text:
    JAMES TALCOTT, Appellant, v. WALTER P. HESS, as Assignee, etc., Respondent, Impleaded, etc. LOUIS MAYER and Others, Appellants, v. ALICE HAZARD and WALTER P. HESS, Respondents.

      General assignment— avoided by the introduction of fictitious debts in the schedule — fraud, on the pari of the assignor only, need be shown — only the assignor himself can testify as to whether or not the assignment was made in good faith.

    When a debtor, who has made a general assignment for the benefit of creditors, sets out in the schedule of debts and liabilities sworn to by him, debts due to friends which have been paid and discharged, such conduct is fraudulent and renders the assignment voidable.
    To entitle a creditor to- avoid an assignment, it is sufficient if a fraudulent intent on the part of the assignor be shown; it is not necessary to show that the assignee was a party to the fraud.
    The husband of an insolvent assignor cannot testify as to whether the assignment was executed in good faith, although he has acted as the agent of his wife in the management of her property.
    Appeal from a judgment dismissing tbe complaint, recovered on a trial had at a Special Term.

      JD. S. Biddle, for the appellant.

      L. Birdseye, for the respondent.
   Daniels, J.:

The action was brought by the plaintiff as a judgment creditor, whose execution against property had been returned unsatisfied, to reach and apply the property of the debtor Alice Hazard to the payment of his judgment. Before it was commenced, she made a general assignment to the defendant Hess for the benefit of her creditors. The total amount of her liabilities was stated in the schedule to be the sum of $20,175.66. The payment of $6,209.06 of this amount was preferred in the assignment, while the residue was not otherwise provided for than by the direction that the assignee should pay it, so far as he might be able to do so, out of the remaining proceeds of the assigned property. In the schedule of debts and liabilities, which was sworn to by the debtor on the 13th day of December, 1880, seven days after the making of the assignment, a debt was stated to be owing to "William Graham for the sum of $1,000, partly for goods, wares and merchandise, and partly for money loaned, for which he was stated to hold a mortgage upon premises known as 55 Hale avenue, East New York. By the evidence of Graham, who was sworn and examined as a witness upon the trial, it was made to appear that this mortgage had in fact been paid, and at the time of making the assignment the debtor owed this witness nothing individually. The payment of the debt from his statement appears to have been made either as it became due, or some time soon after it was due; and as the mortgage was made on the 8th of ‘March, 1877, and the debt matured in one year from its date, and no payment appears to have been made on it after the assignment, it was probably paid before the-assignment itself was executed. And as the assignment was executed in December, 1880, and the amount of the debtor’s indebtedness was not so large as to warrant the suspicion that she could have forgotten the payment of this debt, the insertion of it in her schedule may well be held to have been made with the knowledge of its preceding payment on her part. ■ There was no such lapse of time and no such extent of indebtedness as would warrant the presumption that the fact that this debt had been paid escaped her recollection at the time when the assignment and the schedule were made. And the conclusion, therefore, follows that the insertion of it in the schedule was designed to secure its proportionate repayment to Graham, who was a person who appears to have sustained friendly relations with the debtor. And that necessarily would operate as a fraud upon the other persons, whose debts were not preferred, for such a payment would, to the extent of the amount paid, deprive them of so much of the property of the debtor to which they were lawfully entitled for the satisfaction of their debts. This would be the necessary result of including this amount as an indebtedness at the time owing from her to Mr. Graham, and it may be presumed that she contemplated and intended that to be accomplished by means of the assignment. (Van Pelt v. McGraw, 4 Comst., 110.)

In Kavanagh v. Beckwith (44 Barb., 192), Bostwick v. Menck (40 N. Y., 383) and Frazier v. Truax (15 Week. Dig., 386) it was held to be fraudulent for the debtor to prefer in a general assignment the payment of a fictitious indebtedness. And in Fiedler v. Day (2 Sandf., 594) and American Exchange Bank v. Webb (36 Barb., 291) the same principle was also declared. These authorities proceeded upon the ground that the debtor to the extent of such preferences unlawfully deprived the creditors of the property which should be applied to the payment of their debts. And as the same consequence would result from directing the payment of an unfounded indebtedness by the general directions of an assignment, that would, necessarily render the assignment void undei the force and effect of these authorities. And the schedule which is made by way of completing the assignment may be referred to and considered a portion of it for the purpose of ascertaining the existence of this intention. (Shultz v. Hoagland, 85 N. Y., 464, 468, 469.)

In the schedule of property the mortgage to Graham was also stated to be an incumbrance upon the land described in it situated upon Hale avenue in East New York. And that, if the statement had been rendered effectual, would be' attended with the effect of depriving the creditors of a corresponding interest in this parcel of land. And that may be reasonably held to have been understood by the debtor at the time when, by her affidavits, he verified these schedules.

From each of these circumstances her intent to defraud her creditors by means of the assignment is both legally and logically to be inferred, and as she made no explanation of these improper additions to her schedules of debts and incumbrance of property the facts must be concluded to exist as they were stated by Graham, the person to whom this mortgage was given, and who held it up to the time when it was afterwards formally discharged, upon an application made to him by the debtor’s husband and without anything further being paid for this purpose.

To entitle the plaintiff to avoid the assignment he was not required to prove that the assignee himself was a party to this apparent fraud. For that purpose, as the assignee was not a purchaser for value in any sense of those terms, a fraudulent intent on the part of the assignor was all that could be required to render the assignment invalid. ( Waverly Nat. Bk. v. Halsey, 57 Barb., 249, 263, 264.)

During the cross-examination of the husband of the debtor he was asked by defendant’s counsel whether the assignment was executed in good faith. This was objected to by the plaintiff’s counsel and the objection was overruled, to which an exception was taken and the witness answered yes, sir.” This witness was not a party to the assignment. lie had, however, been the agent of his wife in the management of a large portion of her business, but that did not qualify him to express his judgment upon the fact whether the assignmant was or was not executed in good faith. From his relation to the transaction this must have been a mere matter of inference or opinion upon his part, and it was not proper that it should be allowed to be given in the case. Authorities have been cited which are supposed to sustain this ruling, but they do not, for they only include the class of cases in which the intention of the witness is made material, and where upon that account, as a matter of fact, the witness has been held competent to state what that intention was. Those cases are all clearly distinguishable from the ruling under which this answer was allowed to be taken at the trial. It was the intent or good faith of the debtor herself that was the turning point of the controversy, and what that was this witness could only have inferred from the facts known to him, and that inferencé was not a legal subject of evidence in the case.

Other points have been taken in support of the appeal but they do not require consideration, for those that have already been examined sufficiently sustain the rights of the plaintiff to another trial of the action.

The case of Louis Meyer and others against the same defendants was for like relief and heard upon the same evidence so far as its consideration has now become important, and as the judgment in • the preceding case cannot be sustained the same result must follow in the suit of Meyer and others. In both actions the judgments should be reversed and a new trial ordered with costs to the plaintiffs to abide the event.

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

Judgments reversed, new trial ordered, cost to plaintiffs to abide event.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    CASSIUS H. READ, Respondent, v. PETER R. LOZIN and PRESTON STEPHENSON, as Devisees, etc., of JANE McDONALD, Deceased, Appellants, Impleaded, etc.

      deference — cm action to charge lands in the hands of hews or devisees, with debts of an ancestor, is only referable by consent— Code of Civil Procedure, sec. 1013 — When the right to appeal is not lost by pa/rticipating in the reference.

    An action brought by tbe creditor of a deceased debtor against bis heirs or devisees, to collect tbe debt from real estate acquired by them from tbe deceased, cannot be referred without tbe consent of ail tbe parties, even though portions of the claims which the plaintiff seeks to enforce consist of accounts comprising numerous items.
    ’Where an order of reference has.been made in such an action, upon the defendant’s default, and an application- made by him to open .the default, and for a rehearing, has been denied, the defendant does not, by appearing before the refeiee and examining and producing witnesses, waive his right to appeal from the order denying his motion to open the default if, when he first appears before the referee, he objects to the reference as unauthorized and renews his objection upon the closing of the hearing.
    Appeal from an order made at a Special Term denying a motion made by the defendants to open a default and vacate an order of reference.

