text:
    William Cowper, App’lt, v. Thomas Theall et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Pleading—Complaint—Argumentative and inferential averments permitted.
    An argumentative or inferential averment is permitted by the practice, unless a motion may he made for an order requiring the complaint to he more definite and certain. And whatever may be inferred logically and directly from the complaint is in judgment of law contained in it.
    Motion by the respondents for a reargument of this appeal.

      H. B. Kinghorn, for motion; H. L. Marks, for pl’ff.
   Daniels, J.

The motion has been made substantially upon two grounds, the first of which has already been considered, and relates to the question whether the complaint averred the performance of the condition precedent contained in the agreement which was annexed to and made a part of it. That it did not contain any express averment of the performance of the condition is entirely evident from its perusal, but that it did nevertheless assert such a performance is equally as clear from the language of the complaint. For the entire scope and theory of the plaintiff’s cause of action depended upon the fact that the play which was to be produced had been placed on the possession of the defendants. For it is their conduct in the production of the play which was made the ground of a claim for damages in the action. It was alleged that on the various occasions when they produced the play that they did it ih such an improper manner as to defeat the object and purposes of the agreement. And it is entirely clear that the play could not have been produced at all by them had they not previously been placed in possession of it by the plaintiff as that had been provided for in the agreement. It accordingly is argumentatively disclosed by the complaint that the play had been placed in the possession of the defendants, and an argumentative or inferential averment is permitted by the practice unless a motion may be made for an order requiring the complaint to be more definite and certain. And whatever may be inferred logically and directly from the complaint is in judgment of law. contained in it. And as it is inferentially clear that the play had been delivered to and placed in the possession of the defendants, this was a sufficient compliance with the rule requiring a statement of the fact that the condition had been performed.

The other ground taken in support of the motion is that in another action brought by the defendants against the plaintiff and others in the second department, it has since been decided that the defendant’s obligations were conditional upon the delivery of the play to them. And so they were as that was considered when the decision in this appeal was made and announced, but that this condition had not been performed was not held or decided in the action prosecuted in Kings county. It was on the other hand held by the court that “Cowper was to and did furnish the parts of said play for stage purposes aiid his services as an actor in the principal role of said play to conduct and did conduct all rehearsals and all matters and duties pertaining to the stage department.” The case then proceeds with the findings that ■ the defendants in this action had themselves failed to perform, and for that reason judgment was directed and recovered against them dismissing their complaint in the action’in Kings county. How the proceedings in the action in that county, if they could properly be made the ground of an application for reargument, would help the defendants in this action it is impossible to discover, for nothing has been determined in their favor there requiring a different decision to be made upon the appeal taken in this case. But if the result of that action furnished any grounds for relief to the defendants in this action, they could not be considered upon a reargument of this appeal, for that is to be heard and determined as it has been, upon the papers which were before the special term. If that action supplies any legal defence to this suit it is for the defendants to interpose it by way of answer under the leave which was given to them when this decision was made. Neither on that account, nor upon any that has been suggested, or made to appear, would a reargument be of the least service to the defendants in this appeal.

The motion should, therefore, be denied, with costs. Davis and Brady, JJ., concur.


source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    In the Matter of the Petition of Charles Lewis and others for leave to be made parties plaintiff in the action of Isaac Bergerman and others v. Lewis C. Hake and another.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Assignment—Action to compel an accounting by a general assignee—Right of other creditors to come in after judgment AND PROVE their claims—Code Civ. Pro., § 452.
    An action was brought by a judgment creditor to compel a general assignee to account, and after it had been sent to a referee to take and state the accounts of the assignee and ascertain the amounts due and ow ng to the creditors of the debtor, the petitioners who were creditors applied for an order allowing them to intervene and be made parties plaintiff. Held, that the application was properly denied.
    2 Same—Cannot be compelled to contribute their share of costs and expenses.
    • A provision in a judgment entered in such action, imposing as a condition upon which creditors were to be allowed to come in and ¡'rove their claims, that they should contribute the r proportion of the costs and expenses of the action to be settled by the referee, is unauthorized and will not be enforced,

      3. Same—Costs and expenses of plaintiff how paid.
    It seems that in such cases a proper allowance for costs and disbursements of the plaintiffs will be made in the final judgment to be paid out of the funds.
    Appeal by Charles Lewis and others from an order denying their application to be made parties'to the action of Bergerman and others against Hake and another.

      Nathan Lewis, for app’lt; Blumensteil & Hirsch, for resp’t.
   Daniels, J.

While it is true that the applicants as creditors are interested in the proceedings taken by the plaintiffs in the action to settle the affairs of the assignee for the benefit of creditors, it was still not necessary that they should be brought into the action as additional plaintiffs under the authority given for that purpose by section 452 of the Code of Civil Procedure. The action has proceeded to judgment and an accounting has been directed, and liberty secured to the other creditors to present and prove their accounts. To open the case and add the petitioners as plaintiffs in the action would be to complicate and prolong the litigation without securing any adequate benefit. ■ The rights- of all the parties can be as well considered and determined without bringing in additional plaintiffs in the action, as they could be if all the creditors had joined in the action.

In this class of cases the action when brought by one creditor is in reality for the benefit of all as well as himself, and the judgment for the accounting is uniformly required to provide for bringing in all the other creditors and affording them an opportunity to present and prove their demands and participate in the distribution of the estate under the final judgment. And by that judgment all their rights and interests will be declared and protected and a proper allowance made for the costs and disbursements of the plaintiffs in the action. The practice upon this subject was clearly explained in Kerr v. Blodgett (48 N. Y., 62, 67), and by following it every possible chance of injustice to either of the creditors will be excluded.

It is true that the judgment in this action by its language imposed conditions upon the creditors wdiich the practice required to be followed, does not sanction. But as they were not parties in fact to the judgment, at the time when it was directed, they cannot be bound by these directions. The plaintiffs had no authority for imposing upon other creditors the payment of any part of the costs or disbursements in the action, as a condition to their right to appear and present and prove their claims. The action could not be carried to a successful determination without affording the other creditors full liberty to present and prove their claims, without subjecting them to the payment of any costs or disbursements whatever. It was the purpose of the litigation, to bring in all these parties and to afford them an opportunity to be heard in support of their claims before a final judgment can regularly be reached, and that the law, notwithstanding the form in which the judgment has been entered, must secure to each of the creditors. If either should be excluded from the right to present and prove his demand without first paying a portion of the plaintiff’s costs, no final judgment in the action could be recovered until the erroneous direction excluding the party for that reason should be corrected. As the case has been presented, this right of the creditors to prove their claims, without being restricted as to the terms on which they may come into the case, should be and has been declared by the court. It will expedite the litigation and prevent embarrassment in finally closing up the estate, and in the end whatever costs the plaintiffs may be entitled to will be provided for out of the fund benefited and distributed by the proceeding.

The order as it was made was accordingly right and it should be affirmed, but without costs.

Brady and Davis, JJ., concur.


author: Hardin, P. J.

text:
    Edmund D. Crosby, Resp’t, v. Calvin F. Cobb, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886 )
    Costs—What must appear to secure ah award op costs to both parties—Code Civ. Pro., § 3234.
    At the trial of an action, and upon the motion of the defendant, it was held that neither the second nor the third counts of the complaint stated a cause of action, a d the court granted a nonsuit as to the latter count. Held, that defendant had not thereby recovered upon one or more of the causes of action, as must appear before he could be entitled to costs under Code Civ. Pro., £ 3234, the plaintiff having recovered upon the other counts. Blashfidd v. Blashfield, 4 N. Y. State Rep., 144, distinguished.
    Appeal from an order of the special term of Onondaga county denying costs to the defendant.

      J. W. Daggett and F. Pierce, for app’lt; A. P. & D. E. Smith, for resp’t.
   Hardin, P. J.

Four counts were stated in the complaint. At the trial, upon defendant’s motion, it was held that the second count did not state a cause of action, also the third count, and the court granted a nonsuit so far as the count was concerned. (See Mem. of Fish, J., and proposed certificate referred to in his Mem.)

Before a defendant is entitled to costs, under section 3234 of the Code of Civil Procedure, it must appear that he has recovered upon one or more of the causes of action. Briggs v. Allen, 4 Hill, 538. It does not so appear in this case. Defendant must stand by and be bound by the holding had at the circuit at his instance.

The section provides that if the plaintiff recovers upon one of the issues of fact, and the defendant “upon the other or others,” then costs may be awarded to each party. If the defendant had demurred to the defective counts, and it had been held that they did not state facts sufficient to constitute a cause of action, of course it could not have been claimed that the defendant had recovered “upon an issue of fact; ” but instead he raised the question at the trial, and it was held, as a matter of law, that the counts were defective. There was no recovery or verdict upon a “cause of action” in favor of defendant. In Blashfield v. Blashfield there was an issue of fact as to each of the two notes set out in the complaint, and a recovery by plaintiff on one and a recovery by defendant on the issue of fact as to the other. That case does not aid the defendant here. There was in the case in hand no recovery by the defendant. Cooper v. Jolly, 30 Hun, 224; S. C., affirmed, 96 N. Y., 667; Kilburn v. Lowe, 37 Hun, 237.

Our conclusion is that the special term order should be affirmed.

Boardman and Follett, JJ., concur.

Order affirmed, with ten dollars costs and disbursements.


text:
    George A. Fisher, Resp’t, v. George Dougherty, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886.)

