author: Opinion by Smith, J.

text:
    ISABELLA D. STEVENS, Respondent, v. WILLIAM C. RODGER, Appellant.

      Assanilt and battery — special injuries must be alleged — plaintiff incompetent to testify that the effect of the blow made her entirely cleaf — limit of time, on inquiry as to general reputation.

    Appeal from a judgment in favor of the plaintiff, entered upon a verdict rendered at the Onondaga Circuit in May, 1879.
    The action was brought to recover damages for an assault and battery. The gravamen of the charge in the complaint was that the defendant struck the plaintiff with his clenched fist, in her face, upon her right cheek bone, and cracked the bone of the cheek, and loosened the bones under the plaintiff’s skull. At the trial the plaintiff was permitted to give evidence tending to show that paralysis of the right arm had resulted from the blow. The testimony was objected to on the ground that the particular injury thereby attempted to be shown was not specified in the complaint. The objection was overruled and the defendant excepted. The complaint alleged that the plaintiff had been made deaf in one ear, and that the right side of her face had become paralyzed because of said injury, but there was no averment of a paralysis of the arm.
    The court, at General Term, said: “We think the objection to the evidence was overruled erroneously. The general rule is that special damages, that is, such as, although the natural, are not the necessary result of the act complained of, and consequently are not implied by the law, must be particularly stated in the complaint in order to prevent a surprise upon the defendant, or the plaintiff will not be permitted to give evidence of them at the trial. (1 Oh. PI. [14th Am. Ed.], 338, 396; 2 Gr. Ev., § 254; Armstrong v. Percy,
      5 Wend., 538; Squier v. Gould, 14 id., 159.) The rule is a salutary one and it applies with full force to pleadings under the Code. Doubtless the trial court had power to allow an amendment of the complaint, upon proper terms, by inserting an allegation of the special damage sought to be proved, but no amendment was ordered, and none was asked for. The correctness of the ruling is to be tested, therefore, on the complaint as it stood, not as it might have been changed by amendment. (Toolcer v. Arnoux, 76 N. Y., 397.)
    The plaintiff was examined as a witness in her own behalf. One of the questions put to her was: “ What effect has it ” (the blow) “upon your right ear? ” This was objected to as calling for a conclusion. The objection was overruled and the witness answered: “Made me entirely deaf.” The answer having been given and received, the plaintiff’s counsel said: “ I will waive the form of the question. Have you been able to hear with your right ear since that time ? ” Same objection. Overruled. Exception. Answer: “ No.” It was clearly incompetent for the witness, who was not an expert, to give an opinion as to the effect which the blow produced upon her ear. She could only state facts. The improper testimony elicited by the first question was not waived or cured by what followed its reception. The testimony was permitted to remain in the case, and it must be presumed to have been considered by. the jury and to have affected their verdict. >
    On the question as to the right of the court to limit to a period of five years before the trial, the inquiry as to the general reputation of the plaintiff, the court said : “ The law lays down no certain limit in point of duration to inquiries of this kind. In The People v. Abbott {19 Wend., 192), it was held on review that the character of the prosecutrix for truth and veracity at the time of the trial having been slightly impeached, evidence of bad character in that respect, six or seven years previous to the trial, was improperly .excluded. In Sleeper v. Van Middlesworth (4 Den., 431), it was held that the character of a witness may be impeached by persons in whose neighborhood he had lived until four years prior to the trial, though he had then removed to another place fourteen miles from that neighborhood, where he had since resided, and the witnesses did not know the character which he bore at the latter place. In Pathbun v. Ross (46 Barb., 127), the testimony of a person who knew the reputation of the witness five years before the trial, and who had not known it subsequently, nor at the witness’ then place of residence, was held to have been improperly excluded. In Graham v. Ohrystal (87 How. Pr. R., 279), the impeaching witnesses had known nothing of the persons sought to be impeached for eight or ten years prior to the trial, but they were permitted to testify that they had known them in former years, and that their character was bad, and they would not believe them under oath. The ruling was sustained by the Court of Appeals. In Tompkins v. Wadley (3 T. & O., 42é), evidence was offered as to plaintiff’s character twenty-seven years previous while living at S. She had lived during the intervening time within six miles of S. The trial judge limited the inquiry to twelve years; held, on appeal, that the limitation was a proper exercise of discretion. It was said in that case by Morgan, J., who delivered the leading opinion, that the proposition that an inquiry as to character cannot be limited as to time should be confined to cases where some connection is shown to exist between the present and the former period, or where present character may be fairly inferred from previous bad character. "We think the weight of authority is adverse to the ruling in the case at bar. No good reason is apparent for limiting the inquiry to five years.
    There are other exceptions which it is unnecessary to consider.
    For the reasons above stated, the judgment must be reversed and a new trial ordered, costs to abide event.

      William Porter, for the appellant.

      Irving G. Vann, for the respondent.
   Opinion by Smith, J.

Mullin, P. J., and Talcott, J., concurred.

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


source: Caselaw Access Project

author: Opinion by Talcott, J.

license: Public Domain

text:
    MARY B. LYON et al., Executrix, etc., Respondent, v. HENRY J. BOTCHFORD, Appellant, Impleaded, etc.

      Injunction order — must clea/rly specify all the acts which the defendant is restrained from doing.

    Appeal by the defendant Botcliford from two orders entered at the Onondaga Special Term, made respectively as of the twenty-fourth and twenty-seventh of August, adjudging the defendant guilty of a contempt of court for violating an injunction order issued in the action. The injunction order restrained the defendants until the further order of the court: 1st. From peeling more than 3,000 cords of bark in any one year on the lots in the Brantingham tract, “ described in the complaint.” 2d. From removing any hemlock bark from said premises until the same shall have been ranked as usually done by tanners in 1871, and measured, and the plaintiffs have an opportunity of ascertaining the quantity and also until such bark is paid for at fifty cents per cord. 3d. From doing any act or thing upon or about said premises not permitted or allowed by the contract mentioned in such complaint. The grounds on which the injunction order was granted, as stated therein, were, that “the defendants are peeling and removing hemlock bark from the trees on the premises aforesaid, and from the premises without measuring or paying for the same as required by the contract mentioned in plaintiff’s complaint.”
    The court, at General Term, said: “ The injunction order purported to impose upon the defendants the office and duty of ascertaining and determining at their peril, what was usually done by tanners in the year 1871, some nine years before it was issued, in regard to ranking and measuring bark, and moreover to ascertain at their peril the true construction and meaning of the contract set forth in the complaint in all its parts, because by the said injunction order they were prohibited ‘ from doing any act or thing upon or about said premises not permitted or allowed by the contract mentioned in the said complaint.’
    It seems to us that the injunction order, at least in those two particulars, exceeded the office of an injunction, which should show upon its face all those things which it is necessary for the defendant to know in order to obey it, and should plainly indicate to the defendant specifically all the acts which he is thereby restrained from doing without calling upon him for inferences, or any conclusions only to be arrived at by a more or less uncertain process of reasoning, and about which the parties might well differ in opinion either as to the facts or law. The act prohibited must be the doing of some tangible or distinct thing or series of things, to be clearly pointed out and described. An injunction should not in general terms compel a party to observe a certain contract, or to ascertain what custom existed among tanners as to ranking and measuring bark some nine years before it issued. The evidence taken by the referee in this case illustrates the entire uncertainty and vagueness of the provisions of the injunction order. An injunction should in itself contain sufficient to apprise the party what he is restrained from doing without resorting to the bill on file. (Sullivan v. Judah, 4 Paige, 444.) Its language should be so clear that an unlearned man can understand it without employing counsel. {Laurie v. La/arie, 9 Paige, 234; Moat v. Holbein, 2 Edw., 188.) It should be so expressed that defendants may distinctly understand what is prohibited. {Clark v. Clark, 25 Barb., 16.) This circumstance of the vagueness of the injunction and its irregularity on that account is to be taken into consideration in any proceedings to punish a defendant for the violation of its provisions, and the injunction should be dissolved on that account. (High on Inj., § 884; Sullivcm v. Judah, 4 Paige, 444 ; Moat v. Holbein, 2 Edw., 188; Field v. Hunt, 22 How. Pr., 329.)

      George W. Smith, for the appellant.

      C. D. Adams, for the respondent’.
   Opinion by Talcott, J.

Present — Mullin, P. J., Talcott and Smith, JJ.

Orders appealed from reversed, with ten dollars costs of appeal in one case only and disbursements in both, and defendant’s motion to dissolve the injunction order granted, with ten dollars costs.


author: Talcott, J.

text:
    The Corporation of P. & F. Corbin, Respondent, v. Theodore H. Gordon and others, Appellants.
   Judgment reversed and new trial ordered ; costs to abide event. Opinion by

Talcott, J.


text:
    The People of the State of New York, Appellants, v. Harvey W. Nash, Respondent.
   Order affirmed. Opinion by

Talcott, J.


text:
    Lewis Maxon, Respondent, v. John E. Hall, Appellant.
   Judgment of the County Court affirmed. Opinion by

Talcott, J.


text:
    Hiram Auchumpaugh, Respondent, v. Charles Wing, as Executor, etc., and others, Appellants.

