text:
    ALEXANDER HANCOCK, Respondent, v. CHARLES W. SEARS, Appellant.

      Supplementary proceedings — earnings of a judgment debtor — in order to justify Ms expending them after an injunction is obtained, it is necessa/ry for him to obtain am, order declaring them exempt— Gode of Giml Procedure, sec. 2463.
    When, in proceedings supplementary to execution, an order is made requiring the defendant to appear and he examined, and forbidding him from making or suffering any transfer or other disposition of, or interference with, his property, not exempt from levy and sale by virtue of an execution, until the further direction of the court in the premises, he has no right to collect and use wages due to him for services rendered within the sixty days preceding the institution of the proceedings, and is guilty of a contempt of court if he does so.
    If he desire to avail himself of the exemption created by section 2463 of the Code of Civil Procedure, he should make it appear to the court or judge, by his own oath or otherwise, that such earnings are necessary for the use of a family wholly or partly supported by his earnings and apply to have the order modified or annulled in so far as it restrains him from collecting or using the said wages.

      Appeal from an order in proceedings supplementary to execution, made September 12, 1882, by the county judge of Erie county, adjudging the defendant guilty of contempt in having violated an order made in such proceedings August 30, 1882.
    By the order of August 30, 1882, defendant was “forbidden making or suffering any transfer or other disposition of or interference with the property of said Charles W. Sears, not exempt from levy and sale by virtue of an execution, until further direction in the premises.”
    The restraining order was served personally August 31, 1882. September 4, 1882, defendant received as wages for the month of August, as telegraph operator for the Western Union, forty-one dollars and sixty-eight cents.
    He was examined upon the return day of the order, September 7,1882, and disclosed that he had collected such wages as aforesaid.
    September 7, 1882, the county judge granted an order to show cause why defendant should not be adjudged in contempt, returnable September 11, 1882.
    On the return of that order, defendant personally appeared and asked to have an adjournment to September 12, 1882, and such adjouimt-nt was granted. He then appeared in person and by counsel, and presented an affidavit showing that the moneys so collected were earnings, and that he had a wife and two children, and the wages were used for their support and were “ necessary for the use of his family supported by him.”
    Defendant was adjudged guilty of contempt and fined thirty-five dollars, and he now appeals from the order.

      Joseph P. Carr, for the appellant.

      George W. Wheeler, for the respondent.
   Hardin, J.:

Whatever irregularities were existing in respect to the order to show cause, were waived by an omission to take advantage of them at the first opportunity.

When the defendant appeared upon the return of the order to show cause and asked for an adjournment, the judge had jurisdiction of the subject-matter and of the person of the defendant.

In Newell v. Cutler (19 Hun, 74) we held that the defendant had no right to violate a restraining order by interfering with his wages, even 'for the support of his family, in the absence of an prder permitting him to do so.

In Miller v. Hooper (19 Hun, 395) it was held that an order should be allowed adjudging wages exempt and restraining a receiver from taking proceedings to collect them.

But it is now insisted that section 2163 of the Code of Civil Procedure has changed the practice, - as we declared it to be -under section 297 of the old Code.

The appellant contends that by the new section the earnings are placed upon the same footing as exempt property, that the county judge had no jurisdiction to prohibit the use of so much of such earnings as the debtor could show was necessary for the support of his family.”

A plain answer to the position -and argument is found in the new section, when read in connection with section 2151, which confers a general power upon the judge in respect “ to the property of the judgment debtor.” Section 2163 declares the power shall not be exercised in certain specified cases.

Among them is the case of a debtor’s personal earnings for or services rendered within sixty days next before the institution of the special proceedings, when it is made to appear by his oath or otherwise that those earnings are necessary for the use of a family wholly or partly supported by his labor.”

When the restraining order was made, no such fact appeared by the oath of the debtor or otherwise.

The order was therefore made within the general power conferred, and it was the duty of the debtor to obey it till he made it appear by his oath or otherwise “ that the earnings were necessary for his family. Then he could invoke the powers of the judge to modify or annul the order so far as it restrained his use of his services or earnings within the sixty days” next before the institution of the special proceedings.” * * *

Technically, the order was valid and should have been obeyed. (Miller v. Hooper, supra ; Shults v. Andrews, 54 How., 378.)

The order adjudging the defendant in contempt must be affirmed.

The question is new under tbe Code of Civil Procedure, and we may therefore properly affirm, without costs.

Smith, P. J., and Haight, J., concurred.

Order affirmed, without costs.


source: Caselaw Access Project

author: Hardin, J.:

license: Public Domain

text:
    ELIZABETH W. GREENWOOD, Individually and as Executrix, etc., of SIMON L. GREENWOOD, Deceased, Respondent, v. GEORGE L. MARVIN and ELIZABETH S., his Wife, Appellants, Impleaded with LE GRAND MARVIN, Respondent.

      Meport — when it will be set aside because of tike misconduct of the referee — what acts a/re not a waiver of tike right to make a motion for sueh relief.

    The referee in this action, after the case had been finally closed and submitted to him, and before he had decided it, applied to the parties and their attorneys, verbally and by letter, to have his fees fixed at a sum largely in excess of what he would be entitled to receive if they were determined by the statutory rates, and sought to procure the execution of a stipulation to that effect. The plaintiff and one defendant seemed willing, while the other defendant refused, to execute it. Subsequently the referee notified the defendant who had expressed a willingness to execute the stipulation that he would deliver the report to him on receipt of a sum greater than his statutory fees. Thereafter a bond and mortgage were given to the referee by the said defendant and his son to secure the said fees, and the report was delivered to him. It was claimed that while the reference was,pending the referee had expressed an opinion favorable to the defendant, against whom he finally decided.

      Held, that the court properly set aside the report and the judgment entered thereon.
    The referee’s report was filed July 7, 1881, and judgment was entered thereon on ' July 12,1881. In August following, notice of a motion to set aside the report because of the alleged misconduct of the referee was served. Thereafter, and on August twentieth, notice of an appeal from the judgment was served. September 2, 1881, the motion to set aside the report of the referee was denied for the want of proper papers. In February, 1882, the motion was renewed and granted.

      Held, that neither the denial of the first motion, the service of the notice of appeal nor the delay deprived ihe defendant of his right to move to set aside the report.