    1. Practice—Amendment—Waiver op objection—Attachment.
    The complaint, verified on March 25, 1885, in this action set forth two causes of action on contract. By affidavit made on the day previous, the plaintiff stated how the causes of action arose and that there were no set-offs or counter-claims. The affidavit further stated that the detendant was not a resident of the state, alleging i n nformation and belief the place of his residence without the state. Upon the complaint and this affidavit service of the summons, by publication, was orde.ed on March 25, 1885, and a warrant of attachment was is ued and levied. Upon a motion made to set them aside another affidavit made by the plaintiff and the affidavit of a person showing the non residence of defendant and diligent efforts made to find him in the state and to serve the summons upon him, were read by the plaintiff: On May 8, 1885, an order was made allowing the plaintiff, on the payment of ten dollars to the defendant, to amend by filing these affidavits nunc pro tune as of March 25, 1885, and that being done, the motions to set aside were vacated, otherwise granted, with costs. The ten dollars was paid to the defendant’s attorney "and by him accepted. Upon an offer made by him to refund the money the plaintiff’s attorney refused to receive it. An appeal was taken from so much of the order made as allowed the filing of the affidavits nunc pi’o tune aad the amendment of the other proceedings to conform thereto. Held, that the record showing no objection to the reading of the affidavits the defendant must be regarded as having consented that they be received and considered by the court.
    2. Same—Power of under Code op Civil Procedure, section 724.

      Held,, that under Code of Civil Procedure, section 724, the court had power, in its discretion, to grant an amendment of proceedings already had.
    3. Same—A party having availed himself op the benefits op an order cannot be heard in opposition to it.

      Held, that the defendant having accepted the money paid in compliance with the terms of the order and in the discre.ion of the court deemed proper, ought not to be heard to complain of the course the discretion of the court took.
    Appeal from parts of an order made at a special term of Chemung county.
    The complaint in this action, verified on March 25, 1885, set forth two causes of action on contract. An affidavit made by the plaintiff on the day previous stated how they arose, and that there were no set-offs or counter-claims, further stating that the defendant was not a resident of the state, and alleging upon information and belief, the place of his residence in the state of Pennsylvania. Upon these papers, on May 25, 1885, the plaintiff procured an order for service of the summons by publication. A warrant of attachment was also issued and levied. Upon a motion made to set them aside, plaintiff read a further affidavit by himself and one by William H. Douglas, both showing the non-residence of the defendant, and diligent effort to find him within the state and serve the summons upon him. On May 8, 1885, an order was made at the special term directing that on payment of ten dollars to the" defendant by the plaintiff he should have leave to aménd his proceedings by tiling nunc pro tune, as of March 25, 1885, the affidavits used by him in opposing the defendant’s motion to set aside the orders made, and that the order and other proceedings be amended so as to conform thereto, and on that condition denying the motion, otherwise granting them, with ten dollars costs.
    The ten dollars was paid to the defendant’s attorney, and by him accepted. A short time after he offered to return it, and plaintiff’s attorney refused to receive-it. Defendant appealed from so much of the order as allowed the amendment by plaintiff. .

      E. D. Gumming, for app’lt; George A. Fisher, resp’t in person.
   Hardin, P. J.

We need consider only that part of the order specifically appealed from. In doing that, we may observe that the record brought before us does not indicate any objection taken in the special term to the offer to read the affidavit of plaintiff of May 6, 1885, and of Douglas, of May 4, 1885. Kibbe v. Wetmore, 31 Hun, 424.

In the case just cited, Smith, P. J., said: “But the appeal book does not show that any such objection was made, and, therefore, the defendant is to be regarded as having consented that the affidavits in question be received and fully considered by the court. The defendant cannot now be heard to object for the first time that the affidavits were improperly received, and that the order allowing the amendment should, therefore, be reversed.”

The record in respect to them is, viz.: “ Chemung special term May 8, 1885. Received on motion and order filed Delaware county clerk’s office.” However, section 124 of the Code of Civil Procedure confers upon the court power, in its discretion, to allow an amendment of proceedings had. Weeks v. Tomes, 16 Hun, 349; S. C., affirmed, 76 N. Y., 601. In that case the power of the court was distinctly declared to grant amendments nunc pro tune, although it was said “such an order is not operative as against persons who are not parties to the action.” The question before us only relates to the parties to the action. The court exercised its discretion and named the terms, and plaintiff complied. We may approve of the exercise of the power. Defendant having accepted the money paid to comply with the terms of the order, and in the discretion of the court deemed proper, ought not to be heard to complain of the course the discretion of the court took. Eagan v. Moore, 2 Civ. Pro. [Browne], 300; Gribbon v. Freel, 93 N. Y., 93; Code of Civ. Pro., § 123. 2. That part of the order which granted costs to defendant is not appealed from. 3. The notice of appeal does not specify that part of the order which denied the motions as being a part that was appealed from.

These views lead to an affirmance of the order. It may be remarked that it does not appear by the appeal papers that any rights had intervened between the 25th of March and the 8th of May, 1885, and no question in that regard need be passed upon upon this appeal.

The order should be affirmed, with ten dollars costs and disbursements. The motion to dismiss the appeal may be denied, without costs to either party.

Boardman and Follett, JJ., concur


text:
    George N. Balcom, App’lt, v. Fannie Terwilliger, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886.)

    1. Costs—What law governs the allowance or.
    Costs will be granted or refused in accordance with the law existing when the party acquired the right to costs. Following Garbing v. Lam (27 Hun, 112).
    2. Justices’ courts—Action brought in—Code Civ. Pro., § 8347, sued. 11, and § 3070.
    An action commenced in a justices’ court, after September 1, 1880, is not excluded by Code C'v. Pro., § 3 47, subd. 11, from the operation of Code Civ. Pro., § 3070, ai it stood after the amendment of 1885.
    3. Same—Appeal eor a new trial—Costs upon—("ode Civ. Pro., § 3070.
    When an appeal for a new trial is taken from the decision of a justices" court, if neither party make an offer to a low judgment to be rendered in the appellate court, as provided in Code Civ.' Pro., $ 3070, the party ia whose favor the determination of the appellate court is given is entitled to recover his costs on appeal.
    Appeal from an order made at the Broome county court, setting aside the taxation of plaintiff’s costs, and striking them from the judgment, and directing costs in defendant’s favor.
    Issue was joined in this action in a justices’ court in December, 188A The plaintiff recovered a judgment therein on the 10th of January following, for $93.92 damages, and appealed therefrom to the comity court, on January 28th demanding a new trial. The plaintiff on June 17, 1886, recovered judgment for $103.20 damages, and interest, and entered it on that date, he also taxed and entered his costs in the judgment.

      Conniffe & Penrie, for app’lt; Carver & Deyo, for res’pt.
   Hardin, P. J.

Garling v. Ladd (27 Hun, 112) is an authority to the effect that costs “will be granted or refused in accordance with the law existing when the party has the right to costs.”

That case was referred to in Atkin v. Pitcher (31 Hun. 352), and it was held that in a case brought before 1st of of September, 1880, the date when the provisions of the Code' of Civil Procedure took effect, the costs were to be taxed under section 371 of the old Code, as subd. 11 of the Code of Civil Procedure, § 3347, declares that chapters 18 and 19 of the Code of Civil Procedure apply .only to an action or special proceeding commenced on or after the 1st of September, 1880. This action was commenced after September, 1880, to wit, on the day of December, 1884, and, therefore, does not fall under the exceptional provision of section 3347, subd. 11, chap. 522 of the Laws of 1885, amended section 3070 of the Code of Civil Procedure, and it took effect on the 3d of July, 1885. If we apply the exception as to when the amendment shall take effect, or if we assume that the section as amended shall be restricted, its application to cases enumerated in subd. 11 of section 3347, we must say that as this action was commenced after September 1, 1880, it is not excluded from the operation of section 3070, as it stood after the amendment thereof in 1885. We are thus brought back to the general rule, that costs are regulated and given by the statute in force, when the party has the right to costs. By section 3070, as amended in 1885, it is provided, viz : If neither party make an offer as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given, shall be entitled to recover his costs upon the appeal. As no offer was made, and the plaintiff recovered in the county court eighty-nine dollars, we must hold that his case falls within the provision we have quoted from section 3070 of the Code of Civil Procedure, as amended in 1885, in accordance with cases adjudged. Sheehan v. Buller, 24 Weekly Dig., 168. If the question were an open one in this court, it might be doubted whether in this case either party were entitled to costs, inasmuch as no offer of judgment, as provided in section 3070, as amended by chapter 522 of Laws of 1885, could be made. It might be questioned whether the legislature intended that the omission of an offer, as provided, should cast a party in costs who, when the appeal was taken, was not authorized to make such offer as that named in section 3070, as amended by the legislature in 1885. Railroad Co. v. Roach, 80 N. Y., 339; Engel v. Fischer, 15 Abb. N. C., 72; People v. Comm'rs of Taxes of New York, 95 N. Y., 559.

However, as before remarked, we must follow Sheehan v. Buller (supra), and the cases referred to in the opinion of Mr. Justice Follett, and apply section 3070, as amended in 1885, to this case, and reverse the order of the county court and direct a restoration of the costs taxed in favor of the plaintiff and inserted in the judgment as originally entered.

The order of the county court of Broome county should be reversed, with $10 costs and disbursements.

Boardman and Follett, JJ., concur.


author: Hardin, P. J. Boardman, J.

text:
    Willett Fisher, Appl’t, v. The Village of Cortland, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886.)