      Preston Stevenson, for the appellants.

      P. S. Piddle, for the respondent.
   Daniels, J.:

The action was brought to collect demands from the defendants •as heirs, or devisees, of the late John H. McCunn, because of real •estate owned by him and acquired by them in one or the other of these capacities. The demands themselves, with the exception of two of them, were already in judgment The other two consisted of accounts, including a variety of items, and for that reason the .action was deemed to be referable, and an- order of reference was made as to the appealing defendants on proof of service of notice ■of motion on their attorney, he failing to appear at the hearing. This omission to appear was caused by his absence from the city and a misunderstanding as to the time to which the hearing was postponed, and upon these facts they moved to open the default, •and for a rehearing of the motion for the reference. In this application they were unsuccessful; but if the action is not one which could be referred without their consent, then the order of reference should have been vacated and the appeal from the. denial of that application must be held to be a proper one. The object of the action, which was brought under the statute providing for this class of cases, was to collect the debts in controversy from the defendants so far as they, by descent or devise, had become invested with the title to real estate owned by McCunn. In an action of this nature the vital or fundamental point to be established' is the liability of the party against whom it may be brought for the payment of the debt of the ancestor or testator. That is a matter to be.first established by making proof of the facts rendered essential for that purpose by the provisions of the statute. Until that shall be done, proof of the demands themselves is not important, and if they consist in whole or in part of accounts, no special investigation as to the accounts can be required to be made until the fact of liability has been made out by satisfactory proof. Until that has been done the accounts themselves are not important, and when ■such facts are established the accounts onlv become important to ■ascertain the extent of the liability, and a reference may regularly be then ordered to take and state such accounts. The case, therefore, cannot be held to be one in which, prior to that, a reference •can be ordered without the consent of all the parties, as an action requiring the examination of a long account.' For this provision of ■section 1013 of the Code has been so construed as to include only the ■class of cases in which the immediate object of the party is to recover the account relied upon. (Camp v. Ingersoll, 86 N. Y., 433.) That was not the immediate object of this action, but.it was first to establish the defendant’s liability for the payment of these debts ■by proof of the insufficiency of the personal estate and of the fact that these defendants had become vested with real estate owned by the debtor in his lifetime in the manner specified by the statute. 'That was the immediate and principal object of the action, and proof of the accounts would only become necessary to determine the extent of the liability after that should be established.

Neither was the action referable under the latter portion of the section as one triable by the court without a jury, for the right to refer that class of actions is also limited and restricted by the reference made to the preceding portion of the section, to actions requiring the examination of a long account. And in both to authorize a reference without the consent of the parties the action must be practically, and only, for the recovery of what has been denominated a long account. (Barnes v. West, 16 Hun, 68.) The order directing a reference of this action without the consent of the appealing defendants was not authorized under this section of the Code, and it seems to embody all the authority designed to be exercised in the reference of cases without the consent of the parties.

Before the appeal was brought on for argument a motion was made on behalf of the plaintiff to dismiss it, and in support of the motion it was shown that the trial had already taken place before the referee, and he had made his report. The defendants participated in this trial, cross-examining the plaintiff’s witnesses and producing witnesses on their own behalf, and these facts were relied upon as a waiver of the right to bring an appeal from the order denying their motion. But it was made to appear by the affidavits that the defendants did not in participating in the proceeding intend to waive or surrender their objection to the order by which the action had been referred. And for that reason, on the 23d of May, 1883, when the hearing was about to commence, the objection was taken by the defendants’ counsel before the referee that the reference was unauthorized, and he stated that an appeal would be taken from the order, and it was only after this objection was overruled that the defendants proceeded with the hearing of the case. The objection itself was unmistakable evidence of the fact that the defendants did not intend to acquiesce in or consent to the trial of the action before the referee, and what they did after their objection was overruled was of a. compulsory nature. They were obliged then either to go on with the trial or take the risk of injustice being done to them in case they failed to do so, and they chose to pursue what appeared to be the safest and most judicious of these alternatives. After the evidence was through, the objection was again renewed that the referee was without authority to proceed, and that was in like manner overruled. With these facts established, it cannot reasonably be held that the defendants, by their conduct, consented to or acquiesced in the reference ; for, as a matter of fact, they intended to do neither. They objected when tlieir objections were proper, and only proceeded when they were required to do so by the fact that the referee evinced his determination of proceeding with the trial of the action. And that such a proceeding of itself was not a waiver or surrender of the right to appeal from the order, has been rendered clear by section 1351 of the Code, for that has provided that an appeal from an order without security and without a stay does not prevent the other party from taking the proceedings provided for or allowed by the order. Notwithstanding the appeal, he may go on with his case, but it is, of course, at the risk of the proceedings being subverted by the subsequent reverse of the order. This was an order affecting a substantial right; and by section 13PT of the Code, the defendants were secured the absolute right to appeal from it, and their appeal was brought within the time prescribed for that pur-' pose. Their proceeding was entirely regular, and the right to consummate it by a hearing was never lost or' in any manner surrendered. The motion made to dismiss the appeal cannot, therefore, under this state of facts, be successful; and as the order referring the action was not authorized without the consent of these defendants, it was legally a nullity. The referee had no authority to proceed under it, and all that he did was without jurisdiction. The order denying the defendant’s application to vacate the order of reference should be reversed, with the usual costs and disbursements, and the order itself should be vacated and the motion to dismiss the appeal dénied, with ten dollars costs.

Davis, P. J., concurred.

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

Order reversed, with ten dollars costs and disbursements, and motion to dismiss appeal denied, with ten dollars costs.


text:
    ELLA L. WINTON, Respondent, v. WALTER W. WINTON, Appellant.

      Action for a limited divorce — no allowance for counsel fees can he made of ter a judgment has been entemd— Code of Oivil Procedure, sec. 1769.
    Alter a judgment in favor of a wife has been entered, in an action brought by her to procure a limited divorce from her husband, the court has no power to make an order requiring the husband to pay any sum of money to the plaintiff’s attorney for services which he has theretofore or may thereafter render to her in the action. The fact that the husband has appealed to the Court of Appeals from a judgment of the General Term affirming the judgment of the court below, does not authorize the court to make such an order.

      Anonymous (15 Abb. [N. S.], 307) overruled.
    Appeal from an order made at Special Term, directing the payment by the defendant of the sum of $250 as a counsel fee for the services of the plaintiff’s counsel since the 11th of May, 1882.

      B. F. Sawyer, for tfie appellant.

      Edward F. Wilder, for the respondent.
   Daniels, J.:

Preceding applications of a similar nature had been made in favor of the plaintiff, which had been responded to by the courts with a very generous degree of liberality. And the action itself had finally resulted in a judgment in the plaintiff’s favor, which was entered on the 23d of June, 1882. By this judgment the weekly allowances payable by the defendant for the plaintiff’s support were declared to be the sum of twenty dollars, and her costs in the action had been taxed and allowed at the sum of thirty-five dollars and ninety-one cents. An appeal from the judgment was taken by the defendant to the General Term, which reduced the weekly allowance to the sum of twelve dollars. This decision was entered on or about the 12th of January, 1883, and it was not until the 19th of March following, that notice of the motion was given which resulted in the order from which this appeal has been brought. At that time the defendant had appealed from the judgmenfito the Court of Appeals, and it was probably on account of that fact that this order for the payment of the further sum of $250 was made by the court. It was not, however, limited to the expenses to which the plaintiff might probably be subjected on this final appeal, but was made to include the services rendered by the plaintiff’s attorney in this action since the 11th of May, 1882. And that necessarily included services which had preceded the judgment. In that respect the order was manifestly without authority, for by the judgment which had been entered in the action all the preceding rights and obligations of the parties were finally disposed of and the court determined the extent of the relief to which the plaintiff had become entitled. Upon this subject it was said in Kamp v. Kamp (59 N. Y., 212), that “the jurisdiction of the court over the subject matter of the action, and over the parties in respect to all matters involved in it, terminated with the entry of final judgment therein, except to enforce the judgment and carry outfits provisions, or to correct any mistakes in the record upon proper applications made, within a reasonable time. The parties from that time were no longer husband and wife, and had no claims upon each other growing out of the relations before then existing between them, except such as were given by the judgment. (Id., 215.) And so far as the order included services antedating the judgment, it was unauthorized within this principle.

