text:
    JAMES S. WILLETT, Administrator, etc., Respondent, v. SOLOMON KIPP and GEORGE C. BYRNE, Impleaded with others, Appellants.

      Sheriff — power of, to take bond from jailer — sureties upon — what must be proved in an action against.

    A sheriff may take from a jailer appointed by him a bond of indemnity, with satisfactory sureties, conditioned to secure the faithful performance of the jailer’s duties, and such bond is not illegal as being taken by color of office.
    By the terms of a bond given by the keeper of a jail, the sureties agreed to save and keep harmless the sheriff from any damages occasioned by any neglect of the kedper or misfeasance, or malconduct touching the duties of his office, expressly stipulating and agreeing that the recovery against the sheriff of any judgment by reason of any of the matters aforesaid should be conclusive evidence of their liability under the bond.
    In an action brought by the administrator of the sheriff upon the bond, the plaintiff proved a judgment recovered against the sheriff for the alleged escape of one Cohen, who had- been arrested by the sheriff by virtue of an execution issued against him. The complaint, in the action against the sheriff, alleged the arrest of Cohen, and that the sheriff, without leave or license, and against the will of the plaintiff, suffered and permitted the said Cohen to escape and go at large wherever he would out of the custody of the sheriff. Sold, that the judgment recovered against the sheriff and the allegations of the complaint therein did not show that Cohen had escaped by reason of the negligence, misfeasance or nonfeasance of the jailer, and that it was an error to direct a verdict in favor of the plaintiff against the sureties upon the bond of the jailer.
    Appeal from a judgment in favor of tbe plaintiff entered upon a verdict directed by tbe court, and from an order denying a motion for new trial made upon tbe minutes of tbe justice before wbom tbe act'.t n was tried.

      Ira Shafer, for tbe appellants.

      A. J. Vanderpoel, for tbe respondent.
   Davis, P. J.:

This action was brought upon a bond given to tbe plaintiff’s intestate, who was then sheriff, by tbe appellant, Solomon Kipp, wbc was appointed keeper of tlie county jail, and tlie appellant, George 0. Byrne, and three other parties as sureties.

The answer of these appellants put in issue the execution of the bond as sot forth in the complaint, admitted the arrest of one Cohen by tlie sheriff and liis committal to tlie county jail, but denied his escape therefrom, and denied also that he escaped by reason of any neglect of the keeper of the county jail or by reason of the nonfeasance, misfeasance or malconduct of the keeper touching the execution of his office. At the trial a motion was made for a dismissal of the complaint upon the opening of the plaintiff’s counsel, which was denied, and the defendants excepted. f These exceptions, if well taken at the time, would cease to be' of any legal effect if, during tlie trial, sufficient evidence was given to justify a recovery. The bond, when put in evidence, was objected to on the ground that it was void, because illegally taken by color of office. This objection we think, had no foundation. The sheriff had authority to appoint a jailer and the liabilities of that officer to him are well established at common law. Wc think there is no doubt the sheriff may secure their performance by requiring the jailer to give him a bond of indemnity with satisfactory sureties.

The condition of the bond in this case was, in substance, that tin jailer should in all things well and truly execute his office during his continuance therein, without any deceit, fraud, delay, neglect oi oppression, and that the sureties shall at all times indemnify and save and keep harmless the said sheriff of, from and against all issues, fines, demands, damages, costs, liabilities and charges whatsoever, hereafter to be produced, imposed, prosecuted, demanded or demandable. for or by reason of any neglect of any kind whatsoever, of the said Solomon Kipp, in executing wrongfully or neglecting to execute the office of keeper of the jail for the said city and county during the time aforesaid. And also for or by reason of any manner of nonfeasance or misfeasance, or malconduct of the said Solomon Kipp, in anywise touching the execution of his said office of keeper of the jail.” And the said bond also contains a provision waiving notice of any suit or proceeding against said Willett for or by reason of any such nonfeasance, misfeasance or malconduct, expressly stipulating and agreeing that the recovery against said Willett of any judgment or the order imposing any fine, costs, charge or liability upon said Willett, for or by reason of any of the matters aforesaid, shall be conclusive evidence of their liability under the bond.”

The plaintiff proved the judgment and the proceedings in the action in which Cohen was arrested by the sheriff upon execution, and the judgment record in the action against the sheriff for the alleged escape; in which action the averments of the' complaint as stated in the case were, that after the arrest of Cohen and on the tenth day of December, 1858, said sheriff, without leave or license and against the will of said plaintiff, suffered and permitted the said Cohen to escape and go at large wheresoever he would out of the custody of the said sheriff, the sum due to plaintiff upon said judgment being still wholly unpaid and unsatisfied. After proving the judgment the plaintiff rested. .

The defendants moved to dismiss the complaint as to each of the defendants, separately, on the following grounds:

1. That the plaintiff failed to show the escape of Cohen except by the record, and that that is not evidence against the defendants.
2. That there was no proof of Cohen’s escape through the fault or negligence of the jailer. That the recovery against the sheriff is not proof of that fact, and that the burden of proof is upon the plaintiff to establish the fact that the escape was through the fault or negligence of the jailer.

The court overruled the objections and directed a verdict for the plaintiff, to which the defendants duly excepted. The question presented is whether the proof given of the recovery against the sheriff is conclusive evidence against the defendants, of such an escape as renders them liable on their bond of indemnity. The rights of the appellant Byrne, he being a surety to the bond, are to be construed strietissimi juris, and he is entitled to call upon the sheriff to establish a liability clearly within the condition of the bond.

The bond does not cover every escape that might possibly occur, for which the sheriff might be liable, but such as shall occur by reason of the default or negligence or misfeasance or nonfeasance of the jailer.

It may well be, that if the record of the recovery against the sheriff had shown an escape clearly within the terms of the bond, the rulings of the court below would have been entirely correct, and that the provision waiving notice of the action, together with the conditions of the bond, would have made a clear case of liability against these defendants; but the judgment record fails to show such an escape. The complaint alleges that the sheriff, without leave or license and against the will of the plaintiff in that action, suffered and permitted said Oohen to escape and go at large wheresoever he would out of the custody of the said sheriff, the judgment being still wholly unpaid and unsatified. This includes every kind of escape that could occur; but it fails to show that the particular escape in this case was such as would necessarily charge the jailer and his sureties. An escape after Cohen had been let to bail ■ for the jail limits would be fairly within the allegations of the complaint, or an escape while he was actually out of the jail in the custody of the sheriff upon any process, or in any proceeding; and in neither of those cases would the jailer be liable on his bond. It was necessary, therefore, under the peculiar allegations of the complaint, for the plaintiff to have gone further, and to have shown that the escape was one made from the jail itself, under such circumstances, as to show actual or implied negligence on the part of the jailer. We think this was not shown, either by the proof or by any admission of the answer of these defendants. And for this reason there must be a new trial.

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

Brady and Daniels, J., concurred.

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


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    In the Matter of the petition of G. H. BURMEISTER to vacate an assessment, etc.

      Assessments in New Tork —places where work has ab'eady leen done excepted from the provisions of the ordinance — construction of such exception.

    An ordinance of tlie common council of New York directed tkat a street therein “be regulated and graded, and curb and gutter stones set, and sidewalks flagged a space four feet wide through the center thereof, where not already done.” Held, that it was not sufficient to bring a case within the exception ■ created by the ordinance to show that the sidewalk had been flagged and curb and gutter stones set, but it was necessary to go further and show that the flagging and curb and gutter stones continued, at the time of the passage of the ordinance, in such condition as to render further work thereon unnecessary. The statement that the terms “paving” and “repaving,” as used in the acts of 1872 and 1874, regulating actions to be brought to vacate assessments in the city of New York, apply only to the paving and repaving of the carriageway, and do not include the flagging of sidewalks or the setting of curb and gutter stones, made in the Matter of Burmeister (9 Hun, 613), approved.

    Appeal from an order vacating an assessment for regulating, grading and curbing of Forty-sixth street, in the city of New York.
    The ordinance under which the work was done and the assessment laid was as follows:

      “Resolved, That Forty-sixth street, from Eleventh avenue to the North river, be regulated and graded, and curb and gutter stones set, and sidewalks flagged a space four feet wide through the center thereof where not already done, through the direction of the commissioner of public works, who ’may appoint an inspector therein and one of the city surveyors.”

      Wm. 0. Whitney and J. A. Beall, for The Mayor, etc., of the city of New York, appellants. »

      P. A. Pamgous, for the petitioner, respondent.

       See post, pp. 490-558.

   Brady, J.:

This case arises under the acts of 1870 (chaps. 139 and 383) th> first known as the charter.

No papers were designated under the provisions of these acts and the prohibition against publishing notices in papers, other than those named, never became operative. (Matter of Peugnet, 5 Hun [12 S. C. N. Y.], 436.)

The objection that the publication of the proceedings with regard to the assessment was not made according to law fails therefore.

The petitioner has not established his case in that respect, because the publication could be made in any papers selected for the purpose. This result renders it unnecessary to consider any other objection presented, except, perhaps, the proposition that the ordinance did not warrant the assessment because it provided that the sidewalk, etc., should be laid where they were not already done, “ and because it appears that an assessment was imposed for setting curb, gutter and flagging in Forty-sixth street, from Broadway to the Hudson river, and was confirmed in 1865 and the amount assessed on the petitioner’s lots paid in 1866.”

The objection rests upon the words not already done.” These words are used to except the completed part of the assessed area, that is, that portion of the street in which it was not necessary to regulate or grade, or set curb and gutter stones or flag the sidewalks. If it was not necessary to do any of these things to the front of the petitioner’s lot because it had been already done, it was for him to show it. .

It would not follow because it had once been done that it was not necessary to do it again, and the words already done ” have no other signification in the ordinance than to exclude its application to parts of the line where the work contemplated had been done, and continued to be in such state, that further attention was unnecessary.

It applied to the existing and not to the prior condition of the subject-matter. It does not appear to have been unnecessary to do, along the line of the petitioner’s lot, what was designed to be accomplished by the" ordinance and, therefore, the objection is unavailing.

The presumption is in favor of the officers of the city whom it will be assumed, in the absence of proof to the contrary, did their duty in respect to the ordinance and its requirements.

