author: Hardin, J..:

text:
    THE NATIONAL BANK AND LOAN COMPANY OF WATERTOWN, Appellant, v. GEORGE BABBITT, as Sheriff, etc., Respondent.

      Proceedings in bankruptcy— do not divest a lien acquired by a sheriff wider a levy •made prior thereto — Liability of a sheriff for delivering property levied on, to a special receiver appointed in bankruptcy proceedings.

    In the months of February and March, 1875, judgments were recovered against the Northern and New York Iron and Mining Company, and executions thereon were issued to the sheriff of Jefferson county, and levies were made thereunder. April 10,1875, another execution issued upon a judgment recovered against the said company by the plaintiff was also delivered to him. March 16, 1875, a petition in involuntary bankruptcy was filed against the company, and an order to show cause, returnable on March thirtieth, with the usual restraining clause, was issued, and a copy served on the sheriff. On the return day it was referred to a register to determine whether a sufficient number of creditors had joined in the petition.
    April sixteenth, without notice, and on the petition of the company, an order was made appointing a special receiver to take the property, and mine and deliver ore to fill a contract of the company; no property tobe delivered until the consent of all parties holding liens thereon should be filed with and approved by the register. The owners of all the executions issued to the sheriff, except the plaintiff, filed the requisite consent, and the sheriff delivered all the property levied on to the special receiver, who disposed of the same. Subsequently the proceedings in bankruptcy were dismissed, on the ground that the petition was not signed by the requisite number of creditors.
    In an action by the plaintiff against the sheriff, subsequently commenced, held, That the order of the bankruptcy court did not prevent the lien of the plaintiff’s execution attaching to the judgment debtor’s property, then held under levy by the sheriff'.
    That the injunction, in the order to show cause issued by the bankruptcy court, did not apply to the property levied upon, as to which the sheriff' held the possession, and the title to so much thereof as was necessary to satisfy the executions held by him.
    That it was the duty of the sheriff to sell such property under his levy.
    That the sheriff had no right to deliver the property levied upon to the special receiver, and that he was liable to the plaintiff for the damage occasioned by his so doing.
    Appeal from a judgment entered upon a nonsuit directed at the circuit.
    The action was brought to recover damages for the non-return of an execution, delivered to the defendant as sheriff of Jefferson county, in favor of the plaintiff against the Northern and New York Iron and Mining Company.
    The defence was that the sheriff was enjoined and restrained from proceeding on the execution by an order of the court of bankruptcy, and that the property levied upon was taken from his county, without his consent, by a special receiver appointed by the court in bankruptcy in proceedings against the mining company.
    The appellants recovered a judgment against the mining company April 10, 1875, for $1,387.86 ; execution on such was issued and delivered to the sheriff on the 12th day of April, 1875. Prior thereto, and on the 6th of February, 1875, the respondent, the sheriff, received an execution in favor of G. H. Rounds v. The Mining Company for $20.285 ; also on the same day an execution in favor of Peter Wolf v. The same Mining Company for fifty-nine dollars ; also on February 20, 1875, one for $75.87 in favor of N. Y. S. L. and Trust Company. On the 27th of February, 1875, an execution in favor of Bagley & Sewall for $611.59 ; also one in favor of N. Y. T. and Loan Company for $7,820. On March 2, 1875, and on the third, twenty-second, and twenty-third of March other executions against the mining company and others were received by the sheriff. Upon the receipt of the first of the above executions the sheriff levied on all the property of the mining company in his county.
    March 16, 1875, a petition in involuntary bankruptcy was filed against the mining company praying for an order of adjudication, and an order to show cause, returnable thirtieth March, why it should not be adjudged bankrupt was. issued thereon.
    The order to show cause was as follows:
    INVOLUNTARY BANKRUPTCY.

      In the District Court of the United States for the Northern District of New Yo>'k.

    In The Matter on The New York Iron and Mining Company Against Whom a Petition nor Adjudication on Bankruptcy was Filed on the 16th Day on March, A. D., 1875.

      In Bankruptcy.

    Northern District of New York, ss.:

    Upon filing proofs sustaining the allegations of the petition aforesaid, it is ordered, on motion of F. Lansing, of counsel for the petitioners, that the said The New York Iron and Mining Company do appear at this court, as a court of bankruptcy, to be holden at the judges’ chambers, in the city of Syracuse, county of Onondaga, and State of New York, and district aforesaid, on the 30th day of March, 1875, at ten o’clock a. m., and show cause, if there any be, why the prayer of said petition should not be granted ; and the said The New York Iron and Mining Company and all other persons are hereby enjoined and restrained in the meantime, and until the further order of the court, from making any transfer or disposition of any property of the said The New York Iron and Mining Company, not excepted from its operation by the act, entitled “an act to establish a uniform system of bankruptcy throughout the United States,” approved March 2, 1867, or any amendment thereto, and from any interference therewith, except for its security and preservation.
    It is further ordered that a copy of said petition, together with a copy of this order, be served on said The New York Iron and Mining Company by delivering the same to the president, secretary or treasurer thereof, personally, or by leaving the same at their usual place of abode, in said district, at least five days previous to the day herein required for its appearance.
    Witness, the Honorable William J. Wallace, judge of said court, and the seal thereof, at Utica, in said dis-[l. s.J trict, on the 16th day of March, A. D., 1875.
    WINFIELD BOBBINS,

      Clerk of District Court for said district.

    Upon the return of the order The Northern New York Iron and Mining Company appeared and answered the petition, and denied that the petitioning creditors were one-fourth of the creditors of the said company, and on the same day an order was made referring it to a register to ascertain and determine whether one-fourth or sufficient creditors in number had assented to the petition. On the 16th of April, 1875, without notice to creditors, and on the petition of the mining company, an order was made in said bankruptcy proceedings, whereby George W. Flower was appointed special receiver of the alleged bankrupt estate upon filing with the register proper security, to be approved by the register, which order authorized the receiver .to mine and deliver ore to fulfill a contract, made by the company with The Bochester Iron and Mining Company ; none of said property to be delivered until the consent of all the parties holding liens thereon should be filed with, and approved by the register.
    The receiver’s bond was approved and filed 21st of April, 1875. The owners of all the judgments and executions received by the sheriff, prior to the appointment of the special receiver, except the plaintiff, signed and filed with the register, the consents provided for in said order appointing the receiver, whereby they consented that the property levied upon might be delivered to the said special receiver. The sheriff thereupon immediately surrendered to the special receivers possession of all the property of the alleged bankrupt which he had levied upon as aforesaid. August 3,1875, upon a petition of several of the creditors (not including plaintiff), and upon the report of the register that the requisite number of creditors had not joined in the petition of bankruptcy, an order was made dismissing the petition in bankruptcy and dissolving the injunction order made 16th of March, 1875, as aforesaid. This action was commenced the 14th of August, 1875'. The mining company owned real estate in Jefferson county, where plaintiff's judgment was recovered. Several of the executions in the hands of the sheriff, prior to that of the plaintiff’s, were satisfied by the sheriff, the plaintiffs in which executions had joined in the consents aforesaid. The plaintiff offered to show “that there was ample and sufficient property of the defendant in Jefferson county, and which came into Jefferson county, and was in said county during the life of the plaintiff’s execution, to satisfy all the executions in the sheriff’s hands and the plaintiff’s execution.” This was objected to and excluded, and plaintiff excepted.
    At the close of the evidence the court held that the plaintiff could not maintain this action, upon the ground that the sheriff being restrained by the order of the District Court of the United States had no time within sixty days, the lifetime of the execution, in which to levy under it.
    The court then directed a nonsuit, upon which a judgment has been entered.

      John Lansing, for the appellant.
    The respondent, as sheriff, not having returned this execution within the sixty days, as required by law, is prima facie liable to the plaintiff for the whole amount due on the judgment. (.Pardee v. Robertson, 6 Hill, 550; Ledyard v. Jones, 3 Seld., 550; Brookfield v. Remsen, 1 Abb. Dec., 210; Humphrey v. Hathorn, 24 Barb., 278; Dolson v. iSaxon, 11 Hun, 568; Swezey v. Lott, 21 id., 481; Bow
      man v. Cornell, 39 Barbour, 69; Paige v. Willett, 38 New York, 28.) The defendant, by the receipt of the executions and the levy he made by virtue thereof, obtained a lien on the goods of the defendant in the executions prior to the commencement of the proceedings in bankruptcy. (3 B. S. [6th ed.], 625, § 13; Roth v. Wells, 29 N. Y., 471; Hale v. Sweet, 40 id., 97; Williams v. Schelley, 37 id., 375-; In re Stockwell, 18 Nat. Bky. Beg., 144 [U. S. Disk Ck, N. D. of N. Y.]; Herman on Ex., 10, 173, 179, 260, 261, 279, and cases cited.) A levy that is good and creates a valid lien under the State laws is valid even in a bankruptcy court. (Herman Ex., 1, 280; Rankin v. Scott, 12 Wheat., 179; 7 Am. Law Beg. [N. S.J, 204; In re Sheriff [U. S. Dist. Ct., E. D., N. Y.], 7 Am. L. Beg., 206, note; In re Donaldson [Penn. U. S. D. Ct.], 7 id. [N. S.], 213; In re Bernstein, 34 How., 289.) By the delivery of the execution to the sheriff, it became a lien upon the personal property of the judgment debtor, although no levy was made under it. (3 B. S. [6th ed.], 625; Camp v. Chamberlain, 5 Denio, 205; In re Stockwell, 18 Nat. Bky. Beg. [U. S. Dist. Ct., N. D., N. Y.], 144; Ray v. Birdseye, 5 Denio, 619; Roth v. Wells, 29 N. Y., 471; Hale v. Sweet, 40 id., 97; Williams v. Shelby, 37 id., 375.) The bankruptcy proceeding in no wise interfered with the sheriff’s right of possession and disposition of the property. (Matter of Bernstein, 34 Plow., 289; Marshall v. Knox, 8 N. B. E., 104; Wilson v. Child, id., 527; Ansonia, etc., v. Babbitt, 8 Hun, 161. Doctrine affirmed in Court of Appeals. United States Courts have no jurisdiction to enjoin a sale by an officer on process issued from State courts. (Herman on Executions, 281; In re Cobasra, 1 Wash., 232; Ctiy Bank v. Shelton, 2 Blatch., 14; Sawyer v. Gill, 3 W. & M., 97; Brown v. Swan, 10 Pet.. 497; Wynn v. Wilson, Hemp., 698; Marshall v. Biberly, 5 Wheat., 313; “Buggies v. Swinton, 3 Bin., 235; McKimv. Voorhies, 7 Cranch, 979; Inre Hopkins, 2 Curtis C. C., 567; Logan v. Lucas, 59 111., 237- Munson v. llouson, 34 id., 422.)