The residue of the allowance was also without authority, for the statute has confined the power of the court to allowances of this nature during the time of the pendency of the action. (Code, § 1769.) In this respect this section is “the same as the preceding statute, both of which were designed to oblige the husband in a proper case to make suitable provision for the support and maintenance of his wife, until that could be determined and finally adjusted by a judgment entered in the action. Both the language of the statute and the object intended to be promoted by it require this limitation to be placed upon the authority of the court. After the entry of the judgment its exercise becomes unnessary as well as inappropriate, for that must be intended to afford the plaintiff all the relief which, under the circumstances, she can be deemed entitled to demand. After that the proceedings in the case are regulated by other provisions of the Code in no manner extending the continuance of this authority. They are confined to the right of either party to review the judgment, and have prescribed precisely what shall be done to secure that end. And by no provision contained in the law has the power been conferred upon the court to impose any additional conditions or restrictions upon the party appealing. The right, on the contrary, is absolutely given to either party to appeal, upon giving notice and the security which has been prescribed. And on complying with the law in these particulars, a positive and unqualified right of review has been provided for the defeated party. If the authority to direct allowances of this nature should be held to continue during the pendency of an appeal from the judgment, it might be exercised in such a manner as altogether to defeat that right, and the law has in no form committed its exercise to the court.

It has, on the other hand, as plainly as that could be done, declared what shall*be required from the party to entitle him to appeal and to have his appeal heard. And the payment of an allowance of this nature has 'in no form been by any possibility required for that purpose. The order made, therefore, so far as it was designed to include the expenses of counsel on the appeal to the Court of Appeals was in conflict with these provisions of the Code.

It has been supposed that the Anonymous case (reported in 15 Abb. [N. S.], 307) has etablished a different rule. But that was made upon the conclusion of a motion in which these provisions of the statute do not seem to have been brought to the attention of the court. And as they appear to be controlling they should be followed in preference to the informal decision which was made at that time. The order in the case should be reversed, and the the motion denied, but as the application was made under the countenance of this authority, it should be without costs.

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

Order reversed and motion denied, without costs.


text:
    CORNELIUS W. VAN VOORHIS, Grantor, etc., Respondent, v. JOSEPHINE R. KELLY and WILLIAM T. HUNT, Appellants, Impleaded, etc.

      When am, action to recover land may be brought by the grantee in the name of the grantor — when the benefieia/ries a/i'e sufficiently represented in an action by their trustee and need not be made parties.

    The complaint alleged that on April 20,1881, the plaintiff executed and delivered . a deed of certain premises thereinafter described to one Willis, and that this action was brought by him in the name of the plaintiff, because at the time of the execution and delivery of the ■ said deed the said premises were in the actual occupancy of the defendants, who claimed to hold the same adversely to the plaintiff by virtue of a title frauduletilly and without authority obtained from the sheriff of New York. The fraudulent proceedings were alleged in the complaint to have consisted in the purchase by the defendant’s testatrix of a small judgment against the plaintiff, and in the issuing by her of an execution thereon after the expiration of ten years from the time when any preceding execution had been issued or returned, and in causing the land to be sold thereunder without levying upon the personal property of the plaintiff, which he owned and possessed to an amount in excess of what was required to pay the judgment, and in causing the title to the land to be conveyed to the said testatrix.

      Held, that the action was properly brought by the grantee in the name of his grantor.

      Livingston v. Peru Iron Company (9 Wend., 512); Ci’aryr. Goodman (22 N. Y., 170,177); Moody v. Moody (16 Hun, 189), distinguished.
    The testatrix devised one-third of the land to one of the defendants and the other two-thirds to the defendants, her executors, in trust for other persons.

      Held, that the beneficiaries were not necessary party defendants, as they were represented by the executors.
    Aepeal from an interlocutory judgment, entered upon an order overruling a demurrer to the plaintiff’s complaint.
    The defendants demurred upon the grounds : (1) That the complaint did not state facts sufficient to constitute a cause of action; (2) that the plaintiff had not capacity to sue; (3) that there was a misjoinder of parties plaintiff; (4) a defect of parties plaintiff; (5) a defect of parties defendant; (6) that several causes of action were improperly united.

      John Townshend, for the appellants.

      Wheeler IL. Peokham, for the respondent.
   Daniels, J.:

The action was brought to recover the possession of real estate situated in the city of New York. It appeared by the complaint that the plaintiff, on the 20th day of April, 1881, executed and delivered a deed of the property to Charles Freemont Willis, and the action was brought in the name of the grantor upon the averment that the defendants, or some of them, were in the actual occupancy of the premises, claiming to hold the same adversely to-the plaintiff by virtue of a title fraudulently and without authority obtained from the sheriff of the county of New York.

The adverse title was alleged in the complaint in general terms to have been fraudulent, and for that reason it has been urged that it is not such a title as is within the terms of the statute, declaring that “ every grant of lands shall be absolutely void if at the time of the delivery thereof such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor.” (2 R. S. [6th ed.], 1120, § 168.) But the title relied upon was not, in form, obtained by a deed from the owner upon false or fraudulent representations made to' him, and therefore not within the principle settled by Livingston v. Peru Iron Company (9 Wend., 512); Crary v. Goodman (22 N. Y., 170, 177), and Moody v. Moody (16 Hun, 189). For it was made to appear by the complaint that the alleged title, under which possession of the premises was held, was obtained by means of legal proceedings, which it was alleged by the complaint were fraudulently carried on with the design of divesting the plaintiff’s title to the land. These proceedings consisted in the issuing, without leave of the court, of an execution upon a judgment after the expiration of ten years from the time when any preceding execution had been issued or returned, without levying upon the personal property of the plaintiff, which he owned and possessed in a quantity in excess of what might be required to pay the judgment, making a sale of the land in controversy by virtue of the execution, and conveying the title to it finally to Elizabeth Tinker, who was a party to the proceeding. And by her will, which was in legal force and effect at the period of her decease, the property was devised to the defendants in this action. These facts, even though the conveyance by the sheriff was equivalent to a similar deed from the owner of the property, as it was held to be in Hetzel v. Barber (69 N. Y., 1, 9, 10), very substantially distinguished this ease from those to which reference has already been made. For they do not present a case in which, by means of fraudulent representations, the owner of the property was induced to execute a deed in form conveying it, and which it has been held would not be such a title as is contemplated by this provision of the statute. But the case disclosed is the seizure of the plaintiffs property by an execution alleged to have been unlawfully issued upon a judgment appearing to have been in force, and the sale and conveyance of the property by the sheriff under such process. If the proceedings can be maintained, then the defendants have acquired the legal title to the property, even though they were set on foot and carried on with improper motives. But if they cannot be so maintained, still an apparent or colorable title to the property has been conveyed by the deed of the sherifE and the will of the grantee. They constitute a formal title to the land, and that title is adverse to the title of the grantor in the deed to Willis. That such a proceeding would create a title within this provision of the statute was conceded, even though it may not have been definitively held, in Jackson ex dem. Livingston v. Robbins (15 Johns., 169). The proceedings created what was in form a specific title to the land, and under that title the defendants were alleged to have held it adversely to the plaintiff when he executed his deed to Willis, and that is all that can be required to include the case within this section of the statute. (Matter of Department of Public Works, 73 N. Y., 560.)