"Whether flagging is a repavement is not, therefore, a question in this appeal, but if it were the views expressed by the presiding justice, In the Matter of Burmeister (9 Hun, 618), would bd controlling at least until the Court of Appeals shall say that the decision In the Matter of Phillips (60 N. Y., 16) was meant to embrace all cases of flagging. For these reasons we think the order made at Special Term should be reversed, but without costs to either side.

Davis, P'. J., concurred.

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

Order reversed, without costs.


text:
    WILLIAM W. GIBBS, Respondent, v. ROBERT H. HICHBORN, Appellant.
    Arrest— when the ground of, is identical with the cause of action — Code, § 179, sub. 2.

    The complaint in this action alleged that the plaintiff and defendant exchanged dry goods, owned hy them respectively, for certain real estate, the title to which was, hy agreement, taken in plaintiff’s name; that, in pursuance of the same agreement, the plaintiff executed a bond and mortgage to the defendant for $10,000, to he sold hy the latter, the proceeds arising thereon to he divided between the plaintiff and defendant according to the value of the respective lots of dry goods; that defendant sold the mortgage and failed to pay over to the plaintiff his share of the proceeds.
    Upon the trial the plaintiff recovered a verdict, upon which a judgment was entered, on which an execution against the person of the defendant was issued, no order of arrest having ever been made in the action. On a motion to vacate the order, held, that the defendant was acting in a fiduciary capacity and liable to arrest; that the cause, of arrest and cause of action were identical, and that the execution was properly issued.
    Appeal from an order denying a motion to set aside an execution against the body of the defendant. The complaint alleged, among other things, that theretofore this plaintiff and the defendant bartered or exchanged dry goods- owned by them respectively for certain real estate, and upon the making of said barter or exchange, this' plaintiff, for convenience, took the conveyance and title of said property in the interest of the plaintiff and defendant.

      That it was part of the agreement between plaintiff and defendant, in respect to said barter or exchange, that upon the taking of said conveyance this plaintiff should execute and deliver to the defendant his bond in the penalty of $20,000, conditioned for the payment of $10,000, secured by a collateral mortgage upon the said real estate, which bond and mortgage should be thereupon negotiated and sold by the defendant, and the proceeds thereof should be divided between plaintiff and defendant according to the proportions of their respective stocks of dry goods so bartered and exchanged for said real estate, after first allowing to this plaintiff out of the same the expenses incurred upon the examination of the title of said real estate.
    That on or about the 13th day of November, 1873, the defendant negotiated and sold the said bond and mortgage so executed by plaintiff to him, and received the full amount thereof..
    That the proportion of the amount of said mortgage payable to plaintiff by defendant, pursuant to, the agreement aforesaid, was $5,344.48, upon account of which defendant had at different times paid or caused to be paid to the plaintiff the sum of $1,600.
    That this plaintiff had demanded from the defendant at'different times the payment and delivery to him of the said portion of said proceeds of said mortgage to which he was so entitled; but the defendant had hitherto neglected and refused to so pay or deliver any part of the same except the said sum of $1,600 above mentioned.
    After a verdict and judgment in favor of the plaintiff an execution against the body of the defendant was issued, to set aside which this motion was made.

      Orlando L. Stewart, for the appellant.

      li. S. Green, for the respondent.
   Brady, J.:

The error of the appellant consists in supposing that the transaction between the parties hereto was a copartnership. It was not. The complaint contains a statement of it in detail. The defendant was to sell a bond and mortgage, in wdiich the plaintiff had an interest as owner, and out of the proceeds to pay the plaintiff the amount of his ownership. He negotiated the sale, received the money, and kept a part of the plaintiffs share as owner. As suggested, all the facts, including that just stated, in regard to the mortgage, were not only recited in the complaint, but tho subject of proof, and therefore of investigation, on the trial. It is quite apparent that no credit was given to the defendant by the plaintiff The former was to pay the share of the latter when the money was received for the transfer contemplated, and the transaction was therefore like the delivery of any property to be sold on account of the owner and upon the agreement that the proceeds should be paid over when received. The statement of facts per se imported liability to arrest.

The defendant acted in á fiduciary capacity, and was therefore subject to that remedy. The principles declared in Wood v. Henry (40 N. Y., 124), to which we were referred, are applicable. We can adopt the view of the transaction in the respondent’s points:

The whole arrangement evidently shows that the intention of the parties was to raise a sum of money from some third party, and that the plaintiff, having confidence in defendant’s integrity, executed-to him a bond reciting that he was indebted to him in the sum of $20,000, conditioned for the payment of $10,000, secured by mortgage upon the real estate, trusting to his honor to properly dispose of the security for the purpose of accomplishing their object, namely: The raising of money and the division of the proceeds.”

The case of Morange v. Waldron (6 Hun, 529) is not an authority in favor of the defendant. The proposition maintained in that case was, that in order to render a person liable to arrest under subdivision 2 of section 179, relating to money received in a fiduciary capacity, it must appear that the identical money received was the property of the creditor. Assuming that to be the law, this case presents the necessary element. The money received on the sale of the bond and mortgage was, to the extent of the plaintiff’s interest as owner, his money, and was, by agreement, to be paid over to him when received. The right to issue an execution against the person existed therefore. The cause of arrest was identical with the cause of action, and the facts constituting the latter were established by recovery and judgment, and show conclusively that the defendant was liable to arrest. (Code, 179; Woods v. Henry, supra.)

> The order appealed from must be affirmed, with ten dollars costs, and the disbursements of this appeal.

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

Order affirmed, with ten dollars costs and disbursements.


text:
    MARY PETTIGREW and others, Appellants, v. JANE FOSHAY, otherwise called JANE PETTIGREW, Respondent.

      Estoppel — power of court of equity to restrain proceedings in other courts.

    The defendant, Jane Fosliay, commenced an action against the administrators of J. tV. Pettigrew, deceased, to recover for services as nurse and housekeeper, which was settled by payment to her of $17,000, upon her solemn asseveration in writing that she was not the lawful wife of the deceased in his lifetime. Subsequently she applied to the surrogate to have the letters of administration issued upon his estate set aside and new letters issued to her on the ground that she was his widow.
    This action was commenced to restrain the further prosecution of the proceedings before the surrogate on the ground, among others, that she was estopped from so doing by her written statement. Held, that the action could be maintained.
    Appeal from an order made at Special Term, refusing an injunction to stay proceedings recently instituted by defendant before the surrogate of New York, whereby she seeks to revoke the letters of administration upon the estate of John W. Pettigrew, deceased,' which were granted by said surrogate to Robert Pettigrew and Richard C. Downing on the 19th of March, 1875.
    The action is brought by the heirs at law and next of kin of the deceased against the defendant, who claims to be the widow of the deceased.
    John W. Pettigrew died intestate in the city of New York, in the year 1875, leaving him surviving the plaintiffs, his mother and brothers and sisters, his heirs at law and next of kin. Letters of administration were procured to be issued upon the consent of the heirs at law and next of kin, and without notice to the defendant. In the month of November, 1875, the 1 defendant, in her name of Jane Foshay, gave notice in writing to the administrators of deceased that she claimed the sum of $40,000 for services as housekeeper and nurse of the intestate from the 1st day of May, 18GG, to the time of his death, which the administrators refused to pay. In March, 1876, the defendant, in her name of Jane Foshay, commenced an action against the administrators in this court to recover said sum of $40,000, which she claimed to be due her as the nurse and housekeeper of the deceased. After the service of the complaint in that action, specifying the particulars of defendant’s said claim, negotiations were entered upon by said defendant, under advice of her counsel, and the plaintiffs, with a view to a compromise and settlement of such claim. As an inducement to settle said claim, said defendant then and there represented in writing that she “was not the lawful wife of said John W. Pettigrew, deceased, in his lifetime, and that she made no claim, and never made any claim against his estate as his widow.” Relying upon this statement and believing it to be true, the heirs at law-and next of kin of deceased consented that the administrators of his estate should pay, and said administrators agreed to pay to said defendant in satisfaction of all the claims upon his estate, both real and personal, which the defendant might have in any capacity, the sum of $17,000. Thereupon, about the 27th day of June, 1876, said defendant executed and delivered to said plaintiffs, severally as heirs akdaw, next of kin, and administrators of the estate of said deceased, several full releases in writing of all her claims of every nature against them or the estate of said deceased, and a discontinuance of said action, and received from them in consideration therefor the sum of $17,000. About the month of April, 1877, the defendant filed her petition in the New York Surrogate’s Court, stating that she was the widow of the deceased, and that letters of administration had been issued without notice to her, and praying that they might be revokedj and letters of administration upon the estate of deceased issued to her as his widow, by law entitled thereto.

      Albert Matthews, for the appellants.
    Where full relief may not be had, as respects all the real parties in interest, who are to be affected by a proceeding pending in another court of limited jurisdiction, it is within the power of this court, and it is the right of the parties in interest to invoke the mandatory powers of this court to enjoin such proceedings. {Sampson v. Wood, 10 Abb. P. R. [N. S.], note, 223; Erie R. W. Go. v. Ramsay, 45 N. Y., 647; Harlem R. R. Go. v. Hawes, 56 id., 175; Brevoort v. MeJimsey, 1 Edw. Y. O. R., 551; Siemon v. Schurok, 29 N. Y., 613.) This proceeding before the surrogate embarrasses and delays the administration of the estate by keeping the authority of the administrators under a cloud, and prevents a distribution of the assets among the next of kin of deceased, who are the plaintiffs in this action. {Siemon v. Austin, 33 Barb., 9 ; Siemon v. Sehurelc, 29 N. Y., 613.) This action is also maintainable in this court, upon the theory of a bill for specific performance of the releases given to the next of kin and administrators. {Phillips v. Berger, 2 Barb., 608 ; same case on appeal, 8 id., 527.) The defendant is estopped (in this court), as against the heirs at law and next of kin of the deceased, from setting up any claim to administration upon the estate of deceased as his widow, and attempting to enforce suph claim by proceeding before the surrogate. {Wood v. Seely, 32 N. Y., 116 ; Dougrey v. Topping, 4 Paige, 97 ; McvreellMs v. Gountreymcm, 65 Barb., 204.) The defendant cannot complain that she is deprived by the process of this court of any statutory rights; as in this court of equity she may bo deemed to have waived any private personal right to administration she may have possessed, and to have made her election. {Phyfe v. Eimer, 45 N. Y., 104; Rodemund v. Olarh, 46 id., 357.) The defendant’s claim (as employe of deceased for services rendered), which she made by her suit against the estate, is wholly inconsistent with the claim she now makes (as widow) to administration. {Oropsey v. Sweeney, 27 Barb., 310 ; Oropsey v. Ogden, 1 Kern., 228.)