      Appeal from an order of the Erie Special Term, made on the 11th of June, 1882, granting a motion made in February, 1882, to set aside the report of a referee and vacate the judgment entered thereon. Plaintiff recovered $361, and an account was stated between George L. Marvin and Le Grand Marvin, and the title to certain real estate was determined to be in George L. Marvin. The referee received $3,610 for fees. The referee says in his affidavit, viz;: “ A more tedious, vexatious and exasperating litigation I think I may safely say was never known. The amount involved was large, being at least $100,000, and the question is difficult and extraordinary. The difficulties attending the trial it is impossible to describe. The case seemed interminable. * * * I may say that it is more than likely that I did say to Le Grand Marvin and to Vedder and to Kingston that it was to Le Grand’s interest to close the case. At the time I believed * * * it was, because it became apparent to me many months before the submission that no further material testimony could be produced on the part of the plaintiff. It was for the interest of all parties that the litigation be terminated. Finally the case was closed and submitted February 19, 1881; except that the privilege was reserved to the parties to submit written briefs and requests to find, etc. The case was finally submitted on that day. At that time the case had been pending before me a little more than four years. * * * There were about 296 days on which I heard or was prepared to hear the case. To that may be added nearly every day from April 1st to July 1st, 1881, the time I spent in making my report; for it is true that for three months I labored almost incessantly on this case. * * * I think it was natural that as I approached the end of this great task I should grow anxious about compensation. I did speak to Mr. Andrews (counsel for George L.) and Mr. Vedder (counsel for plaintiff and Le Grand) about it, and there was some indefinite talk.” ITe then states that after he arrived at Colorado Springs, CoL, he wrote to both Mr. Andrews and Mr. Vedder about the matter. “I had, before writing, reflected upon the subject and arrived at the conclusion that I should be paid $3,000 in addition to what I had already received, making a sum total of $3,610. I think that I so wrote, and suggested that if that sum was satisfactory to the parties that they fix upon it and provide for its payment.” He received answers that nothing had been done. He says, viz.: “ I wrote again, urging that something be done. Nothing however was done, as I found when I returned April 1st, 1881. I saw Vedder and spoke of this matter.”
    Nothing was done until May.first, when the referee drew a stipulation, “ to be signed by the parties, fixing the amount to be paid at $3,000.” He submitted that to Vedder, and he drew another one and handed it to the referee to hand to Mr. Andrews to sign, and Vedder was to present it to Le Grand to sign.
    The referee did on the following day (May second) submit it to George L. and to Mr. Andrews, and they expressed a preference for the one the referee drew. The referee took the papers back to Vedder and frequently after asked Vedder if Le Grand had signed the stipulation.
    The referee’s affidavit says: “Finally he returned the papers to me in the same envelope in which they were. inclosed when I left them at his office, and informed me that Le Grand had declined to sign them or either of them. * * * The report was ready for delivery July 1, 1881.”
    The referee notified George L. “ that it would be delivered to him on payment of $2,810, the balance remaining unpaid.” About the Ytli of July, 1881, George L. and his son Percy arranged the fees by delivering a bond and mortgage to the referee, and “ the report was delivered to them.”
    Affidavits were read below tending to show that pending the reference the referee declared his opinion to be favorable to Le Grand on an important branch of the case, and that he subsequently changed his mind and determined that branch of the case in his report adverse to Le Grand and favorable to George L. and adverse to the plaintiff.
    Many other facts appear in the moving papers as to conversations of the referee with the parties separately, and with counsel separately, about the trial, the course and management of it, and the questions involved, and tending to show that Mr. Andrews was suggested to George L. as a proper attorney to employ, and that thereafter the defendant, George L., employed Andrews as attorney, and that he, to a large extent, conducted the litigation in behalf of George L. before the referee.

      E. B. Vedder, for the plaintiff's.

      Leroy Andrews and E. (J. Sprague, for George L. Marvin and wife, appellants.

      Adelbert Moot, for Le Grand Marvin, respondent.
   Hardin, J.:

Appellants invoke the rule that motions for irregularity in practice, based upon technical objections to proceedings had, must be taken promptly and before other steps are taken in the action. Such a rule has been applied in regard to the usual modes of •procedure. (Persse & Brooks Paper Co. v. Willett, 14 Abb., 119 ; Low v. Graydon, Id., 443; Lawrence v. Jones, 15 Id., 110.) Such motions must be made before taking other steps in the action. (Strong v. Strong, 1 Abb. [N. S.], 233; Jones v. U. S. Slate Co., 16 How., 129.)

Patterson v. Graves (11 How., 91) does not aid the appellants. There the motion was to set aside the report of a referee, because the report did “ not set forth the material facts found upon the issues passed upon by the referee, or what issue he did pass upon, or what facts he did find.” Bowen, J., said, the motion was based upon an alleged irregularity, and that a delay of seven months was an answer to it. The ground of the motion in this case takes the motion out of the rule laid down in the cases cited by the appellants. Besides, the affidavits at the Special Term satisfactorily excused any laches imputable to the moving parties.

The first notice of motion‘was for September 2,1881, and though then denied for want of proper jiapers, it was after-wards renewed, we must assume, by leave of the court properly given, and the delay satisfactorily excused. Nor did the service of the notice of appeal from the judgment, subsequent to the first notice of motion and prior to the second notice of motion, cut off the right of the respondents to sustain the motion to set aside the report of the referee for alleged misconduct.

By section 3296 of the Code of Civil Procedure, the fees of a referee were limited to six dollars per day. That section went into effect 1st September, 1880 (see § 3356 of Code of Civil Procedure), and the referee, at the time when the cause was submitted to him in February, 1881, was only entitled to an allowance of fees as specified in section 3296.

A different compensation might, in accordance with that section, have been fixed, by the consent of the parties, at or before the commencement of the trial or hearing, if such consent had been “ manifested by an entry in the minutes of the referee or otherwise in writing.” No such consent had been given, as the referee well knew, when he commenced his efforts .to have the parties stipulate for his compensation.

It must be assumed that he well understood the provisions of the section from which we have quoted, and that he was aware that the section had been somewhat strictly pursued and construed by the courts. (Marke v. City of Buffalo, 87 N. Y., 188; First National Bank v. Tamayo, 77 id., 478.) Andrews, J., said, in the case last cited, that “the statute wisely, we think, requires a formal written agreement between the parties before either can be subjected to the payment of referee’s fees beyond the prescribed rate.”

To obtain such an agreement as would give an increased rate for beyond what the statute had prescribed, the referee in the case before us set out and continued his efforts while in Colorado, and repeated and carried them on after his return and by the stipulation which he drew on Sunday, May first, he expected to overcome the force of the statute we have quoted if the same should be signed by all the parties. Finally his efforts failed, as Le Grand refused to accede to the request of the referee.

"Without saying that the referee acted in actual bad faith with an intent to procure to himself greater fees that he had or might earn, we must condemn his conduct in regard to the compensation to be allowed to him. The statute we may well suppose was aimed at all rates of compensation above six dollars per day, not given by the consent of the parties — the free consent — at or before the commencement of the trial or hearing.

Parties solicited by a referee, after the trial was begun, to give an enhanced fee to a referee, above and beyond that named in the statute, might be delicate about refusing, lest the, refusal should prejudice the party refusing, in the mind of the referee. Such efforts as the referee by his own affidavit admits (not to say those established by other proofs) should not be encouraged or sanctioned.

The policy of the law in guarding judicial trials from evil and the appearance of evil as well, require that such conduct as has been/disclosed should be condemned, and that a report following such conduct should be set aside and the parties remitted to another trial. (Yale v. Gwinits & Casler, 4 How., 253; Roosa v. S. & W. T. Co., 12 id., 297; Gray v. Fisk, 42 id., 135; Livermore v. Bainbridge, 44 id., 262; Carrol v. Lufkins, 29 Hun, 17.)

Confidence in the purity of the administration of the law cannot be maintained if such conduct be tolerated, and reports are allowed to stand, made by referees who start negotiations and stipulations for extra statutory fees, after a case has been submitted to them.

That the referee asked no more than he earned, that he received no more than he earned, furnishes no answer to the charge of impropriety. A new trial in this case may be expensive and may not produce a different result. But it is better that there be expense and delay in this case, than that an improper precedent be made.

Referees ought, like jurors, to be vigilant to avoid evil, to avoid taking a line of conduct which may affect their freedom of minds and neutrality in the cases under consideration. Ex parte treaties and conversations with either party as to any fact, point or fee ought to be avoided- Suitors have a right to an unbiased tribunal approaching the delicate duty of determining the facts and law of a case, uninfluenced by any solicitude or efforts to secure extra fees..

The cases to which reference has been made indicate how careful courts have been to see to it, that a decision be not allowed to stand in any case where it may have been reached by any consideration, not arising from the merits of the case as presented by the evidence and law of the case.

The order of the Special Term ought to be affirmed, with costs and disbursements.

Smith, P. J., and Barker, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Haigi-it, J.: Hardin, J.:

text:
    MARTIN CAIN, as Administrator, etc., of PATRICK CAIN, Deceased, Appellant, v. THE CITY OF SYRACUSE, Respondent.