To recover the land held adversely to the grantor at the time when his deed was executed and delivered, as ihe facts are alleged to have been in this instance, the action is necessarily required to be in the name of the grantor, for as to the party in possession claiming under an adverse title, such a deed is altogether void. For that reason, under the principle preceding the' Code, it was held that the action to recover the possession of the property should be in the name of the grantor and not of that of the grantee. (Hamilton v. Wright, 37 N. Y., 502.)

And section 1501 of the present Code fully embodies this legal principle. For, in conjunction with section 1496, it has provided that an action to recover real property, or the possession thereof, may be maintained by a grantee, bis heir or devisee, in the name of the grantor or his heir, where the conveyance under which he claims is void because the property conveved was held adversely to the grantor. And this is an action of that description. To state such a case is the .entire nature and purpose of the complaint. It is to recover the possession of the property in controversy, held under an adverse title; and it is not deprived of this as its leading attribute by the allegations that the proceedings under which the sale was made by the sheriff were fraudulently carried on. Those allegations were made to characterize these proceedings as improper and unlawful and as indicating one of the legal grounds on which they should be disregarded and set aside for the purpose of enabling the plaintiff to recover what is the final object and design of the action, the possession of the property. They merely disclosed the manner in which it was alleged an unlawful title to the property had been obtained, and within the cases of Lattin v. McCarty (41 N. Y., 107) and Phillips v. Gorham (17 N. Y., 270), they were properly inserted in the complaint for that purpose, but their insertion did not legally or by any necessity change the nature of the action. It is still an action to recover the possession of the property in dispute, and these allegations present the legal grounds upon which it is to be claimed that the title under which the defendants hold the land is unlawful and voidable as to the plaintiff. They were very properly made in the complaint to apprise the defendants of the objections made to the title under which their possession of the property is held. Upon the fabts stated the claim is intended to be distinctly made that this title should be overthrown and that asserted by the plaintiff maintained against the defendants, and if that shall be done it will at once follow that the plaintiff may recover the possession of the land in controversy.

It has been urged that the formal allegations that the plaintiff has been dispossessed, and that the property is wrongfully withheld from him by the defendants, have not been made in the complaint. But while that is the fact, other allegations have - been made which in legal effect are of the same import. For it is shown by the complaint that the defendants holding the property have unlawfully obtained its possession and hold it adversely to the plaintiff, which they could not very well do without wrongfully withholding it.

• Other objections were taken by the demurrer to the complaint based upon the misjoinder and non-joinder of certain parties, but under the law applicable to the case the grantee in the deed from Van Voorhis was authorized to commence the action in the name of his grantor for the recovery of the possession of the property, under the circumstances stated in the complaint. And while other parties may, as ultimate beneficiaries, be interested in maintaining the title which has been assailed, they were not required to be joined as defendants in the action, for the reasons that the person representing them was made a party, and it is not alleged that they themselves were in possession.

The complaint, as it has been framed, presents a legal .cause of action for the recovery of the premises in dispute, and neither of the objections taken, to it by the demurrer can be properly maintained. The judgment from which the appeal has been taken was a lawful disposition of the case, and it should accordingly be affirmed, with the usual costs and disbursements.

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

Judgment affirmed, with costs.


text:
    SAMUEL COLGATE and Others, Respondents, v. THE PENNSYLVANIA COMPANY, Appellant.

      Common carrier — liability of, for delivering properly to the consignee, in part before and in part after he has assigned the bills of lading — 1858, chap. 826, and 18'59, chap. 858 — Usage — when evidence of, is inadmissible to control the terms of the bill of lading.

    Twelve hundred and fifty barrels of oil were delivered, in another State, to the defendant, a common carrier, to be delivered at the city of New York to J. F. O’Shaughnessy, and bills of lading to that effect were made and delivered upon the receipt of the oil. These bills of lading were subsequently transferred and delivered to the plaintiffs for moneys advanced by them to the consignee of the oil. Before any notice had been given to the defendant of the transfer of the bills of lading, or any demand for the oil had been made in the plaintiffs’ behalf, it delivered it, under the authority and direction of O’Shaughnessy, the consignee, to other persons. Part of the oil was so delivered before and part after the time when the bills of lading were transferred to the plaintiffs.

      Held, that under the provisions of chapter 326 of 1858, and chapter 353 of 1S59, relating to bills of'lading, the defendant was liable as for a conversion of so much of the oil as was delivered after the bills of lading had been transferred to the plaintiffs, but not for so much thereof as had been delivered prior thereto.

      Qucere, as to whether, although the plaintiffs could not recover for the conversion of the oil delivered before the time of the transfer,they might not have recovered for it under the contract contained in the bill of lading.
    That as neither the law nor the contract made by the bills of lading were in any respect uncertain or ambiguous, evidence of usage could not be received either to control or to affect the rights of the parties.
    Appeal from a judgment in favor of the plaintiff, recovered on the report of a referee.
    The action was brought to recover damages for the conversion of a quantity of cotton seed oil which was claimed to have belonged to the plaintiffs.

      Charles B. Alexander, for the appellant.

      William, G. Wilson, for the respondents.
   Daniels, J.:

The judgment recovered was for the value of 1,250 barrels of cotton seed oil. The oil had been delivered in different parcels to the defendant as a carrier of property. It was received by it at Memphis, Tennessee, and Little Hock, in the State of Arkansas, to be delivered at the city of New York to J. F. O’Shaughnessy, and bills of lading to that effect were made and delivered upon the receipt of the oil. These bills of lading, so far as they are in controversy in this action, were transferred to the plaintiffs by delivery for moneys advanced by them to the consignee of the oil, and that delivery, even without an indorsement of the bills themselves, transferred the. right to the property, so far as it was then in the defendant’s possession, to the plaintiffs. (The Merchants, Bank of Canada v. Union R. R. Co., 69 N. Y., 373 ; City Bank v. Rome, etc., R. R. Co., 44 id., 136; National Bank v. Dearborn, 115 Mass., 219.)

During the time in which these transfers were made, 800 barrels of the oil were in the possession of the defendant, and were consequently subject to the plaintiffs’ rights arising out of the transactions in which they received the bills of lading. But before .notice was given to the company of the transfer of the bills, or any demand was made in their behalf for the oil, it was under the authority and direction of O’Shaughnessy, the consignee, delivered for him to the Hudson Oil Works, in South Brooklyn. The plaintiffs afterwards demanded it from the defendant upon their bills of lading; but as no delivery could then be made, they failed to obtain the oil.

It is not requisite that it should now be decided whether notice, of the transfer of the bills of lading, to the carrier was necessary to complete the title of the plaintiffs and thereby protect them from interference with the property by the consignee. Upon that subject there is an apparent conflict in the authority. The case of City Bank v. Rome, etc., R. R. Co. (supra), intimating very clearly that the carrier cannot safely deliver the property until it may be demanded by a party under the authority of the bill of lading. (Id., 141.) While in Glyn v. East and West India Dock Co. (5 Queen’s Bench Division, 129), and other English cases, a different opinion seems to have been entertained. But in this State this subject has been regulated by statutes. The provisions enacted upon this subject are contained in chapter 326 of the Laws of 1858, and chapter 353 of the Laws of 1859, and they in terms as well as in effect provide that no. property carried under a bill of lading shall be delivered except upon its surrender and cancellation. The object of these statutes was to protect the rights of persons advancing money and dealing with the consignee upon the faith and delivery of the bill of lading. And to secure ■ that end, they made it unlawful for the carrier to deliver the property to any person failing to produce and cancel the bill of lading which had been issued for it. These provisions were violated by the delivery of the 800 barrels of oil, and by their violation the oil was delivered to a person not entitled to receive it, and that, under the authorities, was a convex - sion of the property by the defendant. Eor a delivery of the goods by the cari;ier to a wrong pex-son, even though it may have occurred by mistake, without any intentional wrong, is a conversion of the property. (Angel on Ganders [5th ed.], § 432; Viner v. N. Y., etc., Steamship Co., 50 N. V., 24; Alderman v. Eastern R. R. Co., 115 Mass., 233.)