      H. I. O Union, for the respondent.
    The Surrogate’s Court is tne proper tribunal to try and determine the questions raised by the petition of the defendant. (2 Edm. Rev. Stat., 75, § 23; Sipperly v. Baneus, 24 N. Y, 46 ; BriePs Estate, 15 Abb. Pr., 12; Sess. Laws of 1867, chap. 782, page 1927 ; -7 Edm. Stat., 168, § 27.) „ If letters have been issued by the surrogate of New York to the plaintiffs, Downing and Pettigrew, by a fraud in the wrongful concealment of the claim of the petitioner, and without notice to her, the surrogate has the right to hear and inquire as to her claim now. (.Bride's Estate, 15 Abb. Pr., 12 ; Patullo's Estate, 1 Tucker’s Pep., 99; Kerr v. Kerr, 41 N. Y., 272 ; 4 Edm. Stat., 493, § 34.) The questions then arising upon the petition are to be determined in the Surrogate’s Court. {Kerr v. Kerr, 41 N. Y., 272; Devin v. Patehm, 26 id., 441; Matter of Angevine, 1 Tucker’s Pep., 178.) If the decision of the surrogate is erroneous, an appeal lies therefrom to the Supreme Court, as succeeding the chancellor. (2 Edm. Stat., 632, § 104; Mount v. Mitdiell, 31 N. Y., 356.)
   Brady, J.:

It appears in this case that the defendant Jane Foshay commenced an action against the administrators of John W. Pettigrew, deceased, to recover for services rendered as nurse and housekeeper of the deceased. The action thus commenced was compromised by the payment of $17,000, and upon her solemn asseveration in writing that she was not the lawful wife of the deceased in his lifetime. Subsequently, she filed her petition in the Surrogate’s Court of this county, stating that she was the widow of the deceased, and that letters of administration were issued without notice to her, and praying that they might be revoked and letters of administration upon the estate of the deceased issued to her as his widow by law entitled thereto. This action was commenced to prevent the litigation of that question before the surrogate, and on the proposition, among others, that she was estopped by her solemn act aforesaid from presenting the claim, interposed by her petition, to the surrogate. The plaintiffs, as heirs at law and next of kin, and having an interest in the subject, asked for an injunction restraining her from proceeding before the surrogate as contemplated by her, alleging, among other facts, that she was irresponsible, except so far aa the balance of the $17,000 paid to her might remain unexpended. The motion for the injunction was denied, and hence this appeal. The relief sought by it seems to have been denied, upon the ground that the surrogate has ample power to determine who is entitled to letters, and to vacate them if improperly issued. This action, however, has a much wider sweep. It presents the question whether the defendant can be permitted, under the circumstances, to urge her claim at all, and the plaintiffs have a right to test that question in this action. The surrogate might decide on the facts that the defendant was not entitled to letters, but the decision would rest upon the evidence relative to the fact of the marriage. The surrogate does not possess the equitable jurisdiction which enables him to employ the strong arm of equity to prevent abuses in the administration of justice — to prevent, in other words, the legal machinery of his court from being put in motion, which is the object of this action. If the only question herein presented was the marriage, there might be great force in the proposition that the surrogate must be permitted to investigate that subject, with reference to the issuing of letters of administration. Such is not the fact, however, and, as suggested, the sphere of this action is much broader, striking at the right of the defendant to begin or continue such proceedings after her declaration which, if true, shows conclusively that she ought not to be allowed to appear as a litigant.

For these reasons, the order appealed from must be reversed and the cause remitted to the Special Term, as the defendant does not appear to have been heard there.

The costs of this appeal to the plaintiff must abide the event.

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

Order reversed, cause remitted to the Special Term; costs of this appeal to the plaintiff must abide the event.


author: Ready, J.:

text:
    In the Matter of the Application of the FRENCH MANUFACTURING COMPANY for a Dissolution thereof.

      Yolunta/ry application for dissolution of corporation — injunction against proceedings by creditors, not granted with order to show cause.

    Upon tlie presentation of an application for the voluntary dissolution of a corporation, under the provisions of the Revised Statutes, an injunction restraining the creditors from proceeding against the corporation to enforce their demands cannot be granted at the same time with the order to show cause why such dissolution should not be had.

      In the Matter of Watwbury (8 Paige, 380), followed.
    Appeal from an order denying a motion to vacate an injunction.
    On the 23d day of June, 1877, the trustees of the French Manufacturing Company applied at chambers, by petition, praying, for reasons therein stated, a dissolution of the said corporation.
    This application was made under the provisions of the Revised Statutes relative to the voluntary dissolution of corporations.
    The petition sets forth, among other things, that several creditors of the corporation had commenced actions at law to recover tlieir claims, and that there was danger if they were allowed to prosecute their suits, that the property of the company would be sacrificed to satisfy their claims to the great injury of the remaining creditors, and. prayed that such creditors should be enjoined until the appointment of a receiver.
    An order to show cause why the corporation should not be dissolved and appointing a referee to take proof on the return thereof was -made, and all creditors of the said corporation were, enjoined from commencing, or further prosecuting any actions or proceedings at law for the collection of their claims.
    The petitioners, Messrs. Smith & Son, previous to this had commenced action against the copipany for the collection of its promissory note held by them, but had not, at the time the injunction was served upon them, succeeded in getting judgment; they accordingly applied to vacate the injunction, this application was granted so far as to allow them to obtain judgment. This they did, and theD moved upon petition for tlie appointment of a receiver or vacation or modification of tbe injunction.

      Stephen A. Walker, for the appellant.

      Fred. H. Oomstoek, for the respondent, the trustees.
   Ready, J.:

The question to be considered in this appeal is whether, upon the presentation of an application for the voluntary dissolution of a company under the provisions of the Revised Statutes, an injunction restraining tlie creditors from proceeding against the corporation to enforce their demands can be granted at the same time with the order to show cause why such dissolution should not be had. It is supposed that, by the fifty-sixth section of the article entitled “ Of proceedings against corporations in equity ” (2 R. S., 466), such a process is authorized because the application is a proceeding according to the provisions of the title of which it is a part.

Section 56 is, however, a part of article 2 which applies to suits by and against corporations, and a procedure for a voluntary dissolution is not a suit by or against a corporation. Indeed, the article (3) which provides for such voluntary dissolution declares that a receiver shall be appointed, after the return of the order to show cause, when the facts then existing are such as to justify it under the requirements of the section controlling it. (Section 65.) The chancellor, In the Matter of Waterbury (8 Paige, 380), said: “ In the case of proceedings against corporations in equity, under a previous article of the Revised Statutes (2 R. S., § 56), the legislature has expressly authorized this court, at any time after the institution of proceedings against the corporation, to interfere, by injunction, to restrain any creditor from proceeding at law and obtaining a reference. But upon a full examination of the subject I am satisfied the counsel for the receiver is in an error in supposing that that provision is applicable to a proceeding for a voluntary dissolution of the corporation.” This view has not been disturbed by any adjudicated case. We have not been able to find one and none has been cited. When the injunction is granted at once it must be on the assumption that the company is entitled to the relief asked, while the proceeding itself, as exhibited in detail by the provisions of the statute, is based upon the proposition that the facts and the report of the referee, made after the order to show cause is returnable, are such as to warrant the granting of the apjilication.

For these reasons we think the order appealed from should be reversed, with ten dollars costs and the disbursements of this appeal.

. Davis, P. J., concurred.

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

Order reversed, with ten dollars costs and disbursements.


text:
    In the Matter of the petition of PATRICK H. FAY to vacate an assessment, etc.

      Bepcmement — meaning of— it does not include flagging.

    The flagging and reflagging of sidewalks, and the setting of curb and gutter stones, is not a repavement within the meaning of chapter 580 of 1872 and chapter 813 of 1874 relative to the vacating of assessments in the city of New York.

    Appeal by the Mayor, etc., of New York from an order1 made at Special Term vacating an assessment.

      J. A. Beall, for the Mayor, etc., of New York, appellant.

      P. A. Hargous, for the petitioner respondent.

       See ante, p. 478, and post, p. 558.

   Brady, J.:

It seems to be conceded that the proceedings, resulting in the assessment affecting the petitioner’s land, were not published according to law, and the only question for consideration is whether the passage of a resolution or ordinance that the sidewalks be flagged, is a repavement within the provisions of the acts of 1872, chaptei 580, and 1874, chapter 313. The ordinance or resolution undei which the assessments complained of were imposed, was that the sidewalks be flagged and reflagged when necessary and the curb and gutter stones set and reset when necessary after the street was paved with Belgian pavement, under the direction of the street commissioner. The views expressed upon the subject embraced in this question by Justice Davis In re Burmeister (9 Hun., 613), are applicable here. Flagging is not, for the reasons assigned by him, a repavement within the provisions of the act (supra), and the criticisms upon the recent case, In re Phillips (60 N. Y., 16), are also applicable.

The result of adopting the opinion referred to is, flagging not being a repavement, that the irregularities complained of are not fatal under these acts.

It is not necessary to consider whether a resolution to flag the sidewalk embraces setting curb and gutter stones, having arrived at the conclusion stated, but if it were necessary, it seems to be clearly demonstrable that they are not included. The decision of this appeal is put, however, upon the broader ground first stated.

The order should, therefore, be reversed, but without costs of this appeal.

Davis, P. J., concurred.

Present — Davis, P. J., Bradt and Daniels, JJ.

Order reversed, without cost of the appeal.


author: Davis, P. J.:

text:
    JOHN MORRISSEY, Respondent, v. THURLOW WEED and OWEN W. BRENNAN, Impleaded, etc., Appellants.

      Contribution among associates of joint-stock company — how regulated.