   Judgment affirmed with costs. Opinion by

Talcott, J.


author: Talcott, J.;

text:
    Joseph H. Morris and others, Appellants, v. Samuel W. Morris and others.
   J udgment affirmed with costs. Opinion by

Talcott, J.;

Mullin, P. J., not sitting.


text:
    Henry Beckwith and another, Respondents, v. The Rochester Iron Manufacturing Co., Appellant.

   Judgment affirmed. Opinion by

Talcott, J.


text:
    Adolph Raux, Appellant, v. Frederick H. A. Brand, Respondent.
   Judgment affirmed.


author: Smith, J.

text:
    Payn Bigelow, Appellant, v. George Hall, Respondent.
   Judgment affirmed with costs. Opinion by

Smith, J.


author: Smith, J.;

text:
    Benjamin D. Spring, Respondent, v. Alfred Short and another, Impleaded, etc., Appellants.

   Judgment affirmed with costs. Opinion by

Smith, J.;

Talcott?, J., concurs in the result.


text:
    Joseph Henderson, Respondent, v. Jas. Scott, Appellant.
   Judgment and order affirmed. Opinion by

Smith, J.


text:
    Benjamin Carter, as Overseer of the Poor, etc., Appellant, v. Sterling Long, Respondent.

   Judgment of County Court affirmed. Opinion by

Smith, J.


text:
    William Lovecraft, Respondent, v. William Stanley and others, Appellants.

   Judgment affirmed with costs. Opinion by

Smith, J.


text:
    David F. Day, Respondent, v. James C. Strong, Appellant, Impleaded, etc.
   Judgment reversed and new trial ordered before another referee, costs to abide event.


text:
    Seymour D. Kingsley, Appellant, v. The Trustees of the First Methodist Protestant Church and Society of Adams Basin, Respondent.
   New trial ordered, costs to abide event.


text:
    Julia F. Decker, Appellant, v. James McMullen, Respondent.
   Judgment affirmed.


text:
    Frederick R. March, Receiver, etc., Appellant, v. Conrad Schleucker and another, Respondents.

   Judgment reversed and a new trial ordered before another referee, costs to abide event. Held, that as, according to the undisputed testimony of the defendant Kamm the vendee, the agreement between him and Schleucker, the debtor, was that, when all the debts were paid, he was to deed the property back to Schleucker and to no one else, the effect of that agreement was to make the conveyance a mere mortgage, although absolute in form, and, even assuming that the intent of the transaction was not fraudulent, the plaintiff is entitled to an accounting.


text:
    Edward P. Stuart, as Trustee, etc., Respondent, v. Thomas J. Patterson and others, Appellants.
   Judgment reversed and new trial ordered before another referee, costs to abide event. Held, that the offer made by the defendants to prove by the witness Bowman certain declarations of John M. Stuart, was erroneously excluded. (69 N. Y., 104; 22 Hun, 389.)


author: Talcott, P. J.;

text:
    Rachel M. Dickinson, Plaintiff, v. Augustus P. Rawson, Defendant.
   New trial ordered, costs to abide event. Opinion by

Talcott, P. J.;

Smith, J., not participating in the decision.


author: Talcott, P. J.

text:
    Henry C. Smith, Respondent, v. The Howe Machine Company, Appellant.
   Judgment reversed and new trial ordered, costs to abide event. Opinion by

Talcott, P. J.


text:
    Frank B. Ward, Assignee, etc., Respondent, v. Ellen I. Loomis, and another, Impleaded, etc., Appellants.

   Judgment affirmed, witli costs to be paid by the appellants.


text:
    Cubit C. Durrant and others, Respondents, v. John Foxell and others, Appellants.

   Judgment and order of County Court affirmed.


text:
    Louisa A. King, Respondent, v. John Van Dusen, Appellant.
   Judgment entered irregularly on the verdict set aside, and new trial ordered, costs to abide event. Opinion by

Talcott, P. J.


text:
    Elizabeth Dowling, by Guardian, Respondent, v. The New York Central, etc., Railroad Company, Appellant.
   Judgment and order affirmed.


text:
    Debby Ann Curtis, Respondent, v. Martin Briggs, Appellant.
   .Judgment affirmed on opinion of referee.


text:
    James R. Pringle, Respondent, v. Smith T. Woolworth, Receiver, etc.. Appellant.
   Judgment and order denying new trial affirmed. Opinion by

Talcott, P. J.


text:
    Chauncey Weatherwax, Respondent, v. The Watertown Fire Insurance Company, Appellant.
   Ju dgment affirmed.

Hardin, J., not sitting.


text:
    Hattie R. Lent and another, Respondents, v. Hayden U. Howard and another, Executors, etc., Appellants.

   Judgment affirmed on the opinion of the referee, with costs to the respondents, to be paid out of the estate.


text:
    In the Matter of the Application of George W. Phelps, for a Mandamus to the Trustees of Mt. Morris.
   Order of Special Term affirmed on the opinion of Mr. Justice Macomber, upon the last ground stated therein.


text:
    Benjamin F. Bowen, as Administrator, etc., Respondent, v. Kinsey Widner, Appellant.

   Appeal dismissed. Opinion by

Talcott, P. J.


text:
    Charles H. Getman, Assignee, etc., Appellant, v. The Second National Bank of Oswego, Respondent.
   Judgment affirmed.. Opinion by

Talcott, P. J.


text:
    James M. Goodwin and others, Respondents, v. George W. Griffis, as Sheriff, etc., Appellant.
   Judgment affirmed on opinion of Mr. Justice Barker, at Special Term.


text:
    Hiram W. Kilburn, Respondent, v. Frank S. Low, Sheriff, etc., Appellant.
   Judgment reversed, and new trial ordered before another referee, costs to abide event. Opinion by

Talcott, P. J.


text:
    Dewitt C. Paine, Executor, etc., Respondent, v. Jerome Tuttle, Appellant.
   Judgment affirmed.


text:
    Watson Gill, Appellant, v. The American Express Company, Respondent.
   Judgment of the County Court affirmed. Opinion by

Smith, J.;

Hardin, J., not sitting.


text:
    Justus S. F. Crim, Respondent, v. Rufus G. Starkweather, Impleaded, etc., Appellant.
   Judgment reversed and new trial-ordered before another referee, costs to abide event. Opinion by

Smith, J.


author: Hardin, J.

text:
    Ezra W. Acer, Appellant, v. Levi Hotchkiss, Impleaded, etc., Respondent. Thomas F. Baker and others, Respondents, v. Levi Hotchkiss and others, Appellants.
   Cases declined to be decided on account of defects in the appeal books. Mem. by

Hardin, J.


text:
    Henry L. Hall, Respondent, v. Cornelia E. James, Impleaded,, etc., Appellant.
   Judgment affirmed. Opinion by

Smith, J.


text:
    Allen Mead, Respondent, v. The Syracuse and Corning Railway Company, Appellant.
   Judgment of the County Court and of the justice reversed. Opinion by

Hardin, J.


text:
    Martin S. Cuykendall, as Receiver, etc., v. Erastus Corning, Jr.,. as Executor, etc.
   New trial denied and judgment ordered for plaintiff on the verdict. Opinion by

Hardin, J.


text:
    Sarah J. Gilbert, Appellant, v. Harriet A. Comstock and another, Respondents.
   Decree of surrogate affirmed, with costs, and proceedings remitted to the surrogate of Livingston county. Opinion by

Hardin, J.


text:
    John Handyside, Appellant, v. Nancy Kelly and another, Administratrix, Respondents.
   Judgment of County Court reversed,, and that of the justice affirmed. Opinion by

Hardin, J.


text:
    Lydia A. Sykes, Administratrix, etc., Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
   Judgment affirmed. Opinion by

Smith, J.


author: Hardin, J.;

text:
    William T. Harvey, as Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed. Opinion by

Hardin, J.;

Smith, J., not participating in the decision.


text:
    Alfred F. Cross and another, Appellants, v. Holland B. Williams, late Sheriff, etc., Respondent.
   Judgment affirmed. Opinion by

Smith, J.


text:
    The People ex rel. The Auburn Water Works Company v. Edward Hoopes.
   Proceedings reversed with costs. Opinion by

Hardin, J.


text:
    John Nehrboss, Respondent, v. Seth P. Bliss and another, Appellants.
   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Hardin, J.


text:
    The Campbell Printing Press and Manufacturing Company, Appellant, v. John George Wagner, Impleaded, etc., Respondent.
   Judgment affirmed. Opinion by

Smith, J.


text:
    Victor Rider and another, Respondents, v. Robert Foggan, Appellant.
   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Smith, J.


text:
    Alexander McKinstry, Respondent, v. The City of Syracuse, Appellant.
   Judgment affirmed. Opinion by

Hardin, J.


text:
    Charles W. Hersey and others, Appellants, v. G. Henry P. Gould and others, Respondents.