      P. O. Williams and II. H. Morse, for the respondent.
    The court has power, at any time after the filing of a petition, to restrain'by injunction, any interference with the property and assets of the bankrupt by execution or otherwise. (In re Wallace, 2 B. R. [IT. S. Dist., Oregon], 134; In re Ulrich, 8 id. [IT. S. Disk, S. D. of N. Y.], 15; In re Mallory, 6 id. [IT. S. Dist., Nevada], 22; In re L. B. M. Go., id. [IT. S. Dist., Nevada], 252; Irving v. Hughes, 2 id. [IT. S. Cir., E. D. of Penn.], 62; In re Fuller, 4 id. [IT. S. Dist., Oregon], 115.) The sheriff of a State court may be a party to proceedings. (In re Bernstein, 1 B. R. [IT. S. Dist., S. D. of N. Y.], 199; Jones v. Leach, id. [IT. S. Dist., S. D. of Miss.], 595.) The injunction may be granted without notice to the adverse party. (Irving v. Hughes, 2 B. R. [IT. S. Cir., E. Di of Penn.], 62; In re Muller v. Brentano, 3 id. [IT. S. Disk, Oregon], 339.) The filing of the petition transferred all the property to the custody of the Bankrupt Court, incumbered only by such liens as had attached thereto at time the petition was filed. Whenever those liens were removed for any reason, bankruptcy took the property relieved of them, in preference to subsequently recovered judgments and subsequently issued executions. (In re-Blanche, 4 B. R. [IT. S. Disk, E. D. of N. Y.], 648; Johnson v. Rogers, 15 id. [IT. S. Dist., N. D. of N. Y.], 1; In re Brisenlhal, id. [IT. S. Cir., N. D. of N. Y.], 228; In re Badenheim, id. [IT. S. Cir., S. D. of Miss.], 370.)
   Hardin, J..:

When the sheriff received the plaintiff’s execution, on the 12th of April, 1875, he also held several executions in favor of other creditors against the mining company, the defendant in the executions, and in virtue of the prior executions the sheriff had made a levy upon considerable property of the execution debtor. The levy was made prior to any proceedings in bankruptcy, and all that property so under levy was constructively in the possession of the sheriff, and not the property of the insolvent. (Ansonia Brass, etc., Co. v. Babbitt, 8 Hun, 157. Opinion by Talcott, J.)

Although the case was reversed by the Court of Appeals, upon an appeal from a second judgment, the opinion of that court, as delivered by Andrews, J., sustains this principle.

By delivery of the execution of the plaintiff to the sheriff on the 12th of April, 1875, the plaintiff acquired a lien upon the property then held by the sheriff (subject to prior executions), and upon all the other property in the couxxty of Jefferson belonging to the execution debtor,, except as against bona fide purchasers in good faith.

The title of the debtor was-not divested by filing a petition in bankruptcy, either to the personal or real estate. (U. S. Statute, § 5044; Hampton v. Rouse, 22 Wall. [U. S. R.], 273.

The order of 16th March, 1875, made by the District Court in terms restrained the sheriff “ from soiling or taking any further proceedings to sell or dispose of or interfering with the property of the Northern New York Iron and Mining Company, * # * or in any manner intermedling or interfering with tlxo property of the said The Northern New York Iron and Mining Company, until the further order of the court.”

This order was served upon the sheriff soon after it was made. The only effect of the order was to stay the action of the sheriff upon executions ; it did not undertake to divest him of the property under his levy, and such could not be its effect, as we have before seen. This order did not vacate or destroy the liens obtained by the sheriff, and he was still entitled to maintain his levy upon the property of the judgment and execution debtor, the mining company.

Such was the status of the sheriff towards the property of the the mining company, when on the 12th of April, 1875, he. received the execution issued upon the plaintiff’s j udgment. There is nothing in the terms of the oi’der of the sixteenth of March which could prevexxt the lien of the plaintiff’s execution attaching to the judgment debtors property then held under levy. (Peck v. Tiffany, 2 Comst., 451.) Nor to prevent the liexx acqxxired by possession of the execution npoxx axxy other property in the couixty of Jefferson belonging to the debtor, when the execution was received by the sheriff. (Hampton v. Rouse, supra; 3 R. S., 625 [6th ed.]; Camp v. Chamberlain, 5 Denio, 205; Ray v. Birdseye, 5 id., 619; Roth v. Wells, 29 N. Y., 471; Hale v. Sweet, 40 N. Y., 97.)

It appears that a petition was presented Apxúl 16, 1875, to the District Court by the presidexxt of the Northern New York Iron axxd Mining Coxnpaixy, and an order was made for the appointment of a special receiver on that day. This order is to the effect that Geox’ge W. Flower “ be axxd is hex’eby appoixxted special x’eceiver of the property and effects of said alleged bankrupt upon filing,” etc.

The receiver was authorized to mine and deliver such ore as may be necessary to fill a contract with the Rochester Iron Company, and to operate blast furnaces until the coal on hand is consumed.

This order contained a further provision that “none of the property to be delivered by said receiver until consent of all the parties holding liens thereon shall be filed with the register,” etc.

. Several of the execution creditors having given their consents, the sheriff surrendered to the special receiver the property held under his levy, and other property of the insolvent in the county was taken and converted. The plaintiff here gave no such consent, and the sheriff was in no way authorized by the plaintiff to surrender up the property under his levy, nor to let go any of the other property named or belonging to the insolvent and liable to the plaintiff’s execution.

The case is destitute of any evidence showing any effort on the part of the sheriff to retain such property, to resist its being taken by the receiver or to recapture it; nor did he bring any action to recover it and to retain it for the purpose of making the plaintiffs’s execution therefrom.

The second count of the complaint alleges “that the sheriff duly levied the said execution on sufficient property to fully satisfy the same, and that he could have made the money on the said execution within sixty days by a sale thereof * * * but that he neglected to do so : through his neglect the plaintiff suffered damages in the amount of said execution.”

Thus, it appears that this action is not only for a failure to return the execution, but for a failure of the sheriff to do his duty in the premises.

The evidence presented on the trial did not establish that .the sheriff had done all his duty hi the premises. As to this plaintiff' he had no right to surrender the property ; to allow the receiver to take that which was under his levy, or that upon which he acquired a lien by reason of the receipt of the plaintiff’s execution. The Ansonia Brass, etc., Co. v. Babbitt, 8 Hun, 162, establishes a principle that was applicable to the facts as they were presented upon the-trial.

It was there said “it was the duty of the sheriff to-> resort to all reasonable means to protect his levy, instead of which he appears to have surrendered the property without objection or remonstrance.” (Talcott, J.) : and Andrews, J., in delivering the opinion of the Court of Appeals in the same case, says : “It was the duty of the sheriff to retain the possession and sell the property to satisfy the execution and to take all reasonable -means to protect his levy; * * * so, also, he would have had a remedy against the assignee after the property was turned over to him. upon his refusal to surrender it. * * * The sheriff had a right to use all necessary force to protect his possession.”

Thus, it appears that upon the levy made by the sheriff in this case, he had the possession and title to so much of the execution debtor’s property as was needed to satisfy the execution which came to his hands prior to the proceedings in bankruptcy, and that it was his duty to sell the property, and hi doing so he would not have violated the terms of the order of the District Court, for that coidd not take effect upon property which belonged to the sheriff and not to the mining company. The District Court had no jurisdiction, even if the order had undertaken to divest the sheriff of his title and possession by a summary order, without notice to him or to the execution creditors. (Marshall v. Knox, 16 Wall., 551; O'Brien v. Weld, 92 U. S. R., 83; Smith v. Mason, 14 Wall., 419.)

The plaintiffs in the prior executions gave consents that the sheriff turn over the property to the special receiver, and it is insisted that thereby the executions became dormant, and that the plaintiff became entitled to the proceeds of any sales made. (Dunderdale v. Sauvestre, 13 Abb., 116; Price v. Shipps, 16 Barb., 585.) That question was not passed upon by the trial court, and when another trial shall take place the facts upon which the question depends may be more fully developed, and we, therefore, do not express any opinion in respect to it.

We think the trial judge fell into an error when he granted the motion for a nonsuit, and that the judgment should be reversed and a new trial ordered, with costs to abide the event.

Talcott, P. J. and Smith, J., concurred.

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


source: Caselaw Access Project

author: Hardin, J.:

license: Public Domain

text:
    CHENEY HILL AND CATHARINE HILL, Appellants, v. JAMES W. NYE AND WILLIAM KELSEY, Administrators, etc., of NORMAN F. KELSEY, Deceased, Respondents.

