author: Pratt, J.

text:
    Joseph Newman, App’lt and Resp’t, v. Ephraim B. Levy et al., App’lts and Resp’ts. (Five cases.)

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Mechanic’s lien—Priority.
    An order, given by the contractor on the owner, will take precedence of a lien of a subcontractor, where its payment is made in good faith and for a valuable consideration, before the service of notice of such lien upon the owner, and especially if made before he has any knowledge that there is a lien.
    Appeal from a judgment on the report of a referee.

      Milo J. White, for app’lt Newman ; Seward Baker, for app’lt Levy ; Duffey & Kiernan, for resp’t.
   Pratt, J.

The mooted question in this case seems to be whether an order on Levy, the owner, given by Sehring, the contractor, in favor of J. A. and E. J. Wolff, should take precedence of a lien of Lanzer, a subcontractor, and should, I think, be decided in the affirmative, on the ground that the payment of the order was made in good faith, and for a valuable consideration, before any service of notice of Lanzer’s lien upon the owner, Levy, and in fact before he had any knowledge that there was a lien. Lauer v. Dunn, 115 N. Y. 405 ; 26 St. Rep. 412. The statute on this point is specifically worded: “ And after such service such owner or person in interest shall not be protected in any payment made to such contractor or other claimant.” Hence it appears that service of notice of lien is necessary to fix the rights of the lienor as against the owner or person in interest. In Kenney v. Apgar, 93 N. Y. 541, it would appear that, although the service of the' notice of lien is not necessary "to the validity of the lien, it is necessary to prevent the payment by the' owner to the contractor after the filing of the notice of lien to the prejudice of the lienor, and acts as a protection to the owner against his. contractor’s fraud. If such notice is not served or the owner informed of the lien, as in Kelly v. Bloomingdale, 139 N. Y. 343 ; 54 St. Rep. 620, all payments, acceptances, or other payments or advances hold good as against the lienor. McCorkle v. Hermann, 117 N. Y. 303 ; 27 St. Rep. 333, holds principally that the lienor may subject the debt to a lien by filing his notice of lien, and taking the other steps prescribed in this act. It also holds that the filing of a notice of lien creates a lien, but, as the circumstances of that case were different from the present case, and the point as to service of notice of lien upon the owner to prevent any further payments to his contractor did not come up, it can hardly be held an adjudication on the case herein. In Kelly v. Bloomingdale there was sufficient, although not technical, notice, within the statute, given to the owner or party in interest; and throughout there was a presumption of fraud on the part of the party owning sufficient to show that the owner sought to avoid.the lien by conclusively paying his contractor when he was fully aware of the lien.

The time prescribed by the statute for the service of the notice of lien on the owner or party in interest is ten days, and, if such notice is not served within that time, the owner or party in interest is protected in any payment be may make to his contractor until the next steps provided by the statute are taken, i. e., service of summons to foreclose the lien. Now, if service of such notice.is necessary within ten days,—and from the decision it has been held that this notice was necessary for the protection of the owner or party in interest against paying his contract, or any other party claimant,—it is unjust to so construe the statute that an owner acting in good faith and without notice should be held to pay not only what he owed his contractor, but also whatever any lienor claims against said contractor, thus forcing him virtually to pay twice for his houses. In fact, the lienor, Lanzer, seeks to abrogate a specific provision of the statute, although he-was very careful to try to carry it out by serving a notice of lien upon the owner, Levy; and, when he found that Levy had paid or contracted to pay the Wolffs what has been allowed by all parties to be an assignment pro tanto of all funds in the owner’s-hands due the contractor at the time, he took steps to push his whole lien upon the owner, on the ground that the payment to the Wolffs was subsequent to his lien, and consequently void as against him, holding that the filing of his notice of lien was sufficient notice. This statute was not enacted to be technically abused by the lienor, and under it the owner has some rights, one of them being service of the notice of lien, which fact Lanzer has acknowledged by serving Levy, and now he tries to set aside his own act as unnecessary. The citations in this case bear only on the particular points set forth in the cases to which they relate, and none bear upon the points in issue herein sufficiently to make them conclusive in this case. I think, therefore, that the payment of the order on Levy, given by Sehring, his contractor, in favor of the Wolffs, is good and valid, and that the balance that Levy now acknowledges he owes Sehring ($821.87) should be the extent'of Lanzer’s lien. I also think, on principles of equity, that all the lienors should be awarded judgments against Sehring for the balance due them as subcontractors and uncollected, with interest to date ; also, that no costs should be allowed against Levy except disbursements and costs up to the offer of judgment. The plaintiff, in all the actions, should have been granted judgments against the contractor Sehring.

We think, as between Lanzer and the other defendants, the findings of fact and conclusions of law are correct, as his lien was prior’in point of time, and the description of the premises was sufficient. This conclusion is applicable to action No. 2 and the other cases depending upon the result therein by application. The judgment in that action is reversed, and’ a new trial granted ; costs to abide event.

In action No. 1, the only appellant being the plaintiff, and the only point made being that he should have been awarded a judgment against the contractor, the judgment is affirmed, with costs. The contractor did not appear in the action, and there was no issue before the referee as to him. If plaintiff desires such a judgment, he may apply for it at any time at special term.

All concur.


source: Caselaw Access Project

author: Mayham, P. J.

license: Public Domain

text:
    Edwin Albert Merritt et al., Resp’ts, v. Herbert P. Bissell, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Principal and agent—Ratification.
    An unauthorized act of one, assuming to he the agent of another, maybe ratified by the latter, so as to bind him as effectually as though such assumed agent had precedent authority.
    Appeal from a judgment in favor of plaintiffs.

      Martin Carey, for app’lt; Charles O. Tappen, for resp’ts.
   Mayham, P. J.

This action was brought by the plaintiffs to recover a balance claimed to be due them on a contract alleged to have been made by the plaintiffs with defendant, by his agent, under which the plaintiffs claim to have delivered a quantity of red sandstone for the construction of the defendant’s house, in Buffalo, and for which the defendant refused to pay. The answer of the defendant denied the making of the contract by him, and denied that the defendant’s alleged agent had any authority to make the same, or that he ever ratified any contract made by such alleged agent. The case discloses that, in the winter of 1891-92, defendant employed Charles D. Swan to submit plans and specifications of a house which he contemplated building in the city of Buffalo, and to superintend the work of construction. Plans were submitted by the architect, and, on examination of the same by the defendant and his wife, it was found that the specification of the masonry proposed rock-faced limestone, when the defendant’s wife preferred red sandstone, used to some extent in that city in the construction of residences. Upon the assurance of the contractor that it was no more expensive than limestone, it was decided to substitute red stone in the specification. ' After-wards, upon the specification of that kind of stone, bids were called for upon the masonry, and one Schumacher was the successful bidder; and the evidence shows that the contractor, architect, and defendant all understood that the masonry was to be constructed of red sandstone. The contract with Schumacher provided that:

“The contractor shall and will well, sufficiently, perform and furnish, under the direction and to the satisfaction of Charles D. Swan, architect (acting as agent of said owner), all the work included in the masonry work of the proposed new building, dwelling house, * * * according to the true intent and meaning of said drawing and specifications, and of these presents incident thereto, and shall provide all scaffolding, implements, and cartage necessary to the due performance of said work.”

The contract was minute in all details relating to the time and manner of performance by the contractor, and provided, in case of failure or neglect of the contractor to perform the contract according to its terms, on the certificate of the architect of such failure of the contractor to perform such work and to furnish materials, the owner shall be at liberty to terminate such employment, and that the contractor shall not be entitled to receive any further payment under the contract until the owner shall have completed the construction according to the specifications of the contract, when he shall deduct the expense of such completion, when the excess, if any, over such expense shall be paid to the contractor. The contract price for such work and materials was fixed at $2,600, payable at different times, as specified in the contract, as the work progressed. The contract between the defendant and Schumacher was dated on the 28th day of Jane, 1892. The evidence tends to show that Swan, assuming to represent the defendant, on the 21st of May, 1892, contracted with the plaintiffs’ company to furnish the red stone to defendant at Buffalo, on the cars, "cut and fitted as required by the specifications, at the price of $1,385. Plaintiffs’ counsel put in evidence a letter written by plaintiffs to Charles D. Swan, dated May 21, 1892. This letter was admitted over the objections of the defendant. It contained the terms on which the plaintiffs proposed to furnish the red stone at defendant’s place in Buffalo. There was no proof that the defendant had ever seen the letter. There were several other letters, some of which passed between the stone" company, now represented by the plaintiffs, and this defendant,- and some between plaintiff and Swan, whom the plaintiffs treated and seemed to recognize as the agent of the defendant. Immediately on making the contract with Swan the plaintiffs commenced getting out and cutting the stone, and loading them on the cars as fast as they were-dressed, and on the 29th of June shipped two car loads of stone, cut and prepared to lay in the defendant’s building, consigned to the defendant, at the city of Buffalo, and on the 1st day of July notified Swan, the defendant’s architect, of such shipment. On the 27th of July, 1892,"the plaintiffs addressed a letter to the defendant, informing him of the shipment of June 29th, and also duplicate receipt for cars, and itemized bill 'of the stone shipped on the two cars-; and in the letter they called attention to the contract for stone, made with Swan, as agent for defendant, and the amount of the plaintiffs’ bill for stone under that contract. On the 29th of June the defendant, by John O’Sullivan, agent, acknowledged the receipt of the two car loads of stone from the plaintiffs’ company. On the 29th of August, 1892, the defendant replied to the letter of the plaintiffs of July 27th; stating, among other things, that he understood from his architect that he had ordered the stone from the Potsdam Red Sandstone Company, in the defendant’s name, but that the bills would be paid by the contractor, and therein referred the plaintiffs to the architect and contractor. It will be observed that in the letter the defendant did not repudiate the contract made by Swan with the plaintiffs, or dispute the power of Swan to make the contract as his agent. To the letter of the defendant the plaintiffs replied on the 5th of September, asking that the defendant’s check for the stone should be payable to the order of the plaintiffs, and not to the defendant’s contractor. On the 15th of September, 1892, the defendant paid the cartmen for transferring the stone from railroad to site of building, on the certificate of Swan, the architect, and charged the same to the contractor. The referee finds that on the 19th of October, 1892, the defendant paid plaintiffs, on the price of these stones, $500, and that, with the amount of freight and transportation, is all that he has paid the plaintiffs on these stones. There is much more evidence offered by the respective parties to the controversy; tending, on the one side, to establish the validity of the contract by Swan with the plaintiffs, as the agent of the defendant, and also, on the other side, tending to prove a want of authority on the part of Swan to bind the defendant by the contract with the plaintiffs.