    This action was brought by the plaintiff, as one of the members of a joint-stock asso ciation, against the other members thereof, to take and state an account between the parties to the action and of the claims against the association. Upon the hearing before the referee, to whom the action was referred, one Stuart, who was not a party to tlie action, was, by consent of all tbe parties, allowed to appear and present bis claim against tbe association, wbicb tbe referee found amounted to $4,777.54. Tbe referee directed “ that to sucb party or parties as shall have paid tbe sum hereinbefore declared to be due to tbe said Stuart * * * leave is reserved to apply, on proof of sucb payment at tbe foot of this judgment, for a judgment against tbe other parties to this suit for contribution, or in default of sucb judgment tbe said Sidney H, Stuart, Jr., * * * may, on proof of sucb refusal to pay, apply for sucb judgment, if be or they shall be so advised.”

      Held, that tbe effect of tbe direction was to allow Stuart, in case tbe other parties to tbe suit refused, upon demand, to pay tbe amount reported due to him, to apply to tbe court for leave to enter judgment against them, but that it was error for him to enter judgment without applying to tbe court, and without showing any prior demand and refusal.
    Tbe association consisted of nine members, among whom tbe profits were to be divided and, tbe expenses distributed equally. It appearing that certain of tbe associates bad contributed more than their share, tbe referee directed that each of sucb associates recover of each of tbe other associates tbe one-ninth part of tbe amount paid by him, less tbe one-ninth part of tbe amount paid by tbe associate against whom sucb judgment was recovered. Upon an appeal it was insisted by certain of tbe associates who bad contributed less than their share that tbe principle adopted by tbe referee was wrong, and that in no case could all tbe judgments rendered against any one associate exceed tbe difference between tbe amount contributed by him and one-nintb of tbe whole expenses. Held, that tbe objection could not be sustained; that if there was any error in fbe judgment it was in being too favorable to tbe appellants, as it relieved them from tbe liability to contribute for any associate who might prove insolvent.
    Appeal from an order denying a motion to vacate a judgment entered in this action, and refusing to set aside an execution issued thereon.
    The action was brought by the plaintiff as one of the shareholders of the New York Express Company, a joint-stock association, against the other members thereof, to take and state an account between the parties to the action, and of the claims and demands against the members of such association.
    The association consisted of nine members, each entitled to an equal share of the profits, and each equally liable for the losses sustained. Upon, the hearing before the referee one Stuart was allowed by the consent of all the parties to appear and present his claim against the company, and the referee found that there was due to him from it $4,/rY/T.54. Some of the associates had paid more than their share of the expenses, that is, more than one-ninth thereof, and the others had paid less than their shares. The referee, in directing judgment, allowed each associate who paid more than his contributory share to recover a judgment against each of the other associates for the one-ninth part of the amount paid by him, less the one-ninth part of the amount paid by the associate against whom the judgment was rendered. For example, the plaintiff recovered of' defendant Corning one-ninth of amount paid by plaintiff — $7,432.67 divided by 9=$825.87 — less one-ninth amount paid by Corning-— $5,343.11 divided by 9 =$593.67, that is $825.87 —$593.67= $232.20. The total amount of the expenditures was $27,438, one-ninth of which $3,050.89, should have been contributed by each member. On the part of certain of the associates it was insisted that in no case should the sum of all the judgments recovered against any of the associates, when added to the amount already contributed by such associate, exceed this sum of $3,050.89.

      C. E. Miller, for the appellants.

      Sidney II. Stucvrt, Jr., and Matthew Hale, for the respondent Erastus Corning.

      Sidney H. Stua/rt, Jr., for the other respondents.
   Davis, P. J.:

The order of reference in this case does not appear in the papers. In the referee’s report it is recited as an order “ to take proof of all the issues herein and of the claims and demands against the plaintiff and defendants, as members of the joint stock-association in the complaint mentioned, and to take and state an account between the parties hereto and hear, try and determine all the said issues.

Assuming this to be a correct description of the order the reference was in fact one to hear, try and determine and the referee became, fro hae vice, the court. Any and all errors committed by him during the progress of the trial are, therefore, to be reviewed after entry of judgment upon his report by an appeal to the General Term. So far, therefore, as this motion involves questions deter* mined by the referee in the course of the trial, or by the final decision contained in his report, tho motion at Special Term was properly denied, because errors of that kind, if any existed, were not reviewable by that tribunal.

It is claimed, however, that judgment has been entered upon the report, not in conformity to its directions and not upheld by the report or just and legal inferences therefrom. If this claim be well founded it was, of course, competent for the Special Term to correct the judgment as entered by making it' conform to the decision and report of the referee.

‘ The execution sought to be set aside is one issued on behalf of Sidney IT. Stuart, Jr., in whose favor the judgment was entered on the report against both the plaintiff and the defendants in the action for the sum of $4,875.07. Stuart was not a party to the action.

He brought in, however, before the referee, by the consent of all parties, a claim against the association described in the complaint and known as the New York Express Company, for services rendered, which claim was proved, and the referee found and reported that there remained due to him thereon the sum of $4,777.54, which, with interest, is the amount for which judgment is entered in his favor as above stated. The report contains no express direction that judgment be entered in his favor for that sum. But the twelfth direction is in the following form, so far as it relates to the Stuart claim:

12. That to such party or parties as shall have paid the sum hereinbefore declared to be due to the said Sidney H. Stuart, Jr., * * * amounting * * * to the sum of $4,777.54, * * * leave is reserved to apply, on proof of such payment at the foot of this judgment, for a judgment against the other parties to this suit for contribution, or in default of such judgment the said Sidney II. Stuart * * * may, on proof of refusal to pay, apply for such judgment if he or they shall be so advised.”

It is not easy to see precisely what is meant by this provision of the report. On one side it is" claimed that it simply provides for contribution in favor of any party or parties to the action who shall pay the Stuart demand, to be enforced by judgment to bé entered on the foot of the judgment first entered on the report against all parties not participating in such payment, either on application of the parties who make such payment, or in default of their application, on the application, of Stuart.

On the other hand it is claimed that the provision provides for such judgment of contribution in favor of any party or parties who shall have paid Stuart’s claim; but iu case no one pays that claim it provides that in default of payment, Stuart may, on proof of the refusal to pay, apply for judgment in his favor against all the parties hable to him.

The latter construction seems to be the most sensible and correct one as Stuart, after payment of his claim by any of the parties, could have no possible interest in the question of contribution as between them and the other parties to the action; but he has a clear interest under the report, to be at liberty, under the proper circumstances, to apply for a personal judgment against all the parties. He was not, as has already been stated, a party to the suit.

The effect, I think, of the determination of his claim by the consent of all parties was to establish it as a debt outstanding against the express company, for which all the members of that company were personally liable, and to enable him, by some proceeding, to be directed, either in this action or another, to enforce that claim against them all. And the intent of the last section, as it seems to me, was to provide for any party or parties who should pay the debt to Mr. Stuart by giving them a right to contribution on the foot of the judgment; and to further provide, that in case all refused to pay the demand, Stuart might, on proof of such refusal, apply to the court for judgment in the action against all. If this be the correct construction of the report the entry of a personal judgment in the action in favor of Stuart against all the parties without any proof of a request of payment, and of refusal to pay, was not warranted by the report.

The result is that the motion to set aside the judgment as entered in favor of Stuart and the execution issued by him should have been granted by the court below, with leave to him to make application, on proper proof, for a judgment to be entered on the foot of the judgment ordered by the referee.

The other question on the motion is, whether the judgment has been entered against Brennan and Weed, in conformity to the report and the principles of recovery settled by it.

In our opinion such entry is in substantial accordance with the report, so far at least that no injustice seems to be thereby done by it to either of the appellants.

This action is an equitable one to settle all accounts and claims between the nine associates of the e'xpress company, to apportion the outstanding indebtedness of the company, and to determine their respective rights as between each other. The liability of each associate was, prima facie, one-ninth of the whole. But that is not necessarily the measure of their liability for contribution among themselves, for if some of the associates are insolvent and unable to pay any thing, the contributions, by the solvent associates, must be made equal as between themselves, as though an insolvent were in fact not an associate. For example, if A, B, O and D are liable for a debt which A has paid, and D be able to pay nothing in respect of his fourth, in equity A could compel B and 0 to contribute one-third each; and this, as between A, B and 0, is evidently only fair and just. (Lindley on Partnerships, 635; Hole v. Harrison; 1 Ch. Cas., 246; Dering v. Winchelsea, 1 Cox, 318; Peter v. Rich, Rep. in Ch., 19; Robinson's Executors' Case, 6 De G., Mac. & G., 572.)

It seems to us quite clear that under the judgment as entered if all parties shall prove solvent each party is made' to pay his share of the debts as found by the referee’s report, and the error (if any) is that if some of the parties prove insolvent and unable to pay any thing, the appellants will be made to pay less than their just amount under the rule in such cases, as above stated.

So far, therefore, as relates to this particular part there seems to bo no good reason for any interference with the order below and it should be affirmed.

The order should be reversed, with ten dollars costs and disbursements as against the respondent Stuart, without prejudice as herein-before stated; and affirmed as against the appellants, Weed and Brennan, with ten dollars costs.

Brady and Daniels, JR, concurred.

Order reversed, with ten dollars /costs and disbursements as against respondent Stuart, without prejudice as stated in the opinion; affirmed as against the appellants Weed and Brennan, with ten dollars costs.


text:
    JAMES B. WARDEN v. JOSEPH G. BROWNING.

      Fraudulent conveyance — right of judgment orediton.