      Adoption — when the surrender of a child, does not deprive the parents of the right to inherit as its next of kin — 07m£>. 830 qf 1873 — only applicable to a subsequent adoption — § 13 thereof, construed.

    March 30, 1836, Cheney and Catharine Hill had a child, Delos. In February, 1837, Cheney was sent to State prison for ten years for forgery. A few months afterwards Catharine gave the child to one Kelsey, by whom the boy was reared and treated as his adopted son, his parents acquiescing and never objecting thereto. The boy took the name of Kelsey, and shared in the latter’s estate. Subsequently Delos died, leaving a widow and a child by a former wife, between whom his property was divided. The child having died while a minor, leaving personal estate, the surrogate held that his maternal grandfather was entitled to the whole estate, to the exclusion of his paternal grandparents who were both living.

      Held, that this was error; that all three were entitled to participate equally in the estate.
    Chapter 830 of 1873, legalizing adoptions, only applies to such as take place after its passage.
    Section 13 of said act provides “that nothing herein contained shall prevent proof of the adoption of any child heretofore made, according to any method practiced in this State, from being received in evidence, nor such adoption having the effect of an adoption he'eunder.”

      Held, that though the second clause provides that the statute shall not have the effect of preventing an adoption theretofore made from having the same effect as one made thereunder, yet it does not provide that an adoption theretofore made shall have the like effect as one made thereunder.
    Appeal from a decision of the surrogate of Genesee county in respect to the distribution of the property of Norman F. Kelsey, deceased. The decree gave the entire fund to Jonas W. Nye, the grandfather on the mother’s side, to the entire exclusion of Cheney and Catharine Hill, the grandfather and grandmother on the father’s side of the said Norman F. Kelsey, deceased.
    In 1875 Norman F. Kelsey died intestate, and an infant of about seventeen years of age. He was the son of Delos Kelsey, who was the son of Cheney Hill and Catharine Hill.
    Delos Kelsey, the father of Norman F. Kelsey, died in January, 1871, leaving a will which was admitted to probate in Erie county. It gave one-half of his property to his son Norman F., and the other half to his widow, she being his second wife. Delos Kelsey’s first wife, the mother of Norman F., died about two weeks after his birth..
    According to the directions in the will the executor sold the real estate and converted it into personal property, and as such it came into the hands of the administrators of Norman F. Kelsey, deceased.
    Delos was born March 30, 1836, and his father Cheney Hill in February, 1837, was sent to Auburn prison for forgery for ten years. A few months thereafter Catharine Hill, the wife of Cheney Hill and mother of Delos, gave the said Delos to one Ebenezer Kelsey, a resident of Maretta, Erie county, by whom the boy was reared. He took the name of Delos Kelsey, and lived with Ebenezer during his life, being called and treated as his adopted son.
    The wife of Jonas W. Nye, the grandfather of Norman on his mother’s side, died prior to the death of Delos Kelsey. There remains $1,449 assets in the hands of the administrators of Norman to be distributed to his next of kin. The surrogate held that it should all be paid to Jonas W. Nye, the maternal grandparent, to the exclusion of the appellants.

      j\r. A. Woodward, for the appellants.

      Thomas Gorlett, for the respondents.
   Hardin, J.:

The surrogate was entirely right in holding that the funds which came to the administrators of Norman F Kelsey, deceased, were personal estate. The will of his father, Delos Kelsey, gave to him in terms half of his real and personal property. It directed a sale of his real estate by his executor, and the investment of one-half of the proceeds thereof “ in mortgage or in mortgages on real estate,” and that after the education and support that were to be given to Norman “ the principal sum and any interest ” * * * shall be paid to him. The conversion was complete without any election on the part of the infant. (Stagg v. Jackson, 1 Comst., 206; Horton v. McCoy, 47 N. Y., 21.)

Cheney Hill and Catharine Hill, the grandparents on the father’s side, stand in the same degree of relationship to the deceased Norman, as Jonas W. Nye, the surviving grandparent on the mother’s side. They are the next of kin of the deceased. Being in the same degree the three take per capita in. the distribution, thus giving each one-third of the fund to be distributed. (3 R. S. [5th ed.], 184; § 82, sub. 9; Sweezey v. Willis, 1 Bradf., 495; Hurtin v. Proal, 3 id., 414; Bogert v. Furman, 10 Paige, 496; Knapp v. Windsor, 6 Cush., 156.)

But it is insisted by the respondent that the gift by Catharine Hill of Delos to, and the adoption of him by Ebenezer Kelsey, have the effect to shutout the Hills from the distribution of the personal estate of Norman. The gift appears to have been madeby parol. The father was then confined in State prison, and he says he never consented thereto. Though the evidence abundantly establishes the fact, that after Delos was given to Ebenezer Kelsey he continued to reside with the adopted father until he reached manhood, and that he was considered and treated by Ebenezer as his son, and as such named and provided for in his will. After Delos grew to manhood and was married, he went to Michigan and made a visit to his father and mother, the Hills, and they visited him, and the natural tie of consanguinity was recognized. There is, however, no evidence of any formal abandonment by the Hills of Delos; nor any written evidence of their consent that he be adopted by Ebenezer Kelsey ; nor is there an.y written evidence of the adoption of him by Ebenezer Kelsey.

In 1871 Delos died and by his will the property now in the surrogate’s court passed to the right of Norman. It became his absolutely, and upon his death it passed by the statutes of distribution to his next of kin. No such force can be given to the gift by the mother of Delos to Ebenezer, as to prevent her or her husband from asserting and maintaining through the blood of their deceased son’s kinship to Norman, the intestate. The ties of consanguinity were not severed by anything which occurred between the mother and Ebenezer Kelsey ; nor by the"acquiescence of the child in the gift.

Thus far we have considered the case as one arising under our statutes of distribution and governed by them. The learned surrogate has in his opinion and decision treated the case as effected by the statute of 1873, entitled “ an act to'legalize the adoption of minor children by adult persons." (Chapter 830 of Laws of 1873.) Considering the title of the act and the words in the first section it would seem to be clear that it, in terms, only provides for “adoption” which may take place subsequent to the passage of the statute.

The first section is as follows, viz. : “ Adoption, as provided for in this act, is the legal act whereby an adult person takes a minor into the relation of child, and thereby acquires the rights and incurs the responsibilities of parent in respect to such minor.” The words, “as provided for in this act,” are apt and appropriate words to indicate that a mode of adoption is to be prescribed in the subsequent parts of the enactment.

The second section equally favors this view of the intention of the Legislature, in prescribing for what might take place in the future, and in virtue of the act. It is as follows : “ Section 2. Any minor child may be adopted by any adult, in the cases and subject to the rules prescribed in this act.” Here is a clear intent to provide for future cases. The next seven sections prescribe the rules, and point out the mode in which such adoption may take place, if approved by a county judge of the county “in which the person adopting resides.”

The tenth section is as follows : “A child when adopted shall take the name of the person adopting, and the two thenceforth shall sustain toward each other the legal relation of parent and child, and have all the rights and bo subject to all the duties of that relation, excepting the right of inheritance, except that as respects the passing and limitations over of real and personal property, under and by deeds, conveyances, wills, devises and trusts, said child adopted shall not be deemed to sustain the legal relation of child to the person so adopting.”

It must be observed that this section expressly provides for consequences to happen subsequent to the adoption had in virtue of the statute.

It also provides “ the two thenceforth shall sustain towards each other the legal relation of parent and child.” Thus we have an express declaration that applies to the two brought together by the new relation, and a provision that “ thenceforth ” they shall sustain towards each other “the legal relation of parent and child.” These words conclusively point to such adoptions as shall take place subsequent to the enactment.

The same idea is favored by the language of section twelve, viz. : “ The parents of an adopted child are, from the time of the adoption, relieved from all parental duties towards, and of all responsibility for, the child so adopted, and have no rights over it.” We have quoted so much of the statute with a view of showing that it in terms applies to future adoptions, and in no way refers to antecedent practices or methods of adoption, or the eifect to be given to them.

We come now to consider the thirteenth section, which is claimed to apply to antecedent adoptions, in such manner as to give them all the force and the same eifect which the statute prescribed for those which shall take place under the statute,' and in virtue of its terms, subsequent to its passage.

The first part of the thirteenth section declares: “Nothing herein contained shall prevent proof of the adoption of any child heretofore made, according to any method practiced in this State, from being received, in evidence, nor such adoption from having the eifect of an adoption hereunder.”

The first provision quoted relates to the kind of evidence which may be resorted to, in order to establish an .adoption which may have taken place prior to the passage of the act. It declares that the statute shall not take away the then existing privileges to prove such adoptions as theretofore existed, according to the best evidence that existed in respect thereto at the passage of the act.

The second provision quoted, simply declares in eifect that where such antecedent adoption may have been proved, or may be found to exist, it may have full force and effect given to it, notwithstanding it took place prior to the passage of the statute. That nothing contained in the statute shall prevent such antecedent “ adoption from having the effect of an adoption hereunder ;” that is, this statute shall not prevent such effect being given to it.

But this stops far short of declaring that such antecedent adoption, when proved, shall have the “like effect” of an adoption consummated in the mode prescribed by the statute.

The words quoted do not give fresh force and vigor to any adoption that took place prior to the passage of the act. The Statute in effect declares that the antecedent adoptions shall not be subtracted from. In so declaring it does not add to the effect which they had antecedent to the enactment of its provisions.

Statutes should not receive retroactive construction, unless their words expressly require it. Such a construction is never to be favored. Especially is this true when a statute affects rights and liabilities already existing. (Dash v. Van Kleeck, 7 Johns., 477; Wood v. Oakley, 11 Paige, 400; Mannis v. Butler, 49 Barb., 176; In re P. E. School, 58 Barb., 162.)