Neither the law nor the contx’act made by the bills of lading was in any respect uncertain or ambiguous, and the rights of the parries arising out of their dealings have been clearly defined, and the case, therefore, was not one in which evidence of usage could be received either to control or to affect the rights of the parties. (Bradley v. Wheeler, 44 N. Y., 495.)

As the facts were established, therefore, the plaintiffs were rightly held to be entitled to recover to the extent of the value of 800 barrels of oil.

But as to the remaining 450 barrels, the transactions were materially different. For the carrier had delivered that oil under the direction of the consignee before he transferred the bills of lading for it to the plaintiffs. At the time of their delivery, he was the only person who was entitled to receive the oil. The plaintiffs had no possible interest in it. It was, on the contrary, delivered to the person who was rightfully entitled to its possession, and the fact that the carrier omitted to take up the bills of lading, which enabled the consignee afterwards to transfer them to the plaintiffs, could not render the defendant’s acts in delivering this oil wrongful as to the plaintiffs. By the transfer of these bills of lading the plaintiffs were directly substituted in the place of the consignee, having his rights to the property and no others. (Trustees, etc., v. Wheeler, 61 N. Y., 88, 105 ; Crane v. Turner., 67 id., 437.) And as he had no right of action against the defendant for the wrongful delivery of the 450 barrels of oil, they were subject to the same disability. Possibly a recovery in their favor upon the contract contained in the bills of lading might be maintained, but there was obviously no conversion of this property as to them, as it had been actually ■delivered to the person at the time entitled to receive it and before they became interested in the shipments or the bills of lading. As to this 450 barrels of oil, the plaintiffs could maintain no action on the basis of the fact that it had been wrongfully converted by the defendant, for such was not the character or legal consequences of the delivery of this portion of the oil to the consignee. The value of this 450 barrels should not have been included in the judgment, and as it was, the judgment should be reversed, and a new trial ordered, with costs to abide the event, unless the plaintiffs within twenty days aftel’ notice of the order to be entered an this decision, stipulate to reduce the recovery to the value of the 800 barrels of oil, with interest upon it, and in case such stipulation shall be given, then the judgment as so reduced should be affirmed, without costs to either party.

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

Judgment modified as directed in opinion, and affirmed as modified, without costs.


text:
    THE FOURTH NATIONAL BANK OF THE CITY OF NEW YORK, Plaintiff, v. GEORGE S. SCOTT and HENRY S. LEAVITT, Defendants.

      Injunction — action upon an undertaking given to procure it — when one defendant may sue alone thereon — defect of parties — when the objection must be taken by a demurrer.

    This action was brought upon an undertaking given upon the granting of an injunction in an action brought against the plaintiff herein and other persons. Upon a motion to continue the injunction it was ordered that in so far as it in any way affected the present plaintiff it should be vacated and dissolved, with costs of the motion. Thereafter, upon the application of the plaintiff, a reference to compute the damages it had sustained was ordered and the report of the referee was thereafter duly confirmed.

      Held, that the plaintiff was entitled to bring this action upon the undertaking to recover the amount of the damages so awarded to it without making the other persons, who were co-defendants with it in the first action, parties hereto.
    That even if they should have been made parties the defendants in the present action waived the objection by not raising it by a demurrer, as the defect appeared upon the face of the complaint.
    Motion by the defendants for a new trial on exceptions ordered to be first heard at the General Term, after a verdict had been directed in favor of the plaintiff.

      David J. H. Wilcox, for the plaintiff.

      Henry S. Bennett, for the defendants.
   Daniels, J.:

The action was upon an undertaking given to obtain an injunction in a case wherein Darius Miller and another were plaintiffs, and the plaintiff in this action, with others, were defendants. The undertaking is in the form prescribed by section 620 of the Code of Civil Procedure. Upon a motion to continue the injunction against the defendants, an order was made m favor oí the present plaintiff, •denying such motion, and it was ordered that the injunction, so far as it=applied to or in any way affected the Fourth National Bank, should be in all respects vacated, set aside and dissolved, with the costs of the motion. This was a plain and unmistakable adjudication that the plaintiffs in that action were not entitled to the injunction against the bank, and it was final in its character, never having in any form been changed, modified, reversed or vacated. The event accordingly had arisen upon which the sureties had become bound to pay to the bank the damages which it had sustained by reason of the injunction.

To ascertain these damages, a reference was ordered on the application of the bank, and upon notice to the plaintiffs in the action in which the injunction was issued, to ascertain the damages which the bank had sustained by reason of the injunction. In the proceedings authorized by the order, the referee reported the damages sustained by the bank at the sum of $557.50. This report, upon an application in which the plaintiffs in the action in which the undertaking had been given and the sureties in the undertaking were heard, was confirmed by the court, and the order of confirmation then made has since remained in full force and effect; and that, by the terms of section 623 of the Code, conclusively settled the amount of damages which the bank had sustained by reason of the issuing and service of the injunction; and it was consequently entitled to such damages under the terms of the undertaking executed by the •defendants. It has been objected that the bank had no legal right to maintain an action for the recovery of these damages upon the undertaking without joining the other defendants as parties to the action, and as a general proposition upon obligations in this form, this position may be legally correct, for the rule of the common law undoubtedly is that all the obligees or covenantees in a joint bond or deed must join in bringing an action to enforce the obligation. (Pearce v. Hitchcock, 2 Comst., 388; Elile v. Purdee, 6 Wend., 629.)

But even this rule did not necessarily include the class of cases where it should be evident from the instrument that several as well as joint interests were intended to be protected by the obligation. (Cunningham v. White, 45 How., 486.)

And this exception appears to have been intended to be rendered available to parties injuriously affected by an injunction not warranted in the proceedings taken against them. For by section 625 of the Code it has been provided and declared, that any person entitled to the benefit of an undertaking upon an injunction, may bring an action thereon without further leave of the court, where the damages have been ascertained by the decision of the court or the confirmation of a referee’s report, as prescribed in the two preceding sections.- The damages sustained by the bank had been in that form ascertained, and under this section it was entitled to bring an action upon the undertaking for their recovery. The expressed intention of this section was not only to provide for the prosecution of such an action without further leave of the court, but beyond that to allow it, after the damages had been ascertained in the manner prescribed, to be instituted by any person entitled to the benefit of the undertaking. The bank was such a person and under the authority of this section had the right to maintain the action.

The case of Benedict v. Dixon (47 Supr. Ct. [15 J. & S.], 477), has been cited as an authority opposed to this conclusion, but the point now considered was not there presented in any form. That was an application for an order of reference to compute the damages, and the court, without considering section 625, which probably was not applicable to that case, declined to make the order in favor of one of the defendants as long as the action had not been concluded against the others. And that as a matter of judicial discretion, might very well have been the determination on the application for the reference in this instance. For the preservation of the rights of All the parties designed to be protected by the undertaking, it might be very proper to suspend the inquiry as to the damages sustained by one of the parties until the rights of the others should be finally determined in the action. For such a suspension would avoid confusion as to their respective rights to indemnity upon the undertaking, and where their claims in the aggregate might exceed the amount for which the undertaking was given, it would enable the court intelligently to apportion the amount secured between all the parties entitled to indemnity under the obligation.

But these considerations are not now entitled to weight in this case, for both the order of reference and that confirming the referee’s report have remained in full force and entirely unquestioned. They practically provided for a division of the case, for they allowed the damages claimed to have been sustained by the bank to. be sepa' lately ascertained and confirmed, while the action itself was proceeding undetermined against the other defendants in it. As to them it was not determined, as it had been in favor of the bank, that the plaintiffs were not entitled to the injunction, and the form and effect of these orders were to determine the separate and individual right of the bank to compensation against the sureties in the undertaking. And when that was aceomjilished, by the express language of section 625, the bank was empowered to prosecute the undertaking for its indemnity.