      Public nuisance — a dangerous wall on private property, remote from a street, is not— power of the common council of a city to abate nuisances and, provide for the removal of dangerous buildings — when the city is not liable to one injured by its neglect to exercise such powers.

    On January second a brick building on Genesee street, in the city of Syracuse, was burned. The building extended back from Genesee street to the tow-path of the Brie canal, a distance of about 160 feet. It was from forty-six to fifty feet high, and its eastern wall, which was independent of the wall of the adjoining building, was a foot thick. The roof, joists, flooring, timber and all the supports of the wall were destroyed by fire. The wall remained standing, but it became sprang and gradually bulged towards the east. It was so situated that the wind struck the rear portion of it so forcibly as to cause it to sway. The building adjoining it on the east was of the same height in front but was only twenty-two or twenty-three feet high in the rear, and at one place near the center it was only one story high. At this place was a skylight to light the dining-room of a restaurant on the first floor. On January ninth the rear portion bf the wall of the burned building fell, crushed down through the skylight of the restaurant and killed the plaintiff’s intestate and several others who were seated there at a table dining.
    The charter of the city of Syracuse'provided that “the common council shall have power to make, establish, abolish, modify, ordain, amend or repeal ordinances, rules, regulations and by-laws for the following purposes: To abate, destroy and remove nuisances; to control and regulate the manner of erecting brick or stone walls for buildings and the thickness of the same; to prohibit or require the removal of any such as they may deem dangerous to life; to raze or demolish any building or erection which by reason of fire or any cause may become dangerous to human life or health, or may tend to extend a conflagration.”
    In this action, brought against the city to recover the damages occasioned by the death of the plaintiff’s intestate:

      Held, that as the dangerous wall was remote from the public street it was not a public nuisance.
    That the duties of the defendant’s common council in deciding as to the removal of dangerous buildings and walls were judicial in their nature, and that the city was not liable to a person injured by its failure to exercise them.
    That the plaintiff was not entitled to recover.
    Appeal from a judgment, entered upon the dismissal of plaintiff’s complaint at the Onondaga Circuit.

      William O. Huger, for the appellant.

      M. A. Kna/pp, for the respondent.
   Haigi-it, J.:

On the second day of January of the present year, a brick block known as 35 West Genesee street, in the city of Syracuse, was burned. The building extended from Genesee street back a discance of about 160 feet, to the tow-path of the Erie canal, and was from forty-six to fifty' feet high. The eastern wall was a foot in thickness, and was independent of the walls adjoining it on either side. The fire was a destructive one, consuming the roof, joists, flooring, timbers, and all of the supports to the wall. After the fire the wall was left standing; it became sprung, and gradually bulged towards the east. It was so situated that the wind struck the rear portion of it with such force that persons had noticed that it swayed under the action of the wind. Immediately adjoining this building, and on the east, was a restaurant largely patronized by the farmers from the country, kept by one Tracy. This building was known as the Clinton block, and in front was of the same height as the building that burned; in the rear, however, it was but twenty-two or twenty-five feet high, at one place near the center only one story high, at which place there wras a sky-light, which furnished light to the dining-room below. On the ninth of January following, the rear portion of the wall adjoining the Clinton block fell- over, crushing down through the sky-light of the Tracy restaurant, killing the deceased and several others who were there seated at a table dining. The plaintiff, as administrator, brings this action against the city, claiming that the wall was left standing in a dangerous condition, that it was known to the city officials to be feo, and that it was their duty to have caused it to be taken down. The court at circuit held that the city is not bound to enter upon private property to ascertain whether or not there are nuisances there, and that the failure of the city to do so cannot be made the foundation of an action. The question thus presented is not free from difficulty. In our examination of the reported cases, we have failed to find any that we regard as controlling. The defendant is a municipal corporation, chartered under an act of the legislature. Title 4, section 4, of its charter provides: “ The common council shall have power to make, establish, abolish, modify, ordain, amend or repeal ordinances, rules, regulations and by-laws for the following purposes: to abate, destroy and remove nuisances; to control and regulate the manner of erecting brick or stone walls for buildings, and the thickness of the same; to prohibit or require the removal of any such as they may deem dangerous to life; to raze or demolish any building or erection which by reason of fire or anj* cause may become dangerous to human life or health, or may tend to extend a conflagration.”

The appellant relies upon the rule as stated by Selden, J., in the case of Weet v. The Trustees of the Village of Brockport (16 N. Y., 161). He says, that “whenever an individual or a corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, either express or implied, to -do certain things, such individual or corporation is liable, in case of neglect to perform such covenant, not only to a public prosecution by indictment, but to a pi’ivate action at the suit of any person injured by such neglect. In all such cases, the contract made with the sovereign power is deemed to inure to the benefit of every individual interested in its performance.”

The case under consideration by the learned judge, and to which this rule is applied, was for injuries received by falling through a platform or sidewalk which the defendant was constructing from the end of the bridge across the canal, in a lateral direction to the sidewalk. It had been partially planked over, and then left without any light or guard to prevent persons from falling into the hole so exposed. The injuries were claimed to have been received in the night time, when it was so dark that the hole in the walk could not be seen. This and numerous other authorities to which we have been referred hold that it is the duty of municipal corpora-' tions to keep their streets and sidewalks in proper and safe repair, so that the public may pass over and upon the same without injury. The rule as stated by the learned judge, we believe, has been regarded as correct when applied to this class of cases, whenever the question has subsequently arisen in this State.

The right to maintain highways, ferries and bridges, to facilitate communications between different parts of the state, rests in the government or sovereign power ; and those rights can be exercised by others only under grant or authority of the state.

The grant to the defendant of its charter as a municipal corporation, conferred upon it the powers and duties of commissioners of highways; and in accepting and organizing under the charter so granted, it is deemed to have entered into a covenant •or agreement to fully perform and discharge all such duties. It has consequently been held that a person may recover as against a municipal corporation, for injuries received without fault on his part, on account of the negligence of' the municipality in not keeping its streets and sidewalks in safe .and proper repair. And the reason of this holding is based upon the ground that, in accepting the charter, there was an implied covenant or agreement to do and perform its duty in this regard. It is not upon the ground that the duties are ministerial, and not judicial, but upon the ground of the breach of contract. It is not only the duty of the corporation to maintain the surface of the streets in such a condition as to make them safe and proper for the public to pass over, but it is also the duty of the corporation to so maintain them that the public may pass safely, without being injured from falling obstacles. In the case of Jones v. The City of New Haven (reported in 34 Conn., 1), a dead limb, which was negligently allowed to remain upon a tree in one of the public squares, fell upon and injured a person who was passing along. It was held that the city was liable in damages. So also it was held in the case of Kiley v. The City of Kansas (reported in 69 Mo., 102). A brick building had burned and the wall, standing upon private property upon the line of the street, was permitted to stand in a dangerous condition for the space of about six weeks, and known by the city authorities to be so. A person was killed by the falling of the wall. It was declared to be a public nuisance and a recovery was permitted.

These authorities we do not regard as in conflict with the doctrine equally as - well established, that where the duty devolving upon an individual, body or corporation is judicial in its nature, involving the exercise of judgment and discretion, in the absence of contract, •express or implied, no recovery can be had. In the New Haven ease, if the dead limb had fallen from a tree standing upon private property and had injured an individual, it would hardly have been claimed that a recovery could have been had against the city, even though the city had by its charter been given the powei to enact ordinances regarding trees upon private property. In the case of Kiley v. The City of Kansas (supra) the court placed its decision upon the ground that the wall standing next to the street in a dangerous condition was a public nuisance, which it was the duty of the city to remove. The court then proceeds to say : “ Had this wall been standing in the center of the lot or block belonging to a private person, the city may not have been liable for injuries resulting from its fall. But that would be not because of the particular-position of the person injured, but because the wall was not a public nuisance.”