    Costs—Right to,in actions against municipal corporation—Code Civ. Pro., § 3245.
    The charter of the village of Cortland, in Laws of 1864, chapter 406, section 2, provides for the election of a treasurer, and section 16, provides, among other things, that the treasurer shall receive all moneys belonging to the corporation, and disburse them, and under direction of the board of trustees. By section 21 the trustees are given the management and control 6f the finances; by section 39 the collector of taxes is required to pay all moneys collected by him t > the village treasurer. Held, that the treasurer was the chief financial officer of the corporation, within the meaning of the Code of Civil Procedure, section 3245, requiring the presentation of a claim to such officer in order to entitle the plaintiff to costs on a recovery by him in an action on the claim.
    Appeal from an order made at the special term of Cortland county, denying the plaintiffs motion for costs and for retaxation, judgment having been rendered in plaintiff’s favor.
    This action was brought to recover damages for personal injuries sustained by the plaintiff, in one of the streets in the defendant village. Whatever attempt was made to present plaintiff’s claim for damages was to present it to the common council. No claim was presented to the treasurer of the defendant before the commencement óf the action.
    . Oliver Porter, forapp’lt; Fred. Hatch, for resp’t.
   Hardin, P. J.

In section 2, of chapter 406, of the Laws of 1864, is found a provision of defendant’s charter providing for the election of a treasurer, and in section 16 of the sanie act it is provided, viz: The treasurer shall receive all moneys belonging to said corporation, and disburse the same under the direction of the board of trustees; make and keep a correct record of all such receipts and disbursements; prepare at least two weeks before the annual election, arid file with the clerk of the village, an account of the state of the finances of said village, and of the receipts and disbursements during the year, and at every time, when requested by the board of trustees, furnish them such statement in relation to the finances and the receipts and disbursements and debts, dues and demands of the said corporation, as the said board may, by resolution, demand; and perform such other duties as the said board of trustees may ordain.” Section 21 of the act provides: “ The trustees shall have the management and control of the finances.” * * * Section 39 of the act requires the collector of the taxes to pay over “ all moneys collected by him to the village treasurer.”

In Dressell v. The City of Kingston (32 Hun, 526), the court refers to chapter 150 of the Laws of 1872, for the purpose of determining whether the treasurer is the chief financial officer. The provisions found therein, in relation to the powers and duties of the treasurer of that city, are quite similar to the provisions we have quoted from defendant’s charter. It was there held that the treasurer was the chief financial officer, and that, according to the provisions of section 3245 of the Code of Civil Procedure, a claim should be presented to such officer before suit, to entitle plaintiff to have costs allowed him in case of a recovery in an action like the one before us. We regard that case as an authority directly in point, and consider it our duty to follow it. See also Baine v. The City of Rochester, 85 N. Y., 523. Judson v. The Village of Olean (40 Hun, 158), recognizes the authority of Dressell v. Kingston (supra), and, we think, supports the order now before us. In Williams v. The City of Buffalo (25 Hun, 302), it appeared “the action was for work done in building an engine-house for the city,” and the right to costs was resisted because the claim had not been presented to the comptroller. The case is, therefore, not exactly in point, and it is probable that the casé of Baine v. The City of Rochester (supra), had not been reported, and that the attention of the court was not called to the opinion of the court of appeals.

We are of the opinion the plaintiff did not make out a compliance with section 3245 of the Code of Civil Procedure, and therefore is not entitled to costs of this action.

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

Follett, J., concurs.

Boardman, J.

The case of Gage v. Village of Hornellsville 2 N.Y. State R., 345, published since this opinion was written, is hostile to the view taken by Judge Hardest Baine v. City of Rochester, however, clearly holds that the power of the treasurer to audit and allow a claim, and provide means of payment, has nothing to do with the requirement of service of notice. The object was to secure notice, and the the chief financial officer was named as the person on whom the notice should be served. The common council or board of trustees is not an officer or a financial officer, though they have various powers making a financial officer necessary. I must concur in the opinion.

Order affirmed, with ten dollars costs and disbursements.


text:
    George Benedict, Resp’t, v. Thomas D. Penfield impl’d, etc., Appl’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886.)

    1. Practice—Burden of proof rests upon affirmative.
    This action was brought on a bond given to indemnify the sheriff against any damages resulting to him from a levy and sale made by h.m. This bond bore date of January 24, 1881, and was acknowledged January 31, 1881. The defendant’s answer did not admit the delivery of the bond. Hehl, that it was incumbent upon the plaintiff to give such proof as would warrant the filming of fact that it vas delivered to him.
    3. Evidence—Exclusion on account of irrelevancy.
    The defendant as a witness stated that he signed the bond in question, relying upon the representations made to him that he was on a former bond. He was then asked whether he would have signed the bond if those represen ations had not been made to him. Held, that the question was properly excluded on the objection that it was irrelevant and immaterial.
    8. Same.
    Plaintiff upon the trial proved that a bond on appeal by the defendant was executed and dated September, 1882, and offered it in evidence. Held, that it was not relevant to the issues. It did not tend to show that the representations alleged to have induced the execution of the bo d in suit were not made, nor that the defendant had executed a prior bond, nor that the defendant did not rely upon the representat.ons which he says induced him to sign the bond in suit.
    4. Same—General rule as to exclusion of irrelevant evidence.
    No evidence is admissible which does not tend to prove or disprove the issue joined.
    5. Error—What sufficient to demand reversal of judgment.
    Where evidence has been erroneously admitted, the error must be held sufficient to reverse the judgment, unless it clearly appears that the party against whom judgment has been rendered was not prejudiced by the error.
    Appeal from a judgment entered upon a verdict rendered at the Oneida circuit, and from an order denying a motion for a new trial made upon the judge’s minutes.
    This action was brought upon a bond given to indemnify a sheriff against damages resulting to him from a levy and sale made by him. The defendant alleged that he was induced to execute the bond by false and fraudulent representations made to him.

      Wm. Kerncm, for app’lt; Beardsley & Beardsley, for resp’t.
   Hardin, P. J.

Plaintiff, to recover, was requireu to produce the bond and to establish its delivery by the defendant. Plaintiff was entitled to give evidence of its actual delivery to him, as he did testify, in addition to the production of the bond, upon the question of its actual delivery. Clifford, J., says, in Good v. Martin (95 U. S., 96): “ As the delivery is something that occurs subsequently to the execution of the instrument, it must necessarily be a question of fact when the delivery was made. Parol proof is, therefore, admissible to show when that took place.” * * * Defendant’s answer did not admit the delivery of the bond. It was, therefore, incumbent upon the plaintiff to give such proof as would warrant a finding of the fact that it was delivered to the plaintiff. It was not error to hold that the plaintiff had the burdefi. of proof and the affirmative of the issue. Huntington v. Conkey, 33 Barb., 218; Elwell v. Chamberlin, 31 N. Y., 611.

The case of Lindsley v. European Petroleum Company (3 Lans., 176) is unlike this, as in that case the making of the note, which includes its delivery, was admitted by the answer. Millerd v. Thorn (56 N. Y., 404) is unlike this case, as there the answer admitted the purchase of the goods sold, and set up an affirmative defense.

Defendant, as a witness, stated the circumstances and representations which induced him to sign the bond in question, and added: “I sign this new bond, relying upon these representations of Hr. Risley that I was on the former bond.” Then he was asked by his counsel, viz.: “Q. Would you have signed the bond if those representations had not been made to you?” The question was objected to as incompetent and immaterial, and the court excluded it, and defendant excepted. If the jury found that the defendant told the truth, when he said that he relied upon the representations m'ade, then it was immaterial to inquire what the defendant would not have done without the representations. Akdrews, J., says, in Taylor v. Guest (58 N. Y., 266), “it is incumbent upon the party claiming to recover in an action for deceit, founded upon false representations to show that he was influenced by them.” To that point the defendant had testified sufficient to bring his case, if believed, within the rule stated in the case just alluded to, and it was not error to exclude the question propounded, which, at most, called for a hypothetical opinion. January 24, 1881, is the date of the bond in suit. It was acknowledged on the 31st day of January, 1881. Plaintiff testified he received it after it was acknowledged, “within a day or two after its date; received it from Hr. Penfield’s own hands. It was acknowledged before I received it.”

Upon the trial the plaintiff proved that a bond or undertaking, on appeal, executed by the defendant Thomas D. Penfield and another, was executed and dated September, 1882, and offered it in evidence. Defendant objected, as incompetent and immaterial, and his objections were overruled, and he excepted, and the undertaking was read in evidence, and by it the fact that defendant executed it was made to appear. We think the evidence was irrelevant to the issues. It did not legitimately bear upon any of the questions involved. It did not tend to show that the representations alleged, which induced the execution of the bond in suit, were not made. It did not tend to show that the defendant had signed a prior bond. It did not tend to show that defendant did not rely upon the representations which he says induced him to sign the bond in suit. People v. Bragle, 88 N. Y., 585; Green v. Disbrow, 56 N. Y., 334. It has been said that no evidence is admissible which does not tend to prove or disprove the issue joined. 3 Sfcarkie on Ev., 387; 1 Green, on Ev., §§ 51, 52.

This rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principle fact or matter in dispute. See Townsend Mfg. Co. v. Foster, 51 Barb., 346; S. C., affirmed, 41 N. Y., 620, and approved in Oreen v. Dis-brow, supra. Being irrelevant to the issues involved, it may have prejudiced the defendant’s case before the jury. We cannot say that it did not influence the verdict. The error must be held sufficient to reverse the judgment, “unless it clearly appears the defendant was not prejudiced by the error.” Starbird v. Barrons, 43 N. Y., 204; Green v. Disbrow, supra. The question of fact, upon which the case turned, was very sharply contested and involved in conflicting evidence, and the jury may have been influenced by the irrelevant evidence, to which reference has been made. Townsend Mfg. Co.v. Foster, 51 Barb., 346. Therefore, there should be a new trial.

Boardman and Follett, JJ.—We think the results of the trial were right, but concur with reluctance in granting a new trial, for the reasons stated by Brother Hardin.

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


author: Hardest, P. J.

text:
    Earl E. Ellis, Resp’t, v. John E. Sharpe, as Trustee of School District No. 9, of the Town of Fabius, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886.