The referee finds that there was no original authority m Swan, as the agent of the defendant, to make the contract of May 21¡ 1892, with the plaintiffs, but that by the payment of $500 and the freight and cartage, and the use of the stone shipped by the plaintiffs under that contract, the defendant, with knowledge of the existence of the contract, and its terms, ratified and adopted the same, and became liable to pay the- plaintiffs according to its terms. We think the evidence is sufficient to uphold such finding and conclusion. Under the conflicting evidence and theories of the respective parties, it was a question of fact, for the referee to determine, whether or not the defendant, with full knowledge, ratified and adopted that contract. Upon that question1 of fact the referee’s finding was supported by some competent evidence, and there is no sufficient preponderance of evidence against such finding as to justify the court, on appeal, to interfere with" such conclusion. It is a familiar rule, of universal application, .that an unauthorized act of one assuming to be the agent of another may be ratified by the one for whom such agent assumes "to act, so as to bind the principal as effectually as if such agent had precedent authority. This rule is stated in 1 Am. & Eng. Enc. Law, as follows :

“ An unauthorized act by one assuming to be an agent for another may be ratified by the principal, and such ratification gives to the act the same effect as if it were previously duly authorized.”

And the learned author and compiler cites, under this principle, a large number of ‘authorities in this and other states, as well as in the Federal and English courts. There°seems to be great propriety in the application of this rule to the case at bar. The defendant had invested Swan, the architect, with large powers to act for him in the construction of this house. He and the defendant and defendant’s wife had agreed and settled upon red sandstone as the material to be used in its construction, although the specification with the builder was for limestone. This change of plan was made between defendant and the architect before any stone had been contracted for by any one. Clothed as he was with some authority, as agent, the ratification by the principal related back to, and made his act in making this contract the act of the principal, ah initia, so that the allegations that the act was done by a duly-authorized agent is sustained by the ratification of the act by the principal. Hoyt v. Thompson, 19 N. Y. 207-219.

We have examined the exceptions taken by the defendant to the ruling of the referee to the receipt and rejection of evidence upon the trial, and to his finding and refusals to find, and. see no error for which this judgment should be reversed.

Judgment affirmed, with costs.

All concur.


author: Herrick, J.

text:
    James H. Hendrie, Resp’t, v. Peter Kinnear, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Bills and notes—Indobsers.
    Though a person, who indorses a promissory note before the payee is prima facie liable only as second indorser, and not liable upon it to the payee, such prima facie liability is open to explanation by evidence showing that such indorsement was to give the maker credit with the payee, and that in truth the intention was that he should be the first indorser.
    Appeal from a judgment in favor of plaintiff.

      Frederick E. Wadhams (Eugene Burlingame, of counsel), for app’lt; Edward J. Meegan, for resp’t.
   Herrick, J.

George Hendrie, and George Hendrie, Jr., are co-partners in business, under the firm name of George Hendrie & Son. The plaintiff, James Hendrie, is the son of George Hendrie. George Hendrie & Son executed a note, which was indorsed, or was to be indorsed, by the plaintiff, James Hendrie. George Hendrie and the plaintiff went to a bank in the city of Albany with said note, and endeavored to have it discounted. The bank refused to discount the same, unless they secured another indorser, and suggested the name of the defendant, who, it appears, had previously indorsed notes for the accommodation of said firm. The plaintiff and his father George Hendrie, then called upon the defendant, and stated to him what had taken place, and requested him to indorse the note, which he consented to do. The plaintiff and his father returned to the bank, and shortly thereafter they were joined by the defendant. It appears that the first note was made payable to the bank. The form of this note was objected to by the president of the bank, who drew up, or directed the plaintiff or his father to draw up, it is not clear which, a new note. This was drawn up payable to the order of the defendant, and it was first indorsed by the plaintiff in the presence of the defendant, and then indorsed by the defendant, who testifies that he did not see the face of the note, and did not know that it was made payable to his order until after it was protested. Some stress was laid, upon the argument, on the fact that the defendant testified that he received the monéy for the note. This seems to me of little consequence in the case, for it is apparent all through that the plaintiff, or the firm of George Hendrie & Son, received the proceeds of such note, either directly from .the bank, or from the defendant after he had received it from the bank. When the note became due it was protested for nonpayment. After some little .delay, the plaintiff agreed to pay off such note by installments, paying a portión thereof down, and giving a note for the balance, and, when such note became due, to pay a portion thereof, and give his note for the remainder, and so on, until the full amount of the original note was paid. This was done, the plaintiff giving his notes from time to time, each one of which was indorsed by the defendant. After the last one was paid, the plaintiff, then having the note in question in his possession, commenced suit thereon against the defendant. In this state, a person who indorses a promissory note before the payee is ‘prima facie liable only as second indorser, and not liable upon it to the payee. Coulter v. Richmond, 59 N. Y. 478. But such prima /«efe'liability is open to explanation by evidence showing that such indorsement was to give the maker credit with the payee, and that in truth the intention was that he should be the first indorser. Labron v. Woram, 1 Hill, 91; Moore v. Cross, 19 N. Y. 227. The facts in this case, as I have detailed them, are undisputed. The plaintiff offered no evidence in relation to them; his only evidence being the production of the note, and protest, and the computation of the interest thereon. It is undisputed that the plaintiff, "together with his father, asked the defendant to indorse a note, made and indorsed by them, which they could not get discounted unless the defendant indorsed it for them; that, as a-matter of fact, the plaintiff indorsed the note in question prior to the defendant, and in his presence, and that defendant did not know that the note was drawn payable to his order at the time he indorsed it; that the plaintiff subsequently recognized his liability as first indorser, by making arrangements with the bank to pay said note, and soliciting and "obtaining the defendant’s assistance therein, by indorsing his [-the plaintiff’s] notes from time to time. All these things indicate in the strongest possible way that the plaintiff solicited defendant’s indorsement, to give his father’s firm and himself credit, and that he and the defendant both understood at the time that such indorsement of the defendant was subsequent to that of the plaintiff, and that he was an accommodation indorser, for their benefit, and, the note subsequently coming into the hands of the plaintiff under such circumstances, he is not entitled to recover of the defendant. The plaintiff, it seems to me, is in the same position as if the note had been taken to the defendant, and he had advanced the money thereon to them, instead of taking it to the bank, and having the bank discount it. If the defendant had cashed the note with the plaintiff’s indorsement upon it, he would have had a cause of action, upon its nonpayment, against the plaintiff as indorser. Such being the case, the fact that it was deposited in the bank, discounted, and subsequently paid by the plaintiff, gives him no right of action against the defendant, who indorsed it subsequently to the plaintiff, and at his solicitation, for the purpose of giving himself and his father’s firm credit at the bank. It follows that the direction of the jury by the court to find a verdict for the plaintiff was erroneous, and the judgment should be reversed, and a new trial ordered ; costs to abide the event.

All concur.


author: Cullen, J.

text:
    Delia F. Sheldon, as Administratrix, etc., Resp’t, v. Isaac E. Sheldon et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Witness—! 829 op code.
    Where the plaintiff's intestate derived to some, extent his title from a person since deceased, the defendant is not competent to testify to a personal transaction with such deceased assignor.
    2. Evidence—Admissions.
    Where a will declares that it was testator’s wish that the part of the es- • tote which, at his decease, should remain in the business conducted by his sons was a loan of such money to the firm so long as it should continue, the retaining of such money in the business was an admission by the sons named that a partnership existed.
    Appeal from a judgment in favor of plaintiff.

      Henry M. Requa, Jr. (Josiah T. Marean, of counsel), for app’lts; James McKeen and Thomas B. Hewitt, for resp’t.
   Cullen, J.

This is an appeal from an interlocutory judgment entered on the report of a referee. The action is brought to establish a partnership between the plaintiff’s intestate and the defendants, Isaac E. Sheldon and William D. Sheldon, and to compel the defendants to account as surviving partners for the assets of the partnership. The defendants denied the partnership. The referee by his decision found the partnership to have existed, and directed the defendants to account

An examination of the evidence convinces us that the decision of the referee on the question of fact was correct. To say the least, it is clear that there is no such preponderance of evidence in favor of the appellants as is requisite to justify this court in reversing his .findings. Barnard v. Grantz, 140 N. Y. 249; 55 St. Rep. 541; Aldridge v. Aldridge, 120 N. Y. 614; 31 St. Rep. 948. In fact, the learned counsel for the appellants scarcely asks us to reverse the judgment on these grounds, but confines his argument to alleged errors of the referee in the exclusion and .admission of evidence. It is therefore unnecessary for us to enter into any general review of the evidence in the case, but we shall confine our discussion solely to the alleged errors on the trial.