In the case of Wilson v. The Mayor, etc., of the City of New York, (1 Denio, 595-599) action was brought to recover damages alleged to have been sustained by reason of the grade and pitch established in paving the street, which prevented water from flowing-off from the plaintiff’s premises and caused him damages. It was held that he could not recover. The rule as there stated is that duties which are purely ministerial in their nature are sometimes cast upon officers whose chief functions are judicial. Where this occurs, and the ministerial duty is violated, the officer, although for some purposes a judge, is still civilly responsible for such misconduct. But where the duty alleged to have been violated is purely judicial, a different rule prevails, for no action lies in any case of misconduct or delinquency, however gross, in the performance of judicial duties.”

In the case of Mills v. The City of Brooklyn (32 N. Y., 489) an action was brought for damages occasioned by the overflowing of the plaintiff’s premises, for the reason that a sewer which the defendant had constructed was not of sufficient capacity to carry off all of the water during heavy rain storms. It was held that no-recovery could be had ; that “ the duty of draining the streets and avenues of a city or village is one requiring the exercise of deliberation, judgment and discretion. It cannot, in the nature of things, be so executed that in every single moment every square foot of surface shall be perfectly protected against the consequences of water falling from the clouds upon it.”

In the case under consideration, the dangerous wall was standing •on private property, removed from the public street, so that there was no danger of its falling upon the public way. It was not, according to the doctrine promulgated in the case of Kiley v. The City of Kansas (supra), a public nuisance. The charter of the defendant quoted calls for the exercise of sound discretion and judgment. ' The power given to abate, destroy and remove a nuisance involves the determination of what is a nuisance. The power given to regulate the manner of erecting brick or stone walls for buildings and the thickness of the same, and to prohibit or require the removal of any such as they may deem dangerous to life, involves the determination of what would be proper and sufficient walls, the thickness that they should be, the manner in which they should be constructed, and as to whether or not they are dangerous to life. The power to raze or demolish any building which, by reason of fire or other cause, may become dangerous to human life or health, or as to what would serve to extend a conflagration. All of these powers are judicial in their nature, as much so as would be the determination, of when and where a sewer should be located, or of what size it should be constructed, as much so as determining the pitch and grade of a street. And in the absence of contract, express or implied, we are of the opinion that no recovery can be had on account of the failure of the council to raze or deriaolish a building which becomes dangerous.

"VVe have before stated that the right to maintain highways rests in the government or sovereign power, and that this right can be exercised by others only under grant or authority of the State; and when this grant is made, the person, body or corporation accepting' it is deemed to have contracted to keep and maintain such ways in proper and safe condition. This right over highways has always been reserved by the sovereign power, but no such reservation has ever been made in reference to private property. Persons owning the fee of the soil have always been permitted to build and construct such buildings as they saw fit, without grant or license. The sovereign power was not concerned in the question as to whether they were substantially or improperly built, as to whether they were safe or dangerous. True, they must not be constructed so as to be or become public nuisances, or so as to affect the health of the public. But further than that the sovereign power is not concerned. The grant of the sovereign to the municipal government the power to regulate the manner and material with which a building shall be constructed upon private property, the right to tear down and demolish it in case it is improperly constructed, is a power given to be exercised at the will and discretion of the municipal government. It is not a duty required to be performed by the sovereign power but is a power which the municipality seeks for the protection of its inhabitants.

The appellant cites the cases of Maxmilian v. The Mayor (62 N. Y., 160) and Ham v. The Mayor (70 id., 459). Those cases treat upon the doctrine of respondeat superior. This court has recently had those eases under consideration in the case of Bamber v. The City of Rochester (26 Hun, 587). No question was raised by the respondent upon the argument as.tp the non-liability of the defendant under this doctrine, nor do we consider the doctrine of respondeat superior as being in conflict with any of the questions raised or herein discussed.

The conclusion which we have arrived at is that the dangerous wall, being remote from the public street, was not a public nuisance; and that the duties of the common council of the defendants corporation in the removing of dangerous buildings and walls are judicial in their nature ; that such duties are not founded upon any contract, express or implied, but are simply a grant from the sovereign power which is to be exercised according to the best judgment and discretion of the council; that the failure of the defendant to enter upon private property and determine whether or not there was a nuisance or a dangerous wall is not such negligence as would justify a recovery.

Smith, P. J., concurred.

Hardin, J.:

I concur in the result reached by Haight, J. There was no request to submit to the jury any question of fact. It is not, therefore, to be understood that the decision now made passes upon the question which would arise in case it appeared or was found as a fact that the defendant willfully omitted to exercise the power conferred upon it to raze or destroy a dangerous and insecure wall or structure upon private property.

Judgment affirmed.


author: Smith, P. J.;

text:
    CARL BUSCH, Respondent, v. THE BUFFALO CREEK RAILROAD COMPANY, Appellant. CARL BUSCH, Appellant, v. THE BUFFALO CREEK RAILROAD COMPANY, Respondent.

      Negligence — a stranger is not relieved from, liability foi' an injury caused by his negligence to a third person, by the fact that the negligence of a co-employe of the perspn injured contributed thereto.

    Two appeals argued together. The first is an appeal by the defendant from a judgment, entered on a verdict at the Erie circuit, and from an order of the Erie Special Term denying a motion for a new trial on a case and exceptions. The second is an appeal by the plaintiff from an order of the Erie Special Term granting a new trial in the same action on the , round of newly discovered evidence.
    The action is brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendant’s servants. The material facts of the case are substantially undisputed.
    The plaintiff was one of a gang oi hovelers who were engaged in unloading coal cars in Scott’s coal yard in Buffalo. The cars stood upon a railroad track supported by trestle work and connected with the defendant’s main track by a switch. A part of defendants business was to run loaded cars with their engines into that and other coal yards beyond it on the defendant’s main track. In the forenoon of the day on which the accid'ent occurred, a train of about thirty loaded cars had been run on the switch ■ leading from the main track into Scott’s coal yard, to be unloaded by the owners of the coal for whom plaintiff was at work. The men had unloaded several of the cars and allowed them to drop back on the switch, and some of them had run out on the main track. About two o’clock, another train in charge of defendant’s employes coming on the main track pushed the empty cars back on the trestle, till they collided with the loaded cars on which the men were at work, and produced the shock which injured the plaintiff. The train was very long and was backing up slowly, its engine pushing, and its approach was not noticed by the plaintiff or by any of the men at work with him.
    The court at General Term said: “ The evidence warranted the jury in finding that the defendant’s servants in charge of the train knew that the switch was open, and that they saw, or might have seen, that the men were at work unloading the cars, and it was undisputed that they gave no signal of their approach. That omission, under the circumstances, warranted the verdict so far as the defendant’s negligence is concerned.

      “ It is contended by the. counsel for the defendant that there was contributory negligence on the part of the plaintiff or his fellow servants, in this, that after the loaded cars had been pushed on to the trestle in the morning and the switch had been closed by the defendant’s employes, some one or more of the men who were unloading the cars opened the switch to let the cars down as they were unloaded, and left it open, and that under those circumstances the plaintiff was required to be on the lookout for an approaching train, and his omission to discover the train was negligence. But there is no evidence that the switch was opened by the plaintiff, or that he knew it was open. For the acts of his fellow.servants, done without his agency or knowledge, he is not responsible as against the defendant; it is only as against the common employer that one servant is precluded from recovering for injuries caused by the negligence of his fellow servant. The fact that the plaintiff was one of a 'gang of men who worked in common and divided their joint earnings equally, does not alter the case. They were not copartners, and neither was responsible for the acts of the others ; and even if a mutual responsibility existed, there is no evidence that the switch was left open by one of the plaintiff’s gang. There were other, men at work unloading the cars besides those who worked in the gang to which plaintiff belonged. If it be assumed ' that the negligence of one or more of the men who were engaged with the plaintiff in unloading the cars contributed, with that of the defendant, to produce the injury, that fact does not relieve the defendant from liability. (Chapmcm v. New Ilmen Ií. I¿. Co., 19 N. Y., 341; Colegrove v. N. Y. cmd Harlem B. B. Co., 20 id., 492; Sheridan v. BrookJ/yn, etc., B. B. Co., 36 id., 39.) In such a case the injured person may maintain an action against both or either of the parties whose negligence concurred to produce the in jury. (Id.) There being no evidence that the plaintiff had opened the switch, or had notice of its being open, the question whether he was negligent in not discovering the approach of the' train was for the jury, and their verdict is conclusive on that point.”

