text:
    ISAAC BIER and Others, Appellants, v. CHAUNCEY S. KIBBE and ADELBERT E. DARROW, Respondents.

      Transfer by a debtor to Ms creditor, of property from which the creditor is to satisfy the debt, the surplus to be returned to the debtor — is not void as a violation of the provisions of section 1 of 2 Revised Statutes, 135,
    On October 27, 1882, S. N. Wetmore, of Garfield, Pa., being indebted to the plaintiffs in the sum of $957.86, confessed a judgment for that amount, and on ihe same day executed and delivered to the plaintiffs a bill of sale of all the goods and chattels of any kind and nature, including fixtures in his store at Garfield, béing his entire stock of goods and groceries in the store building, together with the store fixtures, in consideration of the sum of $1,000. On the same day the plaintiffs executed and delivered to Wetmore a paper, in which they agreed, in consideration of the bill of sale made to them, that after their debt of $957.88 was paid out of the property mentioned in the bill of sale and their expenses made in the matter, that they would pay the balance left from the sale of the goods to Wetmore or any person to whom he might direct it to be paid.
    This action was brought to recover the value of the said goods, which had been taken by the defendants under an attachment brought against Wetmore, after the goods had been brought into this State.

      Held, that the bill of sale was not fraudulent and void upon its face, as being a trust for the use of the person making the same, in violation of the provisions of section 1 of 2 Revised Statutes, 135, but was a good and valid instrument, creating a lien in favor of the plaintiffs to the extent of their claim.

      McClelland v. Bemsen (86 Barb., 622), affirmed (5 Abb. [N. 8.], 250) followed.
    That while the defendants had the right to follow the surplus over and above the plaintiffs, claim, they did not have the right to take from the plaintiffs that which was necessary to satisfy their judgment.
    Appeal from an order of the Cattaraugus Special Term, denying motion for new trial made on a case and exceptions.

      Horace McGuire, for the appellants.

      J. J. Inman, for the respondents.
   Haight, J.:

This action was brought to recover the value of a quantity of goods alleged to have been wrongfully and unlawfully taken from the plaintiffs by the defendants. The defendants justified under an attachment. It appears that on the 27th day of October, 1882, one Simeon N. Wetmore, of Garfield, Pa., was indebted to the plaintiffs in the sum of $957.86, for which amount he confessed judgment; that on the same day he executed and delivered to the plaintiffs a bill of sale of all the goods and chattels of any kind and nature, including fixtures, in his store at Garfield, in the' State of Pennsylvania, being his entire stock of goods and groceries in the store building, together with the store fixtures, in consideration. of the sum of $1,000; that thereupon, and on the same day, the plaintiffs executed and delivered back to Wetmore a paper in which they agree, in consideration of the bill of sale made to them, that after their debt of $957.86 is paid out of the property mentioned m the bill of sale, and their expenses made in the. matter, that they will pay the balance left from the sale of the goods to Wetmore, or any person to whom he may direct payment.

It further appears that W. G. Elyea, one of the plaintiffs’ firm, immediately went to Garfield, packed up the goods in boxes, and shipped them to one L. B. Elyea, a minor son of W. G. Elyea, at Salamanca, N. Y.; that before Elyea succeeded in getting the goods out of the State of Pennsylvania they were attached at Clarendon, and he paid seventy-three dollars and fifteen cents to get them released ; that on their arrival at Salamanca, N. Y., they were placed in a store, and were then again attached by the defendant Kibbe in this action, as a creditor of Wetmore, and the goods were removed from the possession of the plaintiffs.

There is no evidence in the case tending to impeach the validity of the plaintiffs’ claim or judgment against Wetmore. There is no evidence that tends to establish actual fraud on their part. The fact that they saw fit to pay seventy-three dollars and fifteen cents to get the goods released from an attachment' at Clarendon, Pa., and thus avoid the tying up of the goods by an .attachment pending litigation in another State, does not tend to establish fraud; neither does the fact that the goods were shipped to L. 33. Elyea. Whilst we confess that we can see no reason for so shipping them by W. Gr. Elyea, still the fact that his son was named as consignee, standing alone, would not justify the finding that the goods were transferred to the plaintiffs with intent to defraud creditors. The subsequent departure of Wetmore from this country would be a circumstance that might be taken into consideration in reference to himself, but it would not tend to show fraud on the part of the plaintiffs. Had the plaintiffs been purchasers without consideration, a different question would have been presented. The defendants, in their answer, allege that the conveyance was made without consideration, and was therefore fraudulent. They do not allege fraud in any other respect. The question • is consequently narrowed to a construction of the bill of' sale and paper that was given by the plaintiffs to Wetmore. As we have seen, these papers were drawn and executed at the same time and simultaneouly delivered. They must, therefore, be considered together, as forming the true contract between the plaintiffs and Wetmore. When considei’ed together they are in substance that Wetmore, in consideration for the debt that he owed the plaintiffs, $957.86, sold to the plaintiffs the goods in question, and the plaintiffs agreed, in consideration therefor, that after their debt was paid out of the property, and their expenses in the matter, that the balance should be returned to Wetmore, or any person that ho should direct.

It is now contended that this bill of sale is in violation of the statute and consequently is fraudulent and void as against creditors. The statute provides that “ All deeds of gift, all conveyances, and all transfers or assignments, verbal or written, of goods, chattels or things in action, made in trust for the use of the person making the same, shall be void as against the creditors, existing or subsequent of such person.” (2 E. S., 135, § 1.)

In the case of Goodrich v. Downs (6 Hill, 438), it was held that where a debtor in failing circumstances, assigned his property in trust to sell and apply the proceeds towards paying four of his creditors, making no provision for the rest, and that the surplus, if any, after paying the four creditors, be .returned to the assignor was void under this statute. At first glance, this case would appear to be an authority against the validity of the bill of sale in question, but upon a careful reading of the entire case it will be observed that the case is, in some respects, distinguishable. But in the case of Curtis v. Leavitt (15 N. Y., 9-114-124-143-150), the doctrine promulgated in the case on Goodrich v. Downs, was in many respects criticised and overruled. In the case of Leitch v. Hollister (4 Comstock, 211), one Walker was indebted , to one Hollister and others, amounting to $3,000. Walker had a suit pending rnpon a building contract which had been referred to a referee. He assigned to the defendants any award or report or judgment which should follow any award or report with direction that the amount obtained should be applied in paying the indebtedness of the defendants and the balance to be returned to Walker. It was held that the statute did not apply where the assignment was to a creditor or creditors, themselves, for the purpose of securing their particular demands ; that such an assignment or transfer was, in legal effect, only a mortgage, and creates but a specific lien upon the property assigned ; that the residuary interest of the assignor may be reached by legal process or bill in equity according to the nature of the interests of the property.

In the case of Dunham v. Whitehead (21 N. Y., 131), it was held that an assignment by a debtor to a creditor, of all his personal property and choses in action, for the payment of a debt with the provision for the return of the surplus, is, in- effect a mortgage, and is not void under the statute of trusts, as for the use of the person making it. That a distinction exists between a trust where the whole title vests in the trustee, and the transfer under which the debtor retains a residuary interest which remains subject to the action of creditors.

In the case of Van Buskirk v. Warren (2 Keyes, 119; S. C., 4 Abb. App. Dec., 457), it was held that an assignment made directly to certain creditors, for the purpose of securing their particular demands, is not an assignment in trust and is not void under the statute.

In McClelland v. Remsen (36 Barb., 622), the ease, so far as this question is concerned, is on all fours with the one under consideration. It was held that an assignment to a creditor, to pay his particular debt, reserving the surplus to the debtor, was not void under the statute. Brown, J., in delivering the opinion of the court, clearly points out the distinction between such an assignment and one made by a debtor to a trustee, upon trust, for the payment of particular and specific debts, reserving the surplus, etc. In the one case a trust was created for the benefit of others, in which the whole title passed to the assignee; in the other, it was in the nature of a chattel mortgage, merely securing the payment of the debt of the creditor, to whom the transfer-was made. This ■case was affirmed in the Court of Appeals (5 Abb. [N. S.], 250).

In the case of Smith v. Beattie (31 N. Y., 542), it was held that a bill of sale, absolute upon its face, transferring property to be held as security for the payment of a debt due the vendee, is, in character and effect, a mortgage, and is to be treated as such. In .such case the mortgagee acquires only a lien upon the assigned property. The residuary interest of the mortgagor therein may still be reached by his creditors. (See, also, Knapp v. McGowan, 96 N. Y., 75-86.)

It would thus appear that the bill of sale in question was not •fraudulent upon its face, but, on the contrary, was a good and valid instrument, creating a lien in favor of the plaintiffs to the extent of their claim; that whilst the defendants had the right to follow the .■surplus, they did not have the right to take from the plaintiff that which was necessary to satisfy their judgment.

It follows that the order should be reversed ana a new trial granted, costs to abide event.

Bradley, J., concurred; Lewis, J., not sitting.

■Order reversed, new trial granted, costs to abide event.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    JAMES DAY, as Guardian of INEZ CASE, Respondent, v. EMMA CASE, Appellant.

      Construction of a clause in a certificate issued by an insurance association, designating the person to receive the amount to be paid thereunder.