    1. Pleadings—Ais, reasonable intendments must be indulged in, in SUPPORT OB' A PLEADING DEMURRED TO
    The complaint in this action alleged that the defendant was elected a trustee of the school district named, and that he employed the plaintiff to teach school in that district, at a sah.ry of forty dollars per month, fpr a term of three months. It further alleges that the plaintiff rendered the services for which he was employed, and that the defendant refused to pay the amount due for such services, although requested so to do. Held, upon demurrer to the complaint, that it must be assumed that the plaintiff was a qualified teacher, and that the services were solicited and contracted for, by and in behalf of the defendant, by a person authorized and empowered by law; that all reasonable intendments must be indulged in, in support of the pleading demurred to.

      3. Answer—Plaintiff’s lack of legal qualifications must be set up BY ANSAVER.

      Heid, that if the plaintiff was not qualified according to the law in regard to being a recipient of public moneys, or in regard to the collection of his wages by tax, that fact must be brought into the case by answer.
    3. Corporations—School districts are quasi cokporations.

      Hid, that school districts are quasi corporations, and that trustees are offcers of them, and that their acts bind the corporation when performed within their jurisdiction.
    4. Same—Action against school district by teacher for salary—What allegations need not be made.

      Held, that if the defendant was able to establish the fact that its refusal to give a warrant or order upon the public fund was because of an omission of duty by the plaintiff, it should aver that as a defense; that the plaintiff was not required to aver specifically each act, step, and du.y done under the contract for wages.
    Appeal from an order and judgment made at the special term of Onondaga county overruling a demurrer to a complaint.

      Waters & McLennan, for appl’t; Fuller, Fuller & Cook, for resp’t.
   Hardest, P. J.

Plaintiff’s complaint alleges that defendant was elected a trustee of the school district named, and being authorized and empowered by law, he employed the plaintiff to teach the school in said district, at a salary of forty dollars per month, for a term of three months, which employment and the terms thereof were accepted by the plaintiff. Then he alleges “that pursuant to said employment by the defendant, as trustee as aforesaid, the plaintiff entered upon the same, and taught the school in said district for the said period of three months, which term ended on or about the 19th day of December, 1884., That the wages of the plaintiff for his said services as teacher of aforesaid school amounted to the sum of $120, no part of which has been paid, and the defendant, as trustee as aforesaid, although thereto requested, has neglected and refused to pay the same or any part thereof, notwithstanding the said sum of $120 was due and payable on the 19th day of December, 1884, aforesaid.” We think it must be assumed that the plaintiff was a qualified teacher, and that the services were solicited and contracted for, by and in behalf of the defendant, by a person authorized and empowered by law. AE reasonable intendments are to be indulged in, in support of the pleading demurred to. Lorillard v. Clyde, 86 N. Y., 385.

If the plaintiff was not qualified according to the law in regard to being a recipient of public moneys, or in any regard to the collection by tax of his wages, the fact must be brought into the case by an answer. Section 42 of the school law (chap. 555 of 1864), as amended by chapter 406 of the Laws of 1867 (2 E. S. [7th ed.], 1166), does not, in terms prohibit a district from employing a teacher not having the qualifications named in section 42 of the school law. It merely prohibits payment in the money apportioned to the district, and declares that such wages cannot be collected by tax. In Dillaye v. Parks (31 Barb, 132) it was held that when a disability does not appear upon the face of the complaint, if the defendant wishes to avail of it, he must set it up as a defense. In Gilbert v. Sage (5 Lans., 287) it was held a defense that the sale of liquors was void and that it must be set up in defense to be available.

It is urged that the complaint is defective, because there was no averment, in terms, of a refusal to give an order on the supervisor for public moneys (subd. 10, § 45, school law), and of a refusal or neglect to collect any balance by tax. But it is alleged that the defendant “has neglected and refused to pay ” the wages earned. We think that allegation may be considered as equivalent to an averment ■ that the defendant had refused to give a warrant upon the supervisor, and a refusal to collect by tax of the district.

It has been repeatedly held that school districts are quasi corporations, and trustees are officers of them, and that their acts bind the corporation when performed within their jurisdiction. Wait v. Ray, 67 N. Y., 38; Horton v. Garrison, 23 Barb., 176. In Silver v. Cummings (7 Wend., 183), it was said “each school district has, when organized, a separate qualified corporate existence.” In Fister v. La Rue (15 Barb., 324), Johnson, J., says of such a corporation, viz: “Having availed itself of the services, and received the benefits, it is bound, in conscience, to pay, and will not be heard to say that the original agreement was not made by a person legally authorized to contract.”

Section 44 of the school law (2 E. S. [7th ed.], 1166), provides that teachers shall keep school lists and accounts of attendance. By section 53 of the act it is made the duty of trustees to provide a book therefor, and each teacher is required to verify the entries by his oath. It must be assumed the teacher performed his duty in that regard. It is provided that until such entries have been made and verified “the trustees shall not draw on the supervisor for any portion of his wages.” 2 E. S. [7th ed.], 1169, § 53.

If the defendant is able to establish the fact that its refusal to give a warrant or order upon the public fund was because of an omission of duty by the plaintiff, it should aver that as a defense. We do not think plaintiff was required to aver specifically each act, step and duty done under the contract for wages. A trustee has no power to contract for unqualified teachers. Gillis v. Space, 63 Barb., 178. The demurrer admits the contract was made with the plaintiff, and that he performed the services named. It is, therefore, most reasonable to assume that defendant did its legal duty. Lorillard v. Clyde (supra).

Our attention is directed to Baker v. The City of Utica (19 N. Y., 326). That was an action of a city surveyor for services, which were included in assessments made for the expenses of certain local improvements, which assessment the city was proceeding to collect, but they had not been collected when the action was begun. It was then held that the charter provided “a peculiar mode of compensation for his services,” and that he was bound by that mode. We think the case does not sustain the contention of the appellant. We reach the conclusion that the complaint before us states facts sufficient to constitute a cause of action, and that the defendant must bring in any defense it may have by answer.

The judgment should be affirmed, with costs, and leave given to defendant to withdraw the demurrer and answer in twenty days, upon payment of costs of the demurrer and of this appeal.

Boardman and Eollett, JJ., concur.


author: Hardin, P. J. Boaedman, J.

text:
    Charles E. Hubbell, as Receiver of the Syracuse Iron Works, Resp’t, v. The Syracuse Iron Works, Giles Everson and others, App’lts.

      (Supreme Court, General Term,, Fourth Department,

      Filed November, 1886.)

    Action—By receiver of a corporation—When can be maintained to DETERMINE THE VALIDITY OF BONDS CLAIMED TO BE SECURED BY A MORTGAGE ON ITS PROPERTY.
    A receiver of a corporation appointed in an action brought for the sequestration of its property under section 1784 of the Code of Civil Procedure, is entitled to bring and maintain an action to determine the validity of bonds claimed to be secured by a mortgage on its property and to have it ascertained and determined to what extent the mortgage and bonds are valí 1 and effectual as a lien upon the properly that came to his hands as receiver.
    Appeal by the defendant Everson, from an interloctory judgment entered on an order overruling a demurrer interposed to the complaint herein.
    The plaintiff was appointed receiver of the defendant company’s estate in an action to sequestrate its property pursuant to Code Civ. Pro., § 1784. The receiver was directed by an order to commence a suit in equity, to determine what bonds issued by said company, claimed to be secured by a certain mortgage made by said company on their property for $100,000, were so secured. And what, if any of said bonds should be excluded from sharing in the proceeds of the property. This order also directed that in said action should be determined how many of said bonds not held by Charles B. Everson, belonged to him, etc. Subsequent to this order the mortgagee commenced an action to foreclose the mortgage, and several of the creditors of said corporation were made parties to such foreclosure action and answered, setting up conflicting claims. Among the claims set up is one that a large amount of the bonds were illegally transferred to the president and officers of the corporation after it was insolvent, and that others had been given to secure debts not existing at the time the mortgage was made, nor within the purposes for which it was made. The amount to which the bonds were illegal could not be stated. Subsequent to said action another action was commenced by Giles Everson, a stockholder, for himself and others to compel certain parties named as defendants therein, to surrender certain of said bonds which Giles Ever-son claimed did not belong to the parties holding them, and said last named suit asked that the indebtedness of the iron works to one Crouse & Company, be paid out of the proceeds of the sale of the mortgaged property.

      M. M. Waters, for app’lts; H. A. Maynard, for resp’t.
   Hardin, P. J.

According to Whitney v. New York and Atlantic Railroad Company (32 Hun, 173), a receiver appointed of a corporation has “ all the powers and authority conferred, and is subject to all the duties and liabilities imposed upon a receiver appointed (upon) the voluntary dissolution of a corporation.” Code Civ. Pro., § 1788. Such a receiver is entitled to “the property real and personal, things in action, contracts and effects of the corporation so far as they were owned by it at the time of the appointment. • In that case it was said that the receivership could not include that which was legally included in a mortgage, but the creditor’s receivership must be confined to the property not covered by the mortgage. But there was no question about the validity of the mortgage. Not so in the case before us. The extent of the mortgage is disputed, and some of the bonds secured by the mortgage are alleged to be invalid. To the extent that the mortgage and bonds are valid, the owners have the paramount right. Whitney v. N. Y. and Atlantic R. R. Co. (supra), 175. Indeed, we do not understand the plaintiff to claim to the contrary, but he seeks to have it ascertained and determined to what extent the mortgage and bonds are valid and effectual as a lien upon the property that came to his hands as receiver. The mortgage and bonds were executed to secure or pay debts. It is averred that some of the bonds have been diverted from that purpose and used to pay debts “not existing when said mortgage was made and delivered. ” It is averred that the mortgage was made “covering all and singular the franchises, rights, privileges and liabilities, corporate or otherwise, of and belonging to said iron works which then were, or at any time thereafter might be owned, held, possessed, used or enjoyed by it,” and also all and singular its real estate, etc.