We, therefore, must hold that the statute of 1873 does not have the effect to deprive the Hills of their rights to come in as kinsmen of Norman E. Kelsey and participate with his maternal grandparent in the distribution of his i^ersonal estate. The general statute of distribution remains unaffected as to the rights of the appellants, and must as before stated be applied.

We have been unable to find any provision in the act of 1873 which indicates an intent to interfere with the statute of distributions, in respect to cases of an adoption like the one before us. When a case shall arise under the statute of 1873, it will present numerous interesting questions as the statute is somewhat indefinite and obscure.

The surrogate has given very forcible reasons for holding that the “relation,” the “new departure,” provided for by such statutory adoptions gives the “ two thenceforth ” a right to join the next of kin of either and be connected in the distribution of personal property. The exception in the tenth section seems to include only the real estate.

The words “ excepting the right of inheritance” are apt and appropriate words to be used with an intent to except from the “ new departure ” such inheritance of real estate as would pass under the laws regulating descent. (Section 2 of chap. 2, part 2 of R. S. ; Section 1, article 1, title 2, chap. 1, part 2 of R. S.)

“ Estates and lands are divided into estates of inheritance, estates for life,” * * * etc.

Such a result, however, would lead to an inquiry as to why the Legislature should except the right of inheritance and not except the right of participating in personal property under the law of distribution. But it is not necessary to the decision of this case to pass upon these questions if my brethren agree with me in the conclusion that the statute of 1873 does not apply to this case.

We must reverse the decree made by the surrogate and remit the proceedings, with directions to distribute the personal property of the intestate among his three grandparents, share and share alike, and that the appellants' costs of this appeal be paid out of the fund before distribution.

Talcott, P. J., and Smith, J., concurred.

Decree of the surrogate reversed and proceedings remitted to the surrogate of Genesee county, with directions to distribute the fund among the intestate's three grandparents, share and share alike, and that the appellants' costs of this appeal be paid out of the same before distribution.


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    SAMUEL M. KRAUSER, Respondent, v. JOHN H. RUCKEL, JACOB HENDEL and JOHN AITKEN, Appellants.
    3848, chapter 40, § 18 — who is not a laborer or servant within — right of an assignee to prroceed against stockholders under.

    One employed by a mining corporation, having its principal place of business at New York city, to act as superintendent of its works, in Lewis comity, with power to hire and pay workmen, and to make contracts for supplies, ores, etc., when and as directed by the company, is not a “laborer, or servant or operative” within the meaning of section 18 of chapter 40 of 1848, making the stockholders individually liable for the debts of the company owing to laborers and servants and operatives.
    Where a laborer assigns his claim for wages, after it has accrued and become fixed, his assignee may enforce the payment thereof from the stockholders under the said section.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    The action was brought against the defendants as stockholders in “ The Black River Iron and Mining Company,” a corporation organized under the general act of February 17, 1848, for the formation of manufacturing and other corporations.
    The plaintiff sought to recover for his own personal services, and for the services of several persons who had performed work for the company and assigned their claims to him. The plaintiff recovered upon both claims. The company’s principal place of business was in New York city, and its works were located at Port Leyden, Lewis Co.
    The referee found “ that the plaintiff at the time stated in the complaint herein was superintendent of said works there, and that there was no one there superior to him, that the plaintiff at the companies said works at Port Leyden hired and paid the workmen, purchased supplies, selected ore, made contracts for the company, drew drafts on the company for purchases, paid freight, drew orders on store-keepers for provisions supplied to the workmen, and had entire charge of the companies works and affairs at that place, and that no contracts were made by him without special directions, other than hiring men.” The plaintiff was employed at a “ salary of $3,000 and board until the furnaces were in working, then at a salary of $3,600 a year.” The plaintiff took charge of the works, and while there performed some manual labor in the business ; some of the officers occasionally visited the works and gave some directions as to their management. The plaintiff recovered a judgment against the corporation and issued execution thereon, which was returned wholly unsatisfied, before the commencement of this action.

      John Van Voorhis and William B. AitJcen, for the appellants.
    The plaintiff, as a general superintendent, was not a laborer or servant within the meaning of section 18 of chapter 40 of 1848. (Hill v. Spencer, 61 N. Y., 274; Coffin v. Reynolds, 37 id., 640; Aiken v. Wasson, 24 id., 482; Ericsson v. Brown, 38 Barb., 390; Stryker v. Cassidy, 10 Hun, 18.) The right of action given to laborers against stockholders is a personal privilege granted to them alone by statute and is not given to an assignee, unless the assignment is made for the benefit of the assignor. (Coffin v. Reynolds, 37 N. Y. Rep., 640; Boutwell v. Toionsend, 37 Barb., 205; Oallager v. Ashly, 26 id., 146; Donaldson v. Wood, 22 Wend., 398; Roberts v. Fowler, 4 Abb. P. R., 263; Rollin v. Cross, 45 N. Y., 766; Weyburn v. White,. 22 Barb., 82; Dudley v. Mayhew, 3 Comst., 9-15.)

      Walter Ballou, for the respondent.
   Hardin, J.:

The plaintiff’s right to recover for his personal services against the defendants, as stockholders, depends upon a construction of the eighteenth section of the act of 1848 (ch. 40) making stockholders liable for debts due and owing to “laborers, servants and operatives ” for services performed for the company. We think we must conclude in this case that the plaintiff was not a “servant, laborer or operative ” within the terms used in the statute, in deference to the reasoning and decision in Hill v. Spencer (61 N. Y., 274); Dean v. De Wolf (23 N. Y. S. C., 16 Hun, 187).

True, the plaintiff performed some manual labor, but that was merely incident to his position of general superintendent of the company, and that does not bring him within the provisions of the statute. (Ericsson v. Brown, 38 Barb., 390.)

The case of Jeremiah S. Black [Gurney v. A. and G. W. R. R. Co., 58 N. Y., 370) is not in point. The question there was whether a claim by a lawyer for services performed for a railway company were within the terms of an order directing the receiver to pay claims for employees out of the fund ; and although this court held it was not covered by the terms of the order, the Court of Appeals, by a divided vote, came to the conclusion that the language of the order covered the claim. That case does not, however, aid the plaintiff, and we are inclined to think the plaintiff’s position was not that of “ servant or laborer,” and that the case of Hill v. Spencer (supra) is decisive of his case, adversely. We must, therefore, hold that the referee erred in so far as he allowed the plaintiff to recover for his personal services, of the defendants as stockholders. (Dean v. De Wolf, supra.)

The other branch of the case rests upon evidence that several persons were employed as laborers in the business of the company, performed labor, and subsequently assigned their claims to the plaintiff, who brought an action thereon against the company and had an execution returned unsatisfied.

1. They were employed by the agents of the company, and the company received the benefit of their services with knowledge that they were being performed.

2. They assigned their claims to the plaintiff after they accrued.

3. There was no proof that the services had been paid for, and the evidence justified an inference and finding by the referee that they remained unpaid and owing at the time when this action was brought against the stockholders.

The appellant insists that the “ right of action given to laborers against stockholders is a personal privilege granted to them alone by statute and is not given to an assignee.” This point was before this court in Krauser v. Murdock, and was decided adversely to the defendant. The statute requires that the stockholders shall be liable for the debts due and owing to laborers, etc. When this liability has accrued and become fixed we see no reason why it may not be assigned, and the assignee acquire all the right of action which accrued to the original party, the assignor. The counsel cites us to the case of Rollin v. Cross (45 N. Y., 766), and Roberts v. Fowler (4 Abb. P. R., 263), where it was hold that a mechanic’s lien could not be filed by an assignee because the statute conferred a personal privilege upon the laborer. Those cases do not support Ins proposition.

There were many objections taken to evidence, but an examination of them does not indicate any error on this branch of the case calling for a reversal of the findings. The referee only allowed a recovery for Michael Morris’s claim so far as his labor was concerned, and excluded the claim for horses.

We think the judgment should be reversed and a new trial had before another referee, with costs to abide the event, unless the plaintiff shall stipulate to modify the judgment by striking out the amount of the recovery for the plaintiff’s individual services and interest thereon, in which case judgment as so modified will be affirmed, with costs of the appeal.

Talcott, P. J., and Smith, J., concurred.

Judgment reversed and new-trial ordered before another referee, with costs to abide the event, unless the plaintiff shall, within twenty days, stipulate to modify the judgment by striking out the amount of the recovery for the plaintiff's individual services and interest thereon, in which case the judgment as so modified is affirmed, with costs of the appeal to plaintiff.


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    JAMES GREEN, Respondent, v. THE HOMESTEAD FIRE INSURANCE COMPANY, Appellant.

      Policy of insurance — condition against incumbrances — the filing of a mechanic's lien is not a violation thereof.

    A policy of insurance provided that the company should not be liable “if -without written consent hereon, the property shall hereafter become incumbered in any way.” Subsequent to the issuing of the policy a mechanics’ lien was filed against the property, but no proceedings were ever taken to enforce the same. It was not shown that plaintiff had knowledge of the filing of the lien until after the destruction of the property by fire.

      Seld, that the filing of the lien did not create an incumbrance within the meaning of the condition, and that the policy was not avoided thereby.
    Appeal from a judgment in favor of the plaintiff, entered upon a trial before the court without a juiy.
    The action was brought upon a policy of insurance against loss by fire, issued to plaintiff by the defendant. The policy contained a clause conditioned that the company should not be liable for any loss by invasion, * * * “ nor, if, without written consent hereon, the property shall hereafter become incumbered in any way ; ” “nor, if the interest of the insured therein be changed in any manner,

      whether by the act of the insured or by operation of law.” * * * The defendant set up that a mechanics’ lien was filed for $118,21 upon the premises September 19, 1876, subsequent to the issue of the policy and before the fire. The plaintiff proved that nothing ivas ever done under the mechamos’ lien ; to the admission of the proof of which fact the defendant objected and excepted. The policy covered personal property, and the building — and a recovery was had for both properties. The defendant insists that the policy was avoided by the mechanics’ lien.