    November 1, 1868, one Browning conveyed certain real estate to bis wife, and thereafter certain judgments were recovered and docketed against him, upon which no executions were ever issued; subsequently, one O’Brien, the owner of a judgment against him, the time of the recovery of which did not appear, brought an action to set aside the conveyance as fraudulent, and procured a judgment therein, adjudging that the conveyance was made with the intent of hindering and delaying the plaintiff and others, the creditors of Browning, and was void as to them. It was further provided that any such judgment creditor upon whose judgment an execution had been returned unsatisfied, might apply to be made a party plaintiff in the action, and that the wife execute a deed of the land to one Hogan, who was appointed a receiver to sell the same, which deed was duly executed. Thereafter the real estate was sold, under the foreclosure of a prior mortgage. Upon an application for the surplus moneys arising under the said sale, it was claimed by the judgment creditors, other than O’Brien, none of whom had applied to come in under his decree, that, as the deed to Browning’s wife had been declared void as to the latter’s creditors, the receiver, taking title through the wife, took it subject to such judgments, and that they should be first paid out of the surplus. J3dd, that such judgments could not be enforced against the real estate until the debtors’ personal estate had been first exhausted; that the fact that the deed was void as to one judgment did not show that it was void as to all; that the receiver was entitled to priority over the other judgment creditors.

      Qumre, as to whether such judgment creditors would have any remedy in this action by application under the decree, after execution issued and returned unsatisfied on their respective judgments.
    Appeal from an order made at Special Term, sustaining exceptions taken by tbe respondent to tbe report of A. Czaki, referee appointed to determine claims to. surplus moneys arising on a sale of mortgagad premises, under tbe judgment in this action.
    Tbe contest before tbe referee was between certain judgment creditors of defendant Joseph G. Browning (wlio are appellants here) and one Edward Hogan (tbe present respondent), who is not a party to tbe action, but filed a notice of claim to the surplus, as receiver, appointed in an action brought by one O’Brien, wlio was also a judgment creditor of said Browning, to set aside certain conveyances made by tbe latter as fraudulent and void as to creditors.

      Tbe referee reported that the judgments recovered by the appellants were first entitled to be paid out of the surplus moneys, and after they were satisfied the residue should be paid to Iiogan.
    The latter filed exceptions to the report, which were sustained at Special Term, and the motion to confirm the report was denied, and the whole surplus moneys directed to be paid to Hogan.

      J. H. V. Arnold and 8. D. 'Sewards, for the judgment creditors, appellants.

      John J. Townsend, for Edward Hogan, respondent.
   Brady, J.:

This is an appeal taken from an order made at Special Term, by Mr. Justice Van Brunt, sustaining exceptions taken by the respondent to the report of A. Czaki, referee, appointed to determine claims to surplus moneys arising on a sale of mortgaged premises, under ■■ the judgment in this action. The contest before the referee was between certain judgment creditors of defendant, Joseph G. Browning (who are the appellants here), and one Edward Hogan (the present respondent), who is not a party to the action, but filed a notice of claim to the surplus, as receiver, appointed in an action brought by one O’Brien, who was also a judgment creditor of said Browning, to set aside certain conveyances made by the latter as fraudulent and void as to creditors. The referee reported that the judgments recovered by the appellants were first entitled to be paid out of the surplus moneys, and after they were satisfied, the residue should be paid to Hogan. The latter filed exceptions to the report, which were sustained by the justice at Special Term, who denied the motion to confirm the report, and directed the whole surplus moneys to be paid to Iiogan. It appeared from the evidence taken before the referee that Joseph G. Browning was at one time the owner of the fee of the mortgaged premises; that by deed dated November 3, 1868, and recorded in January, 1869, he conveyed the same to Sarah E. Browning; that thereafter the appellants severally recovered and docketed judgments against said Joseph G. Browning, in the order reported by the referee; that one John J. O’Brien, as ■owner of some judgment against Joseph G. Browning, brought ar action to set aside the said conveyance to Sarah E. Browning, as made with intent to hinder, delay and defraud the plaintiff and others, creditors of said Joseph Gr. Browning, and on March 28, 1877, obtained a judgment to that effect, which judgment contained a provision that Sarah E. Browning should appear before a referee named, and should convey the said premises by deed to Edward Ilogan, who was appointed a receiver, to sell the lands in the usual form, and that such a deed was executed. It did not appear that Joseph Gr. Browning had ever executed any deed of the property to the receiver. The respondents’ claim of title, was first the deed from Joseph Gr. Browning to said Sarah E. Browning, next the judgment in the O’Brien suit, and lastly, the deed of Sarah E. Browning to the receiver.

The appellants claimed, that as the deed from Joseph Gr. Browning to Sarah E. Browning had been declared void as to the former’s creditors, by a judgment which was a necessary part of the receiver’s title, he took the title subject to the judgments recovered against Joseph G-. Browning, between the date of the said deed and the conveyance to the receiver, and the premises having been sold under a prior mortgage lien, and a surplus created, said judgment creditors were entitled to be paid before the receiver. No proof was given as to the date or recovery of any judgment by O’Brien. The referee sustained and the Special Term refused to sustain the appellants’ position.

None of the appellants were execution creditors and none of them joined in the action brought by O’Brien. They were not obliged to unite in the equity proceedings to declare the conveyance by Browning void as against his creditors. They had the right to proceed by execution to sell, and to assail the deed if interposed against the title acquired by sale under the execution. (Chautauque Co. Bank, v. Risley, 19 N. Y., 374.) They did, as suggested, neither of these things, but rested upon a mere docket of the judgment. A judgment is a lien upon the debtor’s real estate, but it cannot be enforced against such an estate unless the personal estate is insufficient for the purpose (Code, 289; 2 Rev. Stat., 367, § 24; Neilson v. Weilson, 5 Barb., 565), and a deed void against one or more judgment creditors is not necessarily void as to all, as suggested by Justice Yan Brunt, because one or more creditors may assent to such conveyance, or sanction it by collusion or waiver in some form. In tbe case of Chautauque Co. Bank v. Risley (supra), the parties litigant were execution creditors or claimants under a judgment or sale on execution issued, which is not, as already stated, tbe case here. Tbe appellants have passive, not active liens, because they have not adopted any steps to make their liens effective, either by execution or action. Tbe decree recognizes this doctrine because it provides that any judgment creditor of Browning, upon whose judgments an execution has been duly issued and returned unsatisfied, may apply for leave to become a party to tbis action upon contributing to tlie expense. For these reasons tbe order made at Special Term was correctly made and should be affirmed. Whether the appellants would have any remedy in this action by application under the decree after execution issued and returned unsatisfied, it is not necessary to state.

Such an application must be disposed of if made at tbe Special Term. .Order appealed from affirmed, with ten dollars costs and tbe disbursements of this appeal.

Davis, P. <L, and Beady, <L, concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel MICHAEL F. CUMMINGS, Appellants, v. THE BOARD OF FIRE COMMISSIONERS OF THE CITY OF NEW YORK, Respondents. SAME ex rel. DAYID GRAHAM v. SAME. SAME ex rel. JOSEPH H. MUNDAY v. SAME.

      Section 28 of chapter 355 of 1873 — removal of cl&i'ks in bureaus of New York city government — what constitutes cause for.

    Section 28 of the charter of New York, chapter 355 of 1873, provides that “no regular clerk or head of a bureau shall he removed until he has been informed of the cause of the proposed removal and has been allowed an opportunity o. making an explanation.” The relators, regular clerks of the responde its, thf board, of fire commissioners, were removed, after tbey had been given an opportunity to explain, for the reason that, in the opinion of the board, the duties pertaining to their several positions could be more efficiently performed by other persons. Held, that the reason so assigned did not furnish “ a cause ” of removal, as that term was used in the said act, and that the action of the board in removing the relators, should be overruled.
    Ceetioeaei to inquire into tlie cause of tlie removal of the relators as clerks in the fire department of the city of New York.

      Boswell & Hatch, for the relators.

      JD. J. Beam,, for the respondents.
    The power to remove is not made dependent upon compliance with the form of procedure presented by the statute. The commissioners may disregard the excuses or explanations of the clerk whom they propose to remove, and however reasonable or satisfactory the explanation may appear to the court to be, it is enough if the commissioners choose to remove notwithstanding the explanation, and the court cannot review their action or reverse their decision without thereby usurping the functions of the commissioners, and taking upon itself to decide upon a question which is committed to the board. The provision of the statute requiring such notice is, therefore, only directory, and not mandatory. (Sedg. on Stat. and Const. Law, 370, 371, 378; Regina v. Fordham, 11 Adolph. & El., 88; Cole v. Green, 6 Man. & Gran., 872, 890; Rex v. Inhdb. of Birmingham, 8 Barn. & Cress., 29, 35 ; King v. Inhdb. of St. Gregory, 2 Ad. & Ellis, 99 ; Smage v. Walshe, 26 Ala., 619; Rex v. Justices of Leicester, 7 Barn. & Cress., 6.) When statutes direct proceedings to be done at a certain time, or in a certain way, and no essential rights are prejudiced by disregard of such provisions, the proceedings will be held good, although the statute may have been disobeyed or disregarded. (Sedg. on Stat., etc., Laws, 368, et seq. • Striker v. Kelly, 7 Hill, 9; People v. Supervisors of Chenango, 4 Seld., 317; Marchamt v. Langworthy, 6 Hill, 646; 3 Denio, 526; Pond v. Negus, 3 Mass., 230; William v. School District, 21 Pick., 75; Gale v. Mead, 2 Den., 160; Thomas v. Crapp, 20 Barb., 165; City of Lowell v. Hadley, 8 Mete., 180; People v. Holley, 12 Wend., 481; Mohawk and Hudson R. R. R. Co., 19 id., 143; People v. Cook, 14 Barb., 559 ; 4 Seld., 88, 89, 93; People
      v. Sugrs. of Ulster Go., 34 N. Y., 268; Barnes v. Badger, 41 Barb., 98.)
   Brady, J.:

Tbe relators were regular clerks of tbe board of fire commission* ers, who are the respondents. They were removed because, in the opinion of the respondents, the duties pertaining to their several positions could be more efficiently performed by other persons. The only charge against them was to this effect, and they were given an opportunity to explain. It is not necessary to say that an explanation of such a charge could not well be given. Each might say with great propriety, “ my duties have been fully and faithfully performed, and as I am not charged with negligence, inattention, incapacity or inefficiency, I have nothing to explain, nothing to answer.” If the power of removal exist unconditionally, and therefore without necessity for a cause, the ceremony of notice of the charge and quasi trial were entirely unnecessary. The respondent could declare the removal, and the end in view would be accomplished. The question presented is, therefore, whether such power exists. The Laws of 1873, chapter 335, section 28, provide as follows: “No regular clerk or head of a bureau shall be removed until he has been informed of the cause of the proposed removal and has been allowed an opportunity of making an explanation, and in every case of a removal the true grounds thereof shall be forthwith entered upon the records of the department or board. In case of removal, a statement showing the reasons therefor shall be filed in the department.”