We find no averment that any of the mortgaged property has been sold. It is therefore inferable or presumable that all of it remains and was owned by the company when plaintiff was appointed receiver, and that he as such is interested in the proper application and distribution of it, and that he is interested to protect it from invalid liens for the benefit of his cestuis que trust.

It is alleged that the Eversons, who demur and appeal, claim with others to be “the owners and holders of the bonds of said iron works which they severally claim are secured by said mortgage.” It seems to us that they are proper parties to this action, and that the plaintiff cannot have the validity of the mortgage, and the extent of the indebtedness which is valid, ascertained and determined without the presence of all the parties having the bonds issued under the mortgage. It is apparent that the plaintiff has alleged that the mortgagor owned some, if not all of the mortgaged property when the receiver was appointed. Being a corporation it must be assumed, in the light of the averments of the the complaint, that it owned its own “ franchises and right, and property.” The receiver represents the corporation, its stockholders and creditors. Atty. Gen. v. Mut. Ins. Co., 77 N. Y., 275.

Taking all the facts found in the complaint, it cannot be said that they do not warrant some relief in equity, and in such cases the complaint must be sustained. Brinkerhoff v. Brown, 6 Johns. Ch., 139; Prindle v. Caruthers, 15 N. Y., 425; Weeks v. Cornwall, 39 Hun, 643.

It is allowable to a receiver to have an action to set aside illegal transfers or incumbrances created by the officers or by the corporation, and it is proper to stay an action brought by a creditor to enforce such debts or liens as are invalid or illegal. Atty. Gen. v. Mut. Life Ins. Co., 77 N. Y., 272.

We are of the opinion that the demurrer was properly overruled. Judgment and order affirmed, with costs, and leave given to appellants to answer in twenty days upon payments of the costs of the demurrer and of this appeal.

Follett, J., concurs.

Boaedman, J.

I concur, and would cite the following cases as in my judgment sustaining the decision: Supervisors of Saratoga County v. Deyoe (77 N. Y., 219), Same v. Seabury (11 Abb. N. C., 461), McHenry v. Hazard (45 N. Y., 581).

Interlocutory judgment and order affirmed, with costs, and leave given to appellants to answer in twenty days upon the payment of costs and demurrer, and of this appeal.


author: Follett, J.

text:
    People of the State of New York ex rel. Eliza Miller, App’lt, v. Allen Cooper, Sheriff of county of Chemung, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886.)

    Criminal law—City of Elmira—Exclusive jurisdiction of recorder— Laws 1875, Chap. 370—Code Crim. Pro., §§ 57 and 58.
    The recorder of the city of Elmira, under section 104 of the city charter (Laws 1875, chap. 370), has exclusive jurisdiction to try persons who are charged with “keeping a disorderly house,” subject only to their right to apply for a certificate directing that they be prosecuted by indictment pursuaut to sections 57 and 58, Code of Criminal Procedure.
    Appeal, from an order remanding the relator to the custody of the sheriff after a hearing upon the return of a writ of habeas-corpus.

    The recorder of the city of Elmira issued a warrant charging the relator with “keeping a disorderly house,” which is a misdemeanor and punishable under Penal Code, § 15. The relator was arrested by virtue of the warrant, pleaded not guilty, waived examination and demanded a jury trial after indictment and offered bail, which was refused upon the ground that the recorder had exclusive jurisdiction. She failing to give bail to appear for trial before the recorder at the time set by him was remanded to jail. Thereafter the relator obtained a writ of habeas corpus returnable before _the_ county judge, who held that the recorder had exclusive jurisdiction to try the offense charged and remanded her to the custody of the sheriff.

      Charles A. Collin, for relator app’lt; Edgar Denton, district attorney, for resp’t.
   Follett, J.

The recorder of the city of Elmira is authorized to hold courts of special sessions and exercise the powers and jurisdiction of such courts, as regulated by statute. Laws 1875, § 104, chap. 370; Elmira City Charter; Code Crim. Pro., § 63. The offense with which defendant is charged not being enumerated in section 56 of the Code of Criminal Procedure, the recorder has not exclusive jurisdiction under that section. Subdivision 33 of that section does not bring the case within the exclusive jurisdiction of the recorder, unless exclusive jurisdiction is given him by some special statute or municipal ordinance authorized by statute. Exclusive jurisdiction of the offense charged is not claimed under any municipal ordinance, but is claimed under the city charter, and especially under section 104 thereof.

Section 4 of the charter provides that there shall be three justices of the peace within the city,- and section 44 provides: “ Section 44. The justices of the' peace of the said city shall have and exercise all the powers, authority and jurisdiction, and discharge all the duties, and be entitled to the fees and compensation of jusbices of the peace of the several towns in this state, except as modified by this act.”

Section 104 provides: “Section 104. The recorder of the city shall, except in case of his absence therefrom, or inability, from sickness or other cause, to act, have jurisdiction exclusive of any justice of the peace or other officer therein, except judges of courts of record, to issue all criminal process, and to institute all criminal proceedings, which a single justice or two justices of the peace in towns are empowered or directed by law to issue and institute; to hear and entertain all complaints and conduct all examinations in criminal cases and proceedings; to hold courts of special sessions, with all the powers and jurisdiction of such courts as regulated by statute;, to try, convict and sentence all persons who may be guilty of any offenses which are or may be triable by courts of special sessions, and to commit for trial all persons who shall be charged or be guilty of any offense not triable in said court. The court of special sessions, held by said recorder, shall have jurisdiction of and power to hear and determine all charges for every misdemeanor committed or charged to have been committed within said city.” * * * *

“ Said recorder shall have the power to let to bail persons charged with crime before him in all cases of felony where the imprisonment in the state prison, on conviction, cannot ‘ exceed five years.” * * * *

“ The said recorder shah have and possess the exclusive jurisdiction of aE the offenses within said city specified in this section, except as hereinbefore stated.”

The sentence last quoted is very broad. No specific offenses are mentioned in the section, but offenses are clsssified as felonies and misdemeanors. In felonies the recorder is given power to take examinations, and let to bail when the punishment, on conviction, cannot exceed imprisonment for five years in a state prison, which are the only offenses excepted from the exclusive jurisdiction of the recorder.

Section 106 of the charter provides : “In case of sickness, absence from the city, disability or inability to act, of the said recorder, his powers and duties are hereby conferred and imposed upon either of the several justices of the peace of said city so designated, except that such justices shaE not have jurisdiction to try any person for any offense not heretofore triable by courts of special sessions.”

When this charter was passed, the policy of conferring exclusive jurisdiction upon courts of special sessions, to try specified misdemeanors, had been established. Laws 1857, chap. 769; Laws 1866, chap. 467; Laws 1872, chap. 530. The sentence in the section last quoted, “except that such justices shall not have jurisdiction to try any person for any offense not heretofore triable by courts of special sessions,” conveys the idea of a broader' jurisdiction in the court of special sessions, when presided over by the recorder, than when presided over by a justice of the peace, and if such was not the legislative intent, it is difficult to see why these words of limitation were inserted.

The language of the charter of the city of Elmira is much broader than the language in the charter of the village of Hornellsville, and the case of The People v. McDonald (26 Hun, 156) does not support the contention of the relator. We are of the opinion that the recorder had exclusive jurisdiction to try the relator for the offense charged, subject to her right to apply for a certificate, directing that she be prosecuted by indictment, pursuant to sections 57 and 58 of the Code of Criminal Procedure.

The order of the county judge is affirmed.

Hardin, P. J., and Boardman, J., concur.


text:
    Charles E. Hubbell, as Receiver of the Syracuse Iron Works, Resp’t, v. The Merchants’ National Bank of Syracuse, App’lt.

      (Supreme Court, General Term, Fourth, Department,

      Filed November, 1886.)

    Practice—Fraudulent conveyance—Action to set aside—Grantor necessary defendant.
    The rule is well settled that in actions to set aside fraudulent conveyances the alleged fraudulent grantor is a necessary party defendant. Miller v. Hall (8 J. & S., 262; affirmed, 70 N. Y., 250), followed; The Attorney-General v. Guardian Mutual Life Insurance Company (77 N. Y., 272), distinguished.
    Appeal from an interlocutory judgment entered upon an order overruling a demurrer to the complaint, interposed by defendant upon the ground that there was a defect of parties.

      Henry A. Maynard, for resp’t; Forbes, Brown & Tracy, for appl’t.
   Follett, J.

October 7, 1884, the Merchants’ National Bank sued the Syracuse Iron Works on its promissory notes. On the same day the Syracuse Iron Works appeared in the action and made an offer of judgment, which was accepted, and a judgment entered pursuant to section 738 of the Code of Civil Procedure. On the same day (October seventh) an execution was issued on the judgment to the sheriff of Onondaga county, who, on the same day, levied on chattels of the Syracuse Iron Works, and October 14, 1884, sold them under the execution. October 7, 1884, the plaintiff was appointed, and October 8, 1884, qualified as temporary receiver of the Syracuse Iron Works, in a creditors’ action brought under section 1784 of the Code of Civil Procedure, and December 9, 1884, he was appointed permanent receiver by a final judgment in the creditors’ action, pursuant to section 1788, Code of Civil Procedure.

The receiver brings this action to set aside, as fraudulent, the judgment of the Merchants’ National Bank, and to recover from it the value of the chattels sold under the execution. The defendant demurred, upon the ground that there was a defect of parties defendant, because of the nonjoinder of the Syracuse Iron Works.