    On July 5, 1870, tlie Locomotive Engineers’ Mutual Life Insurance Association issued to H. M. Case a certificate of membership and policy of life insurance, at the foot of which, underneath the signatures, appeared the following: “ All payments or benefits that may accrue or become due to the heirs of the person insured, by virtue of this policy, will be payable to Mrs II. M. Case or lawful heirs ”
    At the time the certificate was issued to Case he had a wife living by the name of Amelia M. Case, and a daughter by the name of Inez II. Case. The wife, Amelia M . died September 13, 1878; and subsequently, and on February 8, 1883, the insured married Emma Case, the present defendant; and subsequently, and on May 39,1885, he died leaving Emma, his widow, him surviving, and Inez H.. his only child and lieir-at law Subsequent to his death the association paid into court the sum of $3,933.55, as the amount of benefit due under the certificate.

      Held, that Amelia M Case was the person intended by the designation Mrs. H. M. Case, upon the certificate.
    That upon her death the designation lapsed as to her, and that the lawful heir of Case, his daughter Inez, became the person designated as the beneficiary.
    That as there had been no subsequent designation of any other person the daughter was entitled to receive the money.
    Appeal from a final judgment entered ill Monroe county upon an order sustaining a demurrer interposed'to the defendant’s answer.

      J. W. Stebbens, for the appellant.

      W. A. Sutherland, for the respondent.
   Haight, J.

On the 5th day of July, 1870, the Locomotive Engineer Mutual Life Insurance Association issued to H. M. Case a certificate of membership and policy of life insurance; at the foot thereof and underneath the signature appears the following: “ All payments or benefits that may accrue or become due to the heirs of the person insured by virtue of this policy will be payable to Mrs. H. M. Case, or lawful heirs.” At the time this certificate was issued to Case he had a wife living by the name of Amelia M. Case and a daughter by the name of Inez II. Case. His wife, Amelia M , died September 12, 1818, and subsequently, and on the 3d day of February, 1882, he again married Emma Case, the present defendant, and subsequently, and on May 29, 1885, he died, leaving Emma his widow, him surviving, and Inez H. his only child and heir-at-law. Subsequent to his death the association paid into court the sum of $2,922.55 as the amount of benefits due under the certificate.

The question presented is whether the plaintiff or the defendant is entitled to the money so paid into court. There was no new designation of a beneficiary after the certificate was issued or after the death of his first wife. That which we have quoted at the foot of the certificate was the designation made at that time. It was “ Mrs. II. M. Case, or lawful heirs,” meaning Mrs. II. M. Case, or in case she was unable to take by reason of death or other disability, his lawful heirs should become the beneficiary. It is now contended that Mrs II. M. Case was the name of the defendant, his widow, and that, consequently, she is the beneficiary named in the certificate. That was not, however, her name at the time the certificate was issued. The only Mrs. II. M. Case at that time was Amelia M. Case, and she must have been the person meant by Mr. Case in making the designation and the person named in the certificate. We cannot assume that he then contemplated the death of his wife and his- subsequent marriage to the defendant in this action. If Amelia M. Case was the person intended by the designation upon the certificate, then, on her death, the designation lapsed as to her, and his lawful heir, which was Inez II. Case, became the person designated as the beneficiary, and, inasmuch as there has been no subsequent designation of any other person, it follows that she is entitled to the money. It is urged that because the words “ Mrs. II. M. Case” were used, that it was intended that the certificate 'should mean one person at one time and another at another time ; ■that it meant Amelia M.- at the time it was issued, but that it meant the defendant at the time of his death. Such, however, does hot appear to us to have been the meaning of the instrument.

The judgment should be affirmed, without costs.

Bradley and Lewis, JJ., concurred.

Judgment affirmed, without costs.


author: Bradley, J.:

text:
    SARAH F. GALUSHA, Respondent, v. NORMAN H. GALUSHA, Appellant.

      1light to have an action for divorce tried by a jury —power of the ¿ourt to determine the amount of alimony — determination óf the income to be probably received on invested capital — articles of separation considered in fixing the alimony allowed by a judgment of divorce — effect of the judgment upon the articles of separation — the court may direct alimony to be paid after the death of the husband.

    In this action, brought by the plaintiff to procure an absolute divorce from her husband, the complaint alleged several specific acts of adultery by the defendant, but two of which were denied in the answer. When the trial of the action was moved at Special Term the defendant’s counsel demanded a trial by a jury, and objected to a trial by the court.

      Held, that as the evidence given upon the trial and the findings of the court related to the acts of adultery which were not denied in the answer, the court did not err in overruling the objection and permitting the trial to proceed for the purpose of taking the evidence and making a determination in relatión only to the charges not denied by the answer.
    The court found that the defendant was worth in “ personal and real estate, over and above his debts, at least $150,000, from which he received an annual income of at least $7,500,” and determined that there be paid to the plaintiff “ as permanent alimony during the term of her life, the sum of $3,750 yearly, in quarterly payments,” to be secured by mortgage on the real estate of the defendant, and that either party might apply to the court to change the award of alimony in case of change of circumstances, or for other good reason.

      Held, that it appeared that the purpose of the court was to give to the plaintiff an amount equal to one-half of the defendant’s income.
    That while it may be assumed, when nothing appears to the contrary, that the productive character of property of a person is reasonable, and the results derived from it usual, there is a common knowledge, of which judicial notice may be taken, of current rates of income of capital not invested in speculative enterprises.
    That, as without the aid of well guided business ability, available capital cannot be said to demand a net income of five per cent, and as the court was not assured by .any evidence in this case, or by that observation which is common to all, that four per cent, and even less, was not a fair clear income of an estate equal in amount to that of the defendant, the amount to be paid should be reduced to $3,000.
    The defendant alleged and proved articles of separation made between him and his wife, through a trustee, by which he agreed to give $5,000 to purchase for her a house and lot, $1,000 to pay for household furniture and other articles, and to pay her $1,200 annually, in monthly payments, the trustee agreeing to receive them in full payment and satisfaction for her maintenance and support during her life.

      Held, that although the articles oí separation constituted no bar to the action, they might properly be considered in determining the amount of alimony.
    That while a judgment for divorce, simply, would not annul the articles, the allowance of alimony given by the judgment had the effect to defeat the operation of the agreement and put an end to it.
    That while it was not usual for the court to direct, by judgment, the payment of alimony beyond the period of the joint lives of the parties, it had power to direct, as it had in this case, that to be done in the lifetime of the defendant which would result in making an effectual provision for such payments.
    Appeal by the defendant from a judgment, entered on a decision rendered at the Monroe Special Term, granting to the plaintiff an absolute divorce, and awarding to her permanent alimony in the sum of $3,750 payable annually, in quarterly payments during her life.

      Wm. II. Bowman, for the appellant.

      J. A. Stull, for the respondent.
   Bradley, J.:

When the trial of the action was moved at Special Term, the defendant’s counsel claimed for his client the right of trial by jury, and objected to its proceeding before the court' without a jury. The objection was overruled and exception taken.

The statutory rule in divorce cases is, that if the artswer puts in issue the allegation of adultery, the court must upon application of either party, or it may on its own motion, direct the trial of that issue by jury, and thereupon the questions to be tried must be prepared and settled. (Code Civil Pro., § 1757.) No such application was made and no issues had been settled for trial by jury. And although an action for divorce is in equity, the right to trial by jury of issues upon the allegations of adultery exists in such cases, and cannot be defeated without waiver of such trial as provided by statute (Id., § 1009) or otherwise tried by consent. This was a right existing at the time of the adoption of the Constitution of 1846 (2 R. S., 145, § 40; 2 Edm. Stat, 150, § 40), and, therefore, comes within the provision. (Const., art. 1, §'2 ; Batzel v. Batzel. 10 J. & S., 561; S. C., 54 How., 139.) Here was no waiver. This right of trial by jury had relation only to the issues taken by the answer upon allegations of adultery. The complaint alleges several specific acts of adultery by the defendant. The defendant, by his answer, denies only two of them. The trial proceeded, and the evidence given related to the charges in that respect not put in issue by the answer. And the findings-by the court of the acts of adultery committed by the defendant were those alleged and not denied in .the- pleadings. It may be- assumed that the court overruled the defendant’s objection and permitted the trial to proceed in view of the undenied- allegations of-the complaint, and for the purpose of taking the evidence and making determination in relation only to the charges in that respect not denied by the answer. That situation relieves the case from the charge of mistrial. The evidence is abundantly sufficient to support the conclusions of the court upon the main question, and the direction of judgment for the divorce.

The further inquiry has relation to the allowance of alimony awarded by the judgment. The court found that the defendant was worth in “ personal and real estate, over and above his debts, at least one hundred and fifty thousand dollars, from which he receives an annual income of at least seven thousand and five hundred dollars,” and determined that there be paid to the plaintiff, “ as permament alimony during the term of her life, the sum of three thousand seven hundred and fifty dollars yearly, in quarterly payments,” to be secured by mortgage on the real estate of the defendant, and that either party may apply to the court to change the award of alimony in case of change of circumstances or for other good reason. Judgment was entered accordingly. It is contended, first, that this allowance of alimony is excessive, and, second, that the direction of its payment during the life of-the plaintiff is error. The determination of the amount of alimony to be allowed in such cases is largely within the discretion of the court. Yet it must be a judicial discretion within the meaning of the statute which provides that the court may, in the final judgment, require the defendant to provide suitably “for the support of the plaintiff as justice requires, having regard to the circumstanes of the respective parties.” (Code Civil Pro., § 1759.) This does not differ from 2 K. S., 145, § 45. While this is not a matter of division or apportionment of the property of the defendant, or of its income, but is a question of suitable support of the plaintiff, the extent of the means of the husband in such cases is treated as an important element in the measurement of the amount oí the means that should be awarded as permanent alimony, which is not confined to what may be established or seen to be actually necessary for the support and comfortable maintenance of the plaintiff. (Forrest v. Forrest, 8 Bosw., 640; affirmed, 25 N. Y., 501; Burr v. Burr, 10 Paige, 20 ; affirmed, 7 Hill, 207.)