But even if the other defendants should, strictly speaking, have .been joined in the action, the right to insist upon it was waved by these sureties. Bor that they also were entitled to be protected by the undertaking, in case it should be finally decided that the injunction was improper as to them, was practically shown by the complaint, for that not only in terms stated that there were these other defendants in the action, but beyond that a copy of the undertaking containing the names of all the parties was itself attached to the complaint. If there was a defect of parties it therefore appeared from the complaint itself, and that was made a cause of demurrer by subdivision 5, section 488 of the Code. The objection was not taken in that form, and as the right to take it, if it existed, appeared on the face of the complaint, it could not be presented by the answer, but must be deemed to have been waived under the provisions of section 499 of the Code. ( Warner v. Ross, 9 Abb. N. C., 385.)

Neither of the points upon which this action must be determined was involved in or considered by the case of Johnson v. Elwood (82 N. Y., 362), or either of the other authorities relied upon in the support of the appeal, and no special attention for that reason is required to be devoted to them. As the case was made out, the pla.i-ntiff was entitled to recover the amount for which the verdict in its favor was directed. The exceptions should therefore be overruled and judgment directed upon the verdict in favor of the plaintiffs.

Davis, P. J., concurred.

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

So ordered.


author: Davis, P. J.,

text:
    JOHN A. LESLIE, Respondent, v. JACOB LORILLARD, THE LORILLARD STEAMSHIP COMPANY, Appellants, Impleaded with THE OLD DOMINION STEAMSHIP COMPANY OF NEW YORK and THE OLD DOMINION STEAMSHIP COMPANY OF DELAWARE.

      Action by a stockholder to restrain wrongful acts of the corporation — a refusal of the corpomtion, after demand, to bring the action must be alleged — mare neglect to do sois not enough to justify the stockholder in acting.

    Appeal from an interlocutory judgment, entered upon an order overruling a demurrer to the complaint.
    This action was brought by the plaintiff as a stockholder of the Old Dominion Steamship Company, of Delaware, on behalf of himself and other stockholders similarly situated, who shall come in and contribute to the expenses of the suit.
    The court at General Term, after considering several grounds upon which it was sought to sustain the demurrer, said: “ The fourth ground of demurrer is that the complaint does not state facts sufficient to constitute a cause of action. We have considered carefully the able and elaborate briefs presented by the learned counsel for the appellant upon this ground, and have come to the conclusion that the several objections which he presents will arise more properly upon the trial of the action than upon this demurrer, with the exception of one, which is in substance that the complaint does not sufficiently aver that the corporation, the Old Dominion Steamship Company, of Delaware, has refused to bring an action to redress the alleged wrongs of its officers, in such manner as to entitle the plaintiff to maintain this action as a stockholder of that coi’poration. To give him that right the stockholder must aver that the corporation has refused to bring the aotionP

      “ The allegation of the complaint is: ‘ That heretofore, and before the commencement of this action the plaintiff requested the defendant, The Old Dominion Steamship Company, of Delaware, to pay no more money to said Jacob Lorillard, or his assigns, under said contract, marked B, and to commenee an action to procure the cancellation of said contract and to recover from said Jacob Lorillard all sums of money paid to him under the same and under the contract first herein mentioned. That said defendant has neglected to bring such action and threatens to continue to make the monthly payments provided for in said contract.’

      “ The allegation that the defendant has neglected to bring such action is not equivalent to an allegation that the defendant has refused so to do. It is not stated how long such neglect continued; whether for a day, a month, a year, or any other time, and there is nothing from which the court can lawfully infer that such neglect is equivalent to a refusal. A refusal of the board of directors in. such a case is essential in order to give the stockholder any standing in court, as the charter confers upon the directors the general management of the business of the company. ‘ There must be a clear default, therefore, on their part involving a breach of duty.’ (Per Nelson, J., Memphis City v. Dean, 8 Wall., 73.)
    “ In Greaves v. Gouge (69 N. Y., 71), the Court of Appeals laid down the rule in these words : ‘ When a stockholder brings such an action the complaint should allege that the corporation, on being applied to, refuses to prosecute; and, as this averment constitutes an essential element of the cause of action, the complaint is defective and’insufficient without it.’
    “ It is not necessary in considering this point to go so far as" the Supreme Court of the United States in Hawes v. Contra Costa Water Compa/ny (21 Am. Law Reg. [N. S.], 252). In that case the plaintiff averred that, on a specified time, he applied to the president and board of direc tors, and that they wholly declined to take any proceedings whatever in the premises. The demurrer was sustained on the ground substantially that this allegation did not show such a distinct and unqualified refusal as the law required, to vest the right of action in the stockholder.
    “ On the last two grounds considered, we think the demurrer should have been sustained in the court below.

      “ Tbe judgment must be reversed, and judgment ordered for defendants on the demurrer, with the usual leave to the plaintiff to amend on the usual terms.”

      Asa Bird Gardner, for the appellant.

      Thomas S. Moore, for the respondent.
   Opinion by

Davis, P. J.,

Daniels, J., concurred.

Present — ■ Davis, P. J., and Daniels, J.

Judgment reversed and judgment ordered for defendants on demurrer, with leave to plaintiff to amend on the usual terms.


author: Brady, J.;

text:
    CHARLES T. RUSSELL and SAMUEL RUSSELL, Respondents, v. SAMUEL W. ALLERTON, Appellant.

      Contract — conditioned that it shall he performed to the satisfaction of the other pa/rty— what compliance with it will he required.

    Appeal from a judgment in favor of the plaintiff,- entered on the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought to recover damages for a breach of a contract of freight entered into between the plaintiffs and the defendant, dated at Liverpool, July 23, 1878. It was agreed between the plaintiffs, as sub-owners of the steamer “ JBertha,” and the defendant, that it should proceed to Philadelphia, and, in the words of the contract, “ ship to run regularly commencing at loading port on March 15,1879, or not later than April first, and continuing up to July 15, 1879.” She was to be loaded with live cattle, and it was provided by the charter party that the cattle fittings were to be furnished by the plaintiffs; and it had this further provision — 4 4 Charterers to approve the ventilation.”
    The action was brought to recover damages for the failure of the defendant to receive and use the ship as agreed. The defense was that the ship was not ready to sail at the time specified, and that the plaintiff refused to furnish blowers to properly ventilate the ship when required to do so by the defendant, the defendant having refused to “approve the ventilation until blowers were put on.”
    In charging the jury, the learned justice said in regard to the ventilation : “ The defendants also say that they desired to have blowers put upon the vessel, and sent Dr. Craven for the purpose of examining the vessel in that regard. I do not intend to allude in detail to the evidence on the subject of the blowers. The significance of that evidence only makes itself apparent in view of the fact that the instrument, which is the foundation of this action, eon templates that the charterers are to approve of the ventilation. It is my duty to say to you that that must be interpreted reasonably. The charterers would have no right to ask for anything unreasonable as to ventilation [nor put the other party under unusual burdens in that regard]. [A good deal of evidence has been introduced as to the condition of the vessel, the means of ventilation which she had at the time, hatches, windsails, and other appliances. You will determine from that evidence, whether the charterers, under the circumstances, were entitled to ask for anything additional, whether the demand for blowers was a reasonable or unreasonable one.] [If it was an unreasonable demand, the fact that there were no blowers on the ship, or that they were withheld by the plaintiffs, would be no justification of a refusal to put the cattle on her.] ” To which portion of the charge in brackets defendants excepted. “ But if you should.think that the blowers were a reasonable requirement, you may examine the evidence as to whether plaintiffs or their agents had refused to put the blowers on [and as to whether they would not have been in at the time when it was claimed by the plaintiffs that the ship was to be in readiness to receive the cattle].” The portion marked in brackets was duly excepted to by the defendant’s counsel.
    The court at General Term said: “ The evidence in the case, considered vyith reference to that subject, did not show that the demand for blowers was unreasonable. It is true that some of the witnesses considered it unnecessary to use blowers because they accomplished no good results, but that it was unreason' able to demand that they should be put in the vessel, under the right which was secured to the defendant to approve of the ventilation, was not testified to in express terms. But whether it was or not makes no difference. The defendant having-secured the right by the charter party to approve of the ventilation of the ship, he was entitled to all the benefit and advantage of that element of the contract. He was made the sole arbiter on that subject. And the cases are numerous in support of the proposition that if such a provision is inserted the party against whom it operates takes the consequences. (MeCarren v. McNulty, 7 Gray, 139; Brown v. Foster, 113 Mass., 136; Barton v. Hermann, 11 Abb. [N. S.], 378 ; Butler v. Tucker, 24 Wend., 447; Gibsonv. Cranage, 33 Am., 353 and analogous; Whiteman v. The Mayor, 21 Hun, 117; Thomas v. Fleury, 26 N. Y., 26, 33; McMahon v. N. Y. and Erie B. B. Co., 20 id., 463, 467; Bowery Nat. Bank v. Mayor, 63 id., 336; Smith v. Wright, 4 Hun, 652.)
    As said in the case of MeCarren v. McNulty {supra), in which the contract provided that the work was to be done to the satisfaction of the defendants, “ against the consequences resulting from his own bargain the law can afford him no relief. Having voluntarily assumed the obligations and risks of the contract, his legal rights are to be ascertained and determined solely according to its provisions.”
    The defendant did not fail to insist upon this element of his case, by motion and exceptions to evidence and to the charge of the learned judge.
    When the testimony was closed a motion was made on his behalf to dismiss the complaint upon the ground, among others, that the plaintiffs had failed to provide the ventilation required by the defendant, a proposition which, according to the testimony and the facts developed on the trial, was clearly correct. The testimony does not warrant the conclusion that the defendant was either acting in a captious, fraudulent or unreasonable spirit in demanding that the blowers should be placed upon the ship. So far as the case shows the sentiment controlling him, it was a conviction that without the blowers his cattle could not be safely transported. And that he was strongly imbued with this view, was demonstrated by his cross-examination, in which he stated that that 'was made the subject of particular conversation and consideration before the contract was made, and that he insisted upon it that the right which the contract gave him in reference to the ventilation should be accorded him.