      F. W. Hubbard, for the appellant.

      J. Welling, for the respondent.
    The notice of lien filed September 19, 1876, was not an incumbrance within the words or import of any condition of the policy, as ordinarily used and understood. [Rannv. Home Ins. Go., 59 N. Y., 387; Reynolds v. Com. Fire Ins. Go., 47 id., 597, 604-605; Breastead v. Farm L. and T. Go., 8 id., 299, 305; Oolt v. Phoenix Fire Ins. Go., 54 id., 595.) If it is held the policy was void as to the house burned, by reason of the notice of lien, still the recovery for the value of the personal property destroyed must be sustained. (Merrill v. Agricultural Ins. Go., 10 Hun, 428; affirmed by Ct. of App., 7 N. Y. Weekly Dig., 59.)
   Hardin, J.:

The mechanics’ lien filed was not a specific incumbrance, and were we satisfied to follow Owen v. Farmers’ Joint Stock Ins. Co. (57 Barb., 525), it might be declared not an incumbrance upon the property. We prefer, however, to consider another view of the point involved.

The mere filing of the notice under the mechanics’ act would not give a right to a judgment. The subsequent steps must be taken prescribed by the statute. (Laws of 1873, chapter 489.) The judgment to be given under that act “ establishes the amount” of the liens. (Section 11, Laws of 1873, chap. 489, p. 746.)

But the language of the policy under consideration is : “Nor if without written consent hereon, the property shall hereafter become incumbered in any way ’’ shall the company be liable.

This provided for a forfeiture, and must be strictly construed against the insurer. (Hitchcock v. North-Western Ins. Co., 26 N. Y., 70; Kitts v. Massasoit Ins. Co., 56 Barb., 182.) The first part of the clause contemplates obtaining “consent of the company.” The proof here does not show that knowledge was obtained by the assured of the filing of the lien prior to the fire. How, then, could he have obtained “consent” contemplated by the first part of the clause under consideration ? The language is to receive construction, in the light of the objects to be obtained by the parties by its use, and the circumstances surrounding them. It contemplated any “ incumbering ” by the party insured ; any voluntary act of incumbrance. (Wood on Insurance, § 326, p. 552; Strong v. Manf. Ins. Co., 10 Pick., 40; Franklin v. Findley, 6 Whart. [Penn.], 483.)

There was no incumbrance put upon the property by the assured, and he is not shown to have known of th& filing of the mechanics’ notice. He did not voluntarily incumber the property, nor have any opportunity, after he had notice of it, to obtain the “ consent” of the company. We may, therefore, hold that the property was not incumbered by the party, nor did it become incumbered within the spirit and letter of the stipulations found in the policy. There was no change in the interest of the assured shown. (Ætna Ins. Co. v. Tyler, 16 Wend., 385; Hitchcock v. N W. Ins. Co., 26 N. Y., 70; 56 Barb., 182, supra; Savage v. Howard Ins. Co., 52 N. Y., 506.)

The judgment at the circuit should be affirmed.

Talcott, P. J., and Smith, J., concurred.

Judgment affirmed.


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    JOSEPH F. HILL, Respondent, v. JOHN HEERMANS, Appellant.

      Code, § 399 — what evidence inadmissible under — a fact, assumed to be true an the trial, cannot be disputed on appeal.

    This action was brought to recover two bonds alleged to bave been deposited by the plaintiff for safe keeping (with indorsements in blank thereon) with the assignor of the defendant, since deceased. When produced on the trial the name of defendant’s assignor was written in the blank. The plaintiff, who claimed that this was done without his authority, knowledge or consent, was allowed to testify upon the trial, against defendant’s objection and exception, that he never transferred the bonds, and never saw them, after depositing them, until the trial. Held, that the evidence was inadmissible under section 399 of the Code. ■
    The defendant alleged in his answer, and it was assumed upon the trial, that defendant claimed the bonds as assignee of the deceased.

      Held, that the admission of the plaintiff’s evidence could not be sustained, on the ground that the fact that the defendant was such assignee had not been directly proved.
    Appeal from a judgment in favor of the plaintiff’ entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon a case and exceptions.
    After the appeal was taken the original plaintiff died, and his executor was substituted in his place.
    The action was brought to recover jiossession of two bonds issued by the town of Erie in the county of Chemung. The answer set up that at and prior to the 29th of June, 1871, the bonds were the property of Joseph Fellows, and that he had assigned them to the defendant. The bonds which were produced in evidence upon the trial had an indorsement thereon, viz. :
    Hokseheads, August 1, 1870.
    “ Utica, Horsoheads and Ehnira Railroad Company, pay to the order of Joseph Fellows, the within bond and the coupons attached, as they severally become due.
    “D. D. REYNOLDS,
    “ Treasurer Utica, Horseheads and'Flmira Railroad Go.”

    The plaintiff’s testator claimed title to the bonds through an alleged purchase from one Rodburn, the former owner of the bonds, and alleged that the bonds when left by him in the safe of Fellows had the same indorsement, except that the name “Joseph Fellows ” was not inserted therein. There was evidence upon the trial, tending to show that the plaintiff’s testator had been an agent of Fellows, and that he had been superseded.
    There was evidence to the effect that the name of “ Joseph Fellows ” was in the handwriting of Fellows, who was dead, and who, prior to his death, had made an assignment in trust of his property to the defendant Heermans.

      A. Hadden, for the appellant.
    The evidence of the plaintiff as to the transactions between himself and Fellows was properly objected to and improperly admitted. {Berry, Admr. v. Qalin, 37 How., 310 ; Clark v. Smith, Fxr., 46 Barb., 30 ; Haughey v. Wright, 12 Hun, 179.) Where it is obvious that a fact was assumed on a trial, it is as much in the case as if expressly proved. (Paige v. Fazacerly, 36 Barb., 392; Beekman v. Bond, 19 Wend., 444; Pollen v. Leroy, 10 Bosw., 56; The People v. Third Avenue R. R. Co., 45 Barb., 63, 66; Clute v. Fmerick, 12 Hun, 504; The People v. Cook, 8 N. Y., 67, 73; Brown v. C. and 8. R. Co., 12 id., 490.)

      George B. Bradley, for the respondent.
   Hardin, J.:

When this case was before the General Term on an appeal from the first trial it was held, viz.: “To impeach the defendant’s apparent title to these bonds it was necessary, we think, to establish that the name of Fellows was inserted in the indorsement on the back of the bond by mistake or fraud.”

Under this proposition, on the trial now under review, the plaintiff’s testator sought to recover, and for the purpose of sustaining his 'theory, he was called as a witness and gave evidence in which occur four rulings that must be considered. The questions, answers, and rulings alluded to were as follows :

(No. 1.) “ Q. At the time you left these bonds in the safe was the name of Mr. Fellows in either of these indorsements ? ” A. “ No sir ; it was not.” The defendant objected upon the ground that the evidence is incompetent under section 399 of the Code and necessarily involved a personal transaction with Mr. Fellows who is dead. The objection was overruled and the defendant’s counsel duly excepted. (2.) “ Q. Was the name of Joseph Fellows anywhere in these instruments at that time ? ” A. “No, sir.”

(No. 2.) “ Q. Did you ever in any manner consent to any person that his name should be written in these indorsements ? ” The defendant objected on the same ground as before. The objection was sustained by the court and the plaintiff excepted.

(No. 3.) “ Q. After you put these bonds in the drawer, did you authorize any person to take them from the drawer ?” The defendant’s counsel objected, as before. The court overruled the objection ; the defendant’s counsel duly excepted, and the witness answered : “Wo, sir, I did not."

(No. 4.) “ Q. Did you ever transfer those bonds to any one in any way.” The defendant’s counsel objected, as before. The court overruled the objection ; the defendant’s counsel duly excepted, and the witness answered : I never transferred them, and I never saw them, after I put them in there, until at the last trial."

It must be assumed that some of the evidence given in answer to the foregoing questions was incompetent, as against the defendant, who claimed the property as assignee of Joseph Fellows, who was dead.

It has been held that a negative fact cannot, under such circumstances, be proved by a witness who is a party and brought within the terms of section 399. (Clarke v. Smith, 46 Barb., 31; Dyer v. Dyer, 48 id., 190; Howell v. Van Siclen, 6 Hun, 115; Haughey v. Wright, 12 id., 179.) This principle is recognized by Church, Ch. J., in Hier v. Grant (47 N. Y., 281). He says, “although such a question is upon the threshold of forbidden ground, I do not think it violates the statute, unless perhaps in a case where the mere fact of a conversation is the material fact to be proved.” We must, in deference to these cases, hold that the answer of the witness, “ I never transferred them, and I never saw them after I put them in there, until at the last trial,” was incompetent.

Such, in effect, was the view taken by the learned judge, who refused a motion for a new trial at Special Term. But he assumed that although it had been proved that Fellows was dead, “ it did not appear that Heermans was assignee ;” and that in the absence of such proof there was nothing to found the objection upon to such testimony. But we think the court and counsel assumed the fact at the time the four questions and rulings quoted were had, that Heermans was claiming title to the bonds as assignee of Fellows.

(1.) Such was the verified answer of the defendant.

(2.) The object of the plaintiff in giving such evidence was to get rid of the effect of “ defendant’s apparent title to these bonds,” as judge E. D. Smith called it in the opinion quoted, supra.