      MoMillcm (& Gl/ack, for the appellant.

      Lewis ds Bice, for the respondent.
   Opinion by

Smith, P. J.;

Hardin and Barker, JJ., concurred.

Order granting new trial on the ground of newly discovered evidence reversed, and judgment and order denying new trial affirmed.


text:
    MARY E. RILEY, Respondent, v. ELIZABETH A. HOYT, Appellant, Impleaded, etc.

      Unrecorded mortgage — a subsequent purchaser for value, whose conveyance is first recorded, is not bound by it unless he had actual notice of it— the proof of notice must be clea/r and the purchaser must have remembered the fact when taking his deed.

    Appeal from a judgment, entered upon the decision of a justice of this court on a trial at the Monroe Special Term.
    By the judgment in this case the plaintiff’s unrecorded ¡mortgage was preferred to the defendant’s recorded deed, on the ground that the defendant at the time of taking her deed had actual notice, as found by the trial judge, of the existence of the plaintiff’s mortgage. The appellant’s counsel contends that the finding is not warranted by the evidence.
    The parties in this case are sisters, and the conveyances held by them were executed by Daniel N. Hoyt, a brother of theirs, ’ and described his undivided one-fourth of a certain house and lot in the city of Rochester, which had been the home of the family and in which the defendant then resided. The mortgage to the plaintiff was executed August 20, 1874, and was recorded in the county clerk’s office in the book of deeds November 3, 1876, and in the book of mortgages October 13, 1877. The deed to the defendant was executed June 19, 1876, and recorded on the twenty-fourth of the same month. The testimony relied on to prove notice was given by the plaintiff and her husband. The notice was claimed to have been given in the course of a conversation held in the presence of the defendant.
    The court at General Term said: “ The reported decisions in this State agree in the main in holding that the proof of actual notice at law and in equity which will break in on the registry act must be extremely clear, and it must amount to proof of fraud or of such actual notice as would make the conduct of the party taking the second conveyance equivalent to a fraud. {Dey v. Dunham,- 2 Johns. Oh., 182; S. 0., reversed on the ground that the evidence which was in writing showed actual notice, but without impairing the rale above stated, 15 Johns., 555; Jackson v. Given, 8 id., 137; Jackson v. Burgott, 10 id., 457; Jackson r. Elston, 12 id., 452; Jackson v. Van Valkenburgh, 8 Cow., 260; Fort v. Burch, 6 Barb., 60; 2 Lead. Oases in Eq., 137, 139.) The notice may be express, as was sought to he shown in this case, or it may be implied from the first purchaser being in the open and exclusive possession of the estate under his deed. {Norcross v. Widgery, 2 Mass., 508; Tuttle v. Jackson, 6 Wend., 213,226.) A notice which is barely sufficient to put a party on inquiry, except the notice implied from the actual possession of the first purchaser, is not enough. {Fort v. Burch, supra / Brown v. Volkening, 64 N. Y., 76.) Nor is suspicion of notice sufficient. (4 Kent’s Com., 172; Fort v. Burch, supra.) * * *
    “ This is all the testimony tending to show notice, and it can hardly be said to come, up to that degree of proof needed to break in upon the registry acts. In neither of the last two conversations was the nature of the security mentioned or its amount. The differing versions of what was said in the cars leave it uncertain whether the nature of the security was then spoken of or its amount, or whether it was said that the security was on property; and, if so, upon what. On each occasion the allusions made to the subject were casual, vague, and in nowise calculated to arrest the attention of the defendant or make a lodgment in her memory, as she then had no interest in knowing whether her brother’s share in the house was incumbered or not. When, nearly two years after the conversation in the cars, her brother proposed that she should board him and offered to deed her his interest in the house and lot as security, it is probable that if any such remarks had been made in her presence as were testified' to on the part of the plaintiff she had forgotten them; and if that was the case there is nothing shown to impeach her good faith. (Kelly v. Solari, 9 Mees. & Weis., 54, 58; 1 Story’s Eq. Jur., § 140.) As the testimony relied on by the plaintiff is positively contradicted by the defendant, the most probable conclusion, it being the only one consistent with the truthfulness of both parties, is that the defendant did not hear or did not notice the casual remarks testified to by the plaintiff and her husband.”

      George G. Hunger, for the appellant.

      John N. Beokley, for the respondent.
   Opinion by

Smith, P. J.;

Hardin and Macomber, JJ., concurred.

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


author: Hardin, J.

text:
    NICHOLAS PAULY, Jr., as Collector of the Town of Hamburg, Respondent, v. JOSEPH WAHLE and Others, Appellants.

      Levy by a collector for unpaid taxes — when the question as to who had possession of the property at the time of the levy should be submitted to the jury — the statute a/uthorizing the seizure of property of third persons in the possession of the person owing ' the tax is constitutional — 2 B. S. (1th ed.), 1008, sec. 2.
    Appeal from a judgment of the Erie County Court,, entered in favor of the plaintiff upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the judge’s minutes.
    The action was in trover to recover a piano which had been taken by the defendants from the house of one P. D. K. Saunders after it had been levied upon by the plaintiff, as collector of taxes, for an unpaid tax due from the said P. D. K. Saunders. The defendants removed it from the house under a bill of sale executed after the levy by Saunders, his wife, Betsy Saunders, and one W. H. Gurney.
    It appeared that on December 24, 1875, the defendants were the owners of the piano, and that on that day they negotiated and consummated a sale .of it to P. D. K. Saunders for the price of $700, he paying $100 and giving a complex instrument by which he agreed to pay to them the balance in installments, they reserving “ title to said piano,” and declaring that the giving him possession thereof “should not pass the title until said purchase-money is paid.” It was also agreed that “ in case more than one-third of the purchase shall have been paid to said Wahle & Sons, then they shall sell said piano at public sale, and apply the proceeds thereof * * * for the payment of said debt.” Having executed such instrument, Saunders caused the piano to be delivered at his house in Hudson street, Buffalo, on Christmas morning, and then called his wife down stairs to look at it, and informed her it was a Christmas present for her.
    The piano remained in his house until he removed to Hamburg, where it was removed with furniture to his farm-house. He made payments from time to time, and there remained unpaid $280 at the time of levy by the plaintiff. The defendants gave the wife an agreement that she might redeem the piano upon payment of the $280 in six months.
    The Court at General Term said: “ Obviously Saunders did not have the legal title to the piano on the Christmas morning when he told his wife it was a present to her. He had an interest in it, with a privilege to acquire the title to it upon complying with the terms he had made with Wahle & Sons. After the evidence of what took place as to the gift on Christmas morning, the subsequent payments by the husband, the possession in the Hudson street house, the removal of it to his house in Hamburg, the use of it there, and all circumstances relating to the husband’s uniting in a sale of it to the defendants, was before the court and jury. It became a question of fact whether the ■ husband or wife owned the piano at the time of the levy; and it was proper to submit, as the trial court did, that question of fact to the jury. (Trow v. Shannon, 78 N. Y., 446.)