      Ira D. Warren, for the appellant.

      Joseph H. Ohoate, for the respondents.
   Opinion by

Brady, J.;

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

Judgment reversed, new trial ordered, cost to abide event.


author: Daniels, J.;

text:
    NEW YORK ELEVATED RAILROAD COMPANY, Appellant, v. DELAPLAINE McDANIEL, Respondent, Impleaded with THE PHILADELPHIA ARCHITECTURAL COMPANY.

      Costs — where on a tried before a referee the plaintiff recovers a judgment against one of the defendants only, the other defendant can only have costs awarded to him upon a motion to the court — Code of Cwil Procedure, seas. 1018,3229.
    Appeal from a judgment in favor of the defendant McDaniel, and against the plaintiff, dismissing the complaint as to said McDaniel and for $261.48 costs. The judgment having been entered upon the report of a referee, and also from an order made at a Special Term awarding costs and an extra allowance to the defendant McDaniel.
    The claim made was for the recovery of $1,106.88 over-paid under a contract made by the plaintiff with the Philadelphia Architectural Company for the material required for building certain stairways for passenger stations on the road of the plaintiff.
    The court at Q-eneral Term, after approving of the finding of the referee that the defendant McDaniel, to whom the Philadelphia Architectural Company had assigned the contract, was not bound to refund the payment made to his assignor, said : “ After the determination of the action, the defendant McDaniel moved the court for costs in his favor, and upon the hearing of the parties an order to that effect was made, but the right to make it has been denied because of the omission of the referee by his report to adjudge costs in favor of this defendant. This, however, was not one of the subjects which, by section 1018 of the Code, appears to have been committed to the determination of the referee. The authority, on the contrary, was confided expressly to the discretion of the court by section 3229 of the Code, and that has been considered tbe proper course of proceeding for this purpose under provisions similar to those contained in the present Code. (Bank of Attica v. Wolf, 18 How., 102; Lindslay v. Deafmdorf, 43 id., 90; Williams v. Blumer, 49 id., 12.)

      “ The allowance of cost to the defendant McDaniel was within the authority expressly given in this matter to the • court over a case of this description. But as there was nothing difficult or extraordinary in the action or the defense, the additional allowance of $175 was not authorized. To this extent the order requires to be corrected, and it should as to the allowance be reversed, and with that qualification the judgment should be affirmed and the residue of the order should be also affirmed, without costs.”

      Deyo, Duer c& Bauerdorf, for the appellant.

      Charles W. Seymour, for the respondent.
   Opinion by

Daniels, J.;

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

Judgment modified as directed in opinion and affirmed as modified, without costs.


text:
    FREDERICK P. REED, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant.

      Action against the city of New York — the amount demanded in the complaint ccmnot be increased, by amendment, to exceed the claim ¡presented to the Comptroller —1873, chap. 335, sec. 105 — what claims fali within it— action by one injured by falling on a sidewallc covered with snow — what to be considered by the jury in determining the negligence of the city — the extent of the streets, and its ordinances relating to the cleaning thereof, ore admissible in evidence.

    Appeal from a judgment in favor of the plaintiff, recovered on-the verdict of a jury, and from an order denying a motion for a new trial, made on the minutes of the justice before whom the action was tried, and also from an order increasing the amount of damages claimed by the complaint from five to ten thousand dollars.
    The action was brought to recover damages for injuries sustained by the plaintiff from falling on a sidewalk in the city of New York, which was covered with snow.

      Tbe court at General Term said: “ It is not important definitely to determine whether the order increasing the damages claimed by the complaint was a proper one or not, for by the verdict the plaintiff recovered no more than the amount demanded in the complaint before it was amended, and the defendant therefore was not injured or prejudiced by the amendment. The order probably should not have been made, for it has been provided by section 105 of chapter 335 of the Laws of 1873 that ‘ no action shall be maintained against the Mayor, Aldermen and Commonalty of the city of New York, unless the claim on which the action is brought has been presented to the Comptroller, and he has neglected for thirty days after such presentment to pay the same.’ The claim made by the plaintiff was for damages sustained by him in falling upon the ice on the sidewalk on Gold street, on the 10th of January, 1881, and breaking his ankle, and that was a claim within the significance of this clause, and it was so considered by Daly, C. J., in Harriman v. Mayor, eto. (not reported), and the extent of the sum demanded of the Comptroller limited the claim, as it was required to be made under this language of the statute. For the claim itself consisted of the sum of money to which the plaintiff stated himself to be entitled on account of the injury to which he had been subjected. And when he brought his action for its recovery he would probably be required to stand upon' the claim as he had previously presented it. (Duryea v. Mayor, eto., 26 Hun, 120.) And the court therefore should have charged, as the request was made, that no greater amount could be recovered in the action. But as the verdict did not exceed this sum the judgment cannot be disturbed for either of these causes. * * *
    “ The defendant proposed to show upon the trial the number of miles and the area of the sidewalks in the city of New York, and this was rejected by the court as improper, and to the decision rejecting this offered evidence the defendant excepted. The defendant also offered to prove and read in evidence the ordinances of the city enacted for the purpose of requiring the owners or occupants of premises to clean the walks in front of their residences or places of business. That was excluded by the court, and a like exception taken to the decision. The defendant was not liable to the plaintiff simply because lie had fallen upon the walk and received tliis injury. To establish a liability it was requisite that proof should be given showing carelessness, or some default or omission on the part of the defendant, in consequence of which the ice and snow remained upon this walk. And the extent of the walks of the city requiring attention from the authorities in this respect was a fact pertinent to be considered upon the question whether any unreasonable neglect had intervened, through which this particular portion of the walk had not been cleaned. It was obliged to exercise reasonable care and diligence in its oversight of all the walks and the enforcement of the obligation to clean them, or in the default of the observance of that obligation to furnish a force to clean the walks. And the extent of the territory over which a like obligation was extended was a fact affecting its observance of care and diligence in this case, and should for that reason have been laid before the jury.
    “ The enactment of the ordinance to secure the removal of the ice and snow from the walks was an act performed by the defendant to promote that end, and some reliance might be placed upon the expectation that the duty such ordinances required to be performed by the owner or occupants of the premises would not be neglected. These ordinances impose penalties for the neglect to observe them, and they afford some ground certainly for concluding that the persons against whom they may be enforced would not fail to observe their directions, and for that reason, under the authorities prevailing upon this subject, the ordinance should have been received in evidence. (.Knupfla v. 'Knickerbocker Ice Co., 84 N. Y., 488.) The failure to observe such an ordinance would be some evidence of negligence, and that in the first instance the authorities would not be required at tlieir peril to presume. * * *