The case of Miller v. Hall (8 J. & S., 262; affirmed, 70 N. Y., 250), reviews the conflicting decisions, and settles the rule that in actions to set aside fraudulent conveyances the alleged fradulent grantor is a necessary party defendant.

The Attorney-General v. The Guardian Mutual Life Insurance Company (77 N. Y., 272), which is relied upon, is not in point. That case was under a statute which authorized the supreme court to dissolve the corporation, and, it having been done, the corporation was no longer in existence and could not have been made a party. The case at bar was not brought under sections 1785 and 1786 of the Code of Civil Procedure, and the Syracuse Iron Works has not been dissolved, but is an existing corporation, with all of the legal rights of a corporation, and is a necessary party defendant in this action, brought to set aside a judgment and a transfer of its property had by its consent.

The interlocutory judgment must be reversed, with costs, and the demurrer sustained, with leave to the plaintiff to plead anew within twenty days after notice of the entry of judgment; upon payment of the costs.

Hardin, P. J., and Boardman, J., concurs.


text:
    Hallam Eldridge, Appl’t, v. City of Binghamton, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886.)

    Canals—Street—Eminent domain—Pee of lands to be used for a canal—Right of state to acquire—The state’s right to authorize SUCH LANDS TO BE USED AS A PUBLIC' STREET—CONSTITUTIONAL LAW— 1 R. S., 225-226, §§ 46-52—Laws 1878, chap. 391, constitutional.
    Thi_s state, in 1838, under the authority of Laws of 1833, chapter 32, through its canal authorities, took possession of certain lands for the use and purposes of the Chenango canal, by the usual regular steps, to obtain the right to the land, under a condemnation ancj, appraisal by the car al appraisers, according to the provisions of sections 46 and 52 of 1 Revised Statutes, 225-226. In view of the advantages and benefits likely to accrue to the residue of the property by reason of the canal facilities, it allowed no money compensation for the lands. Under Laws of 1878, chapter 391, the right to take possession of said canal lands ior the purpose of hying out a street, was given by the state to the oily of Binghamton, and under the authority conferred by the act and a resolution of the common council, the city entered upon and took, and still retains possession of the same. This action is brought by the plain;iff, who, as heir or assignee, had acquired all the rights of the pei sons in whom the title to those lands was vested at the time the state appropriated them, to recover the possession thereof. Held, that as the acts under which the state acquired an estate in fee simple to the lands were const.tutioi.al and valid, and the city, by the act of 1878, acquired the right to enter upon and use the same as a oublic street, the action could not he maintained.
    Appeal from a judgment entered upon a verdict rendered in favor of the defendant at the Broome county circuit and from an order denying a motion for a new trial made on the judge’s minutes.
    By chapter 32 of the Laws of 1833, the legislature authorized the taking of lands for canal purposes, the canal to be known as the Chenango canal. Under said statute, in 1838, certain lands were taken for the uses and purposes of said canal. The grantors, etc., of the party who is plaintiff herein owned certain lands at that time, part of which were taken for said canal. The canal commissioners estimated the value of the land and other property taken at .$2,500, and adjudged that the land remaining to plaintiff’s grantors would be benefited by said canal to a like extent, and so allowed no compensation for the land except the benefits. The plaintiff’s grantors duly filed claim for damages within the time limited by the statute. The state continued to use the land taken for a canal until 1878, when an act of the legislature (chapter 391) was passed, by which the state released to the city of Binghamton the portion of said canal running through that city, and authorized it to take possession thereof and convert the same into a public street to be known as State street. The act provided, however, that “nothing in this act contained shall affect in any way the legal rights of individuals.”
    Pursuant to the authority given to the defendant by said act, the city, by virtue of a resolution of its common council, entered upon said canal and converted it into a street without any notice to any one and without exercising the right of eminent domain, the only steps taken being the resolution above referred to, and the making a map of the street. Part of the canal so taken was constructed upon land acquired, as above stated, from plaintiff’s grantors.

      George Whitney, for app’lt; A. D. Wales, for resp’t.
   Follett, J.

Sec. 46. “When any lands, waters or streams, appropriated by the canal commissioners to the use of the public, shall not be given or granted to the state, it shall be the duty of the appraisers to make a just and equitable estimate and appraisement of the damages and benefits resulting to the persons interested in the premises so appropriated, from the construction of the work, for the purpose of making which such premises shall have been taken.” 1 R. S., 225.

Sec. 52. “The fee simple of all premises so appropriated, in relation to which such estimate and appraisement shall have been made and recorded, shall be vested in the people of this state.” 1 R. S., ‘226.

It is conceded that an estimate and appraisement of the damages for taking the lands sought to be recovered in this action, were made and recorded in the year 1838. Statutes authorizing the benefits inuring to the lands remaining, and adjacent to the lands taken, to be estimated and the value of such benefits set off ■ against the value of the lands taken, have been held constitutional. Livingston v. The Mayor of New York, 8 Wend., 85; Betts v. The City of Williamsburg, 15 Barb., 255; Long Island R. R. Co. v. Bennett, 10 Hun, 91; Hills’ Em. Domain, § 151, and cases there cited.

It has been held that sections 48 and 49 (1 R. S., 226), providing that the state acquires the fee simple of lands appropriated without making any compensation, in case the owner fails to file his claim within one year, are constitutional. Birdsall v. Cary, 66 How. Pr., 358, and cases there cited. If the sections last cited are constitutional it is difficult to see why sections 46 and 52 are unconstitutional. The lands taken for the Erie canal were appropriated under a like statute (sec. 3, chap. 262, Laws 1817), and so were the lands for all of the canals of this state. This court is bound by the cases cited, and only the court of last resort can overthrow the multitude of titles resting on the statutes cited and similar statutes.

For forty years the state was in possession of the land in question, claiming to own it in fee simple, and thereby it acquired title. Birdsall v. Cary, supra.

The judgment is affirmed, with costs.

Harden,‘"P. J., and Boardman, J. concur.


author: Brady, J.

text:
    John Hancock Mutual Life Insurance Co., Resp’ts, v. Julius Lowenberg, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Bond—Action on bond given fob performance of duties by agent— Breach of condition.
    In an action against one of the sureties on a bond given to an insurance company on the appointment of an agent, it appeared that the agent in his reports to the company withheld certain moiuys as commissions which, however, was not sanctioned by the company, who noted its disallowance of each item. Held, that these could l.ot be regarded as advances or quasi payments; that the defendant by his bond became responsible for the failure of the agent to pay over the moneys received by him, and was chargeable with those so retained by him.
    2. Same—Surety on—What will not release.

      Held, that the knowledge of the plaintiff that the agent was improperly retaining a sum of money for commissions, as shown by his report, the payment of which the company did not at once insist upon but carried as a balance, was not sufficient to discharge the sureties in the absence of any agreement by the principal to extend the time of payment.
    3. Same—Sufficient consideration.
    It was contended that as the agent had been appointed at the time of the execution of the bond there was no consideration but a past one, and the bon 1 was therefor j void. Held, that although this might be as to the past transact ons, it was not as to future, for the consideration was a continuing one running with the agency until its completion. That it was doubtful whether any consideration were necessary in such a bond, other than that springing from the relati ns calling it into existence. It seems sufficient that- the person for whom the guaranty is given receives from it a benefit or advantage.
    Appeal from judgment entered on the report of a referee.

      F. R. Minrath, for app’lt; S. A. Blatchford, for resp’t.
   Brady, J.

This case comes to us for the second time.

The defendant and one Going, became the sureties for one Wolffsohn, on his appoinment as an agent of the plaintiffs, and the latter having made advances to the agent which were regarded by the learned referee as proper items to be allowed against the defendant on his bond a review was sought and this court, in view of the strict rules governing the relation of principal and surety, held that they were not, and a new trial was ordered. Kindred items were disallowed on the second trial, but the defendant’s counsel insists that this was done in part only, and that the rule pronounced herein on the former appeal has been violated.

It appears that from the month of January, 1878, in his reports to the company, the agent withheld as his commissions, certain sums, amounting in all to $1,175.90; but this was not sanctioned by the plaintiff, which, as to such item constituting the aggregate noted its disallowance. The result is that the sum named was due to the plaintiff, the agent not having earned the commissions which were retained by him, as indicated by his reports.

The defendants’ counsel, however, regards this mode of procedure, not only as an advance, but quasi payment, by which the relation of debtor and creditor was created between the agent and the plaintiff. These views cannot be sustained, however. Whatever the agent may have thought of the retention of the sums referred to, the plaintiff disavowed them as advances or charges against it, and awaited the result for the period mentioned, namely, from January, 1878, to August, 1878, when the agency of Wolff sohn ceased. There was no agreement, therefore, express or implied, for any advance to the agent by the plaintiff, resulting from any act or omission warranting such a conclusion.

The effort to surround the legal effect of these facts with any doubt, or to render it necessary to invoke the discussion of the rules governing them, must fail. The defendant, by his bond, became responsible for the failure of the agent to pay over the moneys received by him, and hence his liability on the facts stated.

The defendants’ counsel claims further, that even if his client did become liable, he was discharged, inasmuch as the plaintiff extended the time for the payment by the agent of the balance due. In answer to his proposition it must be said that there is no evidence of which it can be predicate. The knowledge that the agent was improperly retaining a sum of money for commissions, as shown by his reports, the payment of which the plaintiff did not insist upon at once, but carried as a balance, is the only agreement to defer or extend the time of payment disclosed by the record. The cases applicable as to the discharge of a surety rest upon an agreement to extend the time of payment by the principal. Place v. McIlvain, 38 N. Y., 96; Greene v. Bates, 74 id.,333; Calvo v. Davies, 73 id., 211.

