author: DaNiels, J. :

text:
    AMBROSE E. BARNES, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, RESPONDENT.

      Interpleader — when an order for, should he made under section 830 of the Code of Owil Procedure — The city of New York is not liable for interest Upon awa/rds until after a demand has been made.

    Where, in an action brought against the city of New York to recover the amount of an award made to the owner of land taken for the opening of a street therein, it appears that a third person has filed with the department of finance a notice by which he claims an interest in the award to the extent of the amount due upon a mortgage held by him against the property taken, it is proper for the court acting under section 820 of the Code of Civil Procedure to make an order substituting the said claimant as a defendant in the place of the city and requiring the latter to pay over the amount in dispute to its chamberlain.
    Under section 6 of chapter 604 of 1874, making the awards to the owners of lands taken for streets payable upon the confirmation of the report of the commissioners, the city is not liable for interest upon the awards until after a demand therefor has been made.
    Appeal from an order made at Special Term, substituting J ared F. Harrison as defendant in place of tbe mayor, etc., tbe present defendant, and requiring the plaintiff to interplead him as defendant in this action, and allowing tbe mayor, etc., to pay to tbe chamberlain of tbe city, to tbe credit of this action, tbe sum of money in dispute.

      Charles W. Dayton, for tbe appellant'. The remedy by motion for substitution under tbe Code Civil Procedure, section 820 (Code Pro., § 122) does not apply to any new class of cases but only allows this course in Oases where a bill of interpleader formerly was sustainable. {Sherman v. Partridge, 4 Duer, 646; S. C., 1 Abb. Pr., 256; 11 How. Pr., 154; Hornby v. Cordon, 9 Bosw., 656 ; Vosburgh v. Huntington, 15 Abb. Pr., 254; Pustet v. Fla/nnelly, 60 How. Pr., Cl; Delaney v. Murphy, 24 Hun, 505.) Hnder section 820 of tbe Code of Civil Procedure it must be shown “ that a person not a party to tbe action makes a demand against defendant for tbe same debt or property.” Not tbe title to but a lien upon á part of plaintiff’s award is demanded in this case, (1 Wait’s Pr., 171; 4 id., 153 ; Cod/y v. Potter, 55 Barb., 463; Diploelc v. Ham

      mond, 27'Eng. L. and E., 205.) The motion cannot be granted if there is any controversy as to the amount due from the moving party (Chamberlain v. O'Connor, 1 E. D. Smith, 665; Bender v. Sherwood, 15 How. Pr., 258), even if only as.to interest. Patterson v. Perry (14 How. Pr., 505), a well considered case, this being the main point and the authorities being ' cited. The order granted deprived plaintiff of interest on his award. Damages awarded are payable immediately upon fhe confirmation of the award. (Laws 1874, p. 833, § 6 ; Shepard v. The Mayor, 13 How., 286.) It is the duty of the commissioners to ascertain the persons entitled to damages and award accordingly. (Matter of Central Park Comrs., 16 Abb. Pr., 56.) The award, when confirmed, is conclusive upon the city and the owners and it cannot be attached collaterally. (Matter of Dept, of Public Parks, 73 N. Y., 560; reversing 6 Hun, 486; Livingston v. Sulzer, 19 Him, 375, 383.) Same principle, Hatch v. Mayor, etc., of New York (82 N. Y., 436, 440; reversing 46 Supr. Ct. [J. & S.], 539; Mayor, etc., of New York v. Colgate (12 N. Y., 140); Fisher v. Mayor, etc., of New York (67 id., 73). The right of the owner after the award becomes final is a vested right. (People. ex rel. Gas Co. v. The Common Council, 78 N. Y., 56, 60; reversing 52 How. Pr., 346; Morning-side Park case, 10 Abb. Pr. [N. S.], 338 ; S. O., 60 Barb., 132 ; 41 How. Pr., 12.) The case of the Matter of Arnold (60 N. Y., 28), was distinguished in Dolan v. Mayor, etc. (62 id., 472), and in Aster v. Mayor, etc. (62 N. Y., 591). Where the proposed new party could not maintain an action against the original defendant, the latter cannot have an order of interpleader. (Conner v. Weber, 12 Hun, 580, opinion Davis, P. J.; Delaney v. Murphy, 24 id., 503 ; Sherwood v. The Mayor, etc., of N. Y.yll Abb. Pr., 347; Spears et dl. v. The Mayor, etc., decided January, 1882, Ct. of App., Earl, J.)

      Walker Hartmell and Arthur H. Hasten, for the respondent. This action is one on contract. The order of confirmation was a judgment. (Matter of Arnold, 60 N. Y., 28; Dolan v. The Mayor, 62 id., 472; Matter of Dept, of Parks, 73 id., 565.) His action being on the judgment is one on contract. (1 Pars, on Con., 7; 2 Blachstone’s Com., 465; Ratcliffe v. Anderson, 21 Alb. Law Jour., 338.) ■ Both tbe plaintiff and Harrison claimed the same debt of the •defendants. Interpleader has been held to be proper, although the amounts sought to be recovered by the various claimants were widely different. (Oanfield v. Morgan and Sterling, Hopk. Oh., 224; Yates v. Tisdale, 3 Edw. Oh., II; Thompson v. EUbetts cund Welch, Hopk. Oh., 272; Wilson v. Duncan, 8 ■ Abb. Pr., 354; ■Chamberlain v. O’ Connor [N. Y. Common Pleas], 8 How. Pr., 45; Mitchell v. Jffayne, 2 Stuart & Sim., 63.) The discretion of the court should be exercised in favor of the respondents, the mayor, etc. The section of the Code (820) was intended as a substitute for the bill of interpleader in equity. (Pustet v. Flannéíkj, 60 How., 67; Delaney v. Murphy, 24 Hun, 503; Vide Codifier’s Notes, 251, •original Code.) Principle on which bills of interpleader were permitted. (2 Story Eq. Juris., §§ 807, 824; see Baltimore and Ohio B. B. Co. v. Arthur, Daily Reg., Nov. 12, 1881, per curiam ■opinion.) The rights of the mortgagee remain unaltered and he is ■entitled to have the money in place of the land applied to the payment of his claim. (1 Jones on Mort., § 708; Astor v. Hoyt, 5 Wend., 603; 2 Dillon on Mun. Cor., § 612 [note], and cases there ■cited; see, also, Spears v. Mayor, cited post.) A party holding a fund in which he has no interest, and to which adverse claims are set up, is not bound to stand an action at law under a promise or ■offer of indemnity. (Bleecker v. Graham, 2 Edw. Oh., 647; Yates v. Tisdale, 3 id., 71, 76; 21 Hun, 584; 10 id., 160.)
   DaNiels, J. :

The fund in controversy was created by an award made for the ■value of the plaintiff’s interest in land taken for certain street openings in the city of' New York. After its creation, Harrison served a notice upon the department of finance claiming an interest in the awai’d to the extent of the sum of $3,000, besides the interest which had accrued upon it by virtue of a mortgage held by him against the property. And by the affidavits produced it appeared that this claim had been made without collusion with the present ■defendant, and that it claimed no right or title to the money, but held it solely for the purpose of paying the award; and that, apparently, brought the application within the terms of section 820 of the Code of Civil Procedure.

The claimant, under the mortgage, was not precluded from claiming its payment out of tbe fund, because it consisted of an award in favor of the owner of the legal title. The case arising on the application of the department of public parks (Matter of Dept. of Parks, 73 N. Y., 560) is in no manner in conflict with this proposition. For no such point was determined by it, but it was limited to a consideration of the rights of the parties when no intervening claim of this nature had been made.

The award now in controversy was evidently intended as a recompense for the value of the entire title taken in the proceedings, and it therefore necessarily included the value of a mortgage lien existing upon the property.

