of Fielding v. Waterhouse (40 N. Y. Supr. Ct., 424). That was not the case of a discharge of a particular piece of property from the lien of a judgment, but the judgment itself was discharged, and the decision proceeded on the idea that it was impossible to say what would have been its value if it had been kept alive. Here, however, the value of the real estate discharged was capable of being ascertained. We think, therefore, the direction to render a verdict for the defendant cannot be sustained and that there must be a new trial. For the purposes of the new trial we hold that it is incumbent on the plaintiff to show clearly that the property released could not have been made-available at all, or not beyond a certain amount, to the payment of the judgment on the note by reason of the prior incumbrances, and to the extent of the value of the part released, the surety is discharged. (Holt v. Bodey, 18 Pa. St., 207.)

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

BakKek and Bbadley, JJ., concurred; Haight, J., not sitting.

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