The conclusion that the defendant was worth the sum of $150,000 was justified by the evidence. The situation and productive character of his property does not very clearly appear, and the question of income from it is one largely of inference. The purpose of the court appears to have been to give to the plaintiff an amount equal to one-half of such income. And while it may be assumed, when nothing appears to the contrary, that the productive character of property of a person is reasonable, and the results derived from it usual, there is a common knowledge of which judicial notice may be taken, of current rates of income of capital not invested in speculative enterprises. Without the aid of well guided business ability, available capital cannot be said to demand a net income of five per cent. And we are not assured by any evidence in this case, or by that observation which is common to all, that four per cent, and even less, is not a fair clear income ot an estate equal in amount to that of the defendant. The contingencies attending investments, and the taxes and insurance are essential items in the account with invested capital. We think the estimated income, as found by the court, of the amount upon which it was based, was higher than the evidence fairly justified, and that it should not be estimated to exceed four per cent.

The defendant alleged and proved an agreement known as articles of separation made between him and his wife, through the intervention of a trustee for the latter, April 30, 1883, by which he agreed to give absolutely $5,000, with which to purchase for her a house and lot; $1,000 to pay for medical attendance which she might require; also, a horse, phaeton, harness, sleigh and robes, and some household furniture, and to pay her $1,200 annually, in monthly payments, which she agreed to accept, and her trustee agreed that she would receive in full payment and satisfaction for her maintenance and support during her natural life. This instrument contained the provisions usual in articles of separation, amongst which was the agreement that they should permit each other to live separate and apart from each other, and that neither should in any way molest or interfere with the other.

The defendant paid the $5,000, delivered the property, and paid $100 each month up to nearly the time of the commencement of this action, which was in April, 1885. Those articles of separation constituted no bar to the action (Anderson v. Anderson, 1 Edw. Ch., 380), but they properly may have been considered upon the question of alimony. Assuming that this agreement was voluntarily and deliberately made by the wife, with full understanding of her wants and reasonable requirements for her support and comfort, in view of her social relations and situation in life, this agreement, so far as related to its provision for her support and maintenance, was pertinently before the court on the question of permanent alimony. It sufficiently appears that it was made for reasons and under circumstances which would render performance by the defendant enforceable, and a judgment for- divorce, simply, would not have the effect to annul it. (Carpenter v. Osborn, 102 N. Y., 552.) But the view.of the court, evidently, and we think correctly, was that the allowance of the alimony given by the judgment had the effect to defeat the operation of the agreement and put an end to it. The holding in the case last cited, that the separation agreement remained effectual after the judgment in divorce, rested on the fact that no payment of alimony was directed by the judgment, yet it is not deemed improper to have the judgment in this action declare the effect intended upon the agreement in question.

The equivalent of a certain ratio of income has been sometimes adopted by the courts as a measure of alimony, whicl\^s not properly done merely because it is such, but for the reason that it represents fairly the suitable means for support in view of the situation of the parties. In this instance the court has deemed one-half the income upon the estimated value of the defendant’s property the proper sum. Ye think that ratio is represented more accurately by the sum of $3,000, and that such is a reasonable and adequate amount annually for permanent alimony. The defendant had already provided the means for her to purchase a house as a place of residence, and provided her with some furniture. This amount is two and a half times that provided by the agreement expressing the terms, which she was apparently willing to accept as a complete provision for her support while living separate from him. The circumstances which may have governed her action in making the agreement should not necessarily govern that of the court in awarding the allowance. The amount necessary for her support may be much less than that .suitable as a provision for her proper maintenance. And when the means of the husband fairly permit, it should be liberal, and such as not to subject the wife to the hazard of future want, or make support dependent to any extent upon the uncertainty of her ability to perform service, and thus to supply in some degree her wants.

It may not be usual for the court to direct by judgment the payment of alimony beyond the period of the joint lives of the parties. Our attention has been called to only one reported case where it was done. This was held in Burr v. Burr (10 Paige, 20; affirmed, 7 Hill, 207), and that was a case for a limited divorce, where a decree of separation only, was granted. In such ease the reason for limiting the allowance to the period of the husband’s life is greater than when a divorce a vinculo is adjudged, because in the former she continues his wife, and on surviving him has the proprietary rights of widow, while in the latter she has only the right of dower in the real estate of which he was seized during the coverture, and in which she has an inchoate right of dower at the time of the rendition of the judgment dissolving the marriage. (In re Ensign, 37 Hun, 152; affirmed, 7 Eastern Pep., 405.)

This question arose in Field v. Field (66 How., 346), and the decision was affirmed by the General Term in the First Department (15 Abb. N. C., 434), where it was held that the obligation to pay alimony is a personal one, dependent upon the husband’s means during his life, and chat'it is not in the power of the court to thus encumber his estate after his death; and that the direction of a judgment to pay during the life of the wife was, after the husband’s death, ineffectual for any purpose. The court there says of Burr v. Bu/rr that this question “ was not presented upon a contest to the court.” The question seems to have been distinctly raised and passed upon in the Burr case, as appears by the remark of the chancellor, that “the objection that the vice-chancellor was not authorized to decree a provision for the alimony of the wife which should continue beyond the life of the husband is clearly untenable.” And he then proceeds to give his reasons for the position. (10 Paige, 37.) It may be observed that at common law there is no power in the courts over the subject of divorce and alimony as such. In most of the States judicial power has been by their Constitutions denied to the legislature, and power to grant divorces and alimony has been vested in the courts. The jurisdiction and power of the courts in such cases are wholly statutory. (Burtis v. Burtis, Hopk., 557; Peugnet v. Phelps, 48 Barb, 566.) And it is upon the statute that the question must be determined. This permits the court, in the final judgment dissolving the marriage, to “require the defendant to provide * * * for the support of the plaintiff.” (Code of Civil Pro., § 1759.) The language is broad enough to embrace a provision for her during her life, and to require him to make such provision, although she may survive him; but the requirement can operate on him during his life only. The authorized judgment in that respect is, by the terms of the statute, to operate on the defendant, rather than on his property, and the provision to be made by him by force of the j udgment and through the power of the court to compel its execution.

It is, therefore, not entirely apparent how a judgment alone and as such may be effectual in respect to installments of alimony which may accrue after the death of a defendant. The direction furnished by the judgment that he give security, may, by its execu-. tion, become effectual as a provision made by him to continue during her life. The statute under which the provision was made by the decree in Burr v. Burr was somewhat different in phraseology from that under consideration. It provided that the court might make decree for the suitable support and maintenance of the wife by the husband, “or out of Ms property, as may appear just and proper.” (2 R. S., 147, § 54.) "Whether this difference in the statutes is substantial is not important here. Nor is it necessary to consider the legal effect the judgment may have after the death of the defendant as to payments, which it directs to be made to the plaintiff during the time that she may survive him, inasmuch as it is deemed within the power of the court to direct that to be done in the lifetime of the defendant, which may result in effectual provision for such payments.

The right reserved by the judgment to the parties, of application to the court for modification of the provisions in question, furnishes ample opportunity for the protection of the rights of the'respective parties during life, and to relieve the estate of the defendant after his death from any undue increase of amount arising from her right of dower. No other question seems to require consideration.

The judgment should be so modified as to reduce the annual amount of alimony to $3,000, and the quarterly payments proportionately, and.by the insertion of a provision declaring the termination of the force and legal effect of the separation agreement of date April 30, 1883, and as so modified affirmed.

Haight, J., concurred; Lewis, J., not sitting.

Judgment modified so as to reduce the. annual amount of alimony to $3,000 and quarterly payments proportionately, and by the insertion of a provision terminating the force and legal effect of the separation agreement of date April 30, 1883, and as so modified affirmed, without costs of this appeal to either party.


text:
    BRIDGET FRENCH, Respondent, v. SOLOMON D. McMILLAN, Appellant.

      Duty of a treasurer of a company, formed under chapter 40 of 1848, to furnish a statement of its affairs to a stockholder— 1854, chap. 201, sec. 1, as amended iy 1862, chap. 472, sec. 1 — what the statement must contain.

    Section 1 of chapter 201 of 1854, as amended by section 1 of chapter 472 of 1862, provides that whenever any person or persons owning certain percentage of the capital stock of any company incorporated under chapter 40 of 1848, “shall present a written request to the treasurer thereof that they desired a statement of the affairs of such company, it shall he the duty of such treasurer to make a statement of the affairs of said company, under oath, embracing a particular account of all its assets and liabilities in minute detail, and to deliver such statement to the person who presented the said written request to said treasurer within twenty days after such presentation.” The plaintiff, who owned more than the percentage, mentioned in the statute, of the stock of the Plumbago Oil Company, a corporation formed under chapter 40 of 1848, presented to the defendant, the treasurer of the company, the written request mentioned in the said section, stating that she desired a statement of the affairs of such company.

      The defendant made, under oath, a statement in detail of the assets and liabilities of the company, which was delivered to the plaintiff, who shortly thereafter called upon the defendant and informed him that the statement was not the one she wanted, that she wanted a statement of. all the oil that was sold. Upon the refusal of the defendant to fui-nisji any other or further statement the plaintiff brought this action to recover the penalties imposed by the said section for a violation of any of the provisions thereof.