This view was taken of such an award in Astor v. Hoyt (5 Wend., 603), where it was held that the mortgagee was presumptively entitled to so much of the award as legally «represented the amount of his mortgage. And it is sustained by the doctrine of Hatch v. The Mayor, etc. (82 N. Y., 436), where it was declared that “ if the right of the party named in the award to receive it be disputed, it is lawful for the city to pay the sum named in it to the city chamberlain, to be secured, disposed of and improved as the Superior Court shall direct.” (Id., 438, 439.)

After notice of an adverse claim, the city cannot with safety to itself pay over the fund until the determination of such claim, and the right of the person to receive it, has been established. This is clearly the effect of the provisions of the act under which this action has been brought for the recovery of the amount of the award. For that has so far preserved the right of the true owner to the fund as to authorize him to recover it from the party named in the award as the person entitled to it, after he has himself received the money. (Chap. 86, Rev. Laws of 1813, § 184, vol. 2, p. 418.) And this act was made applicable to these proceedings by section 4, chapter 604, Laws of 1874. For it was there1 provided that proceedings to acquire the land should be taken pursuant to such acts as were in force relative to the opening of streets, etc., in the city of New York, and which were made applicable to the streets, roads, etc., to be laid out by the commissioners of the department of public parks, in the same manner and to the same extent as if they had been laid out under the act of 1807.

These facts and the rights arising out of them presented a very proper case for bringing this claimant into the proceeding, and requiring him and the plaintiff to settle the only dispute relating to the fund, between themselves, before its final payment should be directed. It was within the sectiQn of the Code to which reference has already been made and which is simply remedial in its nature. It provides an inexpensive and speedy mode for the litigation and settlement of controversies of this nature, and it should not be either so restricted, or clogged, by technical qualifications,-as to deprive it of any of the advantages intended to be secured by it under a just and liberal construction and application of it. The fact that Harrison has not claimed the entire fund is not an important consideration. For he does claim a part of the identical money claimed by the plaintiff. As this provision of the act has contemplated such a controversy there would be no reason whatever in such a construction as would require the contesting claimants to settle their rights when' they respectively related to the whole of the fund, and which should be held to deny such a disposition where the adverse claim only included a portion of it. What the Code intended by a demand for the same debt, was such a demand as was entitled to be satisfied or discharged out of the fund. That which was made by Harrison was a demand of this nature. This principle of the law as it is now embodied in this-section of the Code, was so applied to a controversy dependent upon a partial claim in Canfield v. Morgan (Hopk. Ch., 224), and in Thomson v. Ebbetts (Id., 272), and a like conclusion was followed in Yates v. Tisdale (3 Edw. Ch., 71, 76). And it was considered entirely proper that it should be applied to controversies relating to awards of this nature, by the Court of Appeals, in the unreported case of Spears v. Mayor, etc. (87 N.Y., 359). It was there said, in the opinion of the court: “ That the city would be justified to pay the person named in the award, unless it had received notice of an adverse claim. After such notice, and certainly after suit commenced for the award by a person not named in the report as entitled thereto, the city would pay to the person named therein at its peril. This construction of the statutes can lead to no serious, embarrassment of the city in paying such awards, because in the case of conflicting claims known to it, it can compel an interpleader and thus relieve itself from embarrassment or double responsibility.”

This states precisely tbe controversy wliich has arisen in this instance, and the city has availed itself of the course indicated by this opinion for the purpose of relieving itself from the embarrassment of a litigation in which it has no possible concern or controversy.

It has been objected that as the city has been required to pay interest upon the amount to be deposited only from the time when the demand was made upon it by the plaintiff for the money, and he claims that it should be computed from the date of the award itself, that this circumstance renders the case an improper one for an interpleader.

But as the city claimed no title to the fund and made no use of it, but simply held it for the benefit of and to be paid over to the party entitled to receive it, no legal principle became applicable under which interest could be claimed before the party presented himself to receive the money.

After the fund was created it was held by the public authorities in the nature of a trust for the benefit of the person entitled to it. No obligation was imposed upon the city to seek out and find the party and tender the money to him. The extent of the obligation was merely that of a depositary to keep it for^the party entitled to receive it, and that continued to be its relation to this fund until an actual application for its payment had been made. For that reason no legal principle applied to it which would obligate the city prior to that time to pay interest upon it. The act, it is true, did render the award payable upon the confirmation of the report of the commissioners. (Laws 1874, chap. 604, § 6.) But it did not provide that interest should be payable on it from that ■ time. The only effect of this provision was to entitle the party to call at once for his money. As long as he might fail to do that no default in its payment could be attributed to the city, and consequently no claim for the payment of interest could arise. By requiring interest to be added to the award from the time when the demand for payment was made, all that the law would justify was provided for in a direction contained in the order. The disposition which was then made of this controversy was clearly warranted by this section of the Code. Indeed no other course could be reasonably adopted by the city. It has no interest in the determination of

81 the conflicting claims made for this money, and it should not be required to contribute to their settlement by being a party to the litigation that may be necessary for that purpose.

The order was a very proper one, and it should be affirmed, with ten dollars costs, besides the disbursements.

Beady and BaRkee, JJ., concurred.

Order affirmed, witli ten dollars costs and disbursements.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    WILLIAM L. POMEROY and Others, Appellants, v. WILLIAM H. RICKETTS, as Receiver, etc., of MOSS & HERRMANN, Respondent, Impleaded, etc.

      Attachment — the ouppeaurance of the defendant renders sermce of the summons unnecessary— 0ode of Oiml Procedure, sec. 636 — a cause of action must he shown to authorize the issue of an attachment.

    Where, within thirty days from the time of the issuing of an attachment, the defendant appears "by an attorney, who serves a formal notice of appearance in his behalf, it is not necessary to serve the summons upon the defendant, either personally or by publication, in the manner required by section 638 of the Code of Civil Procedure.
    In an affidavit, upon which an application for an attachment was based, the cause of action was stated as follows: “The defendants owe my firm one thousand eight hundred and eight dollars and seventeen cents over and above all counter-claims known to. plaintiff and tome, for goods, wares and merchandise sold and delivered by my firm to .the defendants, who are copartners and were such during all the times herein mentioned, between January 8, 1880, and June 30, 1880. No part has been paid.”

      Held, that a cause of action was not stated with sufficient clearness to' authorize the issue of an attachment.
    Appeal from an order made at a Special Term vacating an attachment.

      Mel/ville H. Begensburger, for the appellants.

      C. W. West, for the respondent.
   Daniels, J.:

The attachment was discharged on motion of "William H. Ricketts, who had been appointed receiver of the property of the defendants in the action, in a suit brought for the settlement of their.partnership affairs.

It was shown in support of the motion that the summons had not been served personally upon the debtors, and that publication had not been commenced within thirty days after the issuing of the attachment. And under the authority of Blossom v. Estes (84 N. Y., 614) it has been urged that the attachment on account of that omission became inoperative. Such is the language of the section of the Code under which this case was decided. Rut it was made, to appear on the hearing in the present action that the defendants in the attachment had appeared, respectively, by an attorney who had served a formal notice of appearance on behalf of each of them before this period of thirty days had expired. And by section 424 of the Code of Civil Procedure such an appearance is made equivalent to a personal service of the summons upon the defendant so appearing. This provision is general and unqualified in its terms, and those contained in section 638 of the Code of Civil Procedure must be construed together with this enactment, and as so construed the voluntary appearance would be all that could be required to prevent the attachment from becoming inoperative because of the failure to make a formal service of the summons itself. Such a service is wholly dispensed with by an appearance of this nature. It is made equivalent to a personal service of the summons, and that would not be the case if it should be held to be insufficient to create a compliance with what has been required by this section of the Code. The authority already mentioned is clearly distinguishable from the present case, for there was no appearance and no service whatever of the summons in that action until after the period prescribed in section 638 of the Code of Civil Procedure had expired. The attachment there had consequently become invalid, while in this case it was in full force at the time the notices of appearance were served. The attachment, therefore, could not be vacated because this section of the Code had not been otherwise complied with than by this timely appearance of the "defendants. That substantially conformed to what was required to sustain the regularity of’the proceeding.