(3.) When the court sustained the objection made to question number two, it must have assumed the fact, otherwise there was no force in the objections which were sustained.

(4.) There was no statement by the court, when the last ruling was made, that it was because the fact did not then appear to be proved by the defendant that the claim made by him was as assignee.

Had such been the ground of the ruling in regard to such transaction with Fellows, it is probable the court would have so stated, so that the proof might have been given.

It is well settled that when a fact is assumed upon a trial, a party cannot on review claim to the contrary, having acquiesced in respect to the assumption made at the trial.

This principle is fully considered in Paige v. Fazackerly (36 Barb., 393), and the cases collected and commented upon. The syllabus of these cases is as follows :

“ Where a court of review is satisfied, from the general scope and tenor of the proceedings on the trial, that a particular fact was not a matter of contest, nor a .ground of objection there, but was assumed or taken for granted in the conduct of the cause, it may and should conclude that the fact was as it was assumed to be.” (Smith v. Hill, 22 Barb., 656; see, also, Tooley v. Bacon, 70 N. Y., 34.)

The incompetent evidence was very important, and we doubt not influential upon the jury. It was so treated by the judge in his charge to the jury at different parts thereof. He‘said : “ The fact that his (Fellows) name is inserted in the order makes him the owner, unless you shall find that the name was placed there by some one having no'right or authority to place it there, or that it was written in there by mistake by Mr. Fellows, in whose handwriting it appears to be.” Again, he says : “ You remember Hill’s testimony, which is, that he never transferred the bonds to any one ; nor did he ever give any one the authority to insert the name of Fellows in the assignment.”

In fine, the court instructed the jury that if they believed the truth of Hill’s statement in giving this incompetent evidence, they should find for the plaintiff; under such instructions-it was quite reasonable to expect the verdict would be as it was for the plaintiff. We are not, therefore, at liberty to disregard the error in respect to the admission of incompetent evidence upon the idea that it did not prejudice the defendant:’

A now trial must be granted and the judgment and order reversed, with costs to abide the event.

Talcott, P. J. and Smith, J., concurred.

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


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    DANIEL PRATT and others, Executors, etc., Respondents, v. EDGAR MUNSON, Appellant, and THE FARMERS’ LOAN AND TRUST COMPANY. ANDREW BEERS, Respondent, v. THE SAME, Appellant. HENRY C. HARPENDING, Respondent, v. THE SAME, Appellant. WILLIAM T. HAMILTON, Respondent, v. THE SAME, Appellant.
    1853, chapter 502 — meaning of “ capital stock ” in section 2 thereof.

    Section 2 of chapter 502 of 1853 authorizes a stockholder of any railroad or plank-road company, which has been sold on foreclosure, to acquire the same relative interest in the road so sold as he before had, upon paying to the purchasers a sum, equal to such proportion of the price paid on such sale, and the costs and expenses thereof, as such stockholder’s stock in such company shall bear to the whole capital stock in said company.

      Held, that the term “the whole capital stock” means the capital stock actually subscribed for and issued, and not the amount named in the articles of association.
    Appeal from a judgment in favor of the plaintiff, entered on the trial of this action at a Special Term.
    This action was brought by a stockholder of the Sodus Bay and Corning Railroad Company, to redeem his interest in said company from a sale upon foreclosure of a mortgage, given by said company to the Farmers’ Loan and Trust Company as trustee for the holders of the bonds of said company, under chapter 502 of the act of 1853. ■ The plaintiff was the owner of one share of the capital stock of said company, which capital stock was stated in the articles of organization at $1,500,000 or 15,000 shares at $100 each. In fact only 3,640 shares of $100 each had been issued, amounting in all to $364,000. Within six months after foreclosure and sale the plaintiff caused to be tendered to the Farmers’ Loan and Trust Company $4.50, it being one fifteen-thousandth part of $59,500, the amount for which said pr-emises and property described in said mortgage was sold upon said foreclosure, with the costs. The defence interposed was: 1. That said act of 1853 was no longer in force, it having been repealed by subsequent legislation. 2. The act itself was unconstitutional. 3. The tender was not sufficient.

      B. W. Huntington, for the appellant Munson.

      I). JPratt, for the respondents, D. Pratt and others, executors.

      Charles A. Balcer, for the respondent Harjiendmg.

      Turner, Lee & McClure, for The Farmers’ Loan and Trust Co.
   Hardin, J.:

Assuming (without deciding) that the act of 1853, chapter 502, is unrepealed and constitutional, we have come to the conclusion that the second section, in terms, requires the redeeming stockholder to pay to the purchaser or mortgagees “a sum equal to such proportion of the price paid on such sale and the costs and expenses thereof, as such stockholder's stock in said company shall bear to the whole capital stock of said company,” which has been actually subscribed for and issued.

That is the “ whole capital stock” of said company within the meaning of the Legislature, and the question seems to be settled by the case of the Greenpoint Sugar Co. v. Whitin (69 N. Y., 338; Fisk v. Chicago R. I. and P. R. R. Co., 36 How., 22; Coddington v. Gilbert, 17 N. Y., 489; Von Keller v. Schulting, 50 id., 108). Under this construction the amounts tendered were insufficient; the tenders were refused by the Farmers’ Loan and Trust Company. There is no averment in the complaint that the trust company or Munson waived any further tender in any manner, nor is there any proof of any express waiver. Inasmuch as the stockholder seeks to become a purchaser “ of the same relative amount of stock or interest in said railroad” as was formerly owned by him in the road, and its franchises and other property, he should tender or pay the amount required by the act before ho is entitled to succeed as a purchaser.

The condition of the statute was not satisfied, and the stockholder, therefore, cannot in pursuance of its terms acquire an interest in the road and franchises and other property which passed under the foreclosure sale by purchase to Munson.

There was no duty on the part of the trust company or Munson to accept the money ; the tender being insufficient the stockholder failed to comply with the statute, and, therefore, cannot compel a conveyance to him. (Baltzen v. Nicolay, 53 N. Y., 471.)

The views above expressed lead us to reverse the judgment and to award a new trial, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

Judgment reversed and new trial ordered, with costs to abide event in each of these four cases.


author: Hardin, J. :

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    JAMES B. HAYNES, Respondent, v. JAMES H. RUDD, Appellant.

      Mote given to compound a felony — when the maker may recover what he has been compelled to pay to a bona fide holder thereof.

    Where the makei' of a negotiable promissory note, given to compound a felony, is compelled to pay the same to a bona fide holder, to whom it has been transferred by the payee for value and before maturity, such payment is not to be,regarded as a voluntary one, and the maker may recover the amount so paid from the payee.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff.
    The action was tried at the Wayne circuit, and the jury gave a verdict for the plaintiff.
    The plaintiff’s son had been in the employ of the defendant as clerk, and it was claimed that he had feloniously taken and carried away money from his employer. A criminal prosecution was threatened, and to prevent it plaintiff gave his note for $250 to his wife, who indorsed it in such a manner as to charge her separate estate therewith, and delivered it to the defendant, who transferred it, before it was due, to a purchaser in good faith, to whom the plaintiff was obliged to pay it.

      T. W. Collins, for the appellant.
    An agreement to compound a felony is immoral and illegal. It involves criminality and moral turpitude, and all the parties thereto are equally guilty before the law, and are regarded as in pari delicto. (Daimoutli v. Bennett, 15 Barb., 541; Conde-rman v. Hides, 3 Bans., 108.) When the parties are in pari delicto, neither can have any remedy against the other ; nor can money paid by such a party upon a contract involving criminality and moral turpitude be reclaimed in law or in equity. (Burt v. Place, 6 Cow., 431; Perkins v. Savage, 15 Wend., 412; Beilis v. Clark, 20 id., 24; Daimoutli v. Bennett, 15 Barb., 541; Sharp v. Wright, 35 id., 236; Hilly. Borthrup, 4 N. Y. S. C. Rep., 120; id., 300; Woodworth v. Bennett, 43 N. Y., 273; Knowlton v. Congress and Empire Spring Co., 57 id., 518; Loomis v. Cline, 4 Barb., 453; Gilmore v. Thompson, 49 How., 198.)

      Clarke Mason, for the respondent.
   Hardin, J. :

The jury have found that the plaintiff made his negotiable note on time, conditioned to pay the defendant $250 to compound a crime, and that the defendant, before it was due, for value transferred it to a bona fide holder, and that the plaintiff was compelled to pay it to the holder. The plaintiff did not voluntarily pay the money to get up his note. He had no defence against it that would avail him against a bona fide holder for value without notice of its origin and consideration. (Grines v. Hellenbrand, 6 N. Y. S. C. R. [T. & C.], 620; Hill v. Northrup, 4 id., 120.) It would have been otherwise if non-negotiable. (Conderman v. Hicks, 3 Lansing, 111.) The act of the defendant, in transferring it to the bona fide holder, was such as to compel the payment of it by the plaintiff.

True, he had made the note, and in and by it he promised to pay the money to the payee or the subsequent holder. The payee had agreed to violate the statute against receiving anything “ to compound or conceal any offence.” (2 R. S., 714 [Edm. ed.], § 12.) But, so long as it remained in the hands of the payee, it was a void promise. The alleged consideration was a defence of which he could avail himself. There was no payment — no parting with money to the payee. Clearly, if the plaintiff had parted with money voluntarily to the amount of the note, he could not have maintained an action against the payee to recover it back. (Daimouth v. Bennett, 15 Barb., 541; Sharp v. Wright, 35 id., 236; Gray v. Hook 4 Comst., 449; Knowlton v. Congress and Empire Spring Co., 57 N. Y., 518.) The fact that it was a voluntary payment, would have defeated a recovery under the ma.vim of potior conditio defendentis. But when the note was put by the defendant into the hands of the bona fide holder that placed it beyond the power of the maker of the note to refuse .to pay it, and as he did not pay it of his own volition, but because the law compelled the payment thereof, he was not a party willingly parting with a consideration based upon an illegal promise. (Gilmour v. Thompson, 49 How., 200.)