The argument of the respondents to sustain the proposition that they are fully invested with authority to remove, after notice and an opportunity to explain, is embraced in the fourth point as follows: “ The record shows a reason for the removal embodied in the notice and resolution which must commend itself to the conscience of the court and which was peculiarly within the province of the board k consider, viz.: that more efficient service could be procured by employing another person. It was the duty of the board to determine this question, and their efforts to secure greater efficiency in the public service should not be nullified, unless it is clear that they have exceeded their jurisdiction.”

The proper procedure having been followed, the action of the respondents was final, and is not the subject of review in this court.

"Whether a removal shall or shall not be made after the prescribed formula has been observed, is by statute left to the discretion of the heads of the department; no cause of removal is defined or designated in the charter.

The opinion of Judge Sutherland in People v. Stout (19 Howard, 171-180), is applicable:

“ The whole subject is left to the discretion of the mayor and the board of aldermen, except in this, that we are judicially to determine whether the board of aldermen have consented. That of course is a judicial question. Perhaps we may say the exercise of the power is so far the subject of judicial review as that a cause, or some cause, must or should be assigned for the exercise of the power. We might go so far as to say that this court should see that they assign a cause. But in this case we have no control, nor can we adjudicate upon the sufficiency or goodness of the cause, because the statute does not designate any cause, and there is no standard or rule, or definition, by or according to which one can determine the assigned cause to be good or sufficient. The construction which would give us the power to judge the goodness or sufficiency of the cause assigned, in the absence of any specification by the legislature, would virtually give to this court the power of removal, and the legislature will have committed it, in effect, not to the mayor and aldermen, but to the Supreme Court; a discretionary power which can be controlled by the court, is virtually given to the court, because the parties interested may always resort to the court.” (See, also, The People v. Bearfield, 35 Barb., 254.)

The view thus expressed of the question is fully answered by the case of The People v. Board of Police (39 N. Y., 506), in which Judge Woodruff, after an elaborate review of case.? beariug upon the office of a common-law certiorari, said: “ I conclude, therefore, that in the case before us the Supreme Court had power, and that on this appeal this court have power, to examine the case upon the whole of the evidence, to see whether, as a matter of law, there was any proof which could warrant a conviction of the relator of the charge of neglect of duty, by absence from duty as a patrolman of the ninth precinct.” He had pieviously said: “ Let it be once established that where an officer, or board of officers, have jurisdiction of the subject, or of the persons to be affected, and proceed in its exercise according to the prescribed inode or forms, their determination is final and beyond the reach of any review, whatever errors in law they may commit, and however clear it may be upon undisputed facts that their judgment, decision or order is not warranted, and there is danger that much of injustice and wrong may happen, without possibility of redress.” This case illustrates the danger predicted, because, if the rule contended for prevailed, a mere caprice would be a sufficient reason for removal when the legislature clearly contemplated some substantial cause for such an act by the commissioners. This is apparent from the fact that the twenty-eighth section of the act of 1873 referred to (supra), provides that the heads of all departments shall have the power to appoint and remove all employes, except as therein otherwise specially provided, and then declares that no regular clerk shall be removed until he has been informed of the cause, etc. We might elaborate the result to which we have arrived by a consideration of what is meant by cause, and the illustrations which the books afford, but it is not necessary.

If the power to review exists, then the duty to overthrow the judgment of the resjiondents is too plain for question.

The power exists and the duty suggested follows.

Ordered accordingly.

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

Proceedings reversed.


text:
    ISABELLA B. CLUTE, Appellant, v. ADAM EMMERICK, Respondent.

      JVew 1/i'ial — granted because of inijustice, arising from error of the attorney.

    Upon the trial of this action, brought to recover land claimed by the plaintiff under a sheriff’s deed, the recovery and docket of the judgment and the issue and re* urn of an execution were proved. Plaintiff’s counsel then offered the sheriff’s certificate of sale, to the admission of which the counsel for the defendant objected. -Whereupon plaintiff’s counsel admitted that it was immaterial, but still insisted it should be received. The court excluded it, and sul> sequently excluded the sheriff’s deed when offered by plaintiff.

      Held, that as plaintiff’s counsel admitted that the certificate was immaterial, the court was right in excluding it.
    That plaintiff was in error in so admitting, as it was a necessary prerequisite to the execution of the deed, and that the failure to prove its existence justified the exclusion of the deed.
    That as it was manifest that, without any fault on the part of the court, injustice had resulted through this error of plaintiff’s counsel, a new trial should be granted without costs of the former trial or of this appeal.
    Appeal from a judgment dismissing the complaint, entered upon tlie trial of this action at the Circuit.

      T. G. Cluie and S. J. Higgins, for the appellant.

      James Ciarle, for the respondent.
   Brady, J.:

The plaintiff in this action claimed the land described under a purchase at a sheriff’s sale. Upon the trial evidence of the judgment under which the sale was made was given, also evidence of the assignment of it and the docket of it in this county.

It was also shown that an execution had been issued and returned in this county.

"When this had been done the plaintiff offered in evidence the certificate of the sale of the land given by the ■ sheriff under the statute. It was objected to.

The plaintiff’s counsel then admitted that the paper was immaterial, and on such concession it was excluded. The plaintiff’s counsel then said: It is proper evidence if not material. I still offer it in evidence.” It was excluded. IIow it could be proper evidence, if not material,-does not appear. The rules of evidence do not justify the admission of any thing as evidence which is not material.

If it be not material then it has no bearing upon any issue in the cause, collateral or otherwise. The justice was quite justified, therefore, in rejecting it as immaterial. He was not to know whether it was material or not.

It was the duty of the counsel to know it. It is quite clear that the counsel was mistaken, however, becausé he had only the sheriff’s deed left to perfect his title to the premises in question, and that instrument did not contain the certificate or any allusion to it. The statute requires certificates of the sale, to be given in duplicate (3 R. S. [6th ed.], 631, § 60), and the filing of one within ten days (§ 61) in the office of the clerk of the county and the delivery of the other to the purchaser.

The object is to determine the time of the sale, the property affected and the time when the sale will become absolute and the purchaser entitled therefore to a conveyance. The record of the certificate which the clerk of the county is required to make immediately upon its filing (§ 62), or a certified copy of such record, is made evidence of the facts therein contained. (§ 63.) The original certificate, upon being proved or acknowledged in the manner required by law to entitle deeds to be recorded, or a copy of such original, duly certified by the clerk in whose office the original is filed, shall be received as presumptive evidence of the facts therein contained. The paper offered in evidence herein was of the latter class, namely, a copy of the original, duly certified by the clerk, in whose office it was filed. The certificate contained all that the statute requires to be stated therein, and, hence, its materiality in connection with the provisions of the statute which relate to it. (Supra) The plaintiff’s counsel, however, said it was immaterial. It may be that this view was predicated of the declaration of the statute that the deed, when executed after the expiration of the time allowed to redeem, shall be valid and effectual to convey all right, title and interest which was sold, but this was an erroneous conception of the statute.

The certificate is required to prevent not only wrong to the purchaser but to the judgment debtor, whose property might be taken fraudulently if the sheriff were in collusion with another, and his certificate of no value or practical use.

The legislature did not provide that the certificate should be given as an idle ceremony. It was intended to be, and is, a necessary prerequisite to the deed and upon which that paper rests. Its importance is the more apparent from the fact that it is made evidence of the facts contained in it.

The exclusion, of it was a fatal incident, therefore, in the plaintiff’s case and was a mistake. The objection interposed against it ■was not well taken, and we may assume that it would have been received had not the concession mentioned been made.

Under these circumstances, should the plaintiff be relieved and how ? ■ The exclusion of the deed was doubtless upon the ground that the preliminaries to its reception had not been employed.

There was no proof of title made in the judgment debtor, it was supposed, but the plaintiff’s counsel relied upon the admissions in the answer, though coupled with charges in avoidance of such admissions — charges which affected the plaintiff’s rights under the deed and which, as a defense, must necessarily be proved. The answer thus made admitting the title but assailing the plaintiff’s good faith and the validity of his deed by reason of frand, did not so qualify the admission referred to that it could not be used by the plaintiff.

It was essential that such admission should be made in order to set out the defense of collusion against the plaintiff’s title under the deed. The exclusion of the deed, therefore, would have been an error had the facts leading to its use been established. They were not, however, and, therefore, the exclusion was proper. The result of this review is that the plaintiff’s case was erroneously dismissed by reason of the stand taken in regard to the materiality of the sheriff’s certificate, and injustice seems to have resulted from it for which the court was not responsible. The judgment must be reversed and a new trial should be granted, but without costs of the former trial or of this appeal.

Ordered accordingly.

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

•Judgment reversed, new trial granted without costs of the former trial or of this appeal.


author: Daniels, J.:

text:
    In the Matter of the Habeas Corpus on the Petition of CONSTANCE B. PRICE for the custody OF LILLIE M. PRICE, an infant.

      Habeas corpus proceedings — effect on, of an adjudication in a prior proceeding.

    The petitioner instituted proceedings at a Special Term, held at Sandy Hill, to recover possession of her child. Subsequently they were adjourned. On November twenty-fourth the parties stipulated for a further postponement, the attorney for petitioner further stipulating that she would not sue out any other writ or take any proceedings to obtain the custody of the child until the final decision of the pending proceedings. Subsequently the petitioner changed her attorney, and the new attorney notified the attorney for respondent and the justice that the petitioner discontinued and abandoned the proceedings.

      A t the adjourned hearing, both parties being present, the respondent objected that the proceedings could not, under the circumstances, be discontinued by the petitioner, and the justice so held, and again adjourned the proceedings. Upon the adjourned day, no counsel appearing for the petitioner, although he had been duly notified to attend, it was adjudged that the petitioner was not, but that the respondents were, entitled to the custody of the child. Subsequently the same petitioner instituted these proceedings against the same persons in the first department.

      field, that the adjudication made in the first proceedings could only be reviewed by certiora/ri, and was a bar to these proceedings which should be dismissed.
    Appeal from an order quashing a writ of habeas corpus and dismissing tbe proceedings tbereon.