   Motion for re-argument denied, with ten dollars costs.


text:
    In the Matter of the Assignment of Allen, Strauss & Co., for the Benefit of Creditors.
   Motion for re-argument denied, with ten dollars costs.


text:
    George C. Carter, v. Emily P. Beckwith, as Administratrix, etc.
   Motion denied, with ten dollars costs.


text:
    Aaron R. White, Respondent, v. The Utica and Black River Railroad Company, Appellant.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    John D. Handley and another, Respondents, v. Prosper P. Justin, Appellant.
   Motion to open default granted on payment, within twenty days, of ten dollars costs of the last term and ten dollars costs of opposing this motion, and the disbursements attending the entry of judgment. Otherwise denied, with ten dollars costs.


text:
    Geo. A. Sabey, Respondent, v. Jared P. Wheeler, Appellant.
   The memorandum of decision herein, of April 4, 1881, and the order entered thereon modified by adding thereto the words and the case remitted to the County Court of Monroe to proceed therein,” and the motion denied in all other respects, without costs of the motion to either party.


text:
    In the Matter of the Accounting of Darius Foster, as Administrator, etc.

   Motion denied.


text:
    Hezekiah Peck, Appellant, v. William H. Lewis, Respondent.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Lewis J. Goddard, Receiver, etc., Appellant, v. Stephen Stiles and others, Respondents.
   Order appealed from affirmed, with ten dollars costs and disbursements.

Smith, P. J., not participating in the decision.


text:
    Joseph Tuttle, Respondent, v. Thomas J. Reed, Appellant.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Isaac Pforzheimer and others, Appellants, v. Martin Briggs and others, Respondents.
   Order appealed from reversed, with ten dollars costs and disbursements. Held, that the complaint contains sufficient averments to constitute a cause of action for the recovery of the possession of peisonal property. If the complaint contains inconsistent averments respecting the possession of the property, it may be made more definite and certain on motion.


text:
    Willis S. Nelson, Respondent, v. Daniel Neil, Appellant.
   Motion for re-argument or for leave to appeal to Court of Appeals denied, with costs.


text:
    Henry Sheldon and another, Respondents, v. Henry Clews, Impleaded, etc., Appellant.
   Ordered that the ease be submitted to the justice who tried the case, for re-settlement.


text:
    James W. Fitzgerald, Appellant, v. James Fitzgerald, Respondent.
   Motion to dismiss appeal granted, unless appellant serves printed papers as required by the rule, within thirty days, and in case papers are so served, motion denied. No costs to either party.


text:
    William Stuckey, Respondent, v. George Mathes, as Committee, etc., and another, Appellants.
   Motion for re-argument or for leave to appeal to the Court of Appeals denied, with ten dollars costs.


text:
    Carl Busch, Appellant, v. The Buffalo Creek Railroad Company, Respondent.
   Order appealed from reversed. Held, that there being evidence in the case from which the jury might have found that the defendant’s employees who were operating the train knew that the switch was open and that there were men at work upon the standing cars, and the presumption being that the jury so found, the alleged newly discovered evidence that the switch had been closed, four hours previous to the accident, is immaterial, in view of the facts so found.

Haight, J., not sitting.


text:
    The Rochester Savings Bank, Respondent, v. Charles Wietz and others, Appellants.
   Order of Special Term affirmed, with ten dollars costs and disbursements.


text:
    John Nelson, Plaintiff in Error, v. The People of the State of New York, Defendant in Error.
   Judgment and conviction reversed and proceedings remitted to the Court of Sessions of Chautauqua county. Meld, that the court erred in overruling the objection taken by defendant’s counsel to the question, “ What was said as to notes or credit ? ” there being no allegation in the indictment that the property was bought on credit.


text:
    Sarah A. Cooley, Respondent, v. Elisha Cooley, Appellant.
   Order appealed from affirmed, with ten dollars costs and disbursements. Held, that the proof warranted the Special Term in holding that the parties had agreed to discontinue the former suit, and the order granting alimony properly gave leave to the plaintiff to enter an order of discontinuance accordingly.


text:
    George H. Salisbury, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.
   Judgment and conviction affirmed, and proceedings remitted to the Cattaraugus Oyer and Terminer to proceed thereon. Held, that the declaration of the prisoner offered to be proved was not a part of the res gestee, and that the conversation with Sealey, not having taken place in the presence of the prisoner or the deceased, nor having been communicated to either of them, was irrelevant and inadmissible.

Haight, J., not sitting.


text:
    In the Matter of the General Assignment of Calvin L. Winters, for the Benefit of Creditors.
   Motion to dismiss appeal granted, with ten dollars costs, unless appellant serves printed papers and pays said costs within thirty days, in which case motion is denied.


text:
    The People of the State of New York v. The Hydrostatic Paper Company, William F. Miller, Receiver, etc., Albert M. Hastings and another, Respondents, and Lauren C. Woodruff and another, Appellants.

   Judgment affirmed, with costs.


text:
    Abram Ladue v. Charles B. Nichols.
   Declined to be heard for the reason that the case does not show that it has been settled by the trial judge.


text:
    Celestia Bailey, Respondent, v. The Buffalo, New York and Philadelphia Railway Company, Appellant.
   Judgment affirmed, with costs. Haight, J., not sitting. Held, that the conveyance in fee, although without reservation, was not a waiver or release of the obligation of the railroad company to erect and maintain a farm crossing. (51 N. Y., 568 ; 63 id., 58.)


text:
    Martin S. Cuykendall, as Receiver, etc., Respondent, v. Jesse C. Smith, as Executor, etc., Appellant.
   Judgment affirmed. Cuykendall v. Douglas (19 Hun, 577) and Cuykendall v. Corning (decided at the present term) followed.


text:
    Cesta Nichols, Respondent, v. David Coe and others, Appellants.

   Judgment affirmed, with ten dollars costs and disbursements.


text:
    Martin S. Cuykendall, as Receiver, etc., Respondent, v. Lorania Baker, as Administratrix, etc., Appellant.
   Judgment affirmed.


text:
    Alvah W. Coye, Respondent, v. Leander S. Philps, Sheriff, etc., Appellant.
   Judgment of the County Court affirmed. The appeal book does not show that the points urged for reversal were raised in the County Court. (See Johns v. Gustin, 2 T. & C., 662.)


text:
    George Mack and another, Respondents, v. The City of Buffalo and the Board of Supervisors of Erie County, Appellants.

   Order affirmed without costs to either party.

Haight, J., not sitting.


text:
    In the Matter of the Application of the Buffalo and Rock City Pipe Line Company, Respondent, to Acquire Title to Lands of The New York, Lake Erie and Western Railroad Company, Appellant.
   Order appealed from affirmed, with costs. Held, that the map and certificate filed, substantially comply with the requirements of the statute, and that there is ample evidence, aside from that which is objected to as having been improperly received, to show that the company intend in good faith to construct and finish a line of pipes from and to the places for that purpose named in its articles of association.

Haight, J., not sitting.


text:
    Adelaide L. Post and others, Appellants, v. Francis O. Mason, Executor, etc., Respondent.

   Order of Special Term reversed as to the item of “ sixty dollars for costs of motion for new trial,” and the said item stricken out of the bill; and the order affirmed as to the residue, without costs of this appeal to either party. Held, that the item was not taxable, the judge, in his discretion, not having granted costs of the motion for a new trial.


text:
    Charles Allison, Respondent, v. Walter C. Robinson and another, Appellants.
   Order appealed from affirmed, with ten dollars costs and disbursements. Held, that the item objected to wras taxable if properly verified, and that no objection having been taken on the taxation to the sufficiency of the affidavit, the appellant cannot now be heard to object that it is insufficient.


text:
    Wilber S. Peck and another, Appellants, v. Isaac P. Powers, Respondent.
   Order appealed from reversed, with ten dollars costs and disbursements, and leave given to defendant to renew the motion on payment of costs. Held, chat in an affidavit as to the materiality of witnesses, etc., it is not necessary to aver that the advice of counsel was given after the statement to him of what is expected to be proved by the witnesses.


text:
    Charles G. Riggs, Respondent, v. Emory Bates, Appellant.
   Order appealed from reversed, with ten dollars costs and disbursements, unless plaintiff pays to the defendant his costs and disbursements incurred in the action after service of the answer, to be taxed, and if the same are paid, then the order is affirmed without costs of this appeal to either party.


text:
    The Sodus Bay and Corning Railroad Company, Respondent, v. Charles A. Hamlin, Appellant.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    Alvah Kellogg, Appellant, v. John S. Clark and others, as Administrator, etc., Respondents.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    Henry B. Hall, Respondent, v. Elizabeth Shepardson and another, as Administratrixes, etc., Appellants.
   Motion for leave to appeal to the Court of Appeals denied.