The case of Loomis v. Cline (4 Barb., 453) is authority for saying that the note was void in the hands of the payee, and that the court would interfere and restrain its circulation and transfer*, and to prevent its passing into the hands of a bona fide holder, where its payment would be coerced by the law, and that the coui’t would order it delivered up by the payee and canceled. “ His assent, under the fear of prosecution and imprisonment, was not of that voluntary character which gives life and efficacy to the form of a contract.” (Id., 455.)

The case of Tracy v. Talmage (14 N. Y., 162) is cited, but we.do not see that it aids in the solution of the question presented here. If it was held that the mere knowledge that property (bonds) was to be used for an unauthorized and illegal purpose, was not a defence to an action for the purchase-price thereof.

In the case of Hull v. Rugels et al. (56 N. Y., 425), it was approved, and the court also held that when the party making sale of property, to be used in violation of law, had so arranged it that the violation of the law was facilitated, a recovery could not be had, and, therefore, that the action for prize candies put up so as to facilitate a violation of the law against raffing could not be upheld.

In Oneida Bank v. Ontario Bank (21 N. Y., 490) it was held that an action for money had and received would lie, although the post-dated certificates given, upon which the money was obtained, were prohibited and invalid.

The principle laid down in Nellis v. Clark (20 Wend., 24; S. C., 4 Hill, 424, and other cases) that where a party has transferred his property to defraud his creditors he cannot maintain an action to recover back the property so transferred, is pressed upon us as decisive of this case. f

But in that and similar cases the condition of the defendant is hold to be superior, and that the court will not aid a party who has been guilty of a wrong in voluntarily parting with his property or money.

The case in Woodworth v. Bennett (43 N. Y., 273) is cited where four parties had formed a conspiracy to violate the canal laws, and but of that conspiracy one had received $400 ; it was held that one of the four could not have a recovery for his fourth share, as the action could not be sustained without the aid of the illegal agreement to obtain the money by means of the confederation or illegal firm, and, therefore, the court would not allow a recovery which would assert the illegal contract by means of which the money was obtained. >

In the case in hand the party does not seek to support his action by adopting and affirming the illegal corrupt contract to pay the money.

It is rather a disaffirmance of it, a disregard of the void agreement to pay, a renunciation of it, and of the promise contained in the note, standing up and saying although I unlawfully agreed, and unlawfully promised in my note, I did not pay my money away voluntarily ; but the defendant, by means of the transfer of my note, coerced and compelled me to pay away my money, which I now ask him to return by restoring to me in damages its equivalent.

He does not meet my claim by a good consideration as the aliment of my promise, and, therefore, he cannot stand on my unlawful agreement, and my equally unlawful note.

In my locus pmnitentice I disaffirmed my unlawful contract. I have been coerced by moral duress to give a note, and been compulsorily made to pay it to a third party, and now I demand to be placed back where the duress took effect upon me.

Money paid upon a wager is recoverable per force of the statute therefore, in such actions it is no answer to say it was voluntarily lost or parted with. But for the statute the voluntary payment would be a defence to a claim to recover it. (See 15 Barb., supra, and Knowlton v. C. and E. Spring Co., supra, 57 N. Y.)

We must, therefore, yield our assent to Gilmour v. Thompson (49 How., 200, and the numerous cases there cited) upholding recoveries for money involuntarily paid upon notes given to secure payments, over and above the composition percentage, in violation of public policy, and in fraud of creditors, where such notes had passed before maturity into the hands of bona fide holders for value, and apply the principle laid down in these cases to the one here before us. (Smith v. Eaff, 2 M. & S., 160.)

The result at the circuit was in accordance with the views expressed above, and upon the force of the principles stated in the authorities referred to, we must sustain the recovery and affirm the judgment.

Talcott, P. J., and Smith, J., concurred.

Judgment and order affirmed.


text:
    GEORGE CLARK, Appellant, v. FREDERICK G. WEAVER, Sheriff, etc., and ICHABOD BLASIER, Respondents.

      Receipt for property levied on by a sheriff — when receiptor not estopped from claiming title thereto — when the agreement wpon which the receipt was given may be shmon by parol evidence.

    One Blasier having recovered a judgment against Alonzo Clark, the father of the plaintiff, directed the sheriff to levy upon certain cows, which belonged to the plaintiff and not to the father. At the time of making the levy, the sheriff was informed by tbe plaintiff that the cows belonged to him, but as he had been indemnified by Blasier he insisted on holding his levy. Subsequently the plaintiff gave a receipt to the sheriff for the cows, upon his assurance that it would not have the effect to prejudice his rights, and that no advantage would be taken of it if the cows were present when wanted for sale.
    Thereafter the sheriff and Blasier came to the farm to sell the cows, and were informed by the plaintiff that the cows were in the barn on the said premises. The sheriff then returned the receipt to the plaintiff, and having turned one o the cows loose, commenced to sell it, when the coroner served upon him the papers in this action, brought to recover possession of the cows and damages for their detention.

      Held, that parol evidence of the assurances made by the sheriff at the time of the giving of the receipt, and of the return of the receipt to the plaintiff, was admissible.
    That the plaintiff was not, under the circumstances of the case, estopped by the giving of the receipt to the sheriff from claiming title to the cows.
    Appeal from a judgment dismissing the complaint, entered upon the report of a referee. This action was brought to recover the possession of seven cows, and damages for the detention thereof.
    The referee found that on March 6, 1876, one Blasier recovered a judgment against Alonzo Clark, the father of the plaintiff. That some time in March, 1877, an execution was duly issued on said judgment and delivered to one Cornwell, a deputy sheriff, to execute, in pursuance of which he levied in March or April, 1877, upon seven cows, then the property of the plaintiff in this action; that said cows had formerly been the property of said Alonzo Clark, the father of the plaintiff, but at the time of such levy said cows were owned by and were the property of this plaintiff.
    That at the time of such levy by said deputy sheriff, he was informed by the plaintiff that the cows were the property of this plaintiff; that notwithstanding thereof said deputy sheriff threatened to remove said cows, unless a receipt was given for the same ■ that plaintiff thereupon executed and delivered to him the following receipt, and. thereupon the cows were then and there left by said deputy and not removed :
    “ I hereby acknowledge that I have received the above described property, so levied upon by the sheriff of Oneida county, from said sheriff, and hereby promise and undertake to return the same and every part thereof to the said sheriff, on demand, or pay the above judgment and sheriff’s fees.
    “ Dated, Western, March 12, 1877.
    “GEO. E. CLARK.”
    That in a week or so thereafter, the deputy sheriff Blasier, and E. J. Lawton, coroner of Oneida county, were at the place of plaintiff where said cows were ; that the said deputy and Blasier were there with a view to sell said cows on said execution ; that this plaintiff then and there informed the said deputy that all the cows were in the barn there on the premises where the parties were; that the said deputy did not demand said cows on said receipt, nor did the said plaintiff personally deliver the cows to said deputy, except to state that the cows were there ; that said deputy turned one of the cows out of the barn and was proceeding to sell the same by virtue of said execution, when said coroner Lawton then and there served the papers for the commencement of this action on both defendants ; and no further or other sale of said cows took place at that time.
    That defendant Blasier had previously indemnified said sheriff against any damages which should result to him because of his selling said property under the execution.
    The referee further found “ that, on the trial of this action, the plaintiff offered to show, as a matter of fact, that at the time of giving said receipt, said plaintiff declined at first to sign the same as it might prejudice his claims or rights, and that he was then and there assured by such deputy that it should not have any such effect, and that no advantage whatever should be taken of it if the cows were present when wanted for sale ; that on the faith of such assurance this plaintiff signed the same; that the deputy sheriff on the day of sale, and before this suit was brought, gave back to the plaintiff tlfe receipt; all of which offers of plaintiff the referee rejected under objection by defendants, and excluded the evidence.”
    And as conclusion of law, he found that by the receipt given, the plaintiff was estopped, as against these defendants, from setting up or claiming in this action that the said property was his.

      James Paries, for the appellant.

      Joseph I. Sayles, for the respondents.
   Hardin, J.:

The referee has found that in April, 1877, the sheriff made a levy on an execution in favor of Blasier, and against one Alonzo Clark, father of plaintiff, upon seven cows “then and there the property of the plaintiff in this action.” (2.) Also that the sheriff was informed by the plaintiff the cows were the property of this plaintiff. (3.) That “notwithstanding thereof the sheriff threatened to remove said cows unless a receiptor was given for the same, that plaintiff thereupon signed and executed and delivered to tbe sheriff the receipt for them ; thereupon the cows were then and there left by the sheriff and not-removed.”

The receipt executed 12th of March, 1877, acknowledged the receipt of the property “ so levied upon by the sheriff, from the sheriff, ‘ and stated ’ and hereby promise and undertake to return the same and every part thereof to the said sheriff, on demand or pay the above judgment and sheriff fees.”

He also finds, viz.: “That in a week or so thereafter the said deputy sheriff, said Blasier, and E. J. Lawton, coroner of Oneida county, were at the place of plaintiff’s where said cows were ; the said deputy and Blasier were there wffh a view to sell said cows on said execution ; that this plaintii and there informed the said deputy all the cows were in tue barn, then on the premises where the parties were; that said deputy did not demand the cows on said receipt. JSTor “did the said plaintiff personally deliver the cows to said deputy, except to state the cows tuere there ; that said deputy túrned one of the cows out of the barn, and was proceeding to sell the same by virtue of said execution, when said coroner Lawton then and there served the papers for the commencement of this action on both defendants, and no further or other sale of said cows took place at that time.”