The order by which the attachment was vacated is not confined in its terms to any specified ground of. objection. In that respect it materially differs from the order which was considered in Baldwin v. Perry (25 Hun, 72). For there the decision in terms was restricted to one specified point, while here there was no restriction whatever in the terms of the order, and it may consequently be sustained, if that shall prove to be practicable, upon any legal ground appearing in the case, particularly if that could not have been removed or obviated, in case it had been urged in support of the application upon which the order was made. (Osgood v. Toole, 60 N. Y., 475, 479.)

The motion to vacate the attachment was made upon the papers on which it was issued, and if they were radically defective the defect could not be supplied by adding further affidavits or other proof in the case. For it is only when the application is founded upon proof by affidavit on the part of the defendant, that it can be opposed by new proof on the part of the plaintiff. (Code of Civil Procedure, § 683.)

Before the attachment could be issued at all, it was requisite that The plaintiff should show, by affidavit, that one of the causes of action mentioned in section 635 of the Code of Civil Procedure existed in their favor. This provision is imperative. And by section 636 of the Code of Civil Procedure, it is an indispensable circumstance to be established before the right to an attachment can be made to appear, and no hardship is imposed upon the plaintiff, who is allowed to prove this fact by his own affidavit, in requiring that it should be made out with a reasonable degree of clearness. He must certainly be required to show that he has a demand upon which the defendant has become legally liable to the recovery of a judgment against him before a cause of action will be made to appear. The affidavit in support of the application for this attachment did not show the existence of a cause of action in favor of the plaintiff. It simply contained a recital from which the plaintiff making the affidavit concluded that such a right of action did exist. The statement was that “ the defendants owe my firm $1,808.17, over and above all counter-claims known to plaintiff and to me, for goods, wares and merchandise sold and delivered by my firm to defendants, who are copartners, and were such during all the times herein mentioned, between June 8, 1880, and June 30, 1880. No part has been paid.”

This was not a statement that the plaintiffs in fact had sold goods, wares or merchandise to the defendants of the value of the sum mentioned, or for which they had agreed to pay that sum. But it was of the most general character, stating no time, amount or value, and from that the inference was derived, not supported by a statement of any facts or circumstances, that the defendants owed this amount to the plaintiffs. The case in this respect differs from that of Kiefer v. Webster (6 Hun, 526), where it was stated that the defendants had promised to pay the amount claimed, and from which the inference could properly be drawn, that the goods sold and delivered were sufficient in amount to sustain the promise to pay the sum of money included in it. The statement contained in the present affidavit falls very far below the standard 'that was then held to be sufficient, .and it does not comply with what this section of the Code has rendered necessary to justify the issuing of an attachment. For that purpose, the cause of action must be shown by affidavit, and that can only legally be done' by setting forth the facts by which the liability shall appear’to have been created. ’ The complaint made in the case was not sworn to, and for that reason it added no possible weight to the defective affidavit upon which this attachment was issued. And beyond that it formed no part of the papers used to obtain it. As to this point the ease was not made out to a sufficient degree of certainty to allow the attachment to be issued. The order setting it aside was clearly right therefore, and it should be affirmed, with the usual costs and disbursements.

Brady, J., concurred.

Present — Daniels and Brady, JJ.

Order affirmed, with ten dollars costs and disbursements.


text:
    JOHN W. GREENE, as Administrator, etc., Appellant, v. JOHN MARTINE and Others, Respondents.

      Bevjval of action— the devisees of a deceased debtor cannot be joined, in an action to recover the debt, with the personal representatives of the deceased.

    This action was brought to recover a debt owing by one Theodore Martine. Martine having died, the action was revived and continued against the executors and trustees named in his will. Subsequently the plaintiff, fearing that the personal' estate might prove insufficient to pay any judgment that might be recovered, applied to have the action extended by having the devisees made parties defendant to it.

      Held, that the application was properly denied, as, if granted, it would in effect authorize the joinder of two distinct and divisible causes of action.
    That the fact that the statute of limitations might prove to be a defense to a separate action brought against the devisees did not affect the propriety of the denial of such a motion.
    Appeal from an order made at Spécial Term denying a motion made for leave to revive and extend tbis action, so as to make tbe devisees of Theodore Martine, deceased, defendants therein.

      G. Tillotson, for the appellant.

      Ghas. A. Jackson, for the respondents.
   Daniels, J.:

The action was prosecuted for the recovery of a debt owing by Theodore Martine. Before its completion he died, leaving a will appointing John Martine and others his executors and trustees. It was afterwards revived, by an action brought for that purpose, by making them defendants in the suit for the recovery of the debt; and upon the expectation that the personal estate must prove insufficient to pay it in case of its recovery, an application has been' made further to revive and extend the action by maküig themselves and the other devisees, as devisees, defendants in it. If such an application could be made successful, the effect of it would be to join what the law has made the subjects of two actions, in one. For the case would then proceed against the personal representatives for the recovery of the debt, and at the same time against the devisees to charge them with its payment, so far as they might be proven to be liable, because of the acquisition by them of the property of the testator, under his will. This, in effect, would be to join two distinct and divisible grounds of action, one of which would affect-only a portion of the defendants in the suit, and no provision has been found, either in the Code or in any of. the former rules of practice, sanctioning an order directing such rights of action to be so joined in one proceeding. The form of the statute, as well as the usual course of legal proceedings, contemplate a separate and distinct action for the purpose of attaining these different ends.

One is adapted to the recovery of the debt from the personal representatives ; the other is an action to charge the devisees with its payment, because of the property received by them under the will of the debtor. The scope and object of each is separate and distinct, and each is to be established by different measures of proof. The first may be made out by proving the legal existence of the debt itself; but the second can only be maintained when it shall be made to appear that the personal assets of the testator and his real estate descended to his heirs, are insufficient to discharge the debt, or that in proceedings before the surrogate, and at law, the creditor has been unable to recover it. (3,. R. S. [6th ed.], 738, § 56.) A unity of such rights of action in the same legal proceeding would appear to be so anomalous and incongruous as to be a sufficient ansvver to such an application.

The ground upon which the effort has chiefly been made to sustain the application is the apprehension that the statute of limitations may prove to be a defense to a separate action brought against the devisees. Whether such a defense might successfully be made by them, where no untimely delay should be allowed to intervene, after the determination of the action against the personal representatives, before the commencement of an action against the devisees, it is not necessary now to determine. But if it shall be assumed that they could in that case avail themselves of the statute of limitations as a defense, they probably could not be deprived of it by making them, as devisees, defendants in this action.

To the present time these devisees, as such, have neither of them been parties to this litigation. And if they have acquired a vested right under the statute to defeat the statutory action against them, the court would hardly have the power to divest and deprive them of that right. In this respect the application differs from those which were allowed to prove successful in Deane v. O'Brien (13 Abb., 11), and Hatch v. Central National Bank (78 N. Y., 487). For in both those cases, the parties against whom the amendments were allowed were defendants in the actions in the same character, both before and after the amendments, and the claims allowed to be added were of the same nature as those upon which the actions had previously been prosecuted ; while in this case they are distinct and separate in their legal character. The order which was made appears to have been right, and it should be affirmed, with the usual costs and disbursements.

Brady, F. J., concurred.