The first error contended for is the exclusion of the evidence of the defendant Isaac Sheldon as to conversations had between him and Shailer, at the time Shailer withdrew from the firm of Sheldon & Co. and assigned his interests in the business and stock in trade of the firm of Sheldon & Co. to Smith Sheldon, Isaac E. Sheldon, Alexander F. Sheldon, and William D. Sheldon. This assignment was in writing, under the hands and seals of the parties. It contained a recital that Alexander and William had been admitted into the partnership of Sheldon & Co. The defendant offered to prove by his own testimony that, at the time of the execution of this agreement, he told Shailer that the recital was incorrect, and that Alexander and William had not been admitted as partners; that Shailer replied that he wanted all of them bound by the agreement; and that in answer to this demand he executed the agreement in that form. Before the time of the trial Shailer had died. The evidence was objected to and excluded, both on the ground that the witness was incompetent to prove the fact under section 829 of the Code, and also that the conversation itself was incompetent. We think that both the grounds of the objection are good. The action seeks to establish a partnership, and the title of the plaintiff’s intestate in the co-partnership assets. This assignment operated to transfer to Alexander a share of the interest theretofore held by Shailer; hencthe plaintiff to some extent derived title from Shailer, and the defendant was not competent to testify to a personal transaction with him. We think, further, that the declarations made by the defendant to Shailer, in the absence of Alexander, were wholly immaterial and incompetent to bind Alexander.

The next error claimed is as to similar rulings, in excluding personal conversations, between the defendant Isaac and Smith Sheldon,, who also had died • before the trial. Smith Sheldon was the father of the other three partners. Till the time Shailer retired, the firm of Sheldon & Co. was composed of him and the defendant Isaac and Smith Sheldon. Afterwards the father, Smith Sheldon, retired, leaving his capital in the business, apparently as a loan. It is claimed by the plaintiff that thereafter her intestate and the defendants were partners owning the assets in this proportion: Isaac, a half; William, a quarter; and Alexander, her intestate, a quarter. The defendant sought to prove by his own testimony conversations between himself and the father, Smith Sheldon, going to show that neither Alexander nor William were partners in the business. This testimony wás excluded on the same grounds upon which the testimony of conversations with Shailer were excluded. We think the ruling was correct for the reason we have before expressed. Unquestionably, if Alexander became a partner to the extent of a quarter, his interests in the assets to that extent came in part from his father. We think, therefore, that the witness was incompetent to testify to such conversations, and also that such conversations themselves, held in the absence of Alexander, were inadmissible to affect his rights. The will of Smith Sheldon was admitted in evidence, over the defendants’ objection and exception. By that will he appointed his sons Isaac, Alexander, and William, and daughter Margaret Thompson, executors and trustees, and declared that it was his wish that all the part of his estate which at his decease should remain in the book-publishing business, “ as conducted in the city of New York by my said sons Isaac E. Sheldon, Alexander E. Sheldon, and William D. Sheldon, and known as the firm of Sheldon & Co., is a loan to said firm at legal interest for so long a time as the said firm, with at least its then present capital therein invested by my sons, shall continue.” It is conceded by all the parties that at this time the father had withdrawn from the partnership, and that the part of his estate which was in the firm was there in reality as a • loan. That the declarations made in the will of the father, as to who constituted the firm of Sheldon & Co., were not of themselves evidence against the defendants, is not questioned. But it was further shown that for many years this money had been allowed to remain as a loan to the firm. The only authority given by the will was to loan to a firm composed of all three sons. The defendants, having taken advantage of this provision of the will, would have been estopped, as between them and the daughter, from denying the liability of all. As between themselves, there might be no estoppel, but the retaining of the money would certainly operate as an admission, in the absence of any disclaimer, and therefore was competent evidence against them. The letters and statements found by the plaintiff in her husband’s papers after his decease were competent. They were proved to have been in the handwriting of the defendant, and it must be presumed that the deceased obtained them properly. The typewritten statement given the plaintiff’s son by the defendant Isaac was sufficiently identified, at least, to justify its admission in -evidence, for the referee to determine, as matter of fact, whether it was the original paper. We have thus examined the various exceptions taken on the trial, and in our opinion none are well founded. We think that the questions of whether the defendants are to be charged with the whole sum paid on the final sale of the firm’s business, or whether the defendant Isaac is to be allowed some part thereof as a consideration of his covenant to abstain from thereafter competing in business, with his vendee, do not rise on this appeal. The referee has not passed on the question, nor does the judgment decide it. The judgment decrees that the plaintiff’s intestate was owner of one-fourth of the assets of the firm, and of the profits, and directs that the defendants account for the same. On such accounting, the question now sought to be raised will be determined. The judgment appealed from should be affirmed, with costs.

All concur.


author: Dykman, J.

text:
    Stephen B. Sturges, Resp’t, v. John F. Hart et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Mortgages—Payment—Assignment.
    Where the holder of two mortgages on the same real estate assigns, upon payment, one of them to the owner of the real,estate, who is not the mortgagor, and thereby confers upon him the title to the mortgage and the power of disposing of the same, he is estopped from asserting, in favor of his other mortgage, any claim or defense against the assigned mortgage in the hands of a subsequent bona fide purchaser.
    Appeal from a judgment in favor of plaintiff.

      A. W. Parker and C. D. Rust (Frederick A. Ward, of counsel), for app’lts Asa W. Parker and Sophie G. Parker ; C. W. Wright, for app’lt John F. Hart; Sturgis & Roby, for resp’t.
   Dykman, J.

This is an action to foreclose a mortgage for $8,000, executed by the defendant Hart to the defendant Asa W. Parker, bearing date May 8, 1891, and assigned by Parker to the defendant Daniel Doody, August 27, 1891, and by Doody assigned to the plaintiff, September 3, 1891. On the same day, Hart made another mortgage upon the same premises to Parker, lor $20,000, which was recorded five minutes later than the first mortgage for $8,000. Both of the assignments of the first mortgage were recorded on or before September 5, 1891. It is to be gathered from the case that, at the time of the execution of these mortgages, Hart held the legal title to the premises for Doody, who was the real owner, and made the mortgages at his request and for his benefit; and, further, that he subsequently reconveyed the premises to Doody. Doody paid the mortgage in suit to Parker, and took an assignment of it to himself, instead of a satisfaction piece, which he at one time contemplated talcing. Daniel Doody and wife subsequently conveyed portions of the same premises to the defendant Sophie Gf. Parker, and then she, with her husband, reconveyed the premises to Doody, and took hack two mortgages upon the same from him, one for $30,000, and the other for $12,600. Asa W. Parker, Sophie Gf. Parker, and Hart, the mortgagor, all served separate answers to the complaint. All the answers set up payment of the mortgage in suit by Doody to Parker, the mortgagee. The cause was tried before a judge without a jury, and he rendered a judgment in favor of the plaintiff, from which Asa and Sophie Parker have appealed.

It is true that Doody paid the amount of the mortgage in suit .to Asa W. Parker, but it by no means follows that the mortgage was extinguished by such payment. It must be remembered that Doody was not the mortgagor, and although his intention was when he made the first two payments upon the mortgage to have the same canceled, yet, when he made the last payment, he desired to continue the same in existence for the purpose of using the same for a further loan. That intention was communicated to Parker, and with that knowledge he assigned the mortgage to Doody. Parker, therefore, had notice of the intention of Doody to continue the existence of the mortgage, and his written assignment with that knowledge constitutes his solemn assent to such continuance. Parker then held the second mortgage of $20,000, and, if he intended to insist upon the extinguishment of "the first mortgage, that was his time to make such insistence. By failing to do so, and making a written assignment of the mortgage, he furnished Doody with the means of procuring a loan thereon ffom the plaintiff, who thus" became a bona fide holder of the same. The inequity of allowing the defense to prevail in this action against the plaintiff is so palpable that there seems to be no necessity either for further pursuit of the subject or for the citation of authorities. As the mortgagee, Parker, by his assignment of the mortgage to Doody, conferred upon him the title to the mortgage and the power to dispose of the same, he should be now estopped from asserting any other claim or defense against the mortgage. McNiel v. Tenth Nat. Bank, 46 N. Y. 325. The judgment should therefore be affirmed, with costs.

After the trial of the action, a motion was made to open the case, and introduce newly-discovered evidence. The motion was denied, and the defendants Asa and Sophie Parker have appealed from the order of denial. According to the principle upon which we base our decision, it is obvious that the new proof desired to be introduced could not change the result, and therefore the motion was properly denied.

The order should be affirmed, with $10 costs and disbursements.

All concur.


text:
    William A. Pitt, Pl’ff, v. Arthur Amend, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Mortgage—Foreclosure.
    Where the husband of a deceased mortgagor, who was a co-mortgagor, was served with notice of sale, and all the other proceedings were regular, the sale under foreclosure will not be disturbed more than twenty years afterwards because notice of sale was not given to her personal representatives, where none were appointed.
    Submission of controversy without action, to compel performance of a contract for the purchase of real property.
    McGuire, Low & Coombs, for pl’ff; Joseph H. Delaney, for def’t.
   Pratt, J.