Hardin, J., not sitting.


text:
    Wilbur M. Brown, as Executor, etc., Respondent, v. The Syracuse, Chenango and N. Y. Railroad Company and others, Appellants.
   Motion for re-argument denied.


text:
    J. Foreman Wilkinson, Respondent, v. The Syracuse, Chenango and N. Y. Railroad Company, Appellant.

   Motion for re-argument denied.


text:
    In the Matter of the Application to Disbar or Suspend Joseph W. Lang, an Attorney and Counselor of this Court.
   Ordered, that the said Joseph W. Lang be suspended from practice until the further order of this court.


text:
    Morris Schwartz and others, Respondents, v. Gamaliel T. Conine, Appellant.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Leroy Parker and another, Respondents, v. George Van Campen, as Administrator, etc., and others, Appellants.
   Order appealed from affirmed, with ten dollars costs and disbursements. Held, that the notice requiring the defendant to answer within thirty days instead of twenty, did not prejudice the defendant; and the service of a copy of the verified bill of particulars was regular.

Haight, J., not sitting.


text:
    Mary A. Donnelly, as Executrix, etc., Appellant, v. John Murray, Respondent.
   J udgment and order affirmed. Held, that the executrix took only a power of sale as to the real estate, under the will, and that the title to the land in suit passed to the residuary devisees subject to the execution of the power.


text:
    Daniel Budlong Appellant, v. Harris Lewis, as Executor, etc., Respondent.
   Order appealed from reversed, with ten dollars costs and disbursements. Held, that as nothing appears in the motion papers showing the materiality of the proposed findings, or that the matters contained in them were not passed upon by the referee in his report, the order sending the case back to the referee for further findings was improvidently granted, even if the court had power to send it back for that purpose, upon which point we express no opinion.


text:
    William Tiffany, Respondent, v. David H. Judson, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Margaret Murphy, as Administratrix, etc., Respondent, v. The Onondaga Iron Company, Appellant.
   Judgment and order affirmed.


text:
    Henry Dietrick and another, Respondents, v. Daniel Allen, as Administrator, etc., Appellant.

   Judgment affirmed. Held, that as the objection now made, that the question put to the witnesses on the subject of the amount of damages called for their opinions and not for facts, was not specified at the trial, it is not available on appeal.


text:
    William Bookstaver, as Administrator, etc., Respondent, v. Norman W. Brown, Appellant, Impleaded, etc..
   Judgment affirmed, with costs.


text:
    Susan Latham, Appellant, v. Harriet Bovee and others, Respondents.
   Judgment affirmed, with costs.


text:
    The Trustees of Canandaigua Academy, Respondents, v. James McKechnie and another, Appellants.
   Judgment affirmed, with costs, on the opinion of Mr. Justice Rumsey at Special Term.

Smith, P. J., not sitting.


text:
    Daniel Sourwine and another, Respondents, v. George Truscott, Appellant.
   Order denying new trial reversed, and new trial ordered in the Erie County Court, costs to abide event. Held, that the County Court on adjudging the damages to be excessive' could only order a new trial; it had no power to order judgment for a reduced sum, the damages being unliquidated, and the jury being the only tribunal by whom the amount of the damages could be fixed. (18 N. Y., 522 ; 38 id., 178 ; 69 id., 468 ; 17 Hun, 338.)


text:
    Timothy W. Skinner, Trustee, etc., Appellant, v. Beman Brockway, Respondent.
   Judgment affirmed, with costs.


text:
    Margaret E. Cuyler v. John V. Crane.
   New trial.denied and judgment ordered for defendant on the verdict. • Held, that the parol agreement on the part of the plaintiff to permit the defendant’s assignor to put in and harvest a crop of wheat was founded on a sufficient consideration, the agreement having been made for the purpose of rectifying a mutual mistake in the lease ; that the agreement is not within the statute avoiding every contract not to be performed in one year from the time of making it (1 Seld., 464; 6 Hun, 562; S. C., aff’d, 70 N. Y., 181); and that the summary proceedings were void for want of jurisdiction, as the affidavit which was the foundation for the proceedings did not show that the premises were situated within the jurisdiction of the justice (4 Keyes, 59), nor that the affiant was the agent of the landlord.


text:
    William P. Decker, Plaintiff in Error, v. The People of the State of New York, Defendant in Error.
   Conviction and judgment reversed, and proceedings remitted to the Court of Sessions of Allegany county to proceed thereon. Held, that as no plea was put in by the defendant, except the special plea that was overruled, it was error to impose sentence without any admission of guilt by the defendant, or without proof of the same (2 R. S., 730, § 70). Held, also, that the plea was properly overruled, and the motion in arrest was properly denied.


text:
    Aaron D. Morey, Appellant, v. Christian Fisher, Respondent.
   ¡Declined to be heard for tbe reason that it does not appear from tlie appeal papers that tbe case bas been settled by tbe trial judge.


text:
    Frances H. N. Whiting and others, Appellants, v. The City Bank of Rochester, Respondent.
   Judgment and order affirmed.


text:
    H. Winsor Arnold, Appellant and Respondent, v. Harvey Parmelee, Respondent and Appellant.
   Judgment affirmed without costs of these appeals to either party.

Haight, J., not sitting.


text:
    The Wheeler & Melick Co., Respondent, v. Joseph E. Aldrich, Appellant.

   Judgment and order reversed, and new trial ordered, costs to abide event. Held, that the testimony of the witness Dodge as to statements made to him by Samuel N. Andrews was hearsay and incompetent evidence, and, as it may have prejudiced the defendant, its reception was error. Hardin, J., not sitting.


text:
    Martin S. Cuykendall, as Receiver, Respondent, v. Thomas J. Manro, Appellant.
   Judgment affirmed.


text:
    Martin S. Cuykendall, as Receiver, Respondent, v. Garrett Scott, Appellant.
   Judgment affirmed.


text:
    Michael Kennedy, Appellant, v. Nelson P. Burkes, as Administrator, etc., Respondent.

   Order of Special Term affirmed, with costs.


text:
    Henry Loth, Respondent, v. Nelson Witheril, Appellant.
   Judgment and order reversed, and new trial ordered, costs to abide event.


author: Hardin J.

text:
    William Duffus, Appellant, v. Daniel G. Barber, Respondent.

   Judgment and order reversed, and new trial ordered in County Court of Onondaga, with costs to abide event. Opinion by

Hardin J.


text:
    Timothy A. Smith and another, Appellants, v. Moses H. Cross and Mary J. Cross and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Hardin, J.


text:
    Catharine Hughes, Respondent, v. John D. Griffith, Appellant.
   Judgment affirmed, with costs. Opinion by

Smith, J.


text:
    George Benninghoff, Respondent, v. The Agricultural Insurance Company, Appellant.
   Judgment affirmed.


text:
    Francis Grattan, Respondent, v. Philander W. Fobes, as Successor, etc., Appellant.
   Judgment reversed and new trial granted in the County Court, costs to abide event. Opinion by

Smith, J.


author: Davis, P. J.:

text:
    JAMES LLOYD WHITE and Another, Trustees, etc., Plaintiffs, v. GEORGE W. POILLON and Others, Appellants, Impleaded with the UNITED STATES LIFE INSURANCE COMPANY, Respondents, and Others.

      Bight to ham surplus money on foreclosure paid over to the surrogate — within what time before the issuing of letters,the sale must talce place.

    The words “ within four years before the sale,” as used in section 2798 of the Code of Civil Procedure, and the words “making of the sale,” in chapter 834 of the Laws of. 1871, relating to the payment into the proper surrogate’s court of surplus money arising on the sale of real property, if letters testamentary or of administration have been issued within a certain time, refer to the date of the sale and not to the commencement of the action or proceedings resulting in the sale.
    Appeal from an order of the Special Term, directing payment of the surplus moneys, arising on a sale of mortgaged premises in the above entitled action, to the surrogate of New York.

      W. W. Gage and Mam, & Parsons, for the appellants.

      P. S. Yam, Winkle, for the respondents.
   Davis, P. J.:

This action was brought for the foreclosure of a mortgage made by Alexander C. Poillon and Cornelius Poillon, both now deceased. A judgment of foreclosure and sale containing the usual provision that any surplus shall be paid into the chamberlain’s office, was obtained, in pursuance of which the mortgaged premises were sold by a referee on the 13th of January, 1881. There was a surplus produced upon the sale of about $10,000. 'Subsequently to the sale the United States Life Insurance Company, the present respondents, having a judgment recovered February 6, 1878, against Mary A. Jordan, administratrix of Cornelius Poillon one of the mortgagors, moved at Special Term to amend the judgment in the foreclosure case by directing that the surplus moneys be paid to the surrogate of the county of New York instead of to the chamberlain. The court granted the motion. The motion was made under the provisions of chapter 658 of the Laws of 1867, which is as follows:

“Section 1. Whenever there shall remain any surplus moneys arising from the sale of any lands or real estate, of which any deceased person died seized, by virtue of any mortgage or other lien thereon given by or obtained against such person during life, the person or corporation making such sale, or the person holding the same, shall pay over such surplus money to the surrogate of any court having jurisdiction to entertain an application for the sale, mortgaging or leasing the real estate of a deceased person, for payment of debts, within thirty days after making such sale, or within thirty days after the passage of this act, and the surrogate’s receipt for the same shall discharge such person or corporation from all liability on account of such moneys.
“ Sec. 2. The surrogate to whom such surplus moneys shall be paid shall, upon the application of an executor or administrator or creditor of such deceased person, made in the manner prescribed by law, for the mortgaging, lease or sale of real estate for the payment of debts, and upon the same proceedings being had that would authorize the mortgaging, lease or sale of real estate under existing provisions of law, make an order disposing of such surplus moneys, in the same manner as moneys derived from the sale of real estate under the said provisions of law.”