It is also insisted that inasmuch as the agent had been appointed at the time the defendant’s bond was executed, there was no consideration but a past one, and the bond was, therefore, void. This may be as to the past transactions, certainly not as to the future, for as to this the consideration was a continuing one, running with the agency until its termination. Indeed, the necessity for any consideration in such a bond other than that which springs from the relations which call it into existence, may be doubted. It seems to be enough that the person for whom the guaranty is given receives from it a benefit or advantage. DeColyar on Guarantees, p. 22; Leonard v. Vredenburg, 8 Johns., 29; Williams v. Marshall, 42 Barb., 524; Burges’ Law of Suretyship, p. 11; McNaught v. McClaughry, 42 N. Y., 22.

This decision embraces all the questions of any import on this appeal. It is quite evident that the struggle by the defendant’s counsel, which is able and ingenious, is to establish his proposition that the sums retained were advances and which, as such, it was not within the intention of the parties to provide against. We have already given to his client the advantage of this theory, and would again if the facts required it. They do not. There were no ad-. vanees.

The result of the examination of the record is, therefore, that the judgment pronounced was right and should be affirmed, with costs.

Daniels and Davis, JJ., concur.


author: Daniels, J. Davis, P. J.

text:
    Edward A. Morrison, Resp’t, v. Moritz Bauer, App’lt.

      (Supreme Court, General Tern, First Department,

      Filed December 30, 1886.)

    1. Specific performance—Contract for sale of land—Abatement may BE MADE FOR DEFECTS IN PROPERTY.
    This action was brought to compel specific performance of a contract made by the plaintiff for the conveyance of real property to him by the defendant. The property was subject to a mortgage which the plaintiff agreed to assume, and the resiiue of the purchase price was to be paid by him to the defendant. At the time and place agreed upon the plaintiff presented himself to receive the deed and perform his part of the contract. A deed in the form required by the contract and execu ed by the defendant was tendered to the plaintiff and by him refused on account of taxes and assessments which were unpaid and liens upon the property. It was also objected that there were two mortgages unsatisfied of record, and that the property was in part incumbered by a party w.Jl agreement binding the owner of it to pay one-half of the expense of building the wall whenever that should be used. Held, that the plaintiff was entitled to insist on a specific performance of the contract. Where property has been made the subject of a contract to convey, the vendee, if he elects to take it with its infirmities or defects, will be entitled to receive it with a corresponding abatement or deduction sufficient to meet or obviate the incumbrances or defects of title.
    2. Judgment—Part not appealed from is conclusive upon an appeal FROM OTHER PARTS.
    Upon the trial, the court directed specific performance of the contract, after pro. iding for the satisfaction or extinguishment of the incumbrances, except that alleged to have arisen out of the party wall agreement. This was held to be personal to the parties executing it and to form no charge upon the land. Held, that the plaintiff not having appealed from the judgment, this part of the determi -ation of the court was conclusive upon’him, and that the party wall agieement must be regarded as forming no charge upon the land.
    3. Interest—When purchaser chargeable with interest on purchase MONEY.
    It appearing that the defendant would have extinguished the other charges upon the land, and that the performance of the contract had been delayed by plaintiff’s insisting upon the objection arising from the party wall agreement. Held, that the defendant having been made liable for the payment of the assets and profi's received by h:m during the reriod which had elapsed since the date agreed upon for the performance of the contract, the plaintiff should be charged with the payment of legal interest upon the purchase money for the same time.
    4. Extra allowance.

      Held, that an allowance of $500 made in favor of the plaintiff was error, Davis, P. J., dissenting on this point. Held, that the suit was compelled by defendant’s conduct, that tile case was important in the amount involved and questions to be determined, and that it was "extraordinary” within the definition of t. at word by the courts. That therefore the allowance should not be disturbed.
    Appeal from a judgment recovered at the special term.

      Carlisle Norwood, Jr., for app’lt; F. B. Coudert, for resp’t.
   Daniels, J.

The action was brought by the plaintiff as vendee, to obtain the specific performance of a contract made on the 10th of December, 1885, for the conveyance to him by the defendant of premises situated upon Third avenue, in the city of New York, for the price of $251,500. By the agreement which these parties made, the deed was to be delivered and the contract performed on the 31st of December, 1885, at No. 229 Broadway. The property was subject to a mortgage of $165,000, which the plaintiff was to assume, and the residue of the purchase price was to be paid by him to the defendant. At the time and place when the contract was to be carried into effect the plaintiff presented himself to receive the deed and perform his part of the agreement, and a deed in the form required by the agreement, executed by the defendant, was tendered and offered to the plaintiff, but he declined to receive it, for the reason that there were taxes and Croton water rates unpaid, which were hens upon the property. Also, that there were two mortgages appearing to be unsatisfied of record, one for the sum of $20,000 and the other for the sum of $100,000. And, in addition to that, it was further objected that the property was in part incumbered by a party wall agreement binding the owner of it to pay one-half the expense of building the wall whenever that should be used. The two mortgages included in the objections were in a situation to be discharged and satisfied of record, but as the taxes and water rates were not paid, and the agreement for the party wall was outstanding, the plaintiff declined to pay the balance of the purchase price and take the title to the property. He did not, however, refuse to accept the title upon the removal of these objections, and in the following month the request was made that these objections should be removed or that the contract should be ended and the plaintiff’s deposit returned to him, with the legal expenses of examining the title. Neither of these acts was performed by the defendant, nor did he satisfy the mortgages or pay the taxes or water rates, or extinguish the party wall agreement. And the plaintiff, being desirous of obtaining the title to the property under the contract, then brought this action for its specific performance, still, howr ever, insisting upon the objections which he had made. And that he was legally entitled to do, for where property has been made the subject of a contract of this character, the vendee, if he elects to takes it, with its infirmities or defects, will be entitled to receive it, with a corresponding-abatement or deduction sufficient to meet or obviate the incumbrances or defects of title. 2 Story Eq. Jr. (5th ed.), § 779; Lawrence v. Saratoga Lake Co., 36 Hun, 467, 475.

The contract not having been rescinded by the plaintiff, still subsisted between these parties, inasmuch as the defendant could not avoid it by his own default, and it was the legal subject of an action for its specific performance by the plaintiff. Willis v. Dawson, 34 Hun, 492. And it was so held and considered to be by the judge presiding at the trial of the action, for he directed its specific performance, after providing for the satisfaction or extinguishment of the incumbrances, excluding only that alleged to have arisen out of the party wall agreement. And this agreement he held to be personal to the persons who had executed it and not to be in any form a charge upon the land, as the defendant was required to convey it to the plaintiff. The plaintiff has not appealed from the judgment, and this part of the determination of the court is accordingly conclusive against him, and the party wall agreement is now to be considered as a personal contract between the parties to it, no way running with, or affecting, the land. The court was accordingly right in making this disposition of the case.

But by the judgment which was recovered, the defendant was made liable to account for the rents and profits received by him out of the property, over and above the expenditures, from the time when the contract should have been performed to the determination of the action, and the plaintiff was obligated to pay to the defendant the balance of the purchase money with no more than one per cent interest, the sum allowed upon it by the United States Trust Company, where it had been during the dispute on deposit. This direction was not quite just to the defendant, for up to the time of the recovery of the judgment certainly, the plaintiff was not willing to receive the title without the extinguishment, so far as the property was concerned, of the party wall agreement, or some adequate protection against future fiability under it. To this extent he himself was in default. His objection, as the court found and disposed of it, was unsupported. And by insisting upon this objection, he prevented the performance of the contract by the conveyance of the title, for the two mortgages, as well as the taxes and water rates, were in a condition to be at once paid and extinguished, and that probably would have been done by the defendant, had it not been for this further objection to the title arising upon the party wall agreement. Certainly for this delay, owing to this circumstance, the plaintiff was as much responsible as the defendant, and as long as the court by its judgment entitled him to the intermediate rents and profits of the property, it should have charged him with the payment of legal interest for the same time upon the purchase money. And in omitting to do so tho court fell into an- error, which upon this appeal should be, as it can be, corrected.

The evidence, which it has been urged the court erroneously excluded, would not have changed the determination of the case in the slightest degree, even if it had been received. And as there was error in no other respect in the disposition of the action, unless it be in the direction of an allowance of $500 against the defendant, the judgment should be modified by requiring the plaintiff to pay legal interest to the defendant upon the balance of the purchase price, and by deducting this allowance, and as so modified it should be affirmed, without costs to either party.

Brady, J. concurs.

Davis, P. J.