Foreclosure by advertisement, in which the defendant purchaser refused title solely because of the alleged defect in the foreclosure in not giving notice of the sale to the “personal representatives” of the deceased mortgagor, required by the statute (chapter 346, Laws 1844). The case, as agreed upon, shows that the mortgage was made by Patrick Connell and Mary Daly Connell, his wife, and that the notice of sale was served on Patrick Connell, but that Mary Daly Connell had deceased before the foreclosure, intestate. Whatever rights in the mortgaged premises Mary Daly Connell died seised and possessed of passed to her heirs at law, and not to her personal representatives. No administration was ever had upon her estate, and there is nothing to show who her heirs were. In Low v. Purdy, 2 Lans. 424, notice had been served upon the heirs, but not upon the personal representatives, and it was there held that such service was a nullity, and that “heirs” and “personal representatives” are two separate and distinct classes of persons, and that the statute prescribes service upon the personal representative, and not the heirs. It would appear, then, that there were no personal representatives of Mary Daly Connell to serve with notice. Her husband and co-mortgagor was served, and all the other proceedings are confessedly regular. The foreclosure was in 1866, and there is nothing before the court showing any outstanding equity in the estate of the heirs of Mary Daly Connell to warrant disturbing the sale under this foreclosure after so many years. Anderson v. Austin, 34 Barb. 321; Cole v. Moffit, 20 id. 18 ; Hubbell v. Sibley, 5, Lans. 51; King v. Duntz, 11 Barb. 191.

Judgment for plaintiff.

All concur.


author: Per Curiam.

text:
    C. Crozier Gray et al., Resp’ts, v. Germania Fire Insurance Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Insurance—Fire—Forfeiture.
    An insurance company is estopped from asserting a forfeiture by reason of the knowledge of its agent, acquired prior to the issuing of the policy, of the facts upon which the claim of forfeiture was based.
    Appeal from, a judgment, entered upon a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.
    The opinion of Mr. Justice Brown, denying a motion for a new trial, is as follows:
    None of the authorities cited by the learned counsel for the defendant in. support of his motion for a new trial are applicable to the facts disclosed by the evidence. Almost all of them relate to cases where the event which violated the condition happened, and the consent of the agent upon which a waiver was predicated was given, after the policy was issued. The case of Allen v. German American Insurance Co,, 128 N. Y. 6; 32 St. Rep. 316, is distinguished from the case at bar by the fact that Noble, who procured the insurance for the plaintiff, was an insurance broker, and was not the agent of the defendant. This case falls easily within the rule applied in Van Schoick v. Niagara Insurance Co., :68 N. Y. 434; Berry v. American Central Insurance Co., 132 id. 49; 43 St. Rep. 400; and numerous other kindred cases cited upon the plaintiffs’ brief. Upon the facts as determined by the jury, it is very plain that neither plaintiffs nor the agent intended to make a contract that would become void if insurance in other companies was effected. The agent was told that plaintiffs intended to insure for $3,000, and that two-thirds of it was to be placed in other companies. He agreed to issue the policy in suit, upon that state of facts, and his statement when he delivered the policy, that “it was all right,” had reference to the former conversation, and was, in effect, a consent that the plaintiffs could procure other insurance. The agent represented the defendant, and had power to waive the condition against other insurance, and must be deemed to have done so when he delivered the policy. The line drawn by the decision is very clear between cases in which oral consent of an agent, given after the delivery of a policy, has been held ineffectual to waive its condition, and cases where the insurance company has been held to be estopped from asserting a forfeiture by reason of the knowledge of its agent, acquired prior to the issuing of the policy, of the facts upon which the claim of forfeiture was based. The facts of this case, as determined by the jury, bring it within the latter class. The motion for a new trial must therefore be denied, and the plaintiffs may have an allowance of five per cent, upon the amount of the recovery.

      Ernest Hall, for app’lt; S. H. Stuart, for resp’ts.
   Per Curiam.

This case is upon a fire insurance policy. It should be affirmed upon the opinion of the circuit judge rendered upon the motion for a new trial. Affirmed, with costs.


author: Brown, P. J.