Assuming that this act is applicable to cases where mortgages are foreclosed by action, the order would undoubtedly be correct if the provisions of the act remained unaffected by any subsequent legislation. But chapter 658 of the Laws of 1867, above quoted, was amended by chapter 834 of the Laws of 1871, which added to the first section of the act the following proviso :

“ But this act shall not apply to any ease where letters testamentary or letters of administration within this State have been, or shall have been, issued to the personal representatives or representative of such deceased person, four years previously to the making of the sale on which such surplus moneys arise.”

The provisions of the section, as codified, appear in section 2798 of the Code of Civil Procedure, which prescribes the practice established by the act of 1867 as well as under the provisions of the act of 1871, preventing the application of the statute to cases where letters testamentary or letters of administration have been issued four years previously to the making of the sale on which the surplus moneys shall arise. It appears in this case that letters of administration upon the estate of said Cornelius Poillon were issued by the surrogate on the 23d of December, 1876, and that the sale of the mortgaged premises in the above entitled action took place on the 13th of January, 1881. More than four years had elapsed between the issuing of the letters of administration and the date of the sale. The question seems to be, what is the meaning of the phrase making of the sale,” as used in chapter 834 of the Laws of 1871 ? It is argued by the respondent that that phrase should be held to mean the commencement of the foreclosure suit; or the commencement of the proceedings before the referee for making the sale, and that in that sense the making of the sale was less than four years after the granting of the letters.

But we think that the legislature had in view in using that phrase the act of sellmg, so that the words making of the sale ” must be construed simply to mean that act, and thereby to fix a specific time for the purpose of determining the cases to which the act should apply. Thus viewed, the case before us did not come within the provisions of the act of 1867, as amended by the act of 1871. The surplus moneys were therefore disposed of by the provisions of section 1633 of the Code, with which the original judgment, under the rules of the court, complied.

The motion, ought not to have been granted, and the order must therefore be reversed, but without costs.

Brady, J., concurred.

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

Order reversed, without costs.


text:
    DANIEL H. BALDWIN, Appellant, v. ANNABELLA S. PERRY, Respondent.

      Code of Civil Procedure, § 2434 — authorizes supplementary proceedings to he instituted in New York city, in the Supreme Court, in an action therein.

    Section 2434 of the Code of Civil Procedure confers -power to institute supplementary proceedings before a judge of the supreme court in the city of New York in an action in which an execution has issued out of that court.
    Appeal by the plaintiff from an order made in proceedings supplementary to execution by a justice of the Supreme Court in the city of New Y ork, in an action in said court.

      C. F. Wells, for the appellant.

      F. T. Riee, for the respondent.
   Davis, P. J.:

The motion in this case was disposed of by the court below as follows: “ It is ordered that such application be and the same is hereby denied, on the ground that under section 2434 of the Code of Civil Procedure this court has no jurisdiction in supplementary proceedings.” The learned judge at Special Term, in a brief note, assigned the following as the reason for his decision: “Motion denied, on the ground that by the decision of Mr. Justice Donohue it was held that this court has no jurisdiction in cases of supplementary proceedings.”

It is apparent that none of the suggestions of irregularity or insufficiency of the papers on which the motion was founded now presented by the appellant’s counsel, were considered and passed upon by the court below. We therefore think it our duty to confine our decision to the single question upon which that court passed. Section 2432 of the Code provides for three distinct remedies by proceedings supplementary to execution against property, and section 2434, under which the question in this case arises, specifies the judges before whom such proceedings may be instituted and conducted. Its language is as follows:

“ Either special proceeding may be instituted before a judge of the court out of which, or the county judge, or the special county judge of the county to which the execution was issued, or where it was issued to the city and county of New York from a court other than the Marine Court of that city, before a judge of the Court of Common Pleas for that city and county. Where the execution was issued out of a court other than the Supreme Court, and it is shown, by affidavit, that each of the judges before whom the special* proceeding might be instituted, as prescribed in this section, is absent from the county, or, for any reason, unable or disqualified to act; the special proceeding may be instituted before a justice of the Supreme Court. In that case, if he does not reside within the judicial district embracing the county to which the execution was issued, the order made or warrant issued by him must be returnable to a justice of the Supreme Court residing in that district, or the county judge, or the special county judge, of that or an adjoining county, as directed in the order or warrant.”

We are at a loss to see any difficulty in ascertaining the true sense and intention of this section. It was intended to confer jurisdiction of either of the proceedings specified in section 2432 upon the judges of several different courts, and to define the case in which such jurisdiction might be exercised by some of them. To do this it first declares in very general terms that either special proceeding may be ir stituted before a judge of the court out of which the execution was issued. This broad language embraces every court of record authorized to enforce its judgments by execution against property, and the phrase judge of the court,” is used, as it is in various other sections of the same title, in its general sense and without regard to the question whether the title of such judge is technically that of justice or judge. This general power to instii/u,t6 the proceedings, conferred upon a judge of the court out of which the execution was issued, is nowhere limited by the section. But provision is afterwards made in some eases which are specified for the further conduct of the proceedings before another judge. The same clause of the section provides also that either special proceeding may be instituted before “ a county judge or special county judge of the county to which the execution was issued.” This power also is general; and in all counties of the State where the office of county judge or of special county judge exists, such judge is clothed with authority to institute the proceeding whenever the execution is issued to his county. But this latter provision would not affect the city and county of New York, because in that city there is no county judge or special county judge, and so it was thought necessary to provide that the judges of a local court standing in place of the county judge or special county judges of other counties, should be clothed with the same jurisdiction. It was, therefore, enacted that where the execution was issued to the city and county of New York, from a court other than the Marine Court of that city, a special proceeding may be instituted before a judge- of the Court of Common Pleas for the city and county of New York. This undoubtedly gives to the judges of the Court of Common Pleas power to institute supplementary proceedings in all cases where the execution has been issued to the city and county of New York from any court other than the Marine Court of that city. All proceedings founded upon judgments of the Marine Court, are left to be enforced by the judges of that court, under the power conferred by the first clause of the section -which declares that either sprecial proceeding may be instituted before a judge of the court out of which the execution was issued, but with that exception the section gives a general power to the judges of the Court of Common Pleas in all cases of judgments upon which the execution is issued to the city and county of New York. The exercise of that power may be restricted somewhat by questions of residence and jurisdiction of the person as specified in subsequent sections, but those questions are not now under consideration. The next section provides for cases where the execution is issued out of a court other than the Supreme Court, and it is shown that each of the judges before whom the proceeding might be instituted, as prescribed in this section, is absent from the county or for any reason unable or disqualified to act. In such a case it is provided that the proceeding may be instituted before a justice of the Supreme Court. The objects of this provision are too plain to require comment. The residue of the section provides for cases where the justice of the Supreme Court, before whom the proceeding is instituted in the case just mentioned, does not reside within the judicial district embracing the county to which the execution was issued. In that case the order made by him must be returnable to a justice of the Supreme Court residing in that district, or to the county judge or special county judge of that, or of an adjoining county, as may be directed in the order. The system of section 2434 seems to be very plain. It is to confer power to institute the proceedings:

First. Before any judge of the court out of which the execution was issued.

Second. Before any county judge or special county judge of any county to which the execution was issued.

Third. Before any judge of the Court of Common Pleas in and for the city and county of New York, where the execution was issued to the city and county of New York oxrt of any court other than the Marine Court of that city; and,

Fowrth. To provide for cases where the execution is issued out of a court other than the Supreme Court, and each of the judges before whom the special proceedings might be instituted, as previously prescribed in the section, is absent from the county, or, for any reason, unable or disqualified to act, by,authorizing the proceedings in such cases to be instituted before a justice of the Supreme Court, and directing where the subsequent steps in the proceeding shall be taken in cases in which the party proceeded against does not reside within the judicial district embracing the county to which the execution was issued.

All these various parts of the section are harmonious and consistent with each other, and offer no occasion for construction, or as it seems to us, for reasonable doubt. In the case before us the action was in the Supreme Court. Execution had been issued and returned, and proceedings supplementary taken under which a receiver was appointed in that court. The learned judge was, in our opinion, fully authorized by the Code to grant the motion made before him. The decision upon which he relied in denying the motion was erroneous, and the order must be reversed, with ten dollars costs and disbursements.