      Roger A. Pryor, for tbe appellant.
    Assuming for argument tbe validity of respondent’s contention, namely, that tbe withdrawal or countermand of tbe proceeding did not ipso facto determine it, st.il. after such countermand, etc., tbe court bad no other authority over it than to dismiss it with costs. (.Foster v. Milliner, 50 Barb., 395 ; Thompson v. Erie, 9 Abb. [N. S.], 240; Bates v. James, 1 Duer, 668 ; Walhenshaw v. Perzel, 32 How., 310; Taylor v. Shew, 54 N. Y., 77; Mail Go. v. Flanders, 12 Wall. [U. S.], 135; Ilornthall v. Collector, 9 id., 560.) Clearly tbe court bad no power to try tbe case on the merits, and pronounce a definitive and conclusive judgment. Tbe judgment is a nullity. (People v. Liscomb, 60 N. Y., 560; Ex parte Lange, 18 "Wall. [IT. S.], 163.) In any event, though the judgment be valid, it is not res judicata and a bar to the present proceeding. (People v. Brady, 56 N. Y., 182 ; People v. Connor, 61 id., 182; People v. Fancher, 1 Hun, 28 ; People v. Mercein, 3 Hill, 116; Ex parte Kane, 3 Blatch. 0. C., 1; In re Perkins, 2 Cal., 130; In re Bing, 28 id., 251; Bex-x. Paty, 2 Salk., 503; hr pa/rte Partington, 13 M. & W., 683; Bex v. Sudáis, 1 East, 311; Burdett v. Abbott, 11 id., 92 ; Ex parte Mitchell, 1 La. Ann., 113; Bell v. Miller, 1 Gill, 301; Ex parte Bobinson, 6 McLean, 361; Commonwealth v. Biddle, 6 P. C. J., 288; Webster v. Fox, 7 id., 227; Wharton’s Digest, “ Habeas Corpus ” ; Commonwealth v. .Jones, 3 S. & R., 167; Maria v. Kilby, 12, B. Mon. [Ky.], 550; 1 Am. L. Reg., 515, note 1; Ingersoll on Habeas Corpus, 33 ; Hurd on Habeas Corpus, 567, et seg.)

      Charles Hughes, for the respondent.
    The relator was estopped from applying for this writ by her stipulation, signed by her attorneys in the habeas corpus proceedings at Special Term, before Justice Potter. (Eezell v. Odell, 3 Hill, 215; Badway v. Graham, 1 Abb., 168; opin. by Brady, J.; Oakley v. Aspinwall, 2 Sandf., 7; Moung v. Bushnell, 8 Bosw., 1; 15 N. Y., 587; 2 How., 121; Cox v. H. M. C. B. B. Co., 63 N. Y., 111-119.) The application to put off the hearing was within the general authority of the attorney, and it must be assumed that it was made in this case in the interest of the petitioner. (See 63 N. Y., Ill, and cases cited; Gorham v. Gale, 7 Cow., 739-711.)
   Daniels, J.:

The order appealed from was made because of the effect attributed to another similar proceeding, which had been heard and decided before Mr. Justice Potter at Special Term held at the court-house, in the village of Sandy Hill. That was instituted by the same applicant and relator against the same parties to obtain the custody of her infant daughter. Ah issue of fact was joined upon the return then made to the writ, the hearing of which was adjourned to be heard at a future day before Mr. Justice Potter, at Whitehall. On the 21th day of November, 1876, which was the time designated for such hearing, the attorneys of the parties stipulated for a further postponement of the case until the 20th of December, 1876, at the same place, provided the justice could then hear it, and if he could not, then to such further time as he should appoint, and of which ten days’ notice should be given to the petitioner’s attorney; and as an inducement to such postponement it was further stipulated that she would sue out no other writ nor take any other proceedings to obtain the custody of the child, until a final decision on the writ and proceedings then pending should be made and rendered. Before the time mentioned in the stipulation arrived, the relator changed her attorneys, and a notice was given by her substituted attorney to the attorneys representing the respondents, and also to Mr. Justice Potter, stating that she abandoned, withdrew, discontinued and countermanded the petition and writ and all the proceedings thereon, at the time and place mentioned in the stipulation. The parties appeared before a Special Term held by Mr. Justice Potter and his attention was called to the order of such substitution and the fact of the service of the notice given on behalf of the relator, and substantially he was requested to go no further with the proceeding ; but the counsel for the respondents objected that it could not be withdrawn or discontinued under the circumstances, and the learned justice so held, and further postponed the hearing. Notice was given to the relator and her attorney, who was the learned counsel for her upon the present appeal, of such postponement, but at that time she failed to appear and the case was hoard ex parte on the motion of the respondents, and on that hearing an adjudication was made by the court at Special Term, definitely holding and adjudging that the applicant was not, but the respondents were lawfully entitled to the custody of the child, and awarding costs against her. The proceeding was regularly instituted and conducted certainly down to the period when the notice was served stating that they were discontinued, and upon that and the stipulation, at the time and place fixed by agreement for the hearing, the question was presented to the court whether a legal discontinuance had been effected. Both the subject-matter and the parties by their representatives were before the court, and that supplied the basis of jurisdiction for the consideration and decision of the dispute which had then arisen. It was then decided, and probably on the validity and effect of the stipulation, and die court hold the case was not disposed of by the notice afterwards served. It is not necessary to determine whether the same rules should bo applied to such a proceeding as prevails in., an action, and which cannot be discontinued by a mere notice without an order (Averill v. Patterson, 10 N. Y., 500), nor whether the court was strictly right in the conclusion adopted. No opinion is required to be expressed or indicated upon either subject, because the court had jurisdiction of the case, and the legal accuracy of the decision for that reason cannot be assailed in another proceeding. The statute of the State has provided another course for that purpose by means of the writ of certiorari (3 R. S. [5th ed.], 892, §§ 85, 86), and for that reason where the writ may be issued for the determination of the right to the custody of an infant child and such a determination has been made, it has been held to be a bar to the prosecution of another similar proceeding as long as it remains' unreversed. (Mercein v. People, 25 Wend., 64.) Both the opinions delivered in the Court of Errors agreed in this conclusion, and the rule stated, as it was deemed to be sustained by the cases, -was that wherever a final adjudication of an inferior court of record or of an inferior court not of record, or of persons invested with power to decide on the property and rights of the citizen is examinable by the Supreme Court upon a writ of error or certiorari, in every such case such final adjudication may be pleaded as res adjudícala, and is conclusive upon the parties in all future controversies relating to the same matter. (Id., 100.) In the case of People v. Brady (56 N. Y., 182) tire writ was dismissed, and no further determination was made upon the rights of the relator than could be implied from that direction, and it was held not to be a bar to another application. But in making the decision care was observed to avoid the extension of the determination so far as to include such a case as that now before the court. (Id., 192.) If the position taken in support of this appeal should be sustained, then nothing would prevent the trial of the controversy before every Special Term in the State, and even that would not necessarily result in any obligatory adjudication as to either of the parties. Each might in the same manner assail what might be adjudged in favor of the other, and the question as to the legal custodian of the child could only become settled by the exhaustion of one or both of the parties. Such a practice would justly scandalize the administration of the law, by fostering endless legal controversies concerning the same state of facts. If the case had simply been dismissed, as it probably would have been without the stipulation, which there was nothing before the court making the decision to show had been unauthorized, the point would have been different; but with that in apparent force, the facts were sufficient to afford the court jurisdiction to decide that the notice of abandonment and discontinuance was ineffectual, and accordingly to warrant it to proceed and hear the case as it had been stipulated, that should be done. The order appealed from was right, and it should be affirmed with ten dollars costs and the disbursements on the appeal.

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

Order affirmed, with ten dollars costs and disbursements.


text:
    MARY A. JORDAN, as Administratrix, etc., of CORNELIUS POILLON, Deceased, Appellant, v. THE NATIONAL SHOE AND LEATHER BANK OF THE CITY OF NEW YORK, Respondent.

      Action by administrators — set-off— when allowed in — 21?. S., 335, sec. 23.
    To bring a case within section 23 of 2 Revised Statutes, 355, providing that in suits brought by executors and administrators, demands existing against their testators or intestates, and belonging to the defendant at the time of their deaths, may be set-off, by the defendant, in the same manner as if the action had been brought by, and in the name of, the deceased, it is necessary that the demand sought to be set-off should have been due and payable at the time of the death of the testator. In this action, brought to recover a balance due from defendant to the plaintiff’s intestate, at the time of his death, the defendant sought to set-off the amount of a note given by the intestate, then held by it, but which did not become due until after his death. Held, that the set-off could not be allowed.
    Appeal from a judgment in favor of the defendant, entered upon a verdict directed by the court.