text:
    Hawley D. Clapp, Resp’t, v. William F. McCabe et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Judgment—Void.
    A judgment, in an action to foreclose a mortgage, directing a sale of lands not described in the complaint, is void and may be attacked collaterally, though the owner of such land was made a defendant in the action.
    8. Same.
    In such case, the court has no power to determine that any land was covered by the mortgage, except in accordance with the allegations of the complaint.
    Appeal from a judgment in favor of .plaintiff.
    The opinion of Charles P. McClelland, Esq., the referee before whom the case was tried, is as follows :
    The action is an ejectment to recover the possession of an undivided one-seventh part of certain lands situate in the town of Mamaroneck, in the county of Westchester. There is no dispute .as to the facts, the only evidence offered upon the hearing being ■documentary. The plaintiff claims title as devisee under the will of his father, Hawley D. Clapp, .who died January 5, 1880, and whose will was admitted to probate January 20, 1880. It is not •questioned that by this will the plaintiff became vested with an undivided one-seventh interest, to recover the possession of which this action is brought.
    It is claimed in behalf of the defendants that the plaintiff became divested of such interest by the foreclosure of and sale ° under a mortgage executed by his father, Hawley D. Clapp, to one’ Rachael S. Rogers, December 28, 1861, and recorded in the office of the register of the county of' Westchester on the 6th day of ■January, 1862. At the time of the execution of the mortgage, Hawley D. Clapp, Sr., was the owner and in possession of the premises in question, together with other lands, the whole forming a tract lying between Mamaroneck river and Mamaroneck avenne, ■consisting of a little mor'e than twelve acres, all of which tract was included in the mortgage to Rachel S. Rogers. The mortgage referred to was, on the day of its execution, assigned by said Rachel •S. Rogers to John J. Merritt, and on the 12th day of August, 1863, by the said John J. Merritt assigned to Elias H. Van Brunt. On the 18th day of August, 1863, Elias H. Van Brunt executed and delivered to Hawley D. Clapp, who was then still the owner of the mortgaged premises, a release of a portion of the premises covered by the mortgage. It is the peculiar ‘and unfortunate description of the released premises that has occasioned all the difficulty. Instead of describing by metes and bounds the portion released, the release is of all the mortgaged lands except the portion specifically described in the release by metes and bounds, upon which portion so specifically described the mortgage' was to remain a lien. Subsequently, and on the 24th day of August, 1863, Hawley D. Clapp, together with his wife, Huldah H. Clapp, -conveyed to the American Spiral-Spring Butt-Hinge Company the portion of said premises not released from the lien of the mortgage, which said premises not released were on the 22d day of November, 1866, conveyed by said corporation to Elias H. Van Brunt, and the same premises were by the said Elias H. Van Brunt, on the 23d day of June, 1881, conveyed to Huldah H. Clapp. The mortgage above mentioned was by the said Elias H. Van Brunt, on the 30th day of September, 1863, assigned to Huldah H. Clapp; so that at the time of the conveyance to her of the real estate, on the 23d day of June, 1881, Huldah H. Clapp was the-owner both of the mortgage and of the real estate upon which it was a lien. The question whether, upon the conveyance of the real estate to Huldah H. Clapp, the lien of the mortgage was not extinguished by merger, is not raised by counsel for the plaintiff, and therefore I do not cpnsider the same, but base my decision upon the grounds hereinafter mentioned.
    On the 6th day of December, 1881, Huldah H. Olapp commenced an action for the foreclosure of the mortgage above mentioned, and such proceedings were had in said foreclosure action that on the 8th day of November, 1882, a decree of foreclosure- and sale was entered, whereby it was referred to Nelson H. Baker as referee to make the sale. The premises were sold to Huldah H. Clapp, the plaintiff in the foreclosure action, and the defendants claim title under Huldah H. Clapp through various mesne conveyances. The question at issue is whether, under the decree in the foreclosure action and the subsequent sale by the referee and the referee’s deed, Huldah H. Clapp obtained title to the undivided seventh interest, to recover possession of which this action is brought. It is unquestioned that, at the time of the commencement of the foreclosure action, such one-seventh interest was not subject to the lien of the mortgage, as the same had theretofore been released from the mortgage by Elias H. Van Brunt, as above mentioned, and the title to such seventh interest, had passed to the plaintiff herein, under the will of his-father, above mentioned. The plaintiff herein was made a defendant in the foreclosure action, the summons and complaint being served upon him personally ; and as he was then a minor, of the age of nineteen years, upon his application a guardian ad litem was appointed, who appeared for him in the foreclosure action, and" interposed the usual,answer in such cases. In order to ascertain, the effect and scope of the foreclosure action, it becomes necessary to examine with care the proceedings in that action. In the complaint in the foreclosure action, the whole parcel as originally mortgaged is described at length. The complaint then contains a clause as follows : "“That the said Elias H. Van Brunt afterwards,, and while the owner and holder of the aforesaid bond and mortgage, released a portion of the premises therein described from the lien thereof, as will appear by an instrument in writing executed by the said Elias H. Van Brunt to Hawley D. Clapp, dated August, 18, 1863, and recorded in the office of the register aforesaid, in liber 508 of Conveyances (page 229), August 20,1863. For a more particular description of the premises thus released, reference is had to the said release." The prayer for relief was that the defendants be barred and foreclosed of all right, claim, lien, and equity of redemption in the said mortgaged premises, and that the said premises may be decreed to be sold. Having regard to the language of the whole complaint, it is clear that it covered only the premises not released, or, in other words, that the premises released were excepted from the mortgaged premises as described, and that only the premises still remaining subject Jo the lien of the mortgage were to be the subject of the foreclosure action. After" the trial of issues presented by the answer of certain defendants other than the plaintiff herein, the court made and filed findings of fact and conclusions of law in favor of the plaintiff in the foreclosure action, one of which findings of fact was as follows: “That the said Elias H. Van Brunt, by the agreement set forth in the complaint, dated August 20, 1863, and recorded at the time and place specified, released a portion of the mortgaged premises from the lien of said mortgage.” And one of the conclusions of law was as follows: “That plaintiff is entitled to judgment against all of the defendants in the usual form for the foreclosure of the said mortgage, and for a sale of all the mortgaged premises, except that portion thereof which was released by the said Elias H. Van Brunt, as hereinbefore stated. The notice of the pendency of the action described the premises by the same description as found in the mortgage, adding as follows : “Excepting and reserving out of said ¿escribed premises the portion thereof described in a certain release, bearing date August 18, 1863, executed by Elias H. Van Brunt to Hawley D. Clapp, and recorded in the office of the register of Westchester county aforesaid, in liber 508 of Conveyances (page 229), August 20, 1863." The decree in the foreclosure action was filed on the 4th day of November, 1882, and duly entered on the 8th day of November,'1882. It is in the usual form, and directs the sale of the “mortgaged premises described in the complaint in this action as hereinafter set forth,” and concludes with what purports to be “a description of the mortgaged premises hereinbefore mentioned.” Down to this point in the foreclosure proceedings, and in the decree, everything appears to be regular, and such as should properly be found in an action to foreclose the mortgage as against the premises upon which it remained a lien after the execution of the release, with the exception that the owners of the portion released are made parties defendant in the action. In the attempt to describe the mortgaged premises to be affected by the foreclosure, the decree first contains a full description of the whole parcel as found in the mortgage, including in one description both the portion released and the portion not released. After such description, the decree continues, “Excepting and reserving out of the above-described premises;” and then follows a description by courses and distances, not of .the portion released, but of the portion .not released, as the same was described in the release, following which detailed description is the following recital or reference: “As described in a certain release, bearing date the 18th day of August, 1863, executed by Elias H. "Van Brunt to Hawley D. Clapp, and recorded in the office of the register of Westchester county, in liber 508 of Deeds (page 229), on the 20th day of August, 1863." The referee’s deed contained the same descriptionas found in the decree.
    Upon the foregoing statement of facts, the question is whether the plaintiff, was dives'ted of his title to the undivided one-seventh interest,- to recover possession of which this action is brought, in the decision of which I shall consider only two questions, namely: (1) Whether the premises claimed by the plaintiff herein were included in the premises described in the decree'in the foreclosure-suit ; and (2) if so included, whether that decreeis binding upon thsi plaintiff.
    , In the consideration of the first question, it must be borne in mind that, at the time of the commencement of the foreclosure action, the mortgage was not adien upon the premises affected by this action. It is strenuously insisted by the learned counsel for defendants that the purpose of that action must have been to foreclose the mortgage as against the premises claimed by the plaintiff herein, for the reason that Huldah H. Clapp was already the owner of the premises not released from the mortgage, and for the further reason that the owners of the portion released were made parties defendant. The facts stated tend strongly to show that such was the understanding or purpose of Mrs. Clapp, but I am unable to see how such understanding' or purpose is material. They could not alter the fact that the premises had been released from the lien of the mortgage, nor could such understanding or purpose restore such lien. Such purpose, if it existed, was based either upon fraud or a mistake. There is no evidence whatever of fraud, and no intention or purpose which was based upon a manifest error can aid in the construction of the description found in the decree or in a conveyance. It must be presumed that the purpose of the action was to foreclose the mortgage as against the premises upon which it was a lien, and not as against the premises upon which it was- no lien. It further appears that the premises which remain subject to the lien, of the mortgage were properly described in the complaint. The prayer of the complaint was for a sale of the “mortgaged premises.” The notice of the pendency of the action properly described the premises upon which the mort-. gage was a lien, and the decision of the court was that “the plaintiff is entitled to judgment * * * for a sale of all the mortgaged premises, except that part thereof which was released by said Elias H. Yan Brunt, as hereinbefore stated, and the decree was for- the sale of the mortgaged premises described in the complaint.” Down to this point in the foreclosure action and in the decree, as already stated, everything was regular, and as should be found in an action to foreclose the mortgage as against the portion o.f the premises not released. The trouble arose in the attempt to give in the decree a detailed description of the mortgaged premises. In that attempt the whole parcel is described, and then there is excepted, by a description giving metes and bounds, not the portion released, but the portion not released, followed by the recital, “as described in a certain release,” giving date, time, and place of record.
    In my. opinion, the correct construction of the description found in the decree, when the same is read in connection with the other papers in the action, and in the light of the surrounding circumstances' justifies and necessitates and the rejection of that portion of the description giving the metes and bounds, as erroneous and inconsistent with the other parts of the description, and contrary to the only purpose of the action of which I can take notice. The record evidence shows unmistakably that the insertion of the description of the premises not released, as an exception and reservation from the premises described in the mortgage, was an error, and a reference to the unfortunate and misleading description contained in the release shows how such error occurred. The decree, after describing by metes and bounds the premises not released as being the premises released, continues: “As described in a certain release, bearing date the 18th day of August, 1863,” etc. A reference to such release shows at once that the wrong parcel has been described and attempted t© be excepted and reserved from the operation of the decree. It is, however, strongly urged by counsel for defendants that the words “as described in a certain release" have reference to the premises described by metes and bounds in the release, and not to the premises actually released. I am unable so to understand the reference. The manifest purpose in the decree of the reference to the release is to ascertain and locate the portion of the premises released from the mortgage. It is immaterial .how much released portion is described if it can be properly identified and located. The reference to the release is found in that portion of the decree relating to the exception and reservation from the operation of the decree. There could be no purpose in such connection to refer to a description of the premises not released, and which were not to be excepted and reserved from the operation of the decree. After the description by metes and bounds of the portion of the premises not released is stricken from the decree, there still remains sufficient to clearly describe and locate the premises covered by the mortgage and affected by the foreclosure. Such description is, then, without ambiguity or contradiction, and is consistent with the judgment pronounced by the decree that the “mortgaged premises described in the complaint ” should be sold, with the findings of the court, with the notice of pendency of action, with the complaint, and with the only legal purpose which the plaintiff °in the foreclosure action could have had.
    This construction of the decree is supported by the authorities as I read them, the proposition being that, where parts of a description in a conveyance or in a decree are inconsistent, that portion which is shown to be false or erroneous must be rejected if sufficient remains to identify and locate the premises, and that, in the endeavor to ascertain what portion of the description is false or erroneous, reference may be had to the whole description, to other parts of the instrument or decree, to conveyances or records referred to in the description, and to the other papers connected with and the circumstances surrounding the transaction. This principle is clearly recognized in Laverty v. Moore, 33 1ST. Y. 658, and in Masten v. Olcott, 101 id. 152. In the case first cited, the word “ northwesterly ” was rejected, and the word “ southwesterly ” inserted. In the case last cited, the court rejected an entire description by metes and bounds, and courses and distances, as inconsistent with other portions of the description. In French v. Garhart, 1 R. Y. 96, it was held that a reference to a reservation in another deed was to be “ construed precisely as though it were incorporated into and formed a part of that deed.” The same is held in Hoppough v. Struble, 60 R. Y. 430, and in Jackson ex dem. Lowell v. Parkhurst, 4 Wend. 369. Under this principle, the reference in the decree to the release would operate to incorporate in the description of the released premises in the decree the entire .description of the released premises as found in the release. When such incorporation is had (and the case may be considered as though actually made), it will be seen at once that the attempted description of the released premises by metes and bounds is erroneous. In Qa'se v. Dexter, 106 R. Y. 546 ; 11 St. Rep. 162, the rule is stated as follows: “ It is a familiar rule in the construction of a deed that where the description is ambiguous, or there is inconsistency in the several particulars, ‘ words, if necessary, may be supplied by intendment, and particular clauses and provisions qualified, transported, or rejected, in order to ascertain and give effect to the intention.’ Beardsley, J., in Hathaway v. Power, 6 Hill, 453-455. What words or clauses should be rejected or qualified in case of uncertainty is frequently determined by giving effect to those parts or clauses of the description which are most certain, and to particulars in respect of which the parties would be less likely to have made a mistake.” In Robinson v. Kime, 70 R. Y. 147-154, the court say: “ The rule is well settled that a conveyance is to be construed in reference to its visible locative calls, as marked or appearing from the land, in preference to quantity, course, or distance; and any .particular may be rejected, if inconsistent with other parts of the description, and sufficient remains to locate the land intended to Be conveyed.” The foregoing authorities are sufficient to illustrate the general legal proposition above stated, which seems to me to be controlling in the construction of the description found in the decree, and which leads me to the conclusion that the language of the decree, when properly construed, does not affect the premises claimed by the plaintiff in this action.
    A consideration of the second question above suggested—■ namely, conceding that the premises now claimed by the plaintiff are included in the description found in the decree in the fore-' closure action, and the referee’s deed, following such decree, is the plaintiff bound by such decree ?—leads me to the conclusion that he is not. It is true the plaintiff was a party to that action, and appeared therein by a guardian ad litem; but that action, as shown by the complaint, by the notice of pendency of the action, by the decision of the court, and by all the proceedings down to the time of the entry of the decree, did not in any manner affect the plaintiff or the premises owned by him. After the entry of the decree, it is found, if this view of the case be taken, that the decree is entered against the premises owned by him, and which were not subject to the lien of the mortgage, and not covered by the complaint (the question is not one of regularity but of jurisdiction). Had the court, in an action in which the complaint makes no reference to the premises owned by the plaintiff other than to state that they had been released from the lien of the mortgage, and in which the notice of the pendeney of the action states that the mortgage is not a lien upon his premises, and in which the decision of the court is that the premises described in the mortgage be sold, except that portion owned by the plaintiff and his codevisees, power to enter a decree directing that the premises owned by him be sold ? I think not. The case is not like those cited by the learned counsel for the defendants, in which an error has been made in the form of a judgment by which its scope has been enlarged or its amount increased beyond that authorized by .a verdict, referee’s report, or decision of the court, in which cases it is held that the judgment is not void, but irregular. In this case the scope of the judgment was not enlarged or the amount increased beyond that authorized by the decision of the court; but by the decree the judgment of the court is made to apply to premises not contemplated by the decision, and to a subject-matter not brought within the jurisdiction of the court. The existence of a mortgage upon the premises was necessary to convey jurisdiction upon the court to decree a foreclosure of the mortgage and a sale of the premises under such foreclosure. As a matter of fact, no such mortgage existed, nor had the court power, in such an action, to create a lien or to direct a sale where no lien existed. The court had jurisdiction of the persons and of the subject-matter covered by the complaint, namely, the premises upon which the mortgage remained a lien after the execution of the release, but not of premises upon which the mortgage was no lien. Suppose that an action be brought by A. to foreclose a mortgage upon land owned by B., in which action C. is made a party defendant, either unnecessarily or as the holder of a subsequent lien upon the lands of B. Suppose, further, that in the entry of judgment in such an action, by an error, a decree was made directing that the lands of 0. be sold, instead of the land of B. Can it be claimed that 0., although a party to that action, would be bound by such a decree ? It does not follow from the fact that the court had jurisdiction of the parties and of the subject-matter of the action, as presented by the complaint, that it had power to enter a decree touching an entirely different subject-matter. The definition of “jurisdiction,” as given by the later decisions of the court, includes the element that jurisdiction is not merely the power to hear and determine, but also the power to render the particular judgment which was rendered. See 12 Am. & Eng. Enc. Law, p. 247. In Windsor v. McVeigh, 93 H. S. 274, Mr. Justice Field says that “the doctrine that, when the court has once acquired j urisdiction, it has a right to decide every question which arises in the cause, and its judgment, however erroneous, cannot be collaterally assailed, is undoubtedly correct as a general proposition, but, like all general propositions, is subject to many qualifications in its application. * * * The doctrine is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to the established modes governing the clause to which the case belongs, and does not transcend in the extent or character of its judgment the law which is applicable to it.’’ In Jones v Brown, 54 Iowa, 74, 79, jurisdiction is defined to be the authority of law to act officially in the matter then in hand. In ilunday v. Vail, 84 N J. Law, 418, it was held that “ a decree in equity which is entirely aside of the issue raised in the record is invalid, and will be treated as a nullity even in a collateral proceeding.” See memoranda of cases above cited in 12 Am. & Eng. Euc. Law, pp. 248, 249. In short, I am unable to see how the court, in an action to foreclose a mortgage upon specified real estate, has jurisdiction to enter a decree directing a sale of other and entirely different lands, although such other lands may be owned by one who is a party defendant in the foreclosure action. If I am right in this view of the case, the plaintiff was under no obligation to move to set aside the judgment in the foreclosure action for irregularity, under the provisions qf section 1282 of the Code of Civil Procedure. As already stated, the defect in the decree was not an error in the form of the judgment, by which its scope was enlarged or its amount increased beyond that authorized by the decision of the court, but the defect was that the decree was made applicable to a subject-matter which had not been brought within the jurisdiction of the court. It follows, therefore, that the case of Com. Exchange Bank v. Blye, 119 N Y. 414, and the other cases cited by counsel for defendants in the same connection, are not applicable.
    The view that I have taken of the case renders it unnecessary to examine or pass upon the other questions raised and argued by the counsel in the case. I am not unmindful of the fact that a great hardship may result to the defendant McCabe, as it is to be presumed that his purchase was made in good faith and for value; but this consideration cannot change the principles of law which seem to me to be controlling in the case. A careful search of the title at the time of his purchase would, however, have disclosed the defect now manifest. I also appreciate the fact that the plaintiff has for many years, and, so far as the record shows, without excuse, slumbered in the enforcement of a right which should have been promptly asserted; but, as this is a strictly legal action, and no equitable defense, based upon that fact, is interposed, I cannot permit it to influence the decision. It is therefore my opinion that the plaintiff is vested with the title or the interest described in the complaint, and is entitled to judgment for the recovery of its possession.