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

Order affirmed, with ten dollars costs and disbursements.


text:
    THE YAMATO TRADING COMPANY, Respondent, v. WILLIAM P. BROWN, Appellant, Impleaded, etc.
    Evidence— an examination of a pa/rty before trial will not be ordered for the purpose of requiring him to show that he has been guilty of obtaining property by false representations — Code of Civil Procedure, sec. 880.
    In an action brought to recover property alleged to have been wrongfully taken and detained, the defendant cannot be required to appear and be examined as a witness before the trial, when it appears that the entire object of the examination is to show by his own testimony, and from his books and papers, that he procured the property from the plaintiff by means of false -and fraudulent representations concerning his circumstances and ability to pay therefor.
    Appeal from an order denying a motion made to vacate an order requiring the defendant Brown to appear and be examined as a witness in this action before trial.

      Arthur R. Robertson, for the appellant.

      Taylor di Parker, for the respondent.
   Daniels, J.:

The action has been brought to recover a quantity of raw silk as the property of the plaintiff, and wrongfully taken and detained by the defendant.

The silk had in form been sold and delivered by the plaintiff to the defendant upon credit, and the action is prosecuted for the recovery of its possession, because of fraudulent representations alleged to have been made by the defendant concerning his circumstances and his ability to pay for it. Proofs of these facts appear to be necessary in order to avoid the credit, and in that manner to entitle the plaintiff to recover the property. And it is for the purpose of obtaining that proof that the order has been made for the examination of the defendant. In the affidavit it is stated that the plaintiff intends to show by Brown -on his examination that he was insolvent at the time when he obtained the silk, and in that manner to render it evident that his representations and statements as to his financial standing and solvency were not only untrue, but were known to be so by him. That the plaintiff has no other means known to it whereby it can show the true financial condition and the assets and liabilities of Brown at the time when he purchased the goods. That the examination of Brown as to such facts, and to show his insolvency, was actually necessary for the benefit of the plaintiff on the trial of this action ; and it was further proposed to show by him and his books and papers that his liabilities exceeded his assets, and he had been in that condition for a long time prior to obtaining possession of the goods, and that he stated and represented himself to be worth many thousand dollars, for the purpose of inducing, and thereby did induce, plaintiff to deliver the goods to him.

If these were the facts, by means of which the defendant obtained possession of the goods, then he was guilty of procuring them by false pretenses, for which he was liable to be indicted, convicted and .punished. . And that liability still exists. For the sale was made on or about the 28th of April, 1881. The entire object of the examination, as it has been made to appear, is to show by Brown and his books and papers, which are expected to be produced, that he proQured this property from the plaintiff by means of false and fraudulent representations concerning his circum stances; and it therefore becomes important to determine whether he can be subjected to an examination as a witness to prove these facts. It has been provided that the examination of a party under an order is subject to the same rules as if he was examined upon the trial. (Code of Civil Pro., § 880.) And if he should be examined upon the trial, he could not be required to give an answer which would tend to accuse himself of a crime, or misdemeanor, or to expose him to a penalty or forfeiture. (Id., 837.) This was also the rule as it existed before the adoption of the Code. For a witness was not required to give any answer which would have a tendency to accuse-himself of any crime or misdemeanor, or to expose him to any penalty or forfeiture, or when, by answering, a link may be added to a chain of testimony tending to such result. (Henry v. Salina Bank, 1 Com., 83, 86, 89.)

This subject was considered in Phœnix v. Dupuy (2 Abb. N. C., 146, 158, 159); and it was there held that the examination of a party could not be taken under these provisions of the Code when it would tend to establish the fact that he had been guilty of a crime or misdemeanor. And the same conclusion is adopted in Burbank v. Reed, by the General Term of the Second Department. (11 Weekly Digest, 576.)

Under these provisions of the Codé, sustained and applied as they have been by the courts, the order which was made in this case for the examination of the defendant was unauthorized. It must, therefore, be reversed and an order entered vacating the order requiring the defendant to appear and be examined, with ten dollars costs, besides disbursements to the appellant of this appeal.

Brady, P. J., concurred.

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

So ordered.


text:
    SARA C. W. TILBY, Appellant, v. AUGUSTUS J. HAYES. JAMES TILBY and Others, Heirs-at-law of JAMES TILBY, Respondents.

      Power of the court to allow pm'ties, interested in the event of an action, to intervene.

    The plaintiff claiming to be the widow of one James Tilby, deceased, presented his will for probate before the surrogate. That application was opposed by the heirs-at-law of James Tilby, upon the ground that the plaintiff was not the widow of the deceased, for the reason that she was the wife of Hayes, the defendant in this action, at the time of the alleged marriage with Tilby. Prior to Tilby’s death the plaintiff had brought this action against the defendant, Hayes, to procure a judgment declaring a marriage, formally solemnized, between them, null and void, because of his fraud, and had procured therein a report of the referee in her favor.

      Held, that it was proper for the court, upon the application of the contestants, to send this action back to the referee, and allow them to produce and examine witnesses, and cross-examine the plaintiff and the other witnesses already examined.
    That if the plaintiff so desired she might have the said contestants made parties defendant to this action.
    Appeal from an order referring this action back to the referee and permitting James Tilby and others to produce and examine witnesses upon the reference, and to cross-examine the plaintifE and such other witnesses as have been already sworn and examined on the hearingj
    The action was commenced in J une, 1880, to have a marriage, solemnized in 187J, declared null and void. James Tilby, whose widow the plaintifE claims to be, died in October, 1881.

      JSrastus Coohe, for the appellant.
    A. R. Dyett, for the respondent.
   Daniels, J.:

The action was brought to procure a marriage, formally solemnized between the plaintifE and the defendant Hayes, to be declared null and void because of his fraud. After such marriage she intermarried with James Tilby, now deceased, and after his decease she, as his widow, presented his will for probate before the surrogate of the county of New York. This was resisted by and on behalf of Tilby, and another respondent, upon the ground that the plaintiff was not the widow of the testator for the reason that she was the wife of another person at the time of her marriage with him. How this fact may become important in the proceeding before the surrogate has not been made to appear, but that it is so regarded by the parties may be inferred from the contest which took place before the ■order was made, and which has now been renewed upon the argument of the present appeal. If the plaintiff was legally married to Hayes, who ivas still living at the time of her intermarriage with Tilby, the testator, that may deprive her of rights which she now ■claims under this will. And so far as that circumstance may be attended with that result, the heirs of Tilby are interested in resisting her application for judgment in the action prosecuted by her against Hayes to obtain a decree declaring her marriage with him to be null and void. If she was lawfully married to Hayes as they allege the fact to have been, then her marriage with Tilby was unlawful and she could claim no advantage by means of it from the estate left by him. As Tilby is dead, the motive for a prosecution of the action against Hayes may very well be to place the plaintiff in a position where she may lawfully claim that no valid marriage ■subsisted between herself and Hayes. Each of these parties, therefore, seems to be directly interested in the result which may be secured by the prosecution of the plaintiff’s action against Hayes, as the judgment in the action may exert an important influence one way or the other over the determination of her rights under the will. These are the parties, and they alone, as Hayes makes no •defense, who are really interested in prosecuting and contesting this action, and for that reason the order allowing Tilby’s heirs to appear and cross-examine the witnesses and produce others in the ■case, would appear to be proper. It is true that they might successfully resist the judgment after its recovery by the plaintiff, if her action against Hayes is collusive, as they allege the fact to be. But that would be much more difficult than the course the order has allowed them to take, of bringing in witnesses and by the cross-examination of the plaintiff and her witnesses proving this to be the nature of her suit,- before the action can result in a judgment.