      Held, that the statement furnished by the defendant was such a statement as was required by the act, and that he was not required t.o include therein the business transactions of the company.
    Appeal from a judgment entered in Monroe county on the report of- a referee.
    The defendant was treasurer of the Plumbago Oil Company, of which the' plaintiff was a stockholder. She brought this action. to recover the penalty prescribed by statute for the alleged failure of the defendant to make and deliver to her a statement of the affairs of the company, and recovered $1,550.

      Edward Harris, for the appellant.

      J. A. Stull, for the respondent.
   Bradley, J.:

The Plumbago Oil Company was incorporated under the laws of 1848, chapter 40, known as the general manufacturing act, and its capital- stock was $500,000, of which the plaintiff owned more than three per cent. ■ The defendant was treasurer of the company, and on the 15th day of February, 1884, she presented to him the written request mentioned in the statute, which provides that whenever any person or persons owning five per cent of the capital stock of any company, not exceeding one hundred thousand dollars, or any person or persons owning three per cent of the capital stock of any company, exceeding one hundred thousand dollai’s, formed under the provisions of this act, shall present a written request to the treasurer thereof that they desire a statement of the affairs of such company, it shall be the duty of such treasurer to make a statement of the affairs of said company, under oath, embracing a particular account of all its assets and liabilities, in minute detail, and to deliver such statement to the person who presented the said written request to said treasurer, within twenty days after sucli presentation. * * * If such treasurer shall neglect or refuse to comply with any of the provisions of this act, he shall forfeit and pay to the person presenting said written request, the sum of fifty dollars, and the further sum of ten dollars for every twenty-four hours thereafter, until such statement shall be furnished, to be sued for and recovered in any court having cognizance thereof.” (Laws of 1854, chap. 201, § 1, as amended by Laws of 1862, chap. 472, § 1.) The defendant made, under oath, a statement in detail of the assets and liabilities of the company, which was delivered to the plaintiff, who shortly after called upon the defendant and informed him that the “ statement was not the one she wanted; that she wanted a statement of all the oil that was sold. The defendant insisted that she was not entitled to any such statement, and that in furnishing said statement he had complied strictly with the demand of the statute.” This fact is stated as found by the referee, and he further found that the defendant furnished the statement in good faith, believing that it was all the statute required; that he furnished her no further statement; that the time intervening that of such interview between the parties, and the time of the commencement of this action was 150 days of twenty-four hours each; that the statement so furnished “ was not such a statement of the affairs of the said company, embracing a particular account of all its assets and liabilities, as the plaintiff was entitled to have received from the defendant, and as the defendant was bound to make and deliver to the plaintiff,” and that the plaintiff was entitled to recover $1,550. The question here is one of interpretation and force df the words “ affairs of such company under oath, embracing a particular account of all its assets and liabilities ” in the statute referred to. That section was not in the original act of 1848, but was added as section 27 to it, by Laws of 1854, chapter 201.

The contention on the part of the plaintiff is, and such was the view of the referee, that something more than the assets and liabilities of the company is necessary to complete the statement required by the statute, that the term “ affairs ” is broad enough to include the business transactions of the company, and necessarily means more than its financial condition, and that such is the purpose of its use, and the force of its meaning in the statute, is indicated by its connection with what follows it in describing the requirement upon the treasurer, and that the account of the “ assets and liabilities” are within and constitute a part only of a statement more comprehensive, which is defined by this word “ affairs,” and that this appears by the use of the word “ embracing,” in its application to the phrase of which it forms a part. In the construction of a statute and the interpretation of the words used in it, reference may be had to the purpose in view, and to the mischief, if any, designed to be overcome, which otherwise might, exist, so far as the same may be ascertained from the statute, and it, as a whole, and those in pari materia, may be referred to for such purpose. But a penal statute will not be extended by implication. It is entitled to a reasonable construction and such as its terms fairly import. ( Verona C. C. Co. v. Murtaugh, 50 N. Y., 314; Bonnell v. Griswold, 80 id., 128.)

The stock, property and concerns of the company and managed by the trustees, who may elect such subordinate officers as may be designated by its by-laws. The treasurer comes within such subordinate officers who may be so designated and elected. His general duties are not defined by the statute, except that the trustees shall cause a book to be kept by him or a clerk, containing the names of the stockholders, showing their places of residence, the number of shares held by each of them, and when they became the owners of such shares, and the amount of stock paid in. (Laws 1818, chap. 10, § 25.)

The general character and purpose of the office of treasurer fairly imports that he has the charge of the accounts, showing the financial condition of his company, as represented by its assets and liabilities. But his relation to the company is not necessarily such as to bring into the accounts in his charge the details of all the corporate business transactions through its various agencies, although the financial results go on to his books, yet if the statute in question makes it necessary for him to supply such details, on written request for a statement of the affairs of the company, that impliedly makes it his duty to have the means of doing so, and that of the company to require its other agents and officers to supply him with them. If it be assumed that this term “ statement of the affairs,” in its application and effect, includes and requires more than a statement of the assets and liabilities of the company, it is an indefinite term unless it embraces all the business transactions of the company, as those which the required statement must contain, without qualification in respect to character or the time of their occurrence; and if it is claimed that the transactions, within the meaning of this provision of the statute, are those only which in some manner have relation to the financial condition of the company at the time the request and statement are made, then it is less clearly defined, because it then must depend upon the judgment and determination of the treasurer as to the remoteness of those which may or may not have such relation.

The framers of the statute evidently had in view the results of the business of the corporation, and the representation of those results financially, and hence required that the statement should contain “a particular account of all its assets and liabilities in minute detail.” The direction to that extent, and to that only, is defined by the statute. -The statement is treated by the referee as, in that respect and to that extent, a compliance with the statute, and we think, in view of the evidence, and for the purposes of the trial, he was justified in so doing, and for the purposes of this review we so assume. As found by him the only objection made to it by the plaintiff was it “ was not what she wanted ; that she wanted a statement of all the oil sold.” This was no less within the affairs of the company than were the prices for which and the times when sold, and the persons to whom the sales were made, nor than the quantity manufactured from time to time and on hand ; and, perhaps, many other transactions, the omission of which would render the statement insufficient upon the construction claimed for tips statute. It is not to be supposed that the legislature intended to subject a party to a penalty without violation of a well-defined duty, nor upon doubtful construction. The information in view of this provision was the financial condition of the corporation, and the purpose was to furnish the means to enable a stockholder to obtain it; and the statute has defined what the statement of the affairs he is entitled to demand and receive from its fiscal officer shall contain. We think the reasonable interpretation of the provision in question is such that the term affairs ” is no broader in the intended requirement, than the defined account which the officer is directed to embrace in the statement; and that while the word embracing,” in its connection there, is not one of limitation, it characterizes what is requisite to constitute a statement of the affairs of the company, within the meaning of such term there employed, and has the same mandatory import as would the words “ consisting of ” or “ containing; ” and that while it did not have the effect of excluding from the statement other matters, it must, to be effectual, contain an account of the assets and liabilities.

We have thus far proceeded to consider what is deemed the reasonable construction of the statute, without - any expressed reference to the technical definition of any of the words of the provision. That of ‘‘ affairs,” so far as applicable here, is “ business.” And, in common parlance, the siuation of affairs and of business is the financial condition as represented by the assets and liabilities. And when they are made to appear in detail, the information of the affairs of a party, according to the .common understanding and in the ordinary sense, is furnished. The plain and ordinary signifi cation of words in common use, when found in a statute, is usually to be given to them. (Holmes v. Carley, 31 N. Y., 289.) There are some further provisions of the statute tending somewhat to show what was the information, designed by means of the direction of this provision, to be furnished to the. stockholders. In the section first referred to, is the- further provision that when he makes the requested statement, the treasurer shall also place and keep on file in his office, for six months thereafter, a copy of it, which shall at all times, during business hours, be exhibited to any stockholder demanding an examination of it, and that he shall not be required to make and deliver one upon such written request, before referred to, oftener than once in six months. And by the section following, it is provided that, should not any such written statement * * * be demanded during the year preceding the annual meeting of the stockholders * * * it shall be the duty of the treasurer * * * to prepare and exhibit to the stockholders then and there assembled, a general statement of the assets and liabilities of such company.” (Laws 1862, chap. 472, § 2.)

The fact that the requisition upon the treasurer for a statement may be made once in six months and not oftener, and that he is not required to keep a copy on file longer than that time, tend to indicate the legislative intent that the information required to be furnished by the statement is the financial situation of the company only. The alleged right to a statement of the varied business transactions of the company does not seem consistent with these provisions of the statute, as there is nothing which extends such an inquiry over, or limits it to any particular- period of time, and the response to it might require the statement, and each one made, to embrace the whole time of the business existence of the company preceding the- time of-.its' delivery to the requesting stockholder. Then the nature and purpose of the required statement which is to be provided to the stockholders annually, if none has been- called for and filed within the year, also goes to characterize the effect and purpose of the provision in question of the preceding section, and in support of the view that it was intended to require only a detailed account of the assets and liabilities of the company, so as to enable the stockholder to appreciate the value of the shares of the stock held, by him, and the. financial standing of the company. This statute was made for the interest which the stockholders had in, common. ' We, think,that the construction contended for by the plaintiff is not reasonably within, the-letter or spirit of •the statute.

The judgment should oe reversed an~ a new triai granted, costs ■to abide the event.

Haight afid Lewis, JJ., concurred.

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


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    FRANK JENKINS, Plaintiff, v. JOHN YOUNG and ANTHONY LE FEVER, Defendants.

      .■Sale of real estate to. pay the debts of a deceased person —1863, chap. 363, sec 6 — 1850, chap. 83, sec. 1 —the failure to appoint a guardian for an infant does not depj'ive the Surrogates Court of jurisdiction.