Brady, J., concurred.

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

Order reversed, with ten dollars costs and disbursements.


author: Brady, J.:

text:
    MARY SCHMITTLER, Respondent, v. ADAM SIMON, Appellant.

      Acceptance of draft — when it will bind the acceptor as executor only.

    A draft began: “Mr. Adam Simon, executor, -will please pay,” etc., and concluded as follows: “And charge the amount against me and of my mother’s estate,” and was accepted by writing across its face: “Accept. Adam Simon, executor.”

      Held, that the accepter was liable in his capacity as executor only.
    Appeal by the defendant from a judgment, entered upon a verdict directed by the court.

      Michael O. Gross, for the appellant.

      WilUam W. Jenks, for the respondent.
   Brady, J.:

This action was predicated of a draft, drawn by William J. Schwarin upon the defendant, in favor of Johannes Schmittler or his order, and by Schmittler indorsed to the plaintiff. The draft was accepted by writing across its face: “Accept. Adam Simon, executor.” The action was brought against the defendant to recover from him individually the amount of the draft, and the judgment was in accord with this view. This was doubtless founded upon the proposition that the word “ executor ” was a mere deseriptio persones, and must be rejected as surplusage; and that, if the defendant meant to limit his liability) he should have expressed it, in addition to the word “ executor,” in such a way as to show that he did not intend to be bound individually, but only as the representative-of the estate of which he claimed to be the executor. Upon an examination of the draft, however, it is discovered, although the-legal effect of that circumstance does not seem to have been discussed by the briefs, that the draft itself is drawn upon the defendant as executor. It begins, for example : “Mr. Adam Simon, executor, will please pay,” etc., and concludes as follows: “ And charge-the amount against me and of my mother’s estate.”

On the trial the defendant sought to show, by a series of questions,., the defense set up, namely, that the draft was accepted by the-defendant in his capacity as the executor of Johannes Schwarin,. deceased, and was to be paid at maturity out of any funds which, might be in his hands, as such executor, belonging to the drawer.

There is no doubt that, in an action brought upon a draft, note- or other moneyed instrument, signed by a person as agent or executor, evidence may be given to show that the person who took it had knowledge that it was signed in a representative capacity.. (Brockway v. Allen, 17 Wend., 40 ; Babcock v. Beman, 1 Kern.,. 200.) In this case there is no direct evidence that the plaintiff had' knowledge of the fact set up as a defense, namely, that the defendant accepted the draft as the executor of Johannes Schwarin, and in reference to the interest in her estate held by the drawer. But the-draft itself from its phraseology, to which attention has been called, was sufficient notice to her to put her upon inquiry. It was sufficient notice because, as we have already seen, the draft described Mr. Simon as executor, was directed to him as such,, and directly-referred to the estate of the mother of the drawer and his interest therein, and it was, therefore, a draft upon the defendant as executor and accepted by him as such. The whole of the instrument is to be considered in the determination of the question. The notice-upon the face of the draft is equivalent to knowledge, and, therefore,, when the offer was made to show the circumstances under which the draft was made and what took place at the time, it was competent evidence and ought to have been admitted.

For these reasons it is thought that the judgment should be reversed and a new trial ordered.

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

J udgment reversed, new trial ordered, costs to abide event.


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    PHILIP H. ADEE, as Receiver, etc., Appellant, v. CHARLES G. CORNELL, as Assignee, etc., and Others, Respondents.

      Assignment, for the benefit of creditors, by a copa/rtnm'ship— who must join in it — Emdence that one is a partner.

    The rule which requires all the copartners to unite in an assignment for the benefit of creditors, does not include parties who, by reason of certain acts, have made themselves liable as partners to third persons, but only those who are partners as between each other.
    It is competent on the trial of the question as to whether or not one is a partner, to ask him whether he was asked to become a partner, and what the result of the proposition was, and whether he had any interest in the oapital or stock of the firm.

      Senible, that the participation in the profits of a business which makes a person a partner as to third persons, must be a participation in the profits as such, under circumstances which give him a proprietary interest in the profits before „ division, as a principal trader.
    Appeal from a judgment in favor of the defendants, entered upon a decision rendered at the Special Term.

      William A. Duer, for the appellant.

      Frederick G. Anderson, for the respondents.
   Brady, J.:

It appears from the facts developed in this case that an action was brought in January, 1879, by Archibald Grade King and others against Charles Bellow's, Richard R. Hunt and Adam C. Leach, to recover upon two promissory notes made by the firm of Charles Bellows & Co., claiming that the three defendants were copartners under the firm name just mentioned. The defendant Leach appeared and denied that he was a copartner, and thereupon the action was discontinued as against him, and judgment was entered in favor of the plaintiffs in that cause against Bellows and Hunt. It further appears that after an execution had been issued and returned unsatisfied, the plaintiff was appointed the receiver, under supplementary proceedings, of the property of the judgment debtors, Bellows & Hunt, as composing the firm of Charles Bellows & Co. It also appears that Charles Bellows and Richard R. Hunt executed a general assignment, for the benefit of the creditors of the firm of Charles Bellows & Co., on the 19th day of December, 1878, to the defendant Charles G. Cornell, who accepted the .trust and took possession of the property thereunder.

The plaintiff herein, and as receiver, brought this action to set aside the assignment mentioned, claiming that it was fraudulent and void in this, namely, that it was not executed by Adam C. Leach and William J. Hinds who, he alleges, were members of the firm of Charles Bellows & Co. at the time of the assigment to him. The learned justice, presiding in the court below, delivered the following opinion :

“ Bbach, J. — It may be considered a general principle, firmly established by adjudication, that none less than all the members of a copartnership can make a general assignment in trust for the benefit of creditors. (Welles v. March, 30 N. Y., 344; Wetter v. Schlieper, 4 E. D. Smith, 707; Haggerty v. Granger, 15 How. Pr. R., 243; Coope, Receiver, etc., v. Bowles, 42 Barb., 87.) The case at bar, however, cannot be decided upon that principle, because the allegation of those who did not execute the assignment, being partners, is controverted. The plaintiff gave evidence upon the trial tending to show that Leach and Hinds were partners, relative to third persons who may have dealt with the firm, and seems to rely upon the numerous adjudications involving the decision of issues between those claimed to have been partners, by virtue either of acts or agreements, in actions brought by plaintiffs to charge them with liability.

In my opinion the disposition here does not depend upon the question whether or not Leach and Hinds were partners in relation to those dealing with the firm, but rather upon the facts, whether or not they were so, between themselves and the acknowledged members. The reason of the decisions {supra) is that no power to make a general assignment can be implied to rest in the individual partners from the jiartnership relation. That such an act is not within the scope and object of the partnership and in the course of its trade and affairs. The action seems also to amount to a suspension or dissolution of the partnership itself. These reasons affect the rights of individual members of the firm, who are such inter sese, without regard to those who might be held by third persons subject to partnership liabilities.

To render a general assignment in trust for the benefit of creditors void in law, because not executed by all the members of the firm, those who did not sign it must be established partners, not as to third persons, but between themselves and the admitted partners who signed the instrument. The principle of the authorities cited {supra) is not infringed, and the assignment is not void in law when those who executed it, and those who did not, appear not to have been partners inter sese.

The plaintiff, in my opinion, has failed to establish that Leach and Hinds, who did not execute the assignment, were partners in the business of Charles Bellows & Co., in relation to Bellows and Hunt, who did sign it and are admitted to have been members of the firm.”

The leading proposition upon which the decision of the learned justice was based is, that to render an assignment in trust for the benefit of creditors void in law, because not executed by all the members of the firm, the persons who failed to execute it, and who are asserted to be copartners, must, by competent proof, be shown to be partners inter sese. And the distinction is drawn and preserved between the liability of persons as partners for debts contracted and acts done in the course of the trade of the copartnership, and the liability of copartners to each other arising from that relation. It is not deemed necessary to elaborate the opinion thus delivered. But it is not regarded as improper to say that the evidence establishes the proposition that Messrs. Hinds and Leach, whom the plaintiff seems to regard as additional copartners, were by the agreement made between them and the actual members of the firm, to receive a part of the profits in lien of compensation for the services to be rendered by thorn. There is some dispute as to whether there was not a sum named as salary and a part of the profits in addition to be paid to them upon a certain contingency, but it may be assumed for the purposes of this appeal that they were to receive a part of the profits only in lieu of compensation, as this is the more favorable view for the plaintiff.