An order of this nature was made in Clay v. Clay (21 Hun, 609). But as that was made to afford the person whose reputation might be injuriously affected by the result, the means of protecting herself, it has been urged in support of the appeal that it is not an authority sustaining this order. But if an order of this nature may properly be made to protect the character of a third person brought in controversy in an action for a divorce, as it was then held to be, the same principle must necessarily be broad enough to include a like order, when it may become necessary for the protection of the proprietary interests of third persons. The principle that will include one class of cases in its reason and spirit, will likewise comprehend the other. This principle has been sustained by the ecclesiastical courts of England in actions designed to affect the marital relations of parties to them. (Bishop on Marriage and Divorce [6th ed.], § 309.) And it was followed and applied in the case of Price v. Price (reported improperly in 2 Thomp. & Cooke, 558, under the head of “ Anonymous).”

"Where parties’ rights, reputation, or other important interests may be injuriously affected by what there is reason to believe is a friendly litigation of this nature between others, justice requires that they should be allowed to intervene so far as that may be necessary for their own protection. It is also due to the court in which the action may be pending that the truth shall be shown, and such proceedings will insure that result, and at the same time guard the parties entitled to the maintenance of their rights against the risk of being improperly and collusively deprived of them.

The order went no further than was necessary for this purpose. If it should prove desirable on the part of the plaintiff that these persons should in form be named as defendants in the suit, a modification of the order to that extent will be made. But if that should not be deemed advisable then the order should be affirmed in the form in which it has already been made, without costs to either party.

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

Order modified as directed.


author: Barker, J.:

text:
    In the Matter of the Application of JOSEPH MATHEWS, General Guardian of MARY JANE MATHEWS, a Minor.

      '■Special guao'dian, for sale of infant’s real estate —fees and commissions of, are to be determined by the court.

    'There is no statute providing for the commissions to he paid to special guardians appointed in proceedings to sell infant’s real estate, or fixing the costs and expenses which may he allowed in conducting the same, or the fees of the attorney or referee. All the costs and allowances which can he charged upon the fund are within the discretion of the court, and are fixed and provided for in the rules of the court.
    Appeal from an order made at Special Term in this proceeding to sell the real estate of a minor over fourteen years of age, fixing the compensation of the special guardian at $100, and refusing him ■an allowance, as commissions, as provided by statute in cases of executors.
    The infant had a general guardian who joined in the petition .asking for leave to sell.- The proceeds of the sale amounted to $2Y,000. Twelve thousand dollars thereof was paid over in cash .and the balance was secured by bond and mortgage running to the special guardian. In the order confirming the sale the special guardian was ordered to pay the expenses of the proceedings, the .same being determined in the order, and pay over the balance to the general guardian, and also to assign to him the bond and mort.gage. The special guardian claims .-the further sum of $445 as commissions. After the order confirming, the sale and making the allowance of $100 to the special guardian was made and entered he made a special application to the court for an allowance of the •commissions claimed, which was denied, and the appeal is from that order.

      John Chetwood, for special guardian, appellant.

      G. N. Bovee, Jr. (Arnoux, Bitch c& Woodward), for general .guardian, respondent.
   Barker, J.:

The special guardian bases his claim for further allowance and commissions on the provision of the twenty-second section of chapter 8, part 2, title 3 of the Bevised Statutes (2 B. S., 153), which is as follows : “ Guardians shall be allowed for their reasonable expenses, and the same rate of compensation for their services as is provided by law for executors.” The title in which this provision is found relates to the mode and manner of the appointment of testamentary and general guardians; the nature and character of their powers and duties over the person and estate of their wards; the security which they shall give for the proper discharge of their duties; the compensation which they shall have for their services, and naming the tribunals before which they may be summoned to account, and under what circumstances they may be discharged or removed from their trusts. It seems manifest that these provisions have no application whatever to special guardians, either as defining their duties and powers or as determining the compensation which they shall receive for their services. The character of the services rendered by testamentary and general guardians are very similar in most instances, so much so as to properly admit of a fixed statutory compensation, thereby depriving the guardian of all opportunity of overreaching or imposing on his ward as to his fees and commissions.

There is no statute providing for commissions to be paid to special guardians appointed in proceedings to sell infants’ real estate. Nor is there any fixing the cost and expenses which may be allowed in conducting the same, and no provision is made for attorney’s fees or the expenses of a reference. All the costs and allowances which can be charged upon the fund are within the discretion of the court and are fixed and provided for in the standing rules. From the time the proceedings are initiatedjfor the purpose of securing a sale of infant’s real estate he is made the ward of the court, and the proceeds of the sale are under its care and protection. (Code of Civil Pro., § 2360.)

The special guardian who is to represent the infant is named by the court to do such services and make such inquiries as may be required of him, and he has no other duty to perform. He is entitled to such compensation for his services as the court may deem reasonable. (Rule 50.) In this respect lie stands in the same relation to the court as special guardians who are appointed in actions and other proceedings.

In view of the services rendered by the appellant in these proceedings we think .the learned justice who made the order gave the special guardian a fair and reasonable allowance.

■ The order appealed from is affirmed ; no costs awarded.

Brady, P. J., and Daniels, J., concurred.

Order affirmed, without costs.


author: Brady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. WALTER H. CHASE, Appellant.

      Divorce — the judgment of a foreign court, when void as to a citizen of this State— when new documentary evidence cannot be brought, in the first instance, before the a/pyellate court.

    A court of another State cannot adjudge to be dissolved and at an end a matrimonial relation of a citizen of this State, who is domiciled and actually abiding here throughout the pendency of the judicial proceedings in such other State, when he has not personally appeared therein, and when process was not personally served upon him there, or actual notice of the proceeding given to him.
    The appellant was convicted of bigamy, by reason of the court below holding that a judgment of divorce procured by him, from a former wife, in another State, was valid. Upon an appeal brought by him the appellate court held that the judgment was void.
    The district attorney, in order to sustain the conviction, sought to produce upon the argument, a decree of divorce procured in this State by the said wife against the accused."

      Held, that this could not be done.
    Appeal from a judgment of the Court of G-eneral Sessions of the city and county of New York, convicting the defendant of bigamy.

      John 0. Mott, for the appellant.

      John McKeon, district-attorney, for the people. '
   Brady, J.:

The appellant was charged with the crime of bigamy. The indictment averred.that, on the 22d of February, 1876, at the town of Springport, in the State of Michigan, he married one Mary Sanford, and on the 1st of October, 1881, at the city of New York, he also married Alice E. McElroy, and that Mary Sanford, at the time of the second marriage, was living. The appellant, in 'response to the accusation thus made against him, proved that he was married on the 25th day of December, 1867, at Alexander, Genesee county, in this State,'to Florence Adele Strong, and that she was living on the 22d of February, 1876, in Batavia, in this State, which had always been her home. The defendant’s counsel thereupon offered in evidence section 1 of chapter 170, of the Compiled Laws of the State of Michigan, which is in the following words, to wit:

Section 1. “ All marriages which are prohibited by law, on account of consanguinity or affinity between the parties, or on account of either of them having a former wife or husband then living; all marriages solemnized when either of the parties was insane or an idiot, and all marriages between a white person and a negro, shall, if solemnized within this State, be absolutely void, without any decree of divorce or other legal process.”

The. defendant, upon cross-examination, asserted that he was not divorced from Adele Strong by the decree of the Circuit Court of Cook county, in the State of Illinois, upon the 25th of December, 1875. The district attorney in rebuttal offered in evidence a paper entitled a “ transcript of proceedings,” from which it appeared that the appellant had instituted in that State a proceeding against Florence A. Chase, his wife, which resulted in a decree of divorce, founded upon a charge of desertion by her, without any reasonable cause, for the space of two years prior to the filing of the bill.