      “ It was also a question of fact as to whether the piano was in the possession of the husband or wife, and that was also properly submitted to the jury. The verdict finds both propositions in favor of. the plaintiff, and we cannot say their verdict is against the weight of evidence. The inferences and deductions to be drawn from the evidence were for the jury. Assuming that the verdict is correct in finding either that Saunders was the owner of the piano or that he was in possession of it at the time of the levy, it was, under section 2 of the Revised Statutes, liable to seizure and sale. (2 R. S. [7th ed.], 1008.)
    “ That section declares it to be the duty of the collector £ to levy the tax by distress and sale of the goods and chattels of the person who ought to pay the same, or of any goods and chattels in his possession, * * * and no claim of property to be made thereto by any other person shall be available to prevent a sale.’
    “ The object of the latter part of the section was to avoid disputes as to title to property taken from the possession of the tax debtor, and to facilitate the collection of taxes. {¿Lake Shore a/nd M. S. R. R. Co. v. Roach, 80 N. Y., 343.)
    “An argument is pressed upon us that the statute we have quoted is unconstitutional, in so far as it authorizes the seizure and sale of property found in the possession of the tax debtor, and not owned by him, is concerned. Its validity has been assumed for over fifty years, and has been approved by too many cases to allow us to consider it an open question in this court, especially in this case, which does not necessarily turn upon that portion of the statute. We shall content ourselves by holding the statute valid, without examining in detail the argument submitted by the appellant against it.” (Sheldon v. Van Rusldrle, 2 N. Y., 473 ; Ru/ndell v. Lakey, 40 id., 515; Stoclcwell v. Veitch, 38 Barb., 650; Lake Shore and M. S. R. R. Co. v. Roach, 80 N. Y., 343.)

      E. L. Parker, for the appellants.

      Calkins de Emory, for the respondent.
   Opinion by

Hardin, J.

Present — Smith, P. J., Hardin and Macombrr, JJ.

Judgment and order affirmed.


author: Haight, J.;

text:
    HELEN S. SIMMONS, Respondent, v. JOSEPH W. H. HAVENS, Appellant.

      Evidence — when the existence and, contents of a lost deed map be shown, without calling the subscribing witness thereto.

    Appeal from a judgment, entered upon the verdict of a jury in favor of the plaintiff, in Yates county, and from an order denying a motion for a new trial made upon a case and exceptions.
    This action was brought to recover the possession of a farm in Yates county, which the plaintiff alleged was conveyed to her by a deed duly executed by her mother, Jane Haskill, in the spring of 1865, her mother reserving a life estate therein.
    The plaintiff further alleges that the deed was not recorded; that it was kept by her in the drawer of her bureau; that while she was absent from home, to get married, her mother being dissatisfied with her marriage, without her knowledge or consent took the deed from the drawer and burned it. That subsequently and in May, 1866, the mother conveyed the land by deed to the defendant Havens. That Havens- at the time of taking such conveyance knew of the existence of the former deed and of the manner of its destruction.
    Evidence was given tending to show the execution and delivery of the deed, and that it was signed by a subscribing witness (and acknowledged before a justice of the peace.
    The court at General Term, after holding that the evidence was sufficient to support the verdict, said: “ It is further contended, on the part of the appellant, that if there was a subscribing witness to the deed then, that the execution was not properly proved and that the court erred in not granting a nonsuit.
    “ It is well settled that if a dged is attested by a subscribing witness, and the deed can be produced in court, the witness, if known and attainable, must be produced to prove its execution, or if he cannot be found or his testimony cannot be obtained, his writing must be proved. Or if his handwriting cannot be proved after diligent exertion for that purpose, the handwriting of the person who executed the deed must be proven. This, however, is not necessary in case the deed is actually acknowledged before an officer authorized by .the statute to take acknowledgment of deeds. In such case it may be admitted in evidence withoht further proof, even though it may have a subscribing witness.
    “ The evidence given tending to show that the instrument was in fact acknowledged has been already referred to.
    “ If, however, it was not acknowledged, then- was it necessary that it should have been proved by the subscribing witness ; or was it necessary to take the evidence of the subscribing witness before the testimony of others could be taken ?

      “ If the deed had been destroyed as alleged, it could not be produced in court, and consequently it could not be determined from inspection of it whether or not it had a subscribing witness. Evidence that there was such an instrument, that the same had been ■lost or destroyed, must first be given ex necessitate. "Whether or not there was a subscribing witness- could then only be determined from the testimony of witnesses who had seen the instrument prior to its loss or destruction. The giving of such testimony to some extent involves the giving of evidence as to the contents and execution of the instrument. All this is necessary before it can be determined that there was a subscribing witness, arid even then, as it was in this case, the fact of there being one may be controverted.

      “ The reason for requiring a subscribing witness to prove the execution of an instrument in existence and- producible in court, is that his evidence is considered higher and better evidence than that of others, and for the reason that he can take the instrument, look at it, recognize and 'identify his own signature, and in that way may identify the instrument and refresh his recollection as to its execution.
    “ In case of the loss or destruction of the instrument the subscribing witness has no such advantage. It would be impossible for him to identify the instrument alleged “to have been lost or destroyed, unless he himself had had the instrument in his possession subsequent to its execution and himself lost or destroyed it. If he could not identify the instrument lost or destroyed, he could not testify as to whether it bore his signature. Failing to do this, his evidence becomes of no higher or greater value than that of other eye witnesses to the transaction. (Eslow v. Mitchell, 26 Mich., 501, 502 ; Ketcham v. Brooks, 27 N. J. Equity, 847.)

      “ The appellant has failed to cite any case in which the question was raised and discussed, holding that the same rule prevails in reference to the proof of lost instruments by subscribing witnesses as to that of proving instruments present in court.
    “In the case of Blade v. Boland (12 Wend., 173) it was held ex necessitate that a party is allowed to prove the loss or destruction of a paper preliminary to the introduction of inferior or secondary evidence. The same rule was declared in the case of Chamberlain v. Gorham (20 Johns., 144); so, also, in the case of Metcalf v. Van Benthuysen (3 N. Y., 424).
    “ The case of Jackson v. Frier (16 Johns., 193) was an action of ejectment. One Powers was called as a witness and testified that he was present at the execution of a deed of Allen to Loop, and then saw in possession of Allen a deed from the lessor, Livingston, and that one Heart and another person whose name the witness could not recollect were subscribing witnesses to the deed. The evidence was objected to, on the ground that it was not competent to give parol evidence of the contents of a pretended deed from Livingston to Allen without first proving its loss or destruction, and then proving its execution by one of the subscribing witnesses, or their handwriting in case it should appear that the subscribing witnesses were dead or without the jurisdiction of the court. The chief justice overruled the objection.^ The judgment was subsequently reversed on appeal, but not upon the ground that the deed was not proved by one of the subscribing witnesses, and no intimation appears in the court but that the ruling of the trial judge upon this branch of the case was proper.
    “ In the case of Pellei/reau v. Jackson (11 Wend., 110-124) it was held that if a subscribing witness denies or is unable to prove the instrument, secondary evidence may be produced.
    “We are therefore of the opinion that the rule for proving instruments by subscribing witnesses cannot be adhered to in all'of its strictness in making proof of instruments lost or destroyed, and that it was not necessary for the plaintiff to have called the subscribing witness to sustain her 'cause of action in this case. It was her duty to satisfy the jury, upon clear and satisfactory proof, that a deed from her mother to her had been executed according to the provisions of the statutes and delivered to her, and that such deed had been destroyed, and that the defendant knew Or had notice of the existence and destruction of the deed at or before the time he took title to the premises in question; by doing this she was entitled to recover.”

      J). Morris, for the appellant.