      The plaintiff, as one of the heirs-at-law of William Jenkins, deceased, brought this action to recover the possession of land of which Jenkins was seized at the time of his death. The defendant claimed title to the premises under a ■ ‘.sale made pursuant to an order of'the Surrogate’s Court, directing such sale to be made to pay the debts of the deceased. It appeared that the proceedings in which the order was made were, in all respects, regular and as required by the statute, except that no guardian was appointed' for the plaintiff, who was then a minor, of the age of eighteen years.

      Held, that as it appeared that the order to show cause was personally served upon the plaintiff, as required by section 6 of chapter 363 of 1863, the failure to appoint a guardian for linn on the return day did not deprive the Surrogate’s Court of jurisdiction over the proceedings, or render the sale made therein subject to be attacked and defeated m a collateral proceeding, as the sale was, by section 1 of chapter 83 of 1850, to be treated as being as valid and effectual as if made by the.o'rder of a court haying original general jurisdiction.

      Bloom v. Burdick Hill, 130). Schneider v. McFarland & N. Y., 459); Havens v. Sherman (43 Barb., 636), Chandler v Northrop (34 .id., 139) distinguished.
    Motion by the plaintiff for a new trial, on exceptions taken at the Ontario Circuit, and ordered to be heard at the General Term, in the first instance.

      John D. Lyman, for the plaintiff.

      Frank Liioe, for the defendants.
   Bradley, J.:

The action is ejectment to recover the possession of land of which William Jenkins died seized in September, 1863. The plaintiff is one of his heirs, and as such seeks to recover. The alleged defense is that the land was sold pursuant to an order of the Surrogate’s Court of Ontario county, to pay the debts of Wiliam Jenkins, deceased, and that the defendant derived title through the purchase at such sale. It appears that, in June,-1871, proceedings were instituted by the administrator, etc., of the decedent, before such surrogate, and that they were in all respects regular and as required by the statute for the purposes in view, except that no guardian was appointed for the plaintiff, who was then a minor of the age of eighteen years. The only question is, whether that omission rendered the proceedings and sale void. The trial court held it did not, and directed a verdict for the defendant. The statute in force when they were had provided, that minors should be served with the order to show cause, and special guardians appointed for them in the same manner as citations were required, to be served and special guardians appointed on the proof of wills (Laws 1863, chap. 362, § 6), which provided that service should be made on the persons interested, and if any one is a minor under the age of fourteen years, service should also be made on his father, mother or guardian, and if there should be none within-the State, then upon any person having the care and control of such minor, or with whom he resided, or in whose service employed. (Laws of 1837, chap. 400, § 8, as amended by Laws of 1863, chap. 362, § 1.) The order to show cause was personally served upon the plaintiff-On the return day of the order to show cause, or before taking any further proceedings, it was the duty of the surrogate to appoint a special guardian for the plaintiff to take care of his interests. (Id.)

The failure to appoint guai’dians for infants in such cases under former statutes, was held to be a jurisdictional omission, and to render the proceedings and sale void as against them. (Bloom v. Burdick, 1 Hill, 130; Schneider v. McFarland, 2 N. Y., 459.)

The proceedings referred to in those cases were had under 1 Revised Laws of 1813, page 454, chapter 79, which required the appointment of guardians for infants on the presentation of the petition. (Sec. 31.) Such was the requirement of 2 Revised Statutes, 100, section 3, and no change was made in that respect by the Laws of 1837, chapter 460.

The appointment of a guardian for an infant was a preliminary requisite to the making and service of the order to show cause and to bring him into court. And, therefore, the court was not permitted to, and could not acquire jurisdiction of the person of the minor without pursuing such initiatory prescribed method of providing for service on him. The later statutes, before referred to, have removed such preliminary requisite and have directed service of the order to show cause on the minor over fourteen years of age, in the same manner as upon an adult. He is in like manner brought into court, and the proceeding is commenced. And it is thereafter that the guardian must be appointed to enable him to be heard and for the preservation of his rights. "While omission to make such appointment is error and renders the proceedings irregular and voidable, the question whether it goes to the jurisdiction so as to render them invalid, and subjects them to defeat from collateral attack, requires further consideration.

The general rule is that a statute providing for proceedings, having the effect to divest title to property, must, in all material respects, be strictly pursued to render such-result effectual. (Cruger v. Dougherty, 43 N. Y., 107; Merritt v. Portchester, 71 N. Y., 309.)

A judgment of a court having general jurisdiction is not rendered void by the failure to appoint a guardian ad litem of an infant defendant who has been served with process, but is voidable only (McMurray v. McMurray, 66 N. Y., 175 ; Austin v. Charlestown Female Seminary, 8 Metc., 196 ; S. C., 41 Am. Dec., 497; Porter v. Robinson, 3 A. K. Marshall, 253 ; S. C., 13 Am. Dec., 153; Joyce v. McAvoy, 31 Cal., 273), and his remedy is by direct proceeding to reverse or set it aside. The reason is, that by the service upon him of the proper process, in the manner prescribed by law, jurisdiction of his person is acquired, and the omission to appoint for him a guardian is a defect or irregularity merely in the action or proceeding. This failure to proceed as directed may ordinarily have a greater and an invalidating effect upon statutory special proceedings. But, by “ an act for the protection of purchasers of real estate upon sales by order of surrogates,” it is provided that such sales “ shall be deemed and held to be as valid and effectual as if made by order of a court having original general jurisdiction ; and the title of any purchaser at any such sale made in good faith shall not be impeached or invalidated by reason of any omission, error, defect or irregularity in the proceedings before the surrogate, or by any allegation of want of jurisdiction on the part of such surrogate ; except in the manner and for the causes that the same could be impeached or invalidated in case such sale had been made pursuant to the order of a court of original general jurisdiction.” (Laws of 1850, chap. 82, § 1.)

As before remarked, jurisdiction was obtained of the person of the plaintiff by the service, which appears to have been properly made on him, of the order to show cause. And by the statute last referred to, the effect to be given to the proceeding and sale, was the same as that which results from the direction of a court of original jurisdicción as applied to a matter within such jurisdiction. Aud as a consequence the proceeding and sale were not void, but voidable, and cannot be successfully attacked collaterally by means of an action of ejectment.

.This question did not necessarily arise in Havens v. Sherman (42 Barb., 636.) In the proceeding there under consideration the time to show cause, as directed by the order, between, that of its issue and return day, was less than the statute permitted (2 R. S., 101, § 5), which was held fatal for want of jurisdiction. .The court there also remarked tha,fc the omission to appoint guardians for the infant heirs would render the sale void, and cited the-Bloom and Schneider cases (supra). It will be observed that the proceedings and sale in question, in Havens v. Sherman, were liad under the statute prior to that of 1863, before referred to, and when the appointment of guardians in such cases ,was to be made on the presentation of the petition, or before any further proceedings were had, and that such remark of the court may have been applicable to that case and not necessarily, so to the one at bar. And the same may be said of Chandler v. Northrop (21 Barb., 129). The doctrine of those cases is the familiar proposition that where, a statute prescribes the mode, of acquiring jurisdiction, it must be strictly pursued, or the proceeding is void and must fall for want of it.

These views are in harmony with that expressed in Matter of Becker (28 Hun, 207), and lead to the conclusion that the motion for new trial-should be denied, .and judgment ordered for the defendant on the verdict.

Lewis, J., concurred; Haight, J., not voting.

Motion- for new trial denied, and judgment ordered for the defendant on the verdict.


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    JOHN A. DUTTON, Assignee of WALTER M. HARRIS, Appellant, v. THE GALE MANUFACTURING COMPANY, Respondent.

      When the terms of a written contract will be presumed to be applicable to business carried, on after the expiration of the time, fixed by such contract for its continuing in force.

    In February, 1883, the defendant made a contract in writing with one Harris to furnish him with plows, and certain other things to be used in connection with them, at stipulated prices to be paid by Har-ris, for a portion of which he was to give his notes. By the terms of the contract the litle to the property was to remain in the defendant until it was paid for, and the contract was not to be binding-and in forcé longer than until January 1, 1884.

      Under this contract goods were furnished to Harris in 1883, and also in 1884, without any further agreement being made, Harris continuing in like manner to give his notes. On April 10, 1885, while some of the notes given by Harris for goods furnished to him in 1884 remained unpaid, he made a general assignment for the benefit of his creditors.

      Held, that the title to the goods furnished in 1884 .remained in the defendant, as it was to be presumed, in the absence of evidence to the contrary, that the parties intended to continue to carry on their business upon the same terms as those stated in the written contract.
    Appeal by the plaintiff from a judgment, entered in Cayuga county on the report of a referee.
    The action is for alleged conversion by the defendant of plows, castings, etc., to which the plaintiff claims title, as assignee for the benefit of the creditors of Harris. It appears that in February, 1883, the defendant made a contract in writing with Harris to furnish him plows and some other things to be-used in connection with them at stipulated prices to be paid by him, for a portion of which he should give the defendant his notes. ' The title to. the property was to remain in the defendant until the property was paid for, and “ the contract not to be binding and in force longer than January 1, 1884.” Under this contract goods were furnished to Harris in 1883, and in 1884 the defendant-furnished to him goods upon his order without any further agreement made between them, and Harris, in like manner, gave the defendant his notes. Some of the notes made by Harris in 1884, for. goods furnished him that year, remained unpaid when he made his general assignment for the benefit of his creditors to the plaintiff on April 10, 1885.
    The property in question was included in his schedule filed, of property assigned, and the defendant thereafter took the possession of it, and on his refusal to redeliver it to the plaintiff this action was brought. The referee found and determined that the defendant had title to all the property, except three plows furnished to Harris in 1883, which had been paid for, of the value of twenty-six dollars and eighty-five cents, and directed judgment for the defendant for costs, less that amount to be deducted from them. The plaintiff appeals.