Whatever may have been the rule originally in regard to the effect of an agreement to accept profits growing out of a copartnership relation, it seems now to be settled as the law of this State, that the profits are to be received as such. The term is understood not to mean as a salary or compensation, but as a share of the success of the joint enterprise, without reference to payment eo nomine for services rendered or for money invested. The latest case bearing upon the question is Burnett v. Snyder (81 N. Y., 550), and in which it is said, in the opinion of the court, that in the cases of Grace v. Smith (2 W. Black., 998) and Waugh v. Carver (2 H. Black., 235), the doctrine was declared, and was deemed to be settled by these cases, that a participation in the profits of a trade made one liable as a partner to a third person by operation of law, although he was not ostensibly a partner, and although the partnership relation was excluded by the terms of the agreement between himself and his associates ; and, further, that this doctrine was followed in England and regarded as the true test of partnership as to third persons, until the case of Cox v. Hickman (8 H. Ld. cases, 301), in which the doctrine was strongly impugned, if not entirely overthrown. And the court in that case further declared “ we have-in this State adhered to the general doctrine established by the earlier English cases, although it proceeds upon reasons which have not been considered entirely satisfactory.” But the court declare the participation in the profits of a trade, which makes a person a partner as to a third person, is a participation in the profits as such, under circumstances which give him a proprietary interest in the profits before division, as a principal trader.

There would seem to be little doubt that the evidence in this case establishes the liability of Messrs. Leach and Hinds as partneré to third parties, in consequence of acts committed by them and their associates with their knowledge and consent; but the agreement between them and the original copartners is silent as to any participation in, or liability for, the losses as between themselves that might mark the existence of the copartnership itself. And, as already suggested, there is no doubt that, as between themselves, a copartnership was not contemplated. It appears also that the judgment creditors in the action, out of which the plaintiff’s appointment seems to have grown, did not regard Messrs. Leach and Hinds as members of the copartnership of Charles Bellows & Co., because they were not included in the judgment. Hinds was, indeed, not made a party, and the action was discontinued as to Leach.

The object of the rule requiring all copartners to unite in a joint assignment, is to secure a valid and effectual transfer of the copartnership property; and when the assignment is executed by all the copartners, the design of the law is accomplished. It does not contemplate a union of persons who have made themselves copartners as to third persons, but only the copartners inter sese by virtue of the relations existing between them, and therefore it is not necessary that such persons should unite in the assignment. This is particularly so in this case, for the reason that the two persons alleged to be copartners denied that any such- relation existed between them and the original members of the firm, and for the reason that it appears from the testimony that all the property of the copartnership was transferred by the assignment.

It only remains now to consider some of the exceptions taken to the rulings of the court during the progress of the trial. Upon the examination of Mr. Leach he was asked whether Bellows & Hunt asked him to become a copartner, which being objected to, the defendants’ counsel said that he wanted to show that they had asked him to become a partner and that he had declined. The objection was overruled and the plaintiff excepted. The answer was: “ Mr. Bellows made that proposition to me at one time.” The question was then asked: “ What was the result of that ?” which was objected to, the objection, however, being overruled and an exception taken. The answer was, that the result was that he did not because he was not-eligible. Inasmuch as the question at issue was whether these persons became copartners between themselves by agreement, or by any understanding between themselves, evidence to show what actually took place in regard to that relation seems to have been perfectly competent, and for that reason these exceptions were not well taken. Mr. Leach was also asked : “ Did you have any interest in the capital or stock of the firm of Charles Bellows & Co.?” the answer was, “No, sir.” He was further asked: “ Did you have any interest in the capital or stock of the firm of ‘Charles Bellows & Co., at the time the assignment was made by them to Mr. Cornell ?” and the answer was, “ No, sir.” Whether Mr. Leach ‘ had any interest in the capital or stock of the firm of Charles Bellows & Co., was a mixed question of law and fact. And so far as the question related to the fact, as it affected the point at issue, it seems to have been a proper one, and, as it was proper for that purpose, the exception to it was not well taken.

The questions which have just been mentioned undoubtedly were asked in connection with the preceding one, as to whether Mr. Leach -became a partner in the firm of Charles Bellows & Co., and the object was to show that he did not become a partner in fact by any agreement between themselves, but, on the contrary, that he refused to become a partner and had no interest in the capital or stock of the copartnership. But if this view of the questions and answers be incorrect, it is nevertheless quite clear that they could not by any possibility have prejudiced the plaintiff upon the trial.

For these reasons we think that the judgment should be affirmed, with costs.

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

Judgment affirmed.


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    OLIVER W. BUCKINGHAM and LEONARD PAULSON, Jr., Plaintiffs, Appellants, v. JOHN A. SWEZEY and JOSEPH DART, Defendants. SETH M. MILLIKEN and Others, Respondents.

      Attachment in an action on a firm debt — against the property of one partner — not vacated, because of insolvency of firm.

    In an action to recover a debt due from a firm, an attachment was issued against the property of one partner only, on the ground that he had absconded. Certain subsequent attaching firm creditors, on proof that the firm was insolvent, moved to vacate the attachment, on the ground that the partner against whose property the attachment was issued had no interest in the firm property upon which the attachment could be levied.

      Held, that the attachment should not be vacated.
    Appeal from an order granting a motion made on bebalf of Deering, Milliken & Co., subsequent attaching creditors, to vacate and set aside an attachment granted in the above entitled action.
    The grounds upon which the warrant of attachment was set aside were, that it was granted against the property of the defendant Swezey only, upon a liability of the firm of which he was a member, and that the firm was wholly insolvent and unable to pay its debts in full.

      Ohaunoey B. Ripley, for the appellants.

      John J. Adams, for the respondents.
   Brady, J.:

The attachment obtained by the plaintiffs, Buckingham and Paul-son, Jr., was against the property of the defendant Swezey alone, and on the ground that he was an absconding debtor. Milliken and others who were subsequent attaching creditors moved to discharge the attachment and were successful. No opinion was delivered when the motion was decided, but the order declarative of the judgment of the court contained the following, which seems to be a statement of the grounds on which the court rested :

“ And it appearing pn tbe argument that the warrant of attachment was issued only against the property of the defendant Swezey, on the ground that he had absconded,' and leave being thereupon granted to argue the motion on the ground that, at the date of granting the warrant of attachment, the firm of Swezey & Dart herein was insolvent and unable to pay their debts in full, it is,” etc., “ ordered that the warrant be vacated.” And the point presented by the respondent’s counsel is, that in an action against a firm consisting of two members, if a warrant of attachment be granted against one upon a debt due by the firm, and the firm is insolvent, the interest of the party proceeded against is nothing, and no lien is acquired thereby. And he assumes that the legal proposition applicable to a question such as presented herein, and entitling his clients to have the attachment vacated, was enunciated in the case of Donnell v. Williams (21 Hun. 218), sustained by the case of Staats v. Bristow (73 N. Y., 264). That case is not in favor of his clients, however. Justice Barrett wrote the prevailing opinion of the court, inasmuch as Justice Davis concurred with him, and it was said, in his opinion: “Were the case free from other difficulties the plaintiff Donnell would be entitled to retain his attachment as to (the defendant) Burnie for whatever it was worth, and we could not discharge it absolutely merely because no lien upon the firm property had been thereby acquired.”

Justice Davis having concurred in this view, as already suggested, it is considered to be controlling on this appeal; and the order appealed from must therefore be reversed.

The case of Staats v. Bristow {supra), which was referred to in the case of Donnell v. Williams {supra), and also by the respondent on this appeal, is not in point upon the question before us. The Court of Appeals in that case declared that a purchaser, under an execution against the right, title and interest of a partner in the partnership assets, against whom an attachment had been issued, the firm being insolvent, acquired nothing by the purchase. And it would seem, from the opinion delivered, that the execution considered pointed at property which the defendant had at a time subsequent to the issuing of the attachment and the levy under it, namely, the 9th of December, 1874, and subsequent, also, to the assignment made by the firm for the benefit of their creditors, which was made intermediate the issuing of the attachment and the execution, namely, on the 4th of December, 1874, the attachment having been issued on the 30th November, 1874. Whether the intervention of the assignment had any controlling influence upon the court, it is difficult to say from the examination of the report of that case; but, nevertheless, it is not an authority for the proposition that the attachment should be discharged under the circumstance disclosed in this case.'

The order should be reversed, with ten dollars costs and the disbursements; but, under the circumstances, to abide the event.

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

Order reversed, with ten dollars costs and disbursements to abide the event.


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    ELIZABETH CLARKE, Respondent, v. EDWARD ROBERTS, Appellant.

      Mortgage — to what equities existing in third persons an assignee is not subject.

    A., the owner of certain land, contracted with B. to convey it to him for $15,000 and to advance certain money to B., who was to erect buildings upon the premises. Before the buildings were finished B. agreed with the defendant in this action to finish and convey to him two of ithe houses, in consideration of which the defendant was to assume mortgages on the houses for $25,000, and to pay $16,000 by a conveyance to B. of lots valued at that sum.
    By agreement of the parties, A. conveyed the houses directly to the defendant, who executed his bond and a mortgage thereon to an insurance company for $16,000 ; and a second bond and mortgage to A. for $9,000. He also executed to B. and delivered in escrow a deed of the $16,000 lots. ■
    This deed was to have been held until the houses were completed, but in violation of that understanding was delivered to B. before their completion. Through the mortgages A. received $15,000, the price of the land he had contracted to sell to B., and $5,"00 he had advanced. The $9,000 bond and mortgage was subsequently assigned, for value received, to the plaintiff, who brought this action to enforce the payment of the balance due on the bond, the defendant having paid the interest and $5,500 on account of principal.
    The defendant alleged that B. had failed to finish the houses, in consequence of which there was a partial failure of the consideration of the bond and mortgage, and asked that the sum of $3,000, his damages arising from such failure, be offset against the amount still unpaid on the bond and mortgage.