I do not think the additional allowance should be stricken out. The defendant’s conduct compelled this suit to have been brought when none ought to have been necessary. The case was one of importance as to amount involved and questions to be determined. It was “extraordinary,” within the definition of that word as established by the courts, and by the action of its suitors. The allowance should not be disturbed. The modification now directed does not affect it. With that change in the opinion, I concur in its conclusion.


text:
    James R. Brett, App’lt, v. Gustavus A. Brett et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Receiver—Sot responsible for mere errors in judgment in the PERFORMANCE OF HIS DUTIES—COMMISSIONS.
    In An action to set aside a fraudulent agreement induced by the defendants, and for an accounting between the parties who were partners as an incident of the copartnership, a receive: was appointed, tho order, among other things, authorizing him to carry on the shipping business as before carried on to such an extent only : s to charter the vessels of the copartnership for hire until they could be sold to advantage, and to sell them upon such terms as he might deem proper, subject to the approval of the court. Held, that errors in judgment in not selling the interests in the vessels, or some of them, at an earlier date, would not alone subject the receiver to a loss of commissions.
    2. Same—Expenses of sale of property owned in common should be APPORTIONED,
    Upon an accounting by the receiver: Held, that upon the sale of the vessels each share should bear its burden in the payment of all expenses, and that the accounts of the receiver did not show how much, if any, of the gross sum collected and disbursed would, upon an apportionment, be represented by the shares owned by the copartnership, nor how much by the shares held by the owners, the amount to be deducted for dividends should be increased, and that for commissions correspondingly diminished; that the receiver should not be permitted to charge the copartnership for services performed partly for it and partly for other-.
    3. Same—Receipt and investment op money do not entitle receiver to commissions.
    The receipt of a sum on a sale and investment to produce income is not such an act of receiving and paying out as entitles a receiver to commissions.
    4. Same—Commissions—Payments entitling receiver to.
    The copartnership held a mortgage upon a vessel, which was foreclosed by the receiver and the vessel bought in. Held, that he was entitled to his commissions on the money which was in his hands as part of the assets and which he employed in the purchase.
    5. Same—AVhat allowed as commissions—Code Civ. Pro., § 3330.
    A receiver is entitled in addition to his lawful expenses to such a commission, not exceeding five per cent upon the sums received and disbursed by him, as the court or judge by whom he is appointed allows. See Code Civ. Pro., § 3330.
    6. Same—Receiver—AVhat losses of funds he is not responsible fob.
    The receiver having deposited some of the funds in a bank, which be•came msolvent: Held, that the deposit not being unusual, and the bank at that time being in good credit, and the act being such a one as a prudent conservative business man might have done, he should not suffer therefor.
    Appeal from order settling accounts and fixing commissions of receiver of a partnership. 0

      L. Laflin Kellogg, for app’lt; E. H. Hobbs, for resp’t.
   Brady, J.

This action was brought to set aside a fraudulent agreement induced by the defendants, and for an accounting between the parties, who were partners under the firm name of Brett, Son & Company, as an incident of the dissolution of the co-partnership. The plaintiff succeeded. At the commencement of the action Charles L. Wright was appointed receiver, and the order expressive of that event contained among other things the following: “To carry on the said shipping business as heretofore carried on, to such an extent only that he may charter the vessels of the said co-partnership to other parties for hire, until such time as said vessels can be sold to advantage, and Avith full power and authority to such receiver to sell the same (vessels) upon such terms as he may deem proper, and as are approved by this court.”

The firm named, for many years prior to the commencement of this action, had been engaged in the shipping and commission business, which involved the procurement of charters for vessels, for which they charged a commission of five per cent; and, Avith a view to greater success, they had purchased fractional interests, which were still owned in about fifty-one vessels, and hence the provision in the order just referred to, the object of which was to secure to the firm the commissions which might be earned prior to the sale of the vessels.

The receiver at once took possession of the property, and continued in the active management of the firm’s business, chartering, re-chartering, repairing, insuring and disbursing the vessels, until the latter part of December, 1884, a period of two and one-half years, when the vessels were sold and the business wound up.

In March, 1885, an order was entered requiring the receiver to file his account, and in April, 1885, the accounts having been filed and objections having been made to them, an order was made referring them, with power to the referee to take testimony in support of the accounts and of the objections. The referee, in stating the accounts, allowed the receiver five per cent on $356,787.23, the total sum received and disbursed by him in the management of the trust; which, computed, amounted to $17,839.36; but surcharged the accounts and debited him with $5,302.48, for brokerage and commissions paid his own firm for services in chartering and selling vessels, thus leaving the receiver’s net compensation $12,536,85.

The plaintiff filed many exceptions, not only to the findings of the referee but to refusals to find as requested, and, upon a hearing before Justice Lawrence, at special term, he directed the further investigation by the referee of an item in the receiver’s accounts of “sundry assets, disbursements and dividends, other than Brett, Son & Co., of $125,249 and $2,049.27, which the plaintiff insisted consisted wholly of dividends paid to owners other than Brett, Sons & Go., and which was denied by the receiver. The referee took further testimony, and reported that of the sum mentioned, namely, $125,249.47, the sum of $5,549.05 only was paid to the owners in various vessels other than Brett, Son & Co., the balance consisting of disbursements made in the management of the business of the trust. To this report several exceptions were taken, as well as to the refusal to find as requested, and, upon a further hearing thereafter had, the reports of the referee were confirmed and the accounts of the receiver stated and passed.

The plaintiff complains of the unsuccessful manner, ■ tested by pecuniary results, in which the business was conducted, but the receiver thoroughly understood the_ business, it would seem from the evidence, and devoted himself to it, aided and assisted by his firm and employees, and there is no evidence warranting the charge of waste or negligence. He may have committed errors of judgment in not selling the interests in the vessels, or some of them, at an earlier date, but this alone would not subject him to a loss of his commissions. The parties in interest could have accelerated that event by application to the court if the facts warranted it and the receiver refused to sell.

The first point taken by the appellant in his behalf, however, is that there was no authority in law for an allowance of commissions upon the sum of $125,249.47, already mentioned. And this seems to be predicated of the asserted fact that the sums of which this amount was composed were paid to owners other than Brett, Son & Co.; but this claim, as we have seen, was the subject of a further investigation, by which it was shown that the dividends, as reported, were only $5,249.47, and the balance $119,720.93, disbursements.

It is true that the evidence on the subject is in conflict, inasmuch as the receiver’s bookkeeper, by a detailed statement puts the sum of dividends paid at $12,168.01, and there is reason to credit the statement, as he made up the accounts for the receiver; and as made up they were presented and therefore adopted. Beyond that sum, however, there should be no difference made as to this item.

The business properly recorded necessarily embraced numerous accounts and the amount to be paid to the different shareholders in the vessels, depended upon the profits after payment of all the expenses; and this would include the commission, if any, chargeable to each of such shares. Each share, in other words, should bear its burden. The accounts have not been kept in that mode, and as contended in behalf of the defendant, it nowhere appears how much, if any, of the gross sum collected and disbursed, would be represented upon an apportionment by the shares in the vessels owned by Brett, Son & Company, nor how much by the shares held by the owners. The best that can be legally done, therefore, in regard to that item is, to do what has already been done, namely, to increase the, amount to be deducted for dividends and correspondingly diminish the commissions.

There can be no doubt, that the receiver should not be allowed to charge the firm of Brett, Son & Company, for a service rendered partly to them and partly to another, and that this rule should be generally applied, if it could be, in the settlement of the accounts.

The appellant also objects to the allowance of any commission on the sale of the barks “Hosea Bich,” and “Alice Campbell,” in which Brett, Son & Company, had an interest. The allowance of a commission on any sum beyond the interest of that firm, for reasons already assigned, was erroneous. The commissions should be apportioned, which could easily be done if the interests were known, as they seem to have been. If this procedure involved troublesome details, the receiver would have been justified in submitting and asking for the latter’s compensation by a proper award.

The allowance of commissions upon the items “ purchase of bark J. G-.Williams, $13450. expense of transfer, purchase of Atlantic scrip, $5,100,” is claimed to be erroneous, upon the principle that commissions c<ui only be allowed upon the aggregate of capital and income as received once and paid out once. The receipt of a sum on a sale and investment to produce income, is not such an act of receiving and paying out as entitles one to commissions. Betts v. Betts, 4 Abb. N. C., 436; Redfield on Surrogates, 701; Valentine v. Valentine, 2 Barb. Ch., 430; Drake v. Prill, 5 N. Y., 430; Dayton on Surrogates, 535; Matter of Kellogg, 7 Paige, 265; Clute v. Gould, 28 Hun, 348.

This vessel was one on which Brett, Son & Company, had a mortgage which was foreclosed by the receiver, and the vessel bought in. He paid for the purchase with money in his hands. The process in the transaction involved a mere memorandum. The money of Brett, Son & Company, was paid by the receiver for the vessel to the receiver as owner of the mortgage.

The referee found as a conclusion of law that the receiver was not entitled to any commissions upon these items, and the allowance in any form seems to be unauthorized. He was entitled to his commissions on the money which was in his hands as part of the assets, and which he employed to make the purchase, and which was doubtless given him, but nothing more on the authorities cited.

The same rule applies to the insurance scrip". It was bought with money in his hands as part of the trust fund. This was an investment only. The expenses of both proceedings, however, should be allowed, as the firm or the plaintiff had the benefit of them.

The allowance of commissions upon the sum of $2,077.63 dividends for sundry owners other than Brett, Son & Co. is governed by the same rules heretofore stated as to dividends and should not have been allowed.

The house of Brett, Son & Co. did their business on commission, and the owners had to pay them before their dividend could be declared or the commission charged, and the dividend declared according to the balance found. The Code by section 3320 declares that, except as otherwise specially prescribed by statute, a receiver is entitled, in addition to his lawful expenses, to such a commission, not exceeding five per centum upon the sums received and disbursed by him as the court or judge by whom he is appointed allows ; and under the circumstances developed by the record five per cent is not too much. Indeed, with the inroads made upon the amount of it by the judgment to be pronounced herein, the compensation he is to receive is perhaps too small. It is true that he was unfortunate in depositing some of the funds in a bank which became insolvent; but the deposit was not unusual, and the bank was in good credit, and the act was one which a prudent, conservative business man might well have done. He should not suffer, therefore, for the event mentioned.

The other objections argued have been examined, but have not received favorable consideration. If cannot well be gainsaid that the duties of the receiver herein were diverse, complicated and difficult, and that he should be liberally paid if there were any means of accomplishing that result, provided they were fully and properly discharged. The burdens of such a post are not always recognized as they should be, financially, by the gift of the allowance provided for by statute, although in many instances it is otherwise. Here the receiver, it may be, will not receive a fair remuneration for his services, but this cannot be avoided. It cannot be said emphatically that his administration was a decided success, and that should affect the reward to be given for his labors. Under all the circumstances, it is thought that justice has been done by the, results declared herein, and the judgment must be modified in the respects suggested, and as modified affirmed, without costs to either party.

Daniels and Davis, JJ., concur.