This evidence was objected to upon the ground, that it appeared upon the prosecution herein, that Florence. A. was a non-resident of the State of Illinois at the time of the proceedings for a divorce, and had always been a resident of this State, and upon the further ground that the paper was immaterial, incompetent and irrelévant. The objection was overruled and an exception duly taken. The defendant’s counsel then objected to the introduction of the document on the ground that it had not been proved that there was, at the times mentioned in it, any such court in the State of Illinois as the Circuit Court of Cook county, or that it had any jurisdiction over the parties or the subject-matter therein stated, and further that there was no identification of the parties. These objections were overruled, and the defendant’s counsel duly excepted.

The defendant’s counsel, also, upon the conclusion of the testimony, requested the court to instruct the jury to acquit the defendant upon the ground, amongst others, that it appeared that the defendant was married in 1867, and that the person to whom he was then married was living at the time it was alleged in the indictment that he was married to Mary Sanford, in Springport, Michigan, thereby rendering the marriage to the latter, under the law of Michigan, void, and so void here.

The court refused to charge as requested, and an exception was duly taken.

The court, on submitting the case to them, charged the jury that on the undisputed facts, it appeared that the defendant was married to one Florence Adele Strong on the 22d of February, 1867, and that on the 25th of September, 1875, he was divorced from her by a decree which was rendered by a competent court having jurisdiction of the subject-matter of the action, to which an exception was taken.

The court also instructed the jury as follows :

“ I hold, and so charge, for the purposes of this trial, that at the time the defendant contracted the second marriage with Mary S. Chase he was then competent in law to contract a valid and legal marriage, and that that marriage was a valid and legal marriage in law.” To this the defendant’s counsel excepted.

Several other exceptions were taken during the progress of the trial by the defendant’s counsel, but in the view which is taken of this appeal, it will be unnecessary to consider them.

It will have been perceived that by the statute of Michigan a marriage in that State between parties, either of whom at the time had a former wife or husband then living, should be absolutely void without any decree of divorce or legal process, and it follows that unless the divorce which was obtained by the appellant in the State of Illinois was a valid dissolution of the contract of marriage existing between him and Florence A. Strong, tbe marriage in Michigan was absolutely void ab initio. In other words, it was in legal effect no marriage whatever.

It is quite apparent from the evidence that at the time of the prosecution of the divorce proceedings in the State of Illinois, the defendant Florence A. was a resident of this State, and that no personal notice was given to her, nor is there any proof of personal service of a copy of the proceedings upon her. According to the transcript it appears that she wras duly served with notice of the pendency of the suit by service of a copy of the bill of complaint in the manner prescribed by statute, but what that manner was does not appear. It may have been by publication. No evidence relating to the asserted decree of divorce was given, other than the transcript already mentioned, and this seems to have been in answer to the statement of the appellant on cross-examination, that he was not divorced from Florence A. by a decree of the Circuit Court of • Cook county, in the State of Illinois. The people, having introduced the decree of divorce mentioned in evidence, were bound to show; that it was legal within the adjudications of this State on the subject; which they failed to do by omitting to show personal notice or other facts establishing that the court in which the decree was entered had jurisdiction over the defendant Florence A. That this was an essential element has been decided in the case of The People v. Baker (16 N. Y., 88).

It was distinctly declared in that case that a court in another State could not adjudge to be dissolved, and at an end a matrimonial relation of a citizen of this State, domiciled and actually abiding here throughout the pendency of the judicial proceedings there, without a voluntary appearance by him therein, and with no actual notice to him thereof, and without personal service of process upon him within that State.

Having, arrived at this conclusion, and applying the statute of Michigan, to which reference has been made, it appears that the marriage which took place in that State was absolutely void, because, as already suggested, it is not a valid marriage by the law of the State in which the ceremony was performed. As the proof stood, therefore, the defendant was shown to have been married once and once only. It is not disputed that in order to convict a person accused of bigamy, tbe second marriage must, according to the laws of the State where it occurred, be valid, a rule-which was recognized by the learned recorder in charging the jury,-and who, as we have seen, instructed them that the marriage in -Michigan was a valid marriage until it was set aside by a court, and of course that meant a court of competent jurisdiction.

The- learned district attorney produced, upon the argument, a copy of the decree of a divorce in an action brought by Florence A. Chase against the appellant, which was granted on the 8th of February, 18Y6, and which was therefore a few days before the marriage was contracted in the State of Michigan, and asked the., court m banc to take judicial notice of the fact of such decree.

"We find no warrant for any such proceeding from an examination of the cases cited od the part of the people, and an examination of the subject generally. No adjudication has been found which, establishes the right of the people to resort, in a prosecution for bigamy, to such a document in banc, to sustain a conviction. It was the duty', of the prosecution to have proved that fact on the trial, if it was intended to use it against the appellant,-in order that be might have the opportunity of answering it if he could do so. The right to convict' did not rest upon that decree, but upon the decree of divorce entered in the State of Illinois, of which proof was given. Under the circumstances, it is impossible to sustain the conviction herein, a conclusion at which the court arrives with regret. But the statute of the State of Michigan leaves no other'alternative.

The judgment must be reversed, and a new trial ordered.

Davis, P. .L, and Ingalls, J., concurred.

Judgment reversed, and new trial ordered.


author: Beady, J.: Davis, P. J-:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN NUGENT, Appellant, v. THE BOARD OF POLICE COMMISSIONERS OF THE CITY OF NEW YORK, Respondent.

      Public officer — right of, to recom' his salary for time during which, by reason of his being imprisoned, he has been prerented from discharging the duties of his office.

    On June 13, 1879, the relator, who was then a member of the police force of the city of New York, was placed under arrest by order of his superior officer, and committed to the city prison, on a charge of burglary. He remained in prison until January 17, 1880, when he was tried and acquitted in the Court of General Sessions. On the day of his acquittal he reported for duty, and on the twenty-fourth of January, he was_ tried before the board of police commissioners and dismissed from the force.

      Held, that he was entitled to recover his salary for the time during which he was confined in the prison. (Davis P. J., dissenting.)

      People ex rel. Bycin v. The Board of Police (MS. Ct. of App.) followed.
    Appeal from a judgment in favor of the defendant, entered upon a verdict directed by tbe court.

      Howe di Hummel, for the appellant.

      William, C. Whitney, for the respondent.
   Beady, J.:

This action was instituted for the recovery of salary alleged to be due the plaintiff as a police officer. It appeared in evidence that the relator was a member of the police force until the 13th of June, 1879, upon which, day he was placed under arrest by order of his superior officer, Inspector Byrnes, and further that he was committed to the city prison on that day charged with the commission of a burglary, and remained confined until the 17th of Jaiiuary, 1880, when he was acquitted, after a trial in the Court of General Sessions. It also appears that on the day last named, after his acquittal, he reported for duty at the eighteenth precinct, from which he was detailed, and, on the twenty-fourth of the same month, he was tried before the board of police commissioners and dismissed from the police department. It further appears that on the 10th of December, 1879, the relator applied at the Special Term for a mandamus to compel the board of police and its treasurer to place his name upon the pay rolls of the police department, and to pay his salary as a member of the police force, which application was denied, with leave, however, to renew the same after his trial should have taken place.

The counsel for the respondent, these facts having been established, requested the court to direct a verdict for his clients, on the ground that it appeared that from the 13th of June, 1879, or certainly within eight days therefrom, the relator was absent five days consecutively, without leave, which, under the provisions of the law of 1873, terminated absolutely the connection of the officer with the police force; and upon the ground also that the relator was an officer seeking to recover salary for a period during which he rendered no service whatever. The counsel for the relator then requested the court to direct a verdict for his client for the amount claimed, upon the ground that the police authorities by their own action made it impossible for the relator to perform any -service during that period; whereupon the court directed a verdict for the respondent and the counsel for the relator duly excepted.