      Eeld, that while it might he conceded that A. held such $9,000 bond and mortgage to the extent of $4,000 as trustee for B., yet the instruments were silent on that subject, and the plaintiff’s rights were not affected by the fact of B.’s interest therein.
    That as it did not appear that the plaintiff took the bond and mortgage, with knowledge of the equities existing in favor of the defendant growing out of his contrdct with B., and as there was nothing in the instruments giving notice thereof, that the defendant was not entitled to offset his damages arising from B.’s breach of contract against the plaintiff’s demand.
    That the title of a bona fide purchaser for value of a non-negotiable chose in action, purchased from a person who has an apparent title thereto, cannot be contested by one who has himself conferred such apparent title on the vendor.
    Appeal by the defendant from a judgment in favor of the plaintiff, entered on the verdict of a jury. The action was brought to recover $3,500 and interest, on a certain bond executed by the defendant, and purchased in good faith and for a valuable consideration by the plaintiff, to which the mortgage mentioned in the following opinion was collateral.

      Jacob F. Miller, for the appellant.

      James B. Bulloek and Edward Mitchell, for the respondent.
   Brady, J.:

it appears from the evidence in this case that David Bailie, being the owner of certain lands in the city of New York, agreed to convey them to James S. Dale for the sum of $15,000. The property extended from the First avenue, on the line of One Hundred and Twenty-third street, about one hundred and fifty feet ten inches along the line of the First avenue, running north from One Hundred and Twenty-third street. By the agreement between the parties named, Dale was to erect two four-story brick stores and dwellings fronting on the First avenue, and Bailie was to make a building loan to him of $5,000. This contract having been made Dale commenced to build and Bailie advanced the sum promised. This contract does not appear to have been assigned. In the following year and on the twenty-seventh of March, Dale having nearly finished the buildings, made an arrangement with the defendant Roberts to sell and convey to him a part of the lands, namely, the fifty feet and ten inches on the First avenue, with the two houses thereon, for the sum of $41,000, and which the defendant agreed to pay for in the following manner, namely, $25,000 by assuming the payment of two mortgages then on or to be put upon the property, and $16,000 by conveying to Dale four lots on Second avenue and Ninety-fourth street, at the estimated value of the last mentioned amount. By the agreement between these persons Dale was to finish the houses within thirty days from the date thereof and deliver the deed of the premises upon the 27th day of April, 1872, at a place designated.

It further appears that on the eleventh day of May following, Bailie, Dale and Roberts met at the office of Davies & Work, the attorneys for the Mutual Life Insurance Company, who were to make a loan on the property, and the contracts to which reference has been made were carried out in the following way: Bailie, it appears, had not at that time given any deed to Dale, and at the request of the latter the conveyance was made directly to Roberts of the fifty feet and ten inches on the First avenue, and for the consideration already expressed, to wit, $41,000. To this course, Roberts assented, and secured the consideration for the transfer by executing and delivering to the Mutual Life Insurance Company a bond and mortgage for $16,000, and a second bond and mortgage to Bailie, which is the one in suit, for $9,000, and by these instruments the sum of $25,000 which he was to assume was made up ; and he further executed and delivered in escrow a deed to Dale of the Second avenue and Ninety-fourth street lots for the consideration of $16,000. By this arrangement it further appears that Bailie was paid the $15,000 to which he was entitled, as a consideration for the sale of the premises originally made to Dale, and was reimbursed the $5,000 which he advanced according to the agreement between the latter and himself, part payment of it being made by the $9,000 bond and mortgage, which was declared in the mortgage to secure a portion of the consideration or purchase-money expressed in the deed from Bailie.

It further appears that Bailie had no contract with Roberts other than that involved in the deed by him to the latter and in the mortgage from Roberts to him. Dale, it would seem, was the only one contracting with Roberts as to the sale of the premises bought by the latter, and as to the finishing of the houses to be completed. It further appears that, at the time of these transactions at the office of Davies & Work, the houses were not completed to the satisfaction of Roberts, but that notwithstanding he closed the contract so far as Bailie was concerned, influenced thereto, doubtless, by the promise of Dale to complete them. It appears that Dale not only promised verbally to finish the houses, but executed and delivered to Roberts an agreement, in writing, at the time, in which it was declared that the acceptance of the deed by the latter was not to be construed as an acceptance of the work on the building as complete, nor as a fulfillment of the terms of the contract between him and Dale. But on the contrary it was expressed, stipulated and agreed between the parties that Dale was to proceed diligently with the work on the buildings until their completion ; and further, that the deed from Roberts to Dale, which formed a part of the consideration for the transfer from the latter, should remain in the hands of a person named Mack in escrow, and was to be delivered when the terms of that agreement should have been fulfilled. It further appears that Roberts never prosecuted Dale for a violation of the agreement, and that the deed which was delivered m escrow was subsequently obtained by Dale, and it would seem without the consent of Roberts and in violation of his rights. It also appears that after the delivery of the deed from Bailie to Roberts the latter entered into possession of the premises, and from aught that appears to the contrary is still the owner and in occupation thereof.

The bond and mortgage of $9,000 were assigned to the plaintiff on the 30th of May, 1872, and Roberts paid, without objection, the interest which accrued upon them up to the 1st of November, 1877, and $5,500 on account of the principal.

Roberts’ defense rests upon the proposition of Dale’s non-performance of his contract to finish the houses by which there was a partial failure of the consideration, and upon the damages sustained by him in consequence of such violation.

This statement of facts would seem to make it quite apparent that the defense suggested cannot be successfully maintained. If the evidence had established the fact that the plaintiff took the assignment with the knowledge of the equities existing in favor of the defendant growing out of his contract with Dale, a different result might accrue. But Mr. Roberts, by executing the mortgage which he designated as one given for a part of the consideration for the transfer to him of the property which was covered by it, placed himself in a position which prevents him from assailing the bond, and the mortgage connected with it, upon any of the equities growing out of the relations existing between himself and Dale. There is nothing in either of these instruments giving notice of any relations between any persons in reference to the property other than the mortgagor and the mortgagee, and the former being the defendant has no claim whatever and no offset, according to the facts of this case, and no counter-claim and no equities against the mortgagee, namely Bailie, who, so far as he was connected with the property in any way, fully performed his obligations.

It would be very extraordinary if such a defense should be entertained under such circumstances. The plaintiff was a dona fide purchaser for value of a non-negotiable chose-in action, and from one who had an apparent absolute ownership and valid title, an ownership and title conferred by the defendant himself, and he cannot be permitted, under such circumstances, to assert any infirmity in the title or in the validity of the paper. (Moore v. The Metropolitan National Bank, 55 N. Y., 41; McNeil v. The Tenth National Bank, 46 N. Y., 325 ; Hudson Fire Insurance Company v. Winthrop, 2 N. Y. Legal Observer, 37.)

This rule does not conflict with the well settled principle of law that the assignee of a non-negotiable cJwse in action takes only the title of his assignor, subject to the equities existing between the original parties to the transaction, because between the parties to the bond and mortgage there were no equities. It is true that to the extent of $4,000 it would appear that Dale was interested in the mortgage; but he was not a party to that instrument and Bailie held his interest in it as a trustee. But the instruments were silent upon that subject, and the relations growing out of that paper in reference to that event were those of trustee and cesfrui que trust between Dale and Bailie, though not expressed in the mortgage.

It is quite evident also that the defendant did not rely for protection upon the bond and mortgage, or any defense that he might conjecture in reference thereto, but upon his contract with Dale, because the deed of the premises conveyed by him to Dale was in escrow, and was not to be delivered to Dale until the latter had completed his contract. And if the deed was prematurely delivered his remedy was against Dale or the person to whom the deed was delivered m escrow, or both, and the courts would have afforded him, under the circumstances, if the fact were as alleged, all the protection which he required. The conclusion that he was not thus influenced is further evidenced by the fact of the payment by him of the greater part of the principal and the interest upon it, and it would seem as if the defense interposed was an afterthought, probably induced by pecuniary embarrassments. Whether this be so or not is of no consequence so far as the appeal in this action is concerned, because, for the reasons assigned, the result seems to be inevitable that the plaintiff was entitled to a verdict; that the direction given to the jury to render one in her favor was correctly made, and that none of the exceptions taken are of any value.

The judgment should therefore be affirmed, with costs.

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

Judgment affirmed, with costs.