It appears by the case that the plaintiff offered to prove that the deputy sheriff’ on the day of sale, and before this suit was brought, gave back to the plaintiff the receipt. This evidence was objected to by the defendants as incompetent, improper and immaterial.

. The referee sustained the objections and excluded the evidence, holding that the deputy sheriff could not give up the receipt to the prejudice of the plaintiff in the execution and judgment, and the plaintiff had an exception.

The sheriff had asked if the cows wore there, and was told, as was the fact, that they were, before the receipt was demanded and before it was delivered back as stated in the offer. There was also an offer to show that plaintiff declined at first to sign the receipt, and “ that on being then and there assured by such deputy that it would not have the effect to prejudice his rights, * * * and that no advantage whatever should be taken of it if the cows were present when wanted for sale — that on the faith of such assurance the plaintiff signed the^same.” It was excluded; the plaintiff excepted.

The referee found, as a conclusion of law, “ that by the receipt the plaintiff is estopped as against these defendants from setting up or claiming in this action the said property was his,” and, thereupon, he dismissed the plaintiff’s complaint.

It appeared that the execution creditor, Blasier, had indemnified the sheriff, and was aiding and directing the levy and proposed sale of the property.

The learned referee states that he was influenced in his decision of this case by the cases which he cites. 0 The first is Dezell v. Odell (3 Hill, 217).

In that case a levy had been made, a receipt'given to the officer, the property was not produced and a suit was brought, and the receiptor sought to defend upon an averment and proof that he owned the property. The court held that the defendant, the receiptor, was estopped, the majority of the court being of the opinion that the principle of estoppel in pais was applicable.

Judge Co wen, who delivered the prevailing opinion in that case, said: “ It may be conceded that had the defendant’s claim been interposed at the time of the levy, and he had signed the receipt in terms, without prejudice to his rights, the question would have been open. “The creditor would have been put upon his guard and enabled to seek for other property on finding that the debtor had no title to that in question.” He then proceeds to state that the conduct of the receiptor had been such as to influence the creditor and the sheriff, and that in the absence of fraud or gross mistake shown by defendant to have been practiced, there was an estoppel, and he adds, “ the officer was, when he came to sell, for the first time apprised that the defendant had title.”

The quotations made indicate how essentially the case differed from the one before us.

The next case to which the referee refers to support his decision is that of the People v. Reeder (25 N. Y., 303).

That was a case whore the sheriff had taken a receipt for goods and demanded them of the receiptor, and brought his action and obtained a judgment, and it was held that when the execution creditor brought an action against the sheriff, he was estopped from setting up that the goods did not belong to the judgment-debtor.

The sheriff had the benefit of an estoppel against the receiptor and obtained his judgment, and, therefore, was liable for the execution debt. That case. does not aid the defendant here; for the receipt contained an admission that the property belonged to the judgment-debtor. (See opinion of Denio, J., 303.)

The next case is that of Cornell v. Dakin (38 N. Y., 253). Opinion by Dwight, J.

The sheriff took a receipt in that case and made a demand for the property, and there was a refusal to deliver, and it was held the receiptor was liable, and that he could not in such action set up title to the property in a third person. He had contracted to return it, his compact was founded on a sufficient consideration, viz., the surrender of the property, and that “the defendant must be supposed to have made it voluntarily, with his eyes open, with full knowledge of its meaning and effect.” His covenant was absolute and positive to return the property or to pay the judgment. Nothing but the act of God, or of the public enemy, could discharge his liability upon it.

In Diossy v. Morgan (17 Alb. Law Jour., 491) the Court of Appeals held that a party who had as dofendant given a replevin undertaking, which recited that the property had been taken from his possession, and asked a re-delivery, was estopped from setting up that the property had not been in his possession.

The admission in that case was one as to the possession, and only from denying the possession so admitted was the estoppel.

In the case before us we find facts and features which distinguish it from any of those alluded to.

(1.) The plaintiff gave notice at the time of the levy that he owned the property.

(2.) The sheriff assured the party, who was asked to give a receipt, that it would not have the effect to prejudice his claim to or ownership of the property.

(3.) There was an “ assurance that no advantage whatever should be talcen of it, if the cows were present when wanted far sale.”

(4.) The cows were present, were returned to the officer, he resumed possession of the cows, and thereupon the receipt lost its force as a covenant for return or for payment of the judgment.

(5.) It was spent, and as it was taken by the officer for the purpose of assuring the re-possession by him of the property, and he had regained possession, it was not a covenant that the creditor was any longer interested in.

(6.) That as there was no force left in it the sheriff had a right to, and properly returned it to the plaintiff.

(7.) The property being taken by the sheriff, and the sale opened, he committed a fresh trespass upon the property, he again became a wrongful detainer of the property, the title to which was in the plaintiff.

(8.) Obviously, under the circumstances of this case, there was no intent to stipulate the title from the plaintiff into the judgment-debtor, nor a special title through him into the sheriff.

We should not, therefore, hold that the plaintiff was estopped from asserting title to his property in this action against the sheriff and creditor, who have no title except such as might be made through their debtor.

The fact is found, that at the time of the levy the plaintiff had the title and the judgment-debtor did not, and as we have seen the sheriff knew it, and, indeed, admitted it, and then gave an assurance that “the receipt should not have any such effect” as he now seeks to give it.

In Johns v. Church (12 Pickering, 557) it was held that after the return of the goods the receiptor might have his action, and although the receipt would be strong evidence against him, yet it was not an estoppel.

Here the sheriff was not misled; he asserted title to be in the debtor, and the plaintiff denied it, and the sheriff said yes, I admit that he has no title, but I am directed to levy, and on' these cows, and if you will have them here at the day of sale I will not take the possession of them from you (and the plaintiff so stipulates, but he gave no stipulation as to title), and the cows are on hand at the day of sale, and the sheriff resumes possession and commences his sale.

True, the plaintiff had recognized the sheriff’s pretended levy on the debtor’s alleged interest in the goods, but did not admit that the debtor had any interest in the goods, nor that he had not title to them, nor did he influence the acts of the sheriff in such a way as to divest himself of the title.

Upon the trial of this cause the issue was presented for determination as to the title to the cows; the referee finds it was at the time of the levy in the plaintiff, and because ho had stipulated that the cows should be in a certain place on a certain day, that, therefore, the plaintiff lost the title to the cows, although he had asserted the truth as to the title at the time of the levy, and never admitted or stated to the contrary.- In the many cases stating the doctrines of estoppel in pais, it is laid down that there must be acts or admissions which have influenced the act of a party, and that the party must be prejudiced by the acts and admissions which are subsequently sought to be gainsaid. (Lawrence v. Brown, 1 Seld., 401; Carpenter v. Stilwell, 12 Barb., 128.) Estoppels which would exclude the truth must be clearly made out and strictly construed. (Lounsbury v. Depew, 28 Barb., 48.) The title in the cows was asserted to be in the plaintiff, the levy was made notwithstanding it, and the sheriff believed the title to be in the plaintiff; he asked for a receipt as to the possession, and assured the plaintiff it should not be used to his prejudice ; the cows were at the place according to the tenor of the receipt; it was given up ; the title still was claimed by the plaintiff; the sheriff resumed possession and refused to desist from the sale ; he wrongfully retained possession; and as the plaintiff had the legal title he was entitled to the possession, and by no act or admission had he barred himself of the right to assert his title, and with it the incidental right of possession.

The learned referee fell into an error in concluding that the plaintiff was estopped from “ setting up or claiming in this action the said property was his.” The sheriff admitted and stated the receipt should not be used to the disadvantage of the plaintiff. If we allow the use sought to be made of it by the defendants, it will be greatly to the disadvantage of the plaintiff. The sheriff “ in good conscience and honest dealing ought not to be permitted to gainsay ” his admission. (Welland Canal Co. v. Hathaway, 8 Wend., 483; Bookstaver v. Jayne, 60 N. Y., 146.)

In Howe v. Cole (12 American R., 111), the plaintiff had stated that the property belonged to another, and he was held estopped from claiming title in it himself. That case does not aid the respondent here.

When the receipt had been surrendered, the cows delivered up to the sheriff, and the plaintiff demanded them, it was an open question as to who owned the property. There had been no such admission of the plaintiff as indicated that he had no title to the property, upon which the sheriff had rightfully acted and reposed, his conduct had not been influenced by any admission of the plaintiff in respect to the title ; he was moved by the antecedent direction of the judgment-creditor who had directed him to trespass upon the rights of the plaintiff’ and he followed the direction, receiving notice that the plaintiff had the title, admitting himself that it was true, asserting that he would remove the goods unless the receipt was given, stating that if it was. given it should not disadvantage the plaintiff', if the property was on hand the day of the sale, and it was there when asked for, the receipt surrendered, and the title still continued in the plaintiff, and when the next wrong was perpetrated, the sheriff being but as a stranger to this property, the plaintiff had the right to assert his title and protect it from any further wrong from the sheriff and the judgment-creditor.

Hence this action based upon the plaintiff’s title, and the right of possession which became his the moment the receipt was returned to him. If this suit had been brought before the expiration of the time stated in the receipt for the return of the property, and before it was surrendered up to the plaintiff, and with no assurance given by the sheriff, at the time it was taken, a different question would have arisen.

Upon the facts of the case the result which the referee reached was erroneous, and his decision holding the plaintiff estopped and dismissing the plaintiff’s complaint ought, in my judgment, to be reversed, and a new trial ordered before another referee, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

Judgment reversea, and a new trial ordered before another referee, with costs to abide the event.