      “ The court was also requested to give the following direction to the jury: ‘ What is a “ reasonable time,” and what is a “ reasonably safe condition of the sidewalk is for the jury to determine, and must be determined from a reasonable standpoint, and in view of the difficulty and obstructions the city has at all times to meet, and also in view of the extended territory of the streets, roads and sidewalks, and the fact that in some sections of the city public travel required more speedy attention than others, and the possible large number of similar dangers requiring attention, and, also, in view of the facilities at its disposal for removing obstructions.’ But the court declined to charge on the point, except as that had already been done. A perusal of the charges produces the conviction that this request had not been so included in it as to lead the minds of the jury to its adoption as a part of the law of the case. The proposition itself seems to have been a proper one for their consideration, and the instruction requested, therefore, should havejbeen given.” * * *

      Charles Blandly, for the appellant.

      Charles P. Miller, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., concurred.

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

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


author: Davis, P. J.

text:
    In the Matter of George H. Morrison v. Irving A. Evans, Trustees, etc.—
   Order reversed and proceedings remanded. Opinion by

Davis, P. J.


author: Daniels, J.

text:
    In the Matter of Mary Clarissa Annett.—
   Decree and order affirmed, with costs against the appellant. Opinion by

Daniels, J.


text:
    William C. Browning and others, Executors, etc., Respondents, v. The Shelby Iron Company, Appellant.—
   Judgment modified as directed in opinion, and affirmed as modified, without costs to either party. Opinion by

Daniels, J.


text:
    Thomas D. Adams and another, Assignees, etc., Appellants, v. Abram Stern and others, Respondents.

   — Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    Attorney General v. Reserve Mutual Life Insurance Company.—
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    John W. Miller, Appellant, v. E. Ellery Anderson and others, Respondents.—
   Order denying motion to set aside dismissal of complaint reversed, without costs. Order denying motion for leave to renew the preceding motion affirmed, with ten dollars costs and disbursements, and order entered as directed in opinion. Opinion by

Daniels, J.


text:
    Napoleon C. Hubbell, Appellant, v. Jacob Lorrilard, Respondent.—
   Judgment affirmed. Opinion by

Daniels, J.


text:
    Star Fire Insurance Company, Respondent, v. George Waddington, Appellant.

   — Judgment affirmed. Opinion by

Daniels, J.;

Brady, J., dissenting.


author: Brady, J.

text:
    Christian F. A. Dambmann, Appellant, v. Herman Schulting, Respondent.

   — Order reversed, without costs Opinion by

Brady, J.


author: Brady and Daniels, JJ.

text:
    James M. Nichols, Respondent, v. Thomas A. Nelson, Appellant.—
   Judgment reversed and judgment ordered for defendant on demurrer. Opinions by

Brady and Daniels, JJ.


text:
    In the Matter of Sarah Turk.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Richard P. Smith, Appellant, v. Gabriel Elias and another, Respondents.

   — Judgment affirmed. Opinion by

Davis, P. J.


text:
    Union Dime Savings Bank, Respondent, v. Mary J. Quinn, Appellants. —
   Judgment affirmed. ■ Opinions by

Brady and Daniels, JJ.


text:
    Michael Sullivan and another, Plaintiffs, v. James Miller and another, Defendants.

   — Order affirmed, without costs. Opinion by

Brady, J.


text:
    Harriet L. Not, Respondent, v. John J. Carroll, Appellant.—
   Judgment affirmed. Opinion by

Davis, P. J.


text:
    William Berg, Respondent, v. The Tilly Foster Iron Manufacturing Company, Appellant.

   — Judgment and order affirmed, with costs. Opinion by

Daniels, J.


text:
    John Hurd, Respondent, v. The Hannibal and St. Joseph Railroad Company, Appellant.

   — Judgment affirmed. Opinion by

Daniels, J.


text:
    Attorney-General v. Continental Life Insurance Company.
   Order reversed, without costs. Opinion by

Brady, J.


text:
    Henry A. Barnum, Appellant, v. Oscar Tomagno, Respondent.

   Motion for reargument denied, with ten dollars costs. Opinion by

Daniels, J.


text:
    Elijah R. Kennedy, Respondent, v. Samuel L. Harris, Appellants.

   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Charles H. Jordan, Respondent, v. Bernard Reilly, Appellant.

   — Judgment and order affirmed. Opinion by

Daniels, J.


text:
    Myra L. Howard, Appellant, v. James Irving Howard, Respondent.

   — Judgment reversed, new trial ordered, costs to appellant to abide event. Opinion by

Davis, P. J.


text:
    Edward Harrison and another, Respondents, v. William Peters, Appellant.

   — Order reversed and attachment vacated, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    E. L. Doughty and others Respondents, v. The Manhattan Brass Company, Appellants.

   — Judgment affirmed, with costs. Opinion by

Davis, P. J.


text:
    Sarah Adeline Lloyd, Respondent, v. William T. Lloyd, Apellant.

   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Attorney-General v. Continental Life Insurance Company.—
   Order affirmed. Opinion by

Brady, J.


author: Davís, P. J.

text:
    Louis Guillauden, Respondent, v. Coast Wrecking Company of New York, Appellants.—
   Judgment affirmed. Opinion by

Davís, P. J.


text:
    Jacob Heidinger, Respondent, v. Charles F. Hine and another, Appellants.—
   Judgment and order affirmed. Opinion by

Daniels, J.


text:
    Henry Bruns, Appellant, v. The Stewart Manufacturing Company, Respondents.—
   Order modified by striking out of the previous order so much thereof as removed receiver Dick and substituted Nealis in his place, and reversed in so far as it removed Dick and appointed Miller receiver, with costs to appellant, payable out of any fund that may hereafter come to his hands. Opinion by

Davis, P. J.


text:
    The People of the State of New York v. The People’s Savings Bank of the City of New York. The Same v. The Central Park Savings Bank of the City of New York.—
   Order granted.


author: Per Guriam.

text:
    Henry A. Vatable and others, Respondents, v. The New York, Lake Erie and Western Railroad Company, Appellant. William Allen Butler, Respondent, v. The Same, Appellant. Frederick W. Newcomb, Respondent, v. The Same, Appellant. Benkendorff, Respondent, v. The Same, Appellant. Williams, Respondent, v. The Same, Appellant. Michael Antonio Ralli, Respondent, v. The Same, Appellant. Theresa W. Seabrook, Executrix, etc., Respondent, v. The Same Appellant. Charles G. Francklyn, Executor, etc., Respondent, v. The Same, Appellant. Canard, Respondent, v. The Same Appellant. Sebastian de Neufville, Respondent, v. The Same, Appellant. Elisha Carpenter, Executor, etc., Respondent, v. The Same, Appellant. Ernest G. W. Woerz, Respondent, v. The Same, Appellant.—
   Judgment affirmed with costs. Opinion

Per Guriam.


text:
    The People of the State of New York ex rel. The Second Avenue Railroad in the City of New York v. The Board of Commissioners of the Department of Public Parks of the City of New York, Respondents. —
   Motion to quash the writ of certiorari denied, without costs. Proceedings and order of the Board of Commissioners of Public Parks affirmed, with costs.


author: Lawrence, J.

text:
    Joseph Emrich, Appellant, v. Lucy E. White, Respondent.—
   Judgment affirmed on opinion of

Lawrence, J.