There is no doubt of the general rule that an officer is not entitled to compensation unless he has rendered the service incidental to his office. (Smith v. The Mayor, 37 N. Y., 518; Dolan v. The Mayor, 68 id., 274; McVeany v. The Mayor, 80 id., 185; Wood v. The Mayor, 12 J. & S., 325; People ex rel. Ryan v. French, 24 Hun, 263.) But this rule can have no application to a case where the officer is prevented by the exercise of a superior power, residing within the sovereignty of the State, which unjustly deprives him of his liberty. The relator was arrested by a sujDerior officer on behalf of the people, on a charge of which he was declared to be innocent, and held in durance vile for a-long time, and thus precluded from discharging his duty. He was not voluntarily absent from his post from the time of his arrest until the day of his acquittal, and on that day, as soon as the opportunity occurred, he presented himself for duty. It cannot be said with any propriety, therefore, that he was absent without leave, which implies and necessarily involves an omission to appear or present himself for duty voluntarily when he had the opportunity to do otherwise. Ilis position could not be considered vacant, and it would seem, from his trial by the police commissioners subsequent to his acquittal, that his office was not regarded as having been vacated up to the time of his acquittal. Not having lost his office and having been restrained of his liberty unjustly by the people of the State, in the exercise of their power, initiated through a member of the police department, it would seem to be unjust that he should be deprived of his salary during the period of his confinement. It may be said that this is one of the unfortunate incidents attending an arrest upon a charge of which the accused may be innocent; but that phase does not furnish any answer to the proposition that the appellant having been prevented by a superior power and unjustly, from discharging the duties of his office, his case is not one within the general rule already expressed in kindred cases, and which declares that no compensation can be recovered unless the contemplated service has been rendered. This case is not distinguishable in principle from that of The People ex rel. Ryan v. The Board of Police (MSS. opinion of the Court of Appeals, per Danforth, J., April 11, 1882), decided since the foregoing was written. In that case it appeared that the relator was absent-on sick leave, and it was contended that he could not recover his salary because he had not rendered the services contemplated by law. The court held that so long as he possessed the office the salary could not be withheld from him by reason of his involuntary disability to render the service.

This case seems to be within the principle of the case recently decided by the Court of Appeals referred to in the within opinion.

The judgment should be reversed and a new trial ordered.

Ingalls, J., concurred. •

Davis, P. J-:

I think this case was properly disposed of by the court below, and that the judgment should be affirmed.

Judgment reversed and new trial ordered.


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

text:
    STEPHEN TUNSTALL, Respondent, v. WALTER W. WINTON, Appellant.

      Order of arrest — when a husband who has deserted his wife may be wrested in an action brought by one who has supported her — Gode of Oivil Proeedwe, see. 550, sub. 2.
    Where a husband has without cause or provocation abandoned his-wife and fraudulently disposed of his property in such a manner as that it cannot be appropriated to her support or to the payment of the debts she might contract on his credit for that purpose, he may be arrested under subdivision 2 of section 550 of the Code of Civil Procedure, in an action brought against him by one who has expended moneys in supporting and maintaining the wife while so abandoned. (Davis, P. J., dissenting.)
    Appeal from an order made at a Special Term, denying a motion to vacate an order of arrest.

      B. F. Sawyer, for the appellant.

      F. P. Wilder, for the respondent.
   Ready, J.:

The motion to discharge the order of arrest was made on the plaintifE’s papers. The action was brought by the plaintiff to. recover for moneys expended for the support and maintenance of the wife of the defendant for a senes of years, during which time she had been abandoned without any provision having .been made for her by her husband.

The facts are that the defendant was married to the plaintifE’s daughter in November, 1866, and lived with her at Scranton, Pennsylvania, until September, 18when he suddenly and without any notification of his intention to do so, and without cause or provoeacation, and when his wife was sick and in need of medical attention, fled from Scranton in company with a woman of that place, alleged to be of unchaste repute. After diligent and persevering search on the part of his wife, assisted by the police and by an advertisement, the defendant was traced to Detroit, Michigan, where, upon discovering that his wife had traced him to that place and was pursuing him, he fled to Elyria, Ohio, thence to Canada and finally to this city, where he was discovered in July, 1881, doing business under the name of William Winthrop. He continued to reside with the woman in whose company he left Scranton, and in the meantime obtained from some court in Wisconsin a divorce from his wife, on the ground that she had deserted him. The complaint herein alleges that the decree of divorce was obtained fraudulently .by false allegations and subornation of perjury, and that no process was served upon his wife, and that no court had jurisdiction to grant the divorce. The defendant having moved upon the plaintiff’s papers must be regarded as admitting the truth of all these allegations against him. His sudden departure from Scranton, Pennsylvania, was made with the intention to avoid the payment of any sums necessary for the support of his wife. In other words, to avoid the obligation of supporting her, which he was bound t<£ do by contract of marriage. The letters which were produced in the case show- the disposition of some property which he had, as a part of his design in fleeing from Scranton, Pennsylvania. By thus leaving his wife he authorized any person dealing in necessaries, or willing to. do so, to supply a proper amount thereof for his wife, for which he would be liable upon an implied promise to pay, arising out of his obligation as a husband. As observed in 1 Parsons on Contracts, 150, The courts now show a tendency to rest the responsibility of the husband for necessaries supplied to the wife on the duty which grows out of the marriage relation, and therefore not upon any supposed agency. These necessaries would be commensurate with the husband’s duty of maintaining her and supplying all her wants according to his ability.” The Code, by section 550, provides that the defendant may be arrested in an action upon a contract, express or implied, where he has, since the making of the contract, or in contemplation of making the same, removed or disposed of his property with the intent to defraud his creditors. The defendant- In contemplation of the implied contract which he made, by his departure, with any person who might supply the necessaries of life to his wife, and to avoid the effect of such contract, took away with him property evidently with the intention, as already suggested, of removing or disposing of it in such a way that it could not be reached by process of law.

In the letter written by the woman with whom he left Scranton, and. dated the 26th of April, 1876, she said; “Walter’s property is fixed so they cannot get anything, unless they get Walter’s father to pay them so much for a divorce.”

This is prwna faoie sufficient, and the appropriation of property' made by him, taken in connection with his flight, to show a fixed determination on the part of the defendant so to arrange his affairs and dispose of his property in contemplation of his liability as a husband, as to defraud his creditors who might supply his wife with necessaries, and would seem to be sufficient therefore under the section of the Code in contemplation. There is, however, another, feature in this case, namely, the fraud perpetrated by the defendant in reference to his implied contract. “ The test of the liability to arrest in such an action,” said ANDREWS, J., in Hathaway v. Johnson (55 N. Y., 95), “is the guilt of the defendant in contracting the debt or incurring the obligation sued upon. There must have been a fraudulent purpose in contracting the debt or incurring the liability on the part of the defendant.” And these observations would seem to apply as well to the removal of the property as to fraud in incurring the obligation. The defendant, by secretly leaving Scranton, without cause or provocation, with the intention of separating from his wife, and with the further intention of making no provision for her support, and abandoning her, and thus making it necessary for some person to supply her wants, incurred the obligations which the furnishing or selling such supplies would create. This was a fraudulent scheme, involving a preconceived design of incurring an obligation which he did not mean to discharge. I am aware that this may be regarded as extending the doctrine of frauds beyond its ordinary limits. But the implied contract to pay at once, created by the defendant’s abandonment, was conceived in fraud, and carried out'in the same spirit, as indicated by the sudden and secret flight, and by appropriation of property, and by “ fixing matters,” to use the language of the letter to which reference has been made, in such a way as to prevent success in the effort to collect the amount which might become due from him for necessaries furnished his wife. The contract to pay for them is implied; the intention to avoid the payment is clear, and the preconceived design palpable. The conduct of the defendant presents, in support of this view — sudden and clandestine flight, adultery — the intention to obtain a divorce by improper and fraudulent means, abandonment of his wife, and consequent design and intention to avoid the payment of the debts for her maintenance, which he impliedly contracted by such flight and abandonment. He is liable therefore to arrest .in both aspects of the case, and should be held in order to prevent another sudden departure to avoid the.payment of his debts.