      A. P. Rich, for the appellant.

      J. 8. GarlocTc and W. H. Beach, for the respondent.
   Bradley, J.:

The main question is whether the terms of the contract made between Harris and the defendant, of February 10, 1883, were applicable to the transactions between them, after the expiration of the term expressed in it, so as to govern their rights of property in the goods in question, which were furnished and delivered by the defendant to him in 1884 and not paid for. The contention on the part of the plaintiff is that, by its terms, the written contract ceased to be operative on the 1st of January, 1884, and that its provisions could not be continued beyond that prescribed period without an express agreement or understanding to that effect; and that when goods were thereafter furnished and delivered by the defendant to Harris upon his order without qualification, and his notes taken for them, the title passed to him which was taken by the assignee. The property was furnished to and obtained by Harris to sell within certain limits prescribed by the contract, within which his right to sell was granted by the defendant; and if it may be assumed that the right of Harris to sell the plows depended upon the grant in the contract referred to, his sales in 1884 were without right unless afforded by the continuance of such grant. It does not appear that further arrangement was expressly made between the parties to it, or that he sought to sell in any other than the prescribed territory. A relation with a view to the supply on certain terms of property by one party, for the purpose of sale by another, was formed by their contract for a limited period only, and, notwithstanding its expiration, they continued to proceed in like manner, and apparently with a view to the same purpose.

The question arises whether there is opportunity to infer any intention, common to the parties, or whether there is any implied understanding which the law will apply in such a case. The terms of the contract of 1883 are not such as to preclude the presumption that they intended to continue upon the same terms as those they had initiated by their written, contract. And the implication or presumption is, that they did so proceed after the expiration of the period defined by it for its operation until something appears to the contrary. (Vail v. Jersey L. F. M. Co., 32 Barb., 564; Huntingdon, v. Claffin, 38 N. Y., 182; Ross v. Hardin, 79 id., 84 ; Wallace v. Floyd,, 29 Penn. St., 184; Ranch v. Albright, 36 id., 367.)

Tlie evidence permitted the inference to that effect, and fairly supported the conclusion of the referee in that respect, that the terms of the contract of February, 1883, between the defendant and Harris were earned into their transactions of 1884, and that their rights must be determined accordingly. This view requires the conclusion that the title to that portion of the plows, etc., in question, delivered in 1884, was in the defendant, and substantially disposes of all the exceptions taken upon the trial, and to the conclusions of the referee and to his refusals to find.

The judgment should be affirmed.

Haight and Angle, JJ., concurred.

Judgment affirmed.


author: Bradlev, J.: Barker, J.

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    JOSEPH HABERSTRO, Respondent, v. JOHN BEDFORD and HENRY H. PHILLIPS, Appellants.

      Undertaking to secure the discharge of a person arrested — Oode of Oivil Procedure, sec. 575 — when it is not void as taken colore officii — 2 S. S., 286, see. 59 — liability of sureties failing to justify — the neglect of the sheriff to.avail himself of existing remedies to escape liability will not relieve the sureties unless bad faith be shown.

    This action was brought by the sheriff of Erie county against the defendants, who, after signing as sureties an undertaking to procure the discharge from arrest of one Warren, m a civil action brought against him to recover a sum of money fraudulently appropriated by him, had refused to justify after exception to their sufficiency had been taken. A judgment having been recovered in the action against Warren, and executions thereon, against his property and person, respectively, having been duly issued and returned unsatisfied, an action was brought by the plaintiff in such action against the sheriff, in which action a judgment was recovered against the sheriff, which he was compelled to pay.
    The undertaking, executed by the defendants in the present action, was in the form prescribed by section 187 of the old Code, and contained-a provision by which the sureties agreed “that Warren should, at all times, render himrelf amenable to the process of the court during the pendency of the action. ” The sureties claimed that as, at the time the undertaking was given, the form thereof was to be determined by section 575 of the Code of Civil Procedure, which was then in force, and as that section did not require.it to contain the provision above set forth, the undertaking was void as having been taken by the sheriff “by color of his office,” in violation of the provisions of section 59 of chapter 3, title 2, part 3 of the Revised Statutes.

      Held, that the undertaking was hot taken colore officii, and that it was valid.

      That as the undertaking contained all the provisions required by the statute in • force at the time it was given, and as the additional clause added nothing to the statutory obligation assumed by the sureties, that such additional clause was mere surplusage and did not vitiate the instrument. (Banker, J., dissenting.)
    That the omission to state in the body of the undertaking that the parties thereto are bound in the sum specified in the order of arrest, is not fatal to its validity, when that sum can be ascertained from the order of arrest, as such undertaking is to be read in connection with the order of arrest in determining the liability of the sureties.
    The action brought against the sheriff upon the judgment recovered against Warren was commenced on April 10, 1879. On April fourteenth the plaintiff, as such sheriff, caused the return of Warren into his custody, and might have retained him in his custody and obtained exoneration from his liability as bail prior to April thirtieth, as his time to answer did not expire until that time. On April fifteenth the defendants, while Warren was thus in custody, sought to make a formal surrender of Warren to the sheriff, which would have been effectual if they then had the power to do so. On April twenty-fourth the sheriff accepted an undertaking and released Warren, rearrested him on April twenty-eighth by the coroner, and set him at liberty on the next day on receiving another undertaking. Thereafter motions made by the sheriff for an order exonerating him as bail were denied.

      .Held, that after the sheriff became liable as bail, the defendants ceased to have any rights or privileges as such, and that their liability became his indemnity for the damages he might legitimately sustain in consequence of the relation of bail being imposed upon him.
    That the fact that the sheriff was misguided, or was illy advised of his legal rights, and therefore failed to observe and resort to the remedies which may have been available to relieve him from liability as bail, did not constitute a defense for the defendants, without evidence of bad faith on his part towards them, which was not shown in this case.
    Appeal from a judgment in favor of the plaintiff entered on a verdict in the Superior Court of Buffalo, and from an order denying a motion for a new trial. The case was transferred to this court for review, pursuant to the Code of Civil Procedure (§ 273).
    The defendants became bail for one Warren, upon his arrest in a civil action, and the plaintiff therein having excepted to such bail, and the defendants having failed to justify the plaintiff, in- the present action as sheriff of Erie county, who made the arrest, was charged as bail. He was sued as such and a recovery was had against him, which he paid; thereupon he commenced this action against the defendants as bail, to recover the damages which he had sustained, pursuant to section 589 of the Code of Civil Procedure, and a verdict was rendered in the plaintiff’s favor for t-lie sum of $4,778.22.

      Truman (J. White, for the appellants.

      Adelbert Moot, for the respondent.
   Bradlev, J.:

The question is presented whether the undertaking taken by the plamtitt, as sheriff, m the action of Douglas v. Warren was colore officii, and void within the statute which provides that “ no sheriff or other officer shall take any bond, obligation or security, by colour of his office, in any other case or manner than such as are provided by law, and any such bond, obligation or security taken otherwise than as herein directed shall be void.” • (2 R. S., 286, § 59.) This undertaking was in the form prescribed by section 187 of the old Code, but was made after the Code of. Civil Procedure went into effect, by which the terms of the undertaking; required in a case like that in which this one was taken, was so changed as to. omit the provision that the arrested defendant should “ at all times render lumself amenable to the process of the court during the pendency of the action ” in which the order of arrest issued. (Sec. 575, sub. 8.) Those words were not properly embraced in the undertaking in question and if, in any view which can legitimately be taken of those words in such a case, they in terms impose any burthen upon the person arrested, for the protection of his sureties, not within the authorized provisions of the instrument, it was wholly void.; and can furnish no support for the relief of the plaintiff in this action. (Coole v. Freudenthal, 80 N. Y., 202; Toles v. Adee, 84 id., 222.) This undertaking contains the terms provided by the statute for it, and in such case if the additional words employed may 'be treated as surplusage merely, the instrument will not be void, and that depends upon the question whether any use, if valid, could be made of the extra provision in any event as against the principal named in it, or to charge his sureties to any extent otherwise than the omission of such provision would permit. The provision that the principal would “at all times render himself amenable” to the process of the court, as directed by the old Code, was what was required, as equitable bail, of a party taken in custody on writ of ne exeat. The legal and practical effect of this was, that the arrested defendant would render himself amendable to process to enforce performance of any decree that might be rendered against him. (Gleason v. Bisby, Clarke, 557; Dunham v. Jackson, 1 Paige, 629 , Mitchell v. Bunch, 2 id., 606; McNamara v. Dwyer, 7 id., 239 ) It is difficult to see in this extra phrase any legitimate import, as applied to the action at law in which the undertaking was made, not embraced within the provisions required by the statute. (Code Civil Pro., § 575, sub. 3.) It was evidently inserted in the old Code in view of the purpose of the commissioners to abolish the writ of oie exeat, and in their expectation and belief that such would be the effect of the legislative adoption of their work, and that they therefore designed to make the provisions for arrest and bail applicable to actions for both legal and equitable relief. The weight of authority upon the conflict of decisions is that the writ was not abolished by that Code, and it may in that view be said that the particular provision in question, in its purpose and effect, was nugatory. It is not apparent, nor am I able to see, that the use of these unauthorized words of the undertaking can have any possible import in an action at law, other than such as would be furnished by their exclusion from the instrument. No requiremem; within the provisions of the undertaking, other than that arising out of the liability established by the judgment, seems to have been possible in the action in which it was taken. That was an action for the recovery of money only, and the order of arrest was supported by the charge of fraudulent appropriation of money by Warren, the defendant therein. The ynovision of the undertaking, that he would render himself amenable to such process as might be issued to enforce the judgment, was all that was applicable in that action, or which to any extent characterized the nature of the obligation assumed by the instrument executed by the sureties.