      Wellesley W. Gage, for the appellant.
    The plaintiff is entitled to whatever sum was on deposit standing to the credit of the intestate on the day of his death, October 11, 1870. {Vroom, Admr., eto.,
      v. Van Horn et al., 10 Paige, 549 ; Valentine v. Jackson, 9 Wend., 302, and cases cited; Babcock, Adnvr., y. Booth, 2 Hill, 181, 212; Rockwell y. Saunders, 19 Bail)., 473, and cases cited; 21 id., 311.) Whatever was owned by or was owing to the intestate on the day of his death (October 11, 1876), upon the issue of letters of administration vested in the plaintiff as administratrix. (3 R. S., 169, § 6; Rockwell v. Saunders, 19 Barb., 473; Foster v. Bates, 12M. & W., 226; LaddY. Wiggen, 35 N. H. R., 421; Bucher y, Birmingham, 18 Conn., 110; Rorbach et al. v. Lord et dl., 4 id., 347; Laurence v. Wright, 23 Pick., 128; Bullock v. Rogers, 16 Yt. R., 294; Seabrook v. Williams, 3 McCord., 371; Townsend, Admr., v. Lngersoll, 12 Abb. [N. S.], 354, 359.) Debts owed by a deceased person take rank according to their quality at the time of his death. {Patterson v. Ramsay, 1 Binn., 221 ; Leiper v. Lewis, 15 Serg. & Rawl., 108; Fitzpatrick v. Brady, 6 Hill, 582; 3 R. S., 747, § 12; id., 174, § 31, supra) The debts must be mutual, and must be in the same right. {Schofield v. Gorbett, 11 Q. B., 779.) In an action by an administrator for a debt due his intestate in his lifetime, defendant cannot set off a debt due him for money paid as the surety of the intestate since his death. {Minor v. Minor, 8 Grattan 1; Wright, Assignee of Foster, v. Rogers, 3 McLean, 229; Whittaker v. Rush, Amb., 407; Aiken v. Bridgman, 37 Yt., 249; Lambarde v. Older, 17 Beav,, 542.) Administrators are not the mere representatives of the intestate; they are constituted trustees for the creditors, etc. (3 R. S, [5th ed.], 226, §§ 1, 2; Pox v. Backenstose, 12 Wend., 543; Babcock, Admr., v. Booth, 2 Hill, 181; Porter v. Williams et al., 9 N. Y., 142-149; Osgood v. Ogden, 4 Keyes, 70, 87-88.) All the right and title to the money in suit vested in the plaintiff, as of the 11th day of October, 1876, and thereby the plaintiff became the owner, and was legally entitled to the possession of such money, and the note falling due on the thirty-first day of October is not the subject of set-off as against the plaintiff. .{Martin v. Eunzmuller, 37 N. Y., 398; Beckwith v. Union Bank, 9 id., 211; Mercien v. Smith, 2 Hill, 210, 226 ; Armstrong cfi Brown v. Pratt et al., 2 Wis., 299, 307; Ghapman v. Derby, 2 Yern., 117; Thompson v. LLooker et al., 4 N. Y. Leg. Obs., 17; LLutchins, Admr., v. State Bank, 12 Met., 425; Patterson v. Patterson, 59 N. Y., 574, and cases cited.) The rights of the plaintiff as administratrix are similar to those of an assignee for the benefit of creditors, and those rights arise from like principios, and each being a trustee, they are subject to similar obligations and restrictions. (3 R. S., 226,. §§ 1, 2 ; id., 747, § 17; Gilberts. Moody, 3 N. Y., 479.) An assignee takes a deposit in bank subject only to the liens at the time of the assignment. (Burrell on Assignments, 439 ; Martin v. Hkmzmuller, 37 N. Y., 396, 540 ; Myers v. Davis, 22 id., 489 ; Bradley v. Angel, 3 Comst., 475; Beckwith y. The Union Bank, etc., 9 N. Y., 211; Osgood y. Ogden, 4 Keyes, 88.)

      Henry W. Beach, for the respondent.
    Defendants were entitled to set-off the balance standing to the credit of Mr. Poillon, in this action, brought by his administratrix, by express authority of statute. (2 R. S., [355], 279, § [23] 37, of 2d ed.; Bawson, Adm., v. Cojpla/nd, 3 Barb. Ch., 168 .; affirming the Assistant Y. C., 2 Sand. Ch., 252; Mathewson, Admr., v. Strafford Bk., 45 N. I!., 108; 2 Edm. Stat. at Large, § 25, p. 367; Hills v. Tollman's Bxrs., 21 Wend., 674.)
   Daniels, J.:

The action was brought to recover a balance due on the bank account of Cornelius Poillon, the plaintiff’s intestate, and it was defeated by the allowance of a set-off accruing on his note, discounted by the bank, but which did not become due until the 31st day of October, 1876, while he died on the eleventh day of that month. At the time of his decease, therefore, no right to set off one demand against the other existed. The statute upon this subject has provided that in suits brought by executors and administrators, demands existing against their testators or intestates and belonging to the defendant at the time of their death, may be set off by the defendant in the same manner as if the action had been brought by and in the name of the deceased. (3 R. S. [5th ed.], 636, § 16.) The chancellor held in a case decided by him upon the effect of this provision, that the set-off would be proper, provided the right to make it accrued at any time before the commencement of the action (Rawson v. Copland, 3 Barb., Ch., 166), and that would sanction the disposition which was made of this case at the Circuit, by which the set-off was allowed. But that case has not been considered in all respects a sound exposition of the statute. By the case of Ketchum v. Milne, decided by the Court of Appeals and reported in Selden’s Notes (No. 3, p. 56), it was held that a set-off of a demand existing against the intestate could not be allowed in an action brought foi the recovery of another, accruing after his decease upon a contract made and only partially performed before the period of his decease. That was considered to be in conflict with the decision made by the chancellor, and his decision was for that reason practically overruled in the case of Patterson v. Patterson (59 N. Y., 574-581). "What the statute, as it has been construed by these authorities, was intended to require in order to create the right of set-off where an action has been brought by an executor or administrator, is that both demands shall have accrued and become payable at the time of the decease of the testator or intestate. By an existing demand the legislature intended a demand which had accrued and became payable. That was not the nature of the demand allowed as a set-off in this case.

"Where that is not the case, the policy as well as the requirements of the laws concerning the payment of the debts of deceased persons is that they shall participate equally in the assets of the estate, so far as they may be required for that purpose, and that would be defeated by construing this section of the statute as allowing the set-off of demands accruing and becoming due after the death of the deceased debtor.

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

Davis, R. J., and Beady, J., concurred.

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


text:
    ISAAC BAER, Respondent, v. JOHN LEPPERT and PHILIP ROTTMAN, Appellants.

      Promissory note — presentation of , for payment — Indorsers—what notice to, insufficient — Accommodation indorsement by firm — liability of pa/rtners under.

    It is not necessary to charge an indorser that a promissory note should be pre sented and payment demanded by a notary. It is sufficient if it be done by an agent of the holder.
    A note was protested by a notary public in the city of New York, who, not knowing the residences of the indorsers, looked in the city directory, and not finding them there, mailed a notice addressed to them in the city of New York, in which place they did not reside. Held,, that the service of the notice was insufficient, as the efforts made by the notary to discover their residences did not justify such a mode of service.
    Although a promissory note is indorsed in a firm name, yet if it be an accommodation indorsement the members of the firm, as respects their liability od such paper, are not co-partners and .one of them cannot bind the other by any admission or promise he may make with respect thereto.
    Appeal from a judgment in favor of tbe plaintiff, entered upon a verdict directed by the court, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried. The action was upon a promissory note indorsed by the defendants under their firm name of Leppert and Rottman. This case has already been before the General Term. (5 Hun, 453.)

      Henry Wliele, for the appellants.

      B. F. Watson, for the respondent.
   Daniels, J.:

The judgment was recovered against the defendants as the indorsers of a promissory note. At the time when it -became due it was owned by the Germania Exchange Bank. The cashier of the bank on that day delivered it to a messenger of the bank for presentment for payment, and by him it was'presented at the place where it w^s made payable to a person answering the name of the maker, and payment was demanded of him, but it was not made. The maker of the note was sworn as a witness upon the trial on behalf of the defendants, but did not deny the evidence of the messenger, or that payment of the note had been so demanded. It was not necessary for the purpose of charging the defendants by a proper demand of payment that it should have been made by the notary. It ivas sufficient that it was done by the agent of the holder, who was the messenger in this case, acting under the authority and direction of the cashier. (Story on Promissory Notes [3d ed.], § 246; Parsons on Bills and Notes [vol. 1], 358; Ninth Mechanics’ Bank v. Spicer, 6 Wend., 443.)

The note was on the same day protested by the cashier, who was a notary public, but the notice was not sent to the defendants at their place of residence, and no effort was made to ascertain where that was, beyond the simple act of looking for their names in the city directory, which contained neither of them. Upon that circumstance the notice was addressed and mailed to them in the city of New York, where neither of them in fact resided. This was clearly an insufficient service, for no such effort to discover the residence of the indorsers was made as would justify the course which the notary took. (Greenwich Bank v. DeGroot, 14 S. C., N. Y. [7 Hun], 210.)

One of the attorneys for the plaintiff testified that when he went to the defendants’ place of business to serve the summons and complaint, he found a person who said his name was Leppert, that he showed him the note and the summons and complaint, and stated to him, “You did not answer our note the other day in reference to the payment of this note.” He said, “No, we did not; my partner is now in New York trying to raise the money to pay it, and we indorsed it.” Upon his cross-examination he said, “When I showed him the complaint, I told him what it was, giving him the title of the suit, and he said, “I am one of them.” He said, “You need not sue me for the reason you see a lot of lumber here and we are perfectly good.” Another conversation was shown to have taken place with the defendant Rottman, but in that he merely stated that he expected Gebhard, who was the maker, would pay the note. In neither conversation was any promise made to pay the note, and at least that was necessary before the indorsers could be legally held to have waived the omission to serve them with notice. The.rale upon this subject has been stated to be that “the promise, to be obligatory, must be deliberately made, in clear and explicit language, and amount to an admission, of the right of a holder, or of a duty and willingness of the indorser to pay; or, if it is implied from the conduct or acts of the indorser, it must as clearly import a like admission, or duty: such for example as a part payment, of the note. If, therefore, the conduct,' or acts of the indorser be equivocal, or if the language used be of a qualified or uncertain nature, the indorser will not be held responsible.” (Story on Promissory Notes [3d ed.], § 363; 1 Parsons on Bills and Notes, 595-8.) And nothing less than what is here stated to be required has been considered sufficient to waive the indorser’s right to notice, in the adjudged cases. (Duryee v. Dennison, 5 Johns., 248; Trimble v. Thorne, 16 id., 152; Gawtry v. Doane, 48 Barb., 148; Griffin v. Goff, 12 Johns., 423; Miller v. Hackley, 5 id., 375.)

The evidence given neither established a promise on the part of the indorsers to pay, nor any unequivocal concession of their liability, from which a promise might perhaps be inferred. The maker of the note, when he was a witness in the case, was asked whether the defendants received any consideration for this indorsement. But the answer was excluded upon the plaintiff’s objection, and the defendants excepted. This evidence was admissible under the portion of the answer which alleged them to have been accommodation indorsers.

It had a tendency to show that to have been their relation to the paper. And if they were right in that allegation, then one of the defendants could not bind the other by any promise he might make for the payment of the note. As to that they would not be partners and one could not bind the other by his admissions and statements.

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

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

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