      Isaac N. Mills, for app’lts ; A. Britton Havens, for resp’t.
   Brown, P. J.

The facts in this case are not disputed. The learned referee who heard and decided it has stated them so fully and accurately in his opinion that they need not be here repeated; We agree with and adopt his conclusions, and need add but very little to his discussion of the law of the case. We are of the opinion that the proposition of the appellants that the judgment in the foreclosure action is conclusive upon the respondent, and cannot he attacked collaterally, cannot be sustained. The supreme court, under the constitution of the state, has general jurisdiction in law and equity, but the exercise of its power is subject to the lirnitatious and regulations of the Code of Civil Procedure. When a person commences an action, the power of the court which he invokes and is entitled to have exercised in his behalf is that only which applies to the cause of action that he states in his complaint, and it is by this pleading that the scope of the power of the court in that action is to be determined. Before jurisdiction can be affirmed to exist, it must appear, not only that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected, but that such a complaint has been preferred, and that such person or thing has been properly brought before the tribunal to answer the charges therein contained. Sheldon v. Newton, 3 Ohio St. 494.

Under our practice, the power of the court to render a judgment, which in a general way maybe termed its “jurisdiction,” is expressly limited by § 1207 of the Code to that demanded in the complaint, or, when there is an answer, to such as is embraced within the issues made by the pleadings. This rule, which thus limits the power of the court to render such a judgment only as in accordance with the prayer of the complaint, is expressly or impliedly recognized in all the reported cases upon the subject of jurisdiction. Thus, in Lewis v. Smith, 9 N. Y. 502, a judgment in an ac-action to foreclose a mortgage was held not to be a bar to an action for dower, for the reason that, although plaintiff was a party defendant to the foreclosure suit, the question as to her dower was not embraced within the allegations of the complaint; while in Jordan v. Van Epps, 85 N. Y. 427, a judgment in an action for partition was held to be a bar to the maintenance of a similar action, for the reason that the plaintiff’s right of dower had been set out in the complaint in the partition suit, and, as the court had capacity to determine it in that action, the plaintiff could have litigated her rights there had she chosen so to do; and the case, therefore, fell within the familiar rule that a judgment is conclusive upon the parties, not only as to the matters actually litigated, but as to matters which might have been litigated within the purview of the original action. In Lewis v. Smith, after stating the rule that a plaintiff must set out in his complaint the facts upon which he claims priority for a mortgage over another incumbrance or special estate in land, the court says: “ If' he omit to do this, it will be under pain of being obliged to show, when the decree is relied upon collaterally, that the title alleged to be foreclosed was, in fact, subordinate to the mortgage.” Another familiar illustration of the same rule is the effect of a judgment rendered in an action to foreclose a second mortgage upon the holder of a prior incumbrance. Thus, in Jacobie v. Mickle, 144 N. Y. 237; 63 St. Rep. 102, a judgment was held to bar an action to foreclose a first mortgage, for the reason that the complaint in the first action set out the prior mortgage, and in the prayer for judgment demanded that the amount due thereon be ascertained and paid out of the proceeds of the sale ; and the case is distinguished in the opinion of the court from those in which prior incumbrances were held not cut off by a sale under a judgment rendered in an action to 'foreclose a junior mortgage, for the reason that the right of the first incumbrancer was not set out in the complaint. An unlimited number of authorities might be cited all holding that the rule that a party is not entitled to a judgment upon matter not embraced in his complaint is jurisdictional. It is not sufficient that a judgment is within the general power of the court, or that it adjudicates upon a matter of which the court has general jurisdiction ; it must appear that the proceeding in which it 'was rendered was one that brings the power of the court into action. If a woman should sue her husband upon a promissory note, and, upon default of answer, the court should grant her a divorce, no one would claim that such a judgment had any force or validity ; and yet it could be argued that the court had jurisdiction of divorces, and the judgment was within its general powers. But the answer to such an argument would be that the power of the court to grant a divorce had not been called into action, and no case had been presented in which it could lawfully be exercised, and the judgment of divorce would be absolutely void. The result would be the same if, in an action upon a note, a judgment was rendered foreclosing a mortgage. The rule could not be otherwise without violating the constitutional provision declaring that no person shall be deprived of life, liberty, or property, without due process of law. That provision cannot be complied with unless the party proceeded against has a hearing or opportunity to be heard. In Stuart v. Palmer, 74 N. Y. 183, the court of appeals said they could not conceive of due process of law without that. A party could not have an opportunity for a hearing upon a claim not set out in the complaint, and of which he had no notice. He has a right to rely upon the allegations of the complaint served upon him with perfect confidence that no valid judgment can be rendered against him upon any claim or cause of action which has not been pleaded, and, if any such is rendered, it is coram non judice and void.