It would have been otherwise if it had contained the provision usually inserted in bonds on discharge from arrest on ne exeat, that the defendant would “ not depart from or leave this State, without the permission of the court,” but nothing in this undertaking imports any such obligation. It has been suggested that the failure of the defendant to obey a subpoena to appear as a witness in the action, might result in a breach of the terms of the undertaking, but the expression used in it has been one of practical use and construction in proceedings in courts of equity, and it has not been deemed applicable to any' such use or effectual for any such purpose. It relates only to the process of the court to enforce some decree or judgment in the action, and not to any proceeding taken to compel the attendance of the defendant as a witness in it for the plaintiff.

The statute rendering void unauthorized securities taken by public officers is applied with much strictness. And in Barnard v. Viele (21 Wend., 88), Nelson, Ch. J., remarked that a bond was void, although the legal effect of that there in question, and that authorized, seemed to be substantially the same; but it will be observed that there the bond differed in its terms from that prescribed by law, while here t'he required terms are adopted, and the only question arises upon the effect of the additional provision inserted in the undertaking. It seems to add nothing to the statutory obligation assumed, and is therefore mere surplusage, and does not vitiate the legal quality of the instrument. The contention to the like effect in Cook v. Freudenthal (supra), was overcome by the fact that there was a possible contingency in an action of the character of that one, that an execution might issue against the body of the defendant upon the judgment, hence the unauthorized provision of the undertaking rendered it void, but there was no suggestion by the court in that case that its provision to the effect that the defendant would be amenable to the process of the court, added anything in terms to its effect, other than its relation to the enforcement of the judgment of the court. My conclusion is that the undertaking in qu tion was not taken colore officii, and that it was valid.

The proceedings which preceded and led to this action, so far as material, are that Alice Douglas brought an action against William T. Warren, in which an order of arrest was issued, and Warren was arrested by the plaintiff, then sheriff of Erie county, and the defendants made the undertaking before mentioned, which was received by the plaintiff, and Warren was discharged. This bail was excepted to, and they failed to justify. A judgment was recovered against Warren in that action. And an execution against his property having been returned unsatisfied, and one against his person returned not found, an action was brought by Douglas against this plaintiff, in which a recovery was had and sustained after a long litigation which is somewhat represented by the report of it in 25 Hun, 262; reversed 88, N. Y., 611; 30 Hun, 619; affirmed 96 N. Y., 626. The liability of the plaintiff was as bail, which relation he assumed when the sureties in the undertaking failed to justify (Code Civil Pro. 587), and they became liable to him for all the damages he should sustain by reason of such omission. (Id., § 589.) The purpose of this action is to recover such damages.

It is contended on the part of the defense that the liability of the plaintiff as bail was occasioned by his own fault or neglect to protect himself, which his duty to the defendants required him to do in their bebalf, and that for his failure to do so they were relieved from liability to him. It appears that the reason why Warren-was not found and taken on the execution issued against his person, was because he had been taken to the Inebriate Asylum,- at Binghamton, by virtue of an order to that effect made by the county judge of Erie county. That order seems to have been void, and was so treated by the trial court. The action against the plaintiff was commenced April 10, 1879, and on the fourteenth of that month the plaintiff, as such sheriff, caused the return of Warren into his custody, and might have retained him in his custody and exonoration have been obtained by the sheriff, as such bail, prior to April 30, 1879, as his time to answer the complaint did not until then expire. (Id;, §§ 591-595.) On the fifteenth April, and while Warren was in such custody, the defendants' sought to make a formal surrender of him to the sheriff, and if it was in their power to do so it would have been an effectual relief for them, but their relation as bail, by reason of their failure to justify, had terminated and did not exist at the time of such attempted surrender, and it was, therefore, ineffectual as such. (Clapp v. Schutt, 44 N. Y., 104.) The plaintiff did not continue the retention of-Warren in hi's custody, but on the twenty-fourth of .April he accepted an undertaking in behalf of the judgment debtor and discharged him, caused his rearrest on the twenty-eighth of the month by the coroner, and on the next day he was again set at liberty on giving, with sureties, another undertaking, both of which were in the form of that first before mentioned. This arrest was evidently caused with á view to the exoneration of the sheriff as bail, and an application was by him made to the court, and the order granting it was reversed. (Douglass v. Warren and Same v. Haberstro, 19 Hun, 1.) And after the plaintiff’s term of office expired, and in February, 1880, be surrendered Warren to the sheriff, by whom he was taken into custody, and again moved for his exoneration as bail, and the order then granting his application was also reversed. (Douglass v. Haberstro, 21 Hun, 320; 82 N. Y., 572.) The opportunity of the plaintiff to obtain, as matter of right, his exoneration as bail, was lost by the discharge of Warren from custody after he was placed there in April, 1879. The taking of the undertakings thereafter received was without authority of law, and the discharge of the judgment debtor thereupon permitted, is treated as an escape, and of this the defendants complain, and allege such release from custody as matter of defense. It cannot well be claimed that the failure of the plaintiff to keep the judgment debtor in custody was caused by any bad'faith on the part of the plaintiff, or with any view to charge the defendants with liability. They denied to themselves the rights and privileges of bail when they refused or neglected to justify. The plaintiff owed to them good faith, hut no active duty to protect them against the consequences of such' omission on their part. It is not, therefore, a defense for them that he may, by a different course of proceeding than that taken by him, have protected himself and them against liability. When the defendants made the undertaking and he accepted it, the judgment debtor was entitled to his discharge from custody. (Code Civil Pro., § 573; Arteaga v. Conner, 88 N. Y., 403.) And it was only after he, by force of the statute, became bail that the sheriff was permitted to surrender or take him into custody. At the time he became such, the defendants ceased to have any rights or privileges as bail, and their liability became his indemnity for the damages that he might legitimately sustain as the consequence of the relation imposed upon him. The fact that the plaintiff misjudged or was illy advised of his legal rights, and therefore failed to observe and resort to the remedies which may have been available to relieve him from liability as bail, does not constitute a defense for the defendants without the support of had fajth on his part towards them, which does not appear to be a feature in the case: As the case is now viewed, the plaintiff was entitled to recover.

The amount of carnages was a question - of some controversy upon the evidence and in the contention of the parties. None of the exceptions having relation to the measure and amount of the damages, or raising any other question on the trial, seem to have been well taken.

The judgment and order should be affirmed.

Smith, P. J., concurred; Haight, J., not sitting.

Barker, J.

(dissenting).

The plaintiff, as sheriff, arresteu one Warren by virtue of an order of arrest in a civil action wherein one Douglass was the plaintiff, by which he was commanded to hold him to bail in the sum of $1,200. Warren, immediately upon liis arrest, presented to the sheriff a bail bond, executed by himself and the defendants as his sureties, wherein they jointly and severally agreed that Warren should at all times render himself amenable to the process of the court during the pendency of the action and to such as might be issued to enforce the judgment therein.” The sheriff thereupon discharged Warren from custody. The plaintiff in the action excepted to the sufficiency of the sureties, and they failed to justify. Thereafter the plaintiff in that action recovered a judgment against Warren in the sum of $1,243, upon which a body execution was issued to the plaintiff, as sheriff, who returned the same not found. The sureties having failed to justify, the sheriff became liable to the plaintiff as bail. (Code of Civil Pro., § 587; Arteaga v. Conner, 88 N. Y., 403 ; Clapp v. Schutt, 44 N. Y., 104.)

Upon the return of the body execution an action was commenced by Douglas against the sheriff, as bail, in which he appeared and answered, the trial of which resulted in a verdict against the sheriff, upon which judgment was entered for $2,005.38 damages and $104 costs, which the sheriff paid before the commencement of this action. During the pendency of the action against the sheriff, and after the time to answer had expired, the sheriff moved the court for an exoneration as bail, on surrendering Warren into custody. This application was denied. (Douglas v. Haberstro, 21 Hun, 320; S. C., 82 N. Y., 572.)

The bail taken upon the arrest, unless they justify, or other bail. are given and justify, become liable to the sheriff for all damages which he may sustain as bail. (Sec. 589.) The nature and extent of the sureties’ liability over to the sheriff in such a case is clearly defined by provisions of the statute, and is measured by the extent of the latter’s liability to the plaintiff in the action; At the time the action was commenced by Douglas against the sheriff, as bail, his liability was fixed. An. execution against the property of Warren having been returned unsatisfied, and the sheriff being unable to make an arrest upon the body execution, the extent of his liability as bail was the amount of the judgment recovered against Warren. That liability the-sheriff has discharged in full by paying the judgment against himself.