. The order of arrest should be affirmed, with ten dollars costs and the disbursements of the appeal.

Daniels, J. :

From the manner in which the defendant abandoned his wife he must have been aware of the fact that her necessities could only be provided for by contracting debts on his own or her credit. The law empowered her to create debts for such purposes against him, and that she appears to have done. These debts in legal contemplation were His debts, and there is evidence in the case that he disposed of, or in the language of the letter of his paramour he had fixed, his property so that it could not be appropriated to the payment of such debts. This was a fraud upon the persons who, upon his credit, might trust his 'wife for such necessaries as were required for her support; and that brought the case within subdivision 2 of section 550 of the Code of Civil Procedure, for it established the fact that he had disposed of his property with intent to defraud his creditors. I agree, therefore, to the conclusion of Mr. Justice Bbady that the order denying the motion to vacate the order of arrest should be affirmed.

Davis, P. J.

(dissenting):

It has often been said that hard cases mate bad law.” The humane impulses of judges are apt in such cases to take the place of the settled rules and principles of law which by their application to the particular case seem to work a wrong. It may well be that to eases like the present the legislature can with propriety extend the right to arrest and imprison a debtor, but it has not done so. It has declared by statute what exceptions shall exist to the general enactment that imprisonment for debt shall not exist j and this case is not within any of those exceptions.

The right of the plaintiff under the facts of this case to furnish necessaries to the defendant’s deserted wife is not disputed; nor is it important to consider whether it rests upon an implied agency in the wife to contract the debt, or springs out of the duty of the husband to provide for the wife. In either view it stands upon a substantial and well recognized basis. But the right itself grows out of a condition of things known to the creditor, and the existence of which before and at the time of the giving of the credit must be affirmatively established by him. In acting upon such facts he acts, of course, with knowledge in furnishing the necessaries which the law permits, and he is not deceived nor defrauded in respect to the facts. He is assumed to have elected upon such knowledge to give the credit and to take the responsibility of establishing the facts against the husband as a condition of enforcing his liability. The wife is wronged, and because of her wrongs a third person may interfere to help her upon the husband’s credit. But the husband has not wronged or defrauded him. He has not obtainéd his property by false pretenses or representations, nor by any disposition of property fraudulent as to him. I am not able to see any substantial ground on which the wrong to the wife can be imported into the transaction between her and the party who voluntarily gives her the means of subsistence on the husband’s credit, so as to epable him to arrest the husband for the debt, under the provisions of existing laws.

I think the order of the court below should be reversed, but without costs.

Order affirmed.


author: Per Curiam :

text:
    WILLIAM PICKHARDT and ADOLF KUTTROFF, Respondents, v. CARL ANTONY, Appellant.

      Attachment — application for, may be made before the commencement of the action — Code of Oml Proeedwe, sec. 686.

    It need not appear from tlie affidavits nsed upon an application for an attach ment, that the action has been commenced, or that a summons has been then issued.
    Appeal from an order made at a Special Term, denying a motion-to vacate an attachment.

      Thomas Brennan, for the appellant.

      G. Bainbridge Smith, for the respondents.
   Per Curiam :

The defendant moved to vacate the attachment granted in this action, on the ground that the affidavits were jurisdictionally defective and did not warrant the granting of the same. The motion was decided against him, and from that decision he appeals. The appeal is sought to be maintained for the reason, first, that the affidavits, upon which the warrant was issued did not state that an action had been commenced or that a summons had been issued ; and secondly, that the facts do not warrant the accusation of a fraudulent disposition or secretion of property.

In reference to the first proposition, it may be said that the pre sentation of the affidavits and the granting of an attachment are not only evidence in themselves that an action has been instituted, but, as we shall see, conferred jurisdiction. It is not necessary to aver in the affidavits that the summons was issued. (Lawton v. Kiel, 51 Barb., 32.) Section 636 of the Code of Civil Procedure does not require a statement that an action has been commenced, but simply that one of the causes of action specified in section 635 exists, and that the defendant, if that be the ground on which the application rests, has removed, or is about to remove, his property from the State with intent to defraud his creditors, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete, his property with the like intent; and the plaintiff, after obtaining the attachment, has thirty days in which to serve the summons. (Sec. 638.) The omission to refer to that process in the papers on which the application for the attachment rests is not, therefore, any evidence that it did not exist. And although section 416 declares that a civil action is commenced by the service of the summons, it also provides that from the time of the granting of the provisional remedy the court acquires jurisdiction and has control over the subsequent proceedings. As was said in the case (Lawton v. Kiel, supra), the issuing of the summons applies rather to the time of having the property attached than to the application to the judge.

The defendant’s motion having been made upon the affidavits presented to the learned justice who granted the attachment, and it not appearing from them that a summons was not issued, upon the authorities referred to and the provisions of the Code they were sufficient. They clearly alleged an existing cause of action against the defendant for a sum of money over and above all counterclaims owing to the plaintiffs.

In reference to the second proposition, it is only' necessary to say that we think the facts stated were sufficient to justify the conclusion that the defendant was guilty of an attempt to secrete his property, and for a fraudulent purpose.

For these reasons we think the order appealed from should be affirmed.

Present — Bbady, P. J., and Daniels, J.

Order affirmed.


author: Pee CüRIam :

text:
    ALGERNON S. SULLIVAN, as Administrator, etc., Appellant, v. THE REMINGTON SEWING MACHINE COMPANY, RESPONDENT.

      Costs — when an executor or administrator cannot be required to give secwiiy for — Code of Civil Procedure, sec. 8271.
    Section 3271 of the Code of Civil Procedure authorizing the court, in its discretion, to require an executor or administrator to give security for costs, only applies to actions originally brought by or against an executor or administrator, and not to an action originally brought by the deceased, and simply revived in favor of his personal representatives.

      Appeal from an order made at a Special Term, requiring the plaintiff to file security for costs.

      H. Wehle, for the appellant.

      T. Richardson, for the respondent.
   Pee CüRIam :

The action was brought by the intestate in his lifetime to recover a demand claimed to have been owing to him from the defendant, and an issue was joined and a reference ordered and testimony taken before the referee, previous to the time of his decease. Since then the action has been revived in behajf of the plaintiff as administrator, and he has been required to give security for the defendant’s costs under the authority of section 3271 of the Code of Civil Procedure. But that section is manifestly inapplicable, and does not include an action brought by the intestate during his lifetime, and after his decease revived by his personal representative. It is only applicable to actions brought by or against an executor or administrator, and does not apply to an action simply revived in favor of such a personal representative.

The provision in this respect is similar in its terms to that relating to the recovery of costs in actions brought by administrators or executors, and that has been held not to include actions brought by the intestate or deceased in his lifetime, and subsequently revived in favor of the personal representative. (Tindall v. Jones, 19 How., 469; Merritt v. Thompson, 27 N. Y., 225.)

These statutes have been framed substantially in the same terms, and- that requires a similar construction to be given to both. And under the construction which by these authorities has been placed upon the provisions of the statute relating to costs, this section of the Code should not be extended to an action brought by the intestate in his lifetime and after his decease revived on behalf of his personal representative. The order accordingly was erroneous and should be reversed, with ten dollars costs and disbursements.

Present — Beady, P. J., and Daniels, J.

Order reversed, with ten dollars costs and disbursements.