In the action before us it is the appellants’ claim that the court had power to determine what land was subject to the lien of the mortgage, and its judgment in that regard is conclusive. But, under the operation of the rule stated, the court had no power to determine that any land was covered by the mortgage, except in accordance with the allegations of the complaint. The plaintiff in the foreclosure action did not allege that the land claimed in this action was subject to the mortgage. She admitted that a part of the mortgaged premises had been released, and, for description of it, referred to the release by date and place of record, and the complaint must be read as if the release was incorporated in and found as part of it. The plaintiff, however, had a right to rely upon that allegation, and there was no question before the court for its determination as to what the mortgage property consisted of. The facts were found by the court in accordance with the allegations of the complaint, and neither under the pleadings nor its own decision was there any power to direct the sale of the plaintiff’s land; and the j udgment, so far as it purported to direct a sale of the land in suit, was void. The judgment appealed from must be affirmed, with costs.

All concur.


author: Herrick, J. Putnam, J.

text:
    Robert Armstrong, Jr., App’lt, v. Village of Fort Edward, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Municipal corporations—Incidental powers.
    Municipal officers have no right, under the doctrine of implied or incidental powers, to devolve duties, which are peculiarly within their power, upon a third person, not an officer of the corporation, or authorize such person to perform such duties at the expense of the municipalty.
    Appeal from a judgment dismissing the complaint

      H. Armstrong, Jr. (A. D. Wait, of counsel), for app’lt; R. C. Bascom, for resp’t.
   Herrick, J.

The defendant, by its board of water commissioners, entered into a contract for the erection of water works. The board of water commissioners, 'for the purpose of paying the contractor for the construction of such waterworks, had authorized the execution and sale of bonds of the defendant to raise the requisite money. Owing to the stringency of the money market during the summer of 1893, they experienced difficulty in making sales of such bonds. Money was falling due to the contractor, and the defendant had no means to make the necessary payments. At a meeting óf the board of water commissioners, dated June 16, 1893. the following resolution was adopted :

“Resolved, that the president, with our counsel, Mr. Hull, with others that he or they may select, be a committee to see the comptroller and others in regard to the sale of bonds.”

The president waited upon plaintiff, and requested him to act as a member of such committee, and it appeal’s that Mr. Hull informed the plaintiff that, “ if you will take hold and help, you will be paid for your services." That thereafter the plaintiff acted with such committee, and spent some considerable time in seeing different persons, in endeavoring to make a sale of such bonds. That he called upon the comptroller upon several occasions, and upon others, who he thought would have influence with the comptroller, to induce him to purchase the bonds. The comptroller finally purchased the bonds to the amount of $78,000. The plaintiff presented a bill to the water commissioners for the sum of $1,200, for his services. This the board refused to pay, but finally passed a resolution as follows:

“ Resolved, that for the purpose of settlement of all claims for services rendered by Robert Armstrong, Jr., that we pay him the sum of $25 per day, for eighteen days’ services, this to be in full for all claims and demands to date. November 13, 1893.”

With the exception of the plaintiff’s testimony, that at the time lie was asked to serve upon the committee Mr. Hull told Mm that he would'be paid for his services, there is no evidence in the case that the board of water commissioners ever authorized his employment for compensation, except as such employment for compensation may be implied from the evidence in the case that, after he had consented to act and was acting as a member for such committee," he appeared before the board of water commissioners in reference to a report that a man named Cantwell had an option upon the purchase of said bonds for the period of sixty days, the plaintiff desiring to know if such report was true, saying “ that, if they had placed the bonds in any other broker’s hands, I do not choose to serve the board any more in the capacity of trying to place the bonds, for at the end of it there would be difficulty about my pay.” And again saying “that, if they felt bound by anything that had passed between themselves and Mr. Cantwell, he did not care to go on, because when it came to a settlement .for his pay there would be trouble about it.” Upon granting the motion for a nonsuit, the trial court adverted to the character of the services rendered by the plaintiff, and held that they were not of such character as entitled the plaintiff to compensation.

I have not thought it necessary, in the view that I take of this case, to particularize, more specifically than I have done, the nature of the services rendered by the plaintiff; because, back of the services actually rendered, comes the question as to whether the defendant, through its board of water commissioners, had the power to employ for compensation any person to render services of the kind I have described, and, if they had such power, whether the defendant did in fact enter into a contract with the plaintiff to pay him for such services. The question as to whether a citizen of a municipality, called upon and consenting to act at the request of, and in conjunction with, that municipality’s officers, in performing a public service, is entitled to compensation therefor, will not be considered, for the reason that it is apparent that the plaintiff was given to understand, at the time he was solicited to act, that he would be paid for his services. While the action of Mr. Hull in informing the plaintiff that he would be paid for his services was without authority, and was not binding upon the defendant, I will assume that the subsequent action of the board of water commissioners, at the time the plaintiff appeared before them and spoke in reference to their rumored agreement with Mr. Cantwell, during which conversation the plaintiff referred to such arrangement as being one tho,t would interfere with his pay or compensation, thus giving them to understand that he expected compensation for his services, constituted, by their silence and apparent acquiescence therein and continued employment, an implied contract on their part to pay him for such services. Assuming, then", that there was an agreement on the part of the defendant, through its board of water commissioners, to employ the plaintiff for compensation, the question arises, did they possess the power todo so? The defendant is a municipal corporation. I do not know any better or more generally accepted definition of the powers of municipal corporations than that given by Dillon in his work on Municipal Corporations (3d ed. § 89}.

“A municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation,—not simply convenient, but indispensable."

The powers vested in the defendant upon the subject now under consideration are those granted to its board of water commissioners by chapter 181 of the Laws of 1875, and the various acts amendatory thereto. The only powers of employment granted to such board are those contained in section 4:

■ “It shall be the duty of the commissioners to examine and consider all matters relating to supplying the village with pure and wholesome water, and for that purpose they shall have power to employ engineers, surveyors, and such other persons as shall be necessary for that purpose.”

That is the only express grant of power to employ persons that has been made by the legislature, and under that it will not be contended that there was any authority to employ the plaintiff for the services in question here. Under section 8 of said act, the water commissioners are authorized to borrow money, and to execute and deliver bonds to secure the payment of the money so borrowed. Under the second definition given by Dillon, they would have the power and authority to do those things that were “necessary or fairly implied in or incident to” the power granted to borrow money and issue bonds to secure the payment thereof. I think it may be fairly implied that municipal authorities, in issuing bonds, have the right, as an incident- to such power,—and, in fact, in a business sense, it may be said to be necessary to the exercise of such power,—to use the customary and ordinary business agencies in negotiating or selling their bonds; as, for instance, to place them in the hands of bond brokers or bankers, who make a business of dealing in such securities, and who have greater facilities for disposing of them, as was done in the case of Brownell v. Town of Greenwich, 114 N. Y. 519; 24 St. Rep. 6; and to pay such pbrsons the ordinary commission upon the sale of such securities. When a municipal corporation is authorized to borrow money, it goes into the money market as a private individual, or a business corporation, and, to negotiate its loans to advantage, it may make use of the ordinary business agencies to procure the needed money and float its securities. But the case we have before us is not such a case ; the plaintiff is not a banker or a broker, or a person engaged in dealing in securities, but is a practicing lawyer. He was engaged to do those things which the officers of the defendant were elected to do, and could do. His employment for the services in question was neither “necessary” nor “essential” to aid them in floating the bonds. His employment was “convenient,” but not “indispensable.” The resolution under which he was employed—“that the president, with our counsel, Mr. Hull, -with others that he or they may select, be a committee to see the comptroller and others in regard to the sale of bonds”—does not indicate or contemplate the rendition of services other than those that devolved'upon the officers of the defendant, or services which they could not perform. The services that were rendered, as testified to upon the trial, consisted mainly in importuning the comptroller to invest a portion of the state funds in his hands in the bonds of the defendant, and the importuning of personal and political friends of the -comptroller to use their influence to induce him to do so. Although the plaintiff and his associates did call upon some bankers and others tó induce them to purchase the bonds, all these services were services that could j ust as well have been performed by the officers of the municipality as by any one else. The attorney of the defendant, the president of the-water commission, and the other members "of the committee would seem to be persons peculiarly adapted to state the nature of the securities they offered, the proceedings of the defendant in issuing them, and the necessities of the village to secure their prompt negotiation, which were the main things that seem to have been considered and pressed upon the comptroller and others in attempting their sale. It seems to me that duties which are peculiarly within the power of municipal officers to perform, they have no right, under the doctrine of implied or incidental powers, to devolve upon a third person, not an officer of the municipality, or authorize such person to perform such duties at the expense of such municipality. For these reasons I think that the employment of the plaintiff to perform the services in question, for compensation, was beyond the power of the defendant, and that, therefore, the judgment of nonsuit was proper. Let the judgment be affirmed, with costs.

Mayham, P. J., cbncurs.

Putnam, J.

(dissenting). Plaintiff performed valuable services for defendant,—-both parties expecting that he was to receive compensation therefor. I think he should be allowed to recover what the services were worth. The defendant water commissioners, in the disposal of its bonds, were authorized to do all things necessary to be. done in the performance of their duty. Sedg. St. Const. Law, p. 245; Mayor, etc., v. Sands, 105 N. Y. 210-218; 7 St. Rep. 337; Brownell v. Town of Greenwich., 114 N. Y. 518-529; 24 St. Rep. 6. They could employ plaintiff or any other person as a broker to sell the bonds. They could as well employ him as a broker in New York or Albany. Nor, in my opinion, did it make'any difference that plaintiff was a lawyer; that his regular business was not that of a broker. In the sale of defendant’s bonds he acted as a broker, and I am unable to see why defendant commissioners were not as much authorized to employ him as the commissioners in Brownell v. Town of Greenwich, supra, were authorized to employ Andrews (a banker), or the comptroller in Mayor, etc., v. Sands, to employ Sands, as officer of the city. The fact that plaintiff was a citizen of Fort Edward, and was named as one of a committee, does not interfere with his right to recover, the evidence showing that the services in question were rendered with the understanding that he was to be paid therefor. Mayor, etc., v. Sands, supra; Gould v. Board of Education, 34 Hun, 16 ; Batchelder v. Epping, 28 N. H. 354. I am, therefore, unable to concur in the opinion of the majority of the court.


text:
    Conrad Hoffman, Resp’t, v. Fitchburg Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Appeal—Conflicting evidence.
    A verdict, upon conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      T. F. Hamilton, for appl’t; R. A. Parmenter, for resp’t.
   Herrick, J.