      William 8. Briggs, for the respondent.
   Opinion by

Haight, J.;

Smith, P. J., and Hardin, J., concurred.

Judgment and order affirmed.


author: Hardin, J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. LOUIS SCHEWE, Appellant.

      Intoxicating liquors — the jury is to decide whether or not lager beer is intoxicating -— admissibility of evidence to prove its intoxicating qualities — the defendant may be ashed on woss-examinatidn whether his license has been previously revohed for a violation of the excise law.

    Appeal from a judgment, entered upon the verdict of a jury in in the Court of Sessions of Cayuga county.
    The defendant was convicted and sentenced to pay a fine of $150 and to an imprisonment of sixty days, for a violation of .the excise law in selling lager beer without a license to be drank on his premises.
    The court at General Term said: “ In Rau v. The People (63 N. Y., 279), the Court of Appeals said: £ Hitherto the courts have not been willing to take notice that lager beer is intoxicating, but have submitted the question when controverted to the jury, to be determined upon the evidence. The plain and obvious intention of the section is to prohibit the sale of all intoxicating liquors, and where the liquors are not such as are known to the courts to be intoxicating, their character as intoxicating or not must be determined, as it was in this case, upon competent evidence as a qestion of fact.’
    “Following the rule we have quoted the Court of Sessions in this case received evidence tending to show that lager beer is intoxicating, and evidence tending to show that the lager beer sold by the defendant was not intoxicating, and then carefully and fully submitted the question of fact to the jury, and they have found against the defendant, and after reading the evidence in the appeal book, we feel prepared to say the evidence fairly warranted the verdict.
    “We agree with Wells, J., when he says, in Commissioners of Excise v. Taylor (21 N. Y., 178), ‘ that but one safe and sensible line of distinction can be drawn between the different kinds of liquor containing alcohol in order to determine upon which of them the statute was intended to operate, and-that is between those which are capable of causing intoxication, and those containing so small a per cent-age of alcohol that the human stomach cannot contain sufficient of the liquor to produce that effect.’
    “ Of course we are not unmindful of the fact that different liquors- and different quantities will produce different effects upon different persons, and that the effect upon persons may depend upon their habits, their health, their age and constitutions. In the case before us the trial court had all these considerations before it and many others, and was called upon to submit, as it properly did, the case to the jury.
    “ Hull, as a witness called for the people, and who said he had drank lager beer at different times in the defendant’s garden adjoining defendant’s house, was asked if he had ever seen persons £ intoxicated on lager,’ and the defendant made a general objection thereto, which was overruled by the court.
    “ It is now urged that the inquiry ought to have been confined to-the beer sold by the defendant.
    “ If the trial court had been asked to thus confine the inquiry, we cannot say that it would not have complied, and we can say that the point now taken should have been raised at the trial. (Salisbury v. Howe, 87 N. Y., 134.) Nor was it error to allow Dr. Hamlin to give an answer to the question, viz.: ‘ In your opinion can the human stomach contain enough of beer containing 2Ty¡, per cent of alcohol by weight to ordinarily or commonly intoxicate ? ’
    “ The objection was general and the evidence tended to support the issue. The case of Manke v. People (17 Hun, 414) is distinguishable, for there the question was objected to upon the ground £ that the opinion of the witness was incompetent and improper, and on the ground that the subject was not one of science or skill.’
    “Nor was it error to exclude the offer to show by witness •Gardner, a revenue officer, Ghat he told all applicants that they should pay twenty-five dollars, and that it' was the universal practice to take the twenty-five dollar license instead of the twenty dollar one.’ It was too broad; it was immaterial what the revenue officers told other appellants, and it was immaterial what the £ universal practice ’ was in that regard, nor was the custom for parties who ■only sell ale or beer to obtain the twenty-five dollar license pertinent or useful evidence; it was properly excluded. {BelUnger v. Gray, 51 N. Y., 610.) A. violation ofva statute cannot be justified by custom. {Fellows v. Mayor, 17 Hun, 254.)
    “Defendant was sworn in his own behalf, and gave evidence material to the issue, and in the course of his cross-examination he was asked if his license had been taken away, and he replied it had; and he was then asked upon what charge the license had been taken away, to which question an objection and exception were taken. The witness answered, ‘ for violation of the excise law,’ .and he was then asked,£ "Wasn’t the charge for selling on Sunday ? ’ to which the defendant’s counsel objected and excepted, and the witness answered, ‘ I think it was; it was two years ago, I think.’ A revocation of a license is provided for by section 4 of chapter •549, of the Laws of 1873, and the proceedings for such revocation .are in the nature of a trial {People ex rel. Better v. Wright, 3 Hun, 306), and the accused is entitled to notice. The question was proper in a cross-examination. {People v. Grapo, 76 N. Y., 288; Grow v. Ganioeh, 15 Week. Dig., 259; Code of Civ. Pro., § 832, and amendment of 1879.)

      John D. T. Tetter, for the appellant.

      B. I. Drummond, district-attorney, for the respondent.
   Opinion by

Hardin, J.;

Smith, P. J., concurred.

Present — Smith, P. J., and Hardin, J.

Conviction and judgment affirmed, and proceedings remitted to the Court of Sessions of Cayuga county, to proceed therein.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. LOUIS MIZNER, Relator, v. LUTHER M. HAIR and Others, Referees, Respondents.

      Commissioners of highways of the village of Penn Tan — power of, to discontinue a street — 1864, chap. 258, til. 5, sec. 10— Certiorari — errors in the admission anch rejection of evidence cannot he reviewed by— Code of Civil Procedure, sec. 2140.
    Certiorari to review the proceedings had before the defendants, as referees appointed upon the appeal of the relator from an order of the trustees of the village of Penn Yan, altering and discontinuing certain parts of Hamilton street in such village.
    The trustees of the village of Penn Yan, upon the petition of the Northern Central Railroad Company and some sixty citizens- and taxpayers of such village, made an order changing Hamilton street in such village so as to run the same east of the railroad tracks-to Jacob street, and in front of the railroad passenger depot, and discontinued that part of the street crossing the railroad tracks.
    The relator contended that the trustees of the village had no-power to make the order changing or discontinuing the highway,, without the certificate of a jury certifying to the necessity of such alteration and discontinuance as required by chapter 465 of the-Laws of 1877.
    The court at General Term said: “ Section 10, title 5, of chapter-258 of the Laws of 1864, being an act to amend and consolidate the-several acts in relation to the charter of the village of Penn Yan, provides: ‘ The trustees shall be commissioners of highways in and for said village, and shall have all the powers of commissioners of' highways of the several towns of this State subject to this act. They shall also home the power to regulate, repavr, amend, discon- • tinue, alter and clean the streets, alleys, highways, bridges, side and., cross-walks, drains and sewers in said village, and to prevent the incumbering of the same in any manner, and to protect the same from encroachment and injury.’'
    “ Under this statute they are first given the powers of commissioners of highways. In addition to that they are also given the power to discontinue, alter and clean, etc. If it was intended that this power to alter and discontinue was to be subject to the certificate of the jury for that purpose the statute should have so stated. This power appears to be express and unqualified, and our conclusion is that the certificate of the jury in this case was not required. * * *
    “It is contended further that illegal and improper evidence was received by the referees upon this hearing.
    “ Section 2140 of the Code makes provision as to the matters tW shall be considered by the court on review upon certiorari. It provides: ‘ The questions involving the merits to be determined by the courtuupon the hearing are the following only :

      “‘First. Whether the body or officer had jurisdiction of the subject-matter of the determination under review.

      “ ‘ Second. Whether the authority conferred upon the body or ■officer in relation to that subject-matter has been pursued in the mode required by law in order to authorize it or him to make the determination.