The plaintiff made out a prima facie case, which entitled him to -a verdict, on producing the record of the proceedings in the suit against himself, if the undertaking executed by Warren and the defendants as his sureties was in due form as required by the statute. On the trial the defendants interposed the objection, as against their liability to the sheriff, that the undertaking executed by Warren and themselves was not in conformity to the provisions of section 575, and is made void by the provisions of section 59, chapter 3, title 2, part 3 of the Revised Statute, which declares that “no sheriff or other officer shall take any bond, obligation or security, by colour of his office, in any other case or manner than such as are provided by law; and any such bond, obligation or security taken otherwise than as herein directed shall be void.” Section 575, subdivision 3, of the Code provides, that the defendant,' on being arrested, may give bail by delivering to the sheriff a written undertaking, in the sum specified in the order of arrest, and'where the arrest is made for a cause such as that u^on which Warren was arrested, the undertaking shall be, “ that the defendant will at all times render himself amenable to any mandate which may be issued to enforce a final judgment against him in the action.” Section 561 requires that the order directing the arrest shall state a specified sum within which the defendant is to be held to bail.

The defects of the undertaking which the respondents claim makes the same void as declared by the statute are : First, That the bond does not state a sum in which the defendant should be held to bail. Second : That it contains an unauthorized provision, that the defendant should at all times rend.er himself amenable to the process of the court during the pendency of the action. The omission to state in the body of the undertaking that the parties thereto were bound in the sum specified in the order of arrest is not in our opinion fatal .to its. validity, on the ground that it is an incomplete instrument. In determining its validity so far as this objection is concerned we think the order of arrest may be read in connection with the undertaking and the.sureties liability in an action against them would be limited to the sum mentioned therein. In the. recitals of the undertaking it is stated that the order of arrest required the sheriff to hold. Warren to bail in the sum of $1,200. The argument of the appellant’s counsel, that without inserting in the undertaking the sum mentioned in the order of arrest, so as to limit the obligors liability to that, sum, they would be liable by the terms of the undertaking to the whole amount of the judgment, if it should exceed the sum mentioned in the order of arrest. We think the position is unsound and that such a construction cannot be reasonably placed upon that instrument. Section 187 of the old Code, which relates to the form of the undertaking, did not require that the same should be in a specified sum, and the provision was inserted in section 575 of the present Code so as to remove all doubt as to the extent of the sureties’ liability .in an action upon their undertaking.

It has never been held in an action against the sureties upon an undertaking, where a specified sum was not named, that the sureties were liable for the whole amount of the judgment if the same should exceed the amount mentioned in the order of arrest. If the sureties, by the terms of their undertaking, became obligated to pay the judgment which should be rendered in the action although it should exceed the sum of $1,200, the sum mentioned in the order ■of arrest, then, in our opinion, it would be void under the statute, .as unauthorized by law and exacted by.the sheriff by color of his •office. (Toles v. Adee, 81 N. Y., 222.)

The second objection presents a more serious question. The .undertaking was executed January 7, 1879. At that time section 575 of the present Code was in 'operation as a substitute for ¡section 187 of the old Code, and the provision of the undertaking .that Warren should be amenable to the process of the court during a pendency of the action was unauthorized. Section 187 of the ■Code of Procedure did contain a requirement that the bail bond should contain a provision of the nature and effect of the one found in the undertaking now under consideration. An undertaking, with a similar provision, may be demanded of the defendant, under the present Code, as a condition of his discharge from arrest, but not where the cause of the arrest was such as the one upon which Warren’s arrest was founded. The order of arrest was granted by a judge at chambers and required that Warren be held to bail in the sum of $1,200. He was entitled to a discharge from custody on complying with subdivision 3, section 575, which requires that an undertaking be executed by himself and two sureties, conditioned that he would at all times render himself amenable to any mandate which might issue to enforce a final judgment against him.

By section 548 the writ of ne exeat was abolished. Under the provisions of subdivision 4 of section 550 an order of arrest may be granted in a class of cases where, under the old chancery practice, a writ óf ne exeat might issue. But an order of arrest in that class of cases can only be issued on special application to the court. (Sec. 551.) When the order of arrest must be granted by the court an undertaking may be dispensed with altogether, or, if one is required, its conditions may be prescribed by the court. (Sec. 560.) And if no directions are set forth in the order of the court directing arrest, then the defendant may be discharged from custody on complying with subdivision 1 of section 575. The condition of amenability to the process of the court during the pendency of the action, inserted in this undertaking, is the same, in substance, as was usually required on granting a writ of ne exeat under the old practice, and the same as is now generally demanded in like cases, under the provisions of the present Code. (1 Barb. Ch. Prac., 654.)

The provision of the undertaking executed by the defendants, as sureties for Warren that he would “at all times render himself amenable to the process of the court during the pendency of the action,” was wholly unauthorized. It was an onerous condition, and if strictly observed by Warren would have required him to remain, at all times pending the action, within the jurisdiction of the court. The object of the statute, in providing the terms and conditions upon which a party under arrest shall be entitled to his discharge, was to prevent the exaction of unreasonable or oppressive bail, and to leave nothing to the discretion of the officer executing the process. The sum mentioned in the order of arrest limits the power of the officer, and if he exacts a greater sum to be inserted in tlie bond, or any other condition not authorized by law, the instrument comes within the condemnation of the statute and is void. In giving a construction to this statute the courts have been uniform in holding sheriffs and other officers, who are authorized to take bail from parties in their custody, to a strict compliance with the statute authorizing the giving of bail by parties under arrest. (Shaw v. Tobias, 3 Comst., 188; Winter v. Kinney, 1 id., 367; Barnard v. Vide, 21 Wend., 88; Webber v. Blunt, 19 id., 188; Acker v. Burrall, 21 id., 607; Becker v. Judson, 16 N. Y., 439.)

The more recent decisions on the subject are directly in point and may be followed in disposing of this case, as the facts in the cases referred to are not materially different. In Cook v. Frendenthal (80 N. Y., 202), where the action was replevin, an order of arrest ivas granted, and,'by the provisions of the statute then in force the defendant was entitled to his discharge from custody on giving an undertaking with two sureties, to the effect that they are bound in double the value of the property as stated in the affidavit of the plaintiffs for the delivery thereof to the plaintiffs, if such delivery be adjudged, and for the payment to them of such sum as may for any cause be recovered against the defendant.” (Code, § 187-211.) The defendants, as his sureties, executed an undertaking, which, among other things, contained a provision that lie would, at all times, render himself amenable to the process of the court during the pendency of the action. It was held that the undertaking was void as having been taken colore officii, for the reason that it bound the sureties for the amenability of the defendant to process in the action during its pendency, an obligation unauthorized by the statute under which the undertaking was given, and which could not be required from the defendant as a condition of his release from imprisonment, and that the insertion of the unauthorized condition of the bond brought the ease within the provisions of the statute declaring void unauthorized bonds.

The unauthorized provision cannot be rejected as surplusage, upon the ground that in no event could Warren have been subjected to any process of the court dui’ing the pendency of the action, and consequently no liability could arise under this clause of the undertaking. Warren was a competent witness for the plaintiff in that suit, and she might have subpoenaed him as a witness to testify in her behalf, and if he had failed to attend and' had gone beyond the jurisdiction of the court, then the sureties would have been liable in an action by the terms of the undertaking. It was not, therefore, an undertaking by the sureties for a liability on their part on the occurrence of an impossible contingency.

In Toles v. Adee (81 N. Y., 222), the order of arrest required the sheriff to arrest the defendant and to hold him to bail in the sum of $1,000. The sheriff received an undertaking from the defendant in the sum of $2,000, and discharged him from arrest. The court, in its opinion, held that the bond' was void as being unauthorized by the statute, and referred to the case of Cook v. Freudenthal with approval, and also remarked: The fact that under our practice the bail taken by the sheriff on discharging a prisoner from arrest stands in some sense both as bail to the action and bail for the sheriff, does not, we think, at all affect the application of the statute making void obligations taken colore officii, when the undertaking contains conditions not prescribed by law; nor is it, as we conceive, in the power of the plaintiff afterward to 'adopt the act of the sheriff and thereby avoid the effect of the illegality. Such a principle, if admitted, would defeat the purpose of the statute. * * * Courts justly regard with great jealousy all departure by officers holding prisoners under arrest from the strict line of duty. The undertaking in this case bound the surety in double the sum authorized by the order of arrest, and if the undertaking was to be regarded as taken by the sheriff in his official character, and in the exercise of his official authority, it must, both upon principle and authority, be held to be void. But the court, in its final disposition of the case held that in view of the other facts disclosed by the case that it was in effect a special agreement between the parties themselves, and not an undertaking exacted by the sheriff in his official capacity as a condition of the defendant’s release, and for that, reason the same was valid. -

The condition of amenability to the process of the court during the pendency of the action is positive and unqualified, onorous in its character and is a provision additional to those required by the statute and we think is condemned as void by the letter and the spirit of the statute prohibiting officers from taking a bond in any other case or manner than such as are provided by law. (The People v. Meighan, 1 Hill, 298.) By the common law an agreement good in part and void in part might be enforced as to the parts which were good and valid, but this statute condemns the whole instrument and changes the common law rule on the subject. If the statute had failed to so declare, it would not have accomplished the purpose intended

If we are correct in the views expressed as to the invalidity of the undertaking the error is fundamental and is at the base of the plaintiff’s alleged cause of action and prevents a recovery in any event. It is therefore unnecessary to consider the other points presented by the appellants.

If it be true, as the evidence tended to show, that the defendants requested the sheriff to defend the suit brought againt him as bail, and that they would' pay the cost of such defense in case of a recovery against him, it does not estop them from asserting that they never became liable under the statute for the reason that the bail bond signed by them was void. If the defendants never incurred any legal liability by reason of the execution of the undertaking, then it would seem to follow, as a legal conclusion, that their promise to pay the costs in the action against the sheriff was without consideration and invalid for that reason.

The judgment and the order should be reversed and a new trial granted and the proceedings remitted to the Superior Court of the city of Buffalo.

Judgment and order affirmed.