This is an appeal from a judgment obtained upon a retrial of the case pursuant to a decision of this court reversing a former judgment and ordering a new trial. Our former decision will be found reported in 67 Hun, 581. The general facts in the case are the same as when it was formerly before this court, and are sufficiently set forth in our former opinion,' and a restatement of them is unneccessary. Upon the former appeal the question before us was as to the negligence of the defendant in approaching the crossing where the accident happened without ringing the bell, and we then held that the evidence upon that point was practically uncontradicted, “three witnesses swearing positively to the ringing of the bell,” and the evidence adduced upon the part of the plaintiff in respect thereto being of persons who simply testified that they did not hear it ring, and there was no evidence that their attention had been called to it, or that they listened to hear whether it was or was not rung. We therefore held that there was really no conflict in the testimony as to the ringing of the bell. Upon the second trial, which we are now reviewing, the plaintiff, in addition to the testimony adduced by -him on the former trial by witnesses who did not hear the bell ring, but whose attention was not called to it, and who were not listening for it, produced a new witness, who testifies positively that the bell was not rung; that she noticed it at the time, and was listening, noticing, and watching for it. The testimony of this witness, coupled with that of the others, produced a conflict of testimony upon that mooted question, and presented a contested question of fact for the jury to pass upon. We must assume that the jury found that the bell was not rung as the engine approached the crossing in question. This new fact in the case causes it to present an entirely different aspect from what it did when before this court upon the former review, a fact not only bearing upon the question of the defendant’s negligence, but perhaps also' bearing upon the question of the lack of contributory negligence upon the part of the plaintiff. Upon the former hearing, upon the assumption that at the time the plaintiff approached the crossing in question the bell upon the engine which was approaching the same crossing was silent, we expressed some doubt as to whether, under such circumstances, the plaintiff exhibited such care and prudence in approaching the crossing as showed a lack of negligence on his part. The plaintiff claiming that he was driving slowly towards the crossing, and listening to see if there was any danger ahead, it might be said that, if he was so listening, he would have heard the approach of the engine and the ringing of the bell before his horses reached the railway tracks and he was placed in a position of .danger. Perhaps the finding .that no bell was rung changed the view that is to be taken of his conduct. I am not entirely clear, however, upon that question, and it may be that the plaintiff’s case presents some evidence of the lack of contributory negligence on the part of the plaintiff sufficient to present that question to the jury to determine. Net feeling "entirely ■clear that it does not, I do not feel justified in holding that there was error in submitting it to the jury for it to pass upon. The judgment should be affirmed, with costs.

All concur.


text:
    William N. Coler et al., Resp’ts, v. Pittsburgh Bridge Company, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Service and proof—Corporation—Foreign.
    The person, upon whom service is made under subd. 3, § 433 of the Code, need not be the managing agent in this state, but should be of sufficient responsibility to render it probable that the company received notice of the service.
    Appeal from an order denying a motion to set aside the service of' a summons.

      J. Adriance Bush, for app’lt; Charles F. MacLean, for resp’ts.
   Dykman, J.

This is an appeal from an order denying a motion made by the defendant to set aside the service of the summons in this action. The service was made upon Walter N". Curtis, who was the Chicago agent of the defendant, which is a foreign corporation. N"o person had been designated by the defendant upon whom process against it could be served, and neither the president, treasurer, nor secretary resided in this state. It is difficult to determine in all cases what agents are “ managing agents,” within the meaning of the section of the Code of Civil Procedure which permits service upon such agents, and each case must necessarily depend upon its own facts. The test is not, however, whether the agent is subject to the control of the directors of the ■corporation, because all agents are so. Neither is it necessary that ■ the person served should be a managing agent in this state. The-' Code attaches no such condition to the validity of such service. A reasonable requirement seems to be that the person served should be of sufficient responsibility to render it probable that the ■company will receive notice of the service. That end has been attained in this case, and, though the extent of the powers of Curtis as the agent of the defendant are not very fully stated, we .think they were sufficient to constitute him a “ managing agent,” within the meaning of the Code. The order should be affirmed, with $10 costs and disbursements.

All concur.


text:
    John H. Farrelly, Resp’t, v. George J. Hubbard, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Execution—Person—Justice’s court.
    Where the defendant acts in a fiduciary capacity in receiving money, an execution against his person cannot be issued upon a judgment recovered in justice’s court for the debt, unless an order of arrest was issued under subd. 3, § 2895 of the Code.
    Appeal from an interlocutory judgment, entered on a decision sustaining a demurrer.
    The opinion of Mr. Justice Brown, sustaining the demurrer, is as follows:
    Section 3026 of the Code of Civil Procedure regulates the issuing of executions upon judgments rendered in justice courts. Executions against the person can be issued in actions specified in subdivisions 1 and 2 of section 2895, or when an order of arrest has been issued under subdivsion 3 of that section. Ho order of arrest was issued in the action against Farrelly. In my opinion, the action against him fell within subdivision 3. His receipt of the money from the railroad company was as Hubbard's agent. He received it in a fiduciary capacity. The action against him could not be said to have been for conversion of personal property. That expression has reference to specific articles of property owned by a person other than the one who is charged with converting them. It does not apply to money, the receipt of which creates only a debt to another. Money in bills, checks, or coin „has no earmarks, and, when it is received by the consent of another, the legal obligation thus created is discharged by paying the debt. It is never necessary to repay the identical bills or coin received. Farrelly had Hubbard’s consent to receive his wages, and his duty was to pay the amount to Hubbard, but he was under no duty to turn over to him the same checks or bills that he received from the railroad company. For his failure to pay the debt he could have been arrested under subdivision 3 of section 2895 of the Code, but, unless an order of arrest was issued, an execution against his person could not be issued upon a judgment recovered for the debt. The Code authorizes a demurrer to an answer where the defense pleaded is insufficient in law, and, as the answer in this case sets out all the facts, the question of the justification is one of law solely, and is properly before the court. Segelken v. Meyer, 94 H. Y. 473, and other cases cited by the plaintiff, are not directly in point upon the question discussed, as sections 549 and 550 of the Code were amended in 1886, and the rule applicable in the cases cited is now somewhat changed from what it was when Segelken
      v. Meyer was decided. See Moffatt v. Fulton, 132 N. Y. 507 j 44 St. Rep. 853. But for reasons stated, I think the demurrer must be sustained. ■ Plaintiff is allowed costs.

      Lewis E. Carr, for app’lt; Frank Lybolt (John W. Lyon, of counsel), for resp’t.
   Dykman, J.

The judgment should be affirmed upon the opinion of the court at special term, with costs.

All concur.


text:
    Louis Bourdon, Resp’t, v. Francis A. Martin, as Receiver, App’lt, Robert C. Waldron, etc., Def’t.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Costs—Action by receiver.
    A judgment creditor is liable for costs incurred by a receiver in supplementary proceedings, where the receivership was not extended to any other judgment, and all the steps taken by him were at the request of the farmer’s attorney.
    Appeal from an order, directing the judgment creditor to pay the costs of the action.
    Action by Louis Bourdon against Francis A. Martin, as receiver of the property of Emma Walker, a judgment debtor, substituted as defendant in place of the New York & Lake Champlain Transporation Company by an order of interpleader granted on payment into court by the transporation company of the money sued for. The action was brought to recover the sum of $243.20 for board alleged to have been furnished to the employes of the transporation company by plaintiff. The receiver of the judgment demanded the amount sued for, alleging it was due to the judgment debtor, and thereupon the order of the interpleader was granted. The judgment against Emma Walker was recovered in an action by Robert Gr. Waldron, and the receiver was appointed in supplementary proceedings thereon. The board sued for was furnished to the employes of the transporation company after Emma Walker, the judgment debtor, had married plaintiff.

      J. W. Atkinson, for app’lt; Thomas O' Connor, for resp’t.
   Herrick, J.

This is an appeal from an order of the special term charging the appellant with costs obtained in an action against a receiver under a judgment obtained by the appellant. It appears that the appellant is the only person that would have been benefited by the fruits of the action commenced by the receiver. The receivership has not been extended to any other judgment. The attorney who conducted that action for the receiver was the appellant’s attorney, the one who had conducted the proceedings supplementary to execution, the one who had appeared for the appellant in the original judgment, the one who appeared also for the appellant before the special term resisting the application charging him with costs. The receiver swears that all the steps taken by him were at the request of said attorney. The appellant’s affidavit was somewhat evasive, and that, coupled with the absence of the attorney’s affidavit, in face of the fact that the moving papers charged that such attorney was acting for and at the request of the appellant in conducting the litigation in question, in the name of the receiver, justified, 1 think, the special term in assuming that such attorney was acting for the appellant, and at his request, and. upon his retainer, all through these proceedings, and that the receiver was, in fact, the mere instrument through which such attorney acted. Such being the fact, the order was abundantly justified, by the case of Ward v. Roy, 69 N. Y. 96, and should be affirmed, with $10 costs of this appeal, and printing and other disbursements.

All concur.