      “ ‘ Third. Whether in making the determination any rule of law affecting the rights of the parties thereto has been violated to the prejudice of the relator.

      “ ‘ Fourth. Whether there was competent proof of all the facts necessary to be proved in order to authorize the making of the determination.
    “ ‘ Fifth. If there was such proof, whether there was upon all the evidence, such a preponderance of proof against the existence of any of those facts, that the verdict of a jury affirming the existence thereof, rendered in an action of the Supreme Court triable by a jury, would be set aside by the court as against the weight of evidence.’'

      “ This section of the Code has heretofore been considered by this court in the case of The People ex rél. Penfidd v. The Board of State Assessors (decided in October, 1881), and it was then held that decisions as to the admission and rejection of evidence cannot be reviewed by certiorari under this section. (See, also, Birdsdll v. Phillips, 17 Wend., 465; Hamland v. White, 7 How., 155; People v. Highway Commissioners, 30 N. Y., 76.)
    “Host of the evidence objected to had reference to the intention of the railroad company in building and maintaining a passenger depot upon the proposed altered street. The object and necessity for the change in the highway was the principal subject of inquiry.
    The passenger depot of a railroad company is a place necessarily frequented by the traveling public. Its location and access by streets and sidewalks are questions in which the people are interested, and we see no reason why the intention of the railroad company as to its location cannot be made the proper subject of inquiry in locating the highway.”

      M. A. Leary, for the relator.

      Wood, Butler <& Morris, for the respondents.
   Opinion by

Haight, J.;

Smith, P. J., and Hardin, J., 'concurred.

Order appealed from affirmed, with costs not to exceed fifty dollars.


text:
    ISAAC LONG, Respondent, v. JOSEPH TAYLOR, Appellant.

      Evidence — in an action to recover am, account for articles sold, the character of a pa/rty, in respect to his “ manner ofTceeping accounts,” cannot he proved,.

    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee in an action in Erie County Oourt on two accounts, one arising in a grist mill, the other in a saw mill.
    The action was brought to recover of the defendant a grist mill account and a saw mill account.
    Upon the trial, Elias Rust, who had been a copartner with plaintiff from 1862 to 1876, and kept the books of the firm, was called as a witness and allowed to testify as to his recollection of the general accounts of the defendant with the firm.
    The court at General Term said: “ Appellant contends the referee erred in excluding evidence of witness Aldrich as to plaintiff’s character in respect to dealings and manner of keeping accounts, and confining witness to particular acts of dishonesty.
    “ By the case it appears Ira Aldrich was called as a witness for the defendant, and he testified that he ‘had dealt with plaintiff at the mill; had occasion to settle with him; Mr. Loñg was keeping books at the grist mill at that time.’ He was asked, viz.: Question. ‘ What is the plaintiff’s character vn respect to his dealings and manner of keeping accounts ? ’ This was objected to by the plaintiff. The referee ruled that witness may state any particular act of dishonesty or error in books, but excluded the question asked. To this ruling the defendant’s counsel excepted.
    “ (1.) When the question was put the plaintiff’s books had not been read in evidence. Rust, a partner, had been put upon the, stand and taken the firm’s books and looked at certain entries therein made by him, which he did not recollect without the books, and upon looking at them he verified them, and his entries were introduced. (Collins v. Bockwood, decided, Fourth Hep., June, 1882, and Guy v. Mead, 22 N. Y., 462.)

      “ (2.) The question was too broad; it called for the plaintiff’s character in respect to ' * * * ‘ his manner of keeping accounts.’ No case has been cited which goes to the extent of allowing a witness to express an opinion as to a party’s character as to ‘ his manner of keeping accounts,’ and we do not understand from the case of Tomlinson v. Borst (30 Barb., 46) that any such rule was favored by the court in the decision of that case. No. such rule is sanctioned by Larue v. Bowla/nd (7 Barb., 110). In that case it was remarked incidentally that fraudulent circumstances may be proved for the purpose of rendering the evidence incompetent.”

      A. O. Calkins, for the appellant.

      Hosea 8. Heath, for the respondent.
   Opinion by

Hardin, J.;

Smith, P. J., and Macomber, J., concurred.

Judgment affirmed.


text:
    WILLIAM CORNING, Respondent, v. NATHAN P. POND, as Assignee, and Others, Appellants.

      Purchase of notes at a discount — when not usurious — right of a debtor to compel his crreditoi's to enforce securities in his hands — when the lattes' is not required to mail himself of them — sale of pledged securities at auction — when it is not invalid dated by the agreement'of the creditor not to bid.

    Appeal from a judgment of foreclosure, entered in Monroe county upon the report of a referee.
    August 1,1874, Charles N. Briggs purchased of his brother John T. Briggs, his interest in the copartnership business, and delivered to him two promissory notes of > that date for $10,000 each, bearing three and one-half per cent interest, and John T. continued to hold and own the notes until the 22d day of December, 1877, when he sold and transferred them to the plaintiff with a guaranty indorsed upon them. Upon the day of the sale of the notes Charles indorsed upon them an agreement, whereby he bound himself to pay interest on each note after it became due, at the rate of seven per cent per annum.
    The referee has found as a fact, that on the 22d day of December, 1877, the notes, were sold by John to the plaintiff at a discount of twelve per cent, and that the amount of the price was placed to the credit of John upon plaintiff’s bank books, and subsequently drawn out by the several checks of the seller. And that at the. time of the sale of the notes the seller, John T., made and executed the mortgage set out in the complaint to secure the guaranty given by the seller upon the notes. When the mortgage was given the plaintiff took a bond from John T. in the penal sum of $40,000, to be void upon the payment of $20,000 on the 1st day of January, 1879, and the mortgage referred to the bond, and stated that the mortgage was collateral to the bond. Upon the same day John T, and the plaintiff signed a certificate to the effect that the mortgage was given as a concurrent security for the payment of two notes, $10,000 each, made by Charles Briggs payable to the order John T. Briggs, dated August 1, 1874, and which said notes were this day indorsed <md transferred by said John T. Briggs to William-Corning. *-

      Before the referee it was insisted that the transaction was a loan to Charles N., and that as it was a loan at a greater rate than lawful interest it was void. On the contrary, it was insisted by the plaintiff that he found in the hands of John T. business paper and purchased it of John, and took his guaranty of payment, together with a certificate to the effect that the notes were valid and that there were no defenses to them, and that the certificate was “ made to accompany the transfer of the note ” and that the same was taken by William Corning on the faith thereof.
    The court at General Term, after holding that the finding of the referee was in accordance with the evidence, said: “Nor do we think the transaction was such as to take away the business character of the notes and thus render the sale of them at a discount an infraction of the usury laws. (Cram v. Price, 35 N. Y., 499.)
    • “Nor could any private arrangement entered into between John T. and Charles N. as to how the transaction should be regarded .vary the same as to the plaintiff, in the absence of .knowledge thereof and assent thereto by the plaintiff. (Smith, Admrs., v. Hathorn, 25 Hun, 159; Association, etc., v. Eagleson, 60 How., 9; Erwin v. Heversinlc Steamboat Co., 23 Hun, 578.)
    “ Powell v. Waters (17 John., 176) is cited by appellants in support of the argument that the transaction here was usurious. In that case the note which was discounted at a usurious rate was made to raise money upon, and therefore the defense was properly sustained.
    “ Sweet, v. Chapman (7 Him, 577) does not aid the appellants. In that ease the note sold at usurious discount was not valid in the hands of the payee making the sale, and it was said by Noxon, J., for this court in that case, that ‘ the rule appears to be settled that a promissory note, to be the subject of sale, must be an existing valid note in the hands of the payee, and given for some actual consideration so that it can be enforced between the original parties; and if not valid in the hands of the payee cannot be rendered valid by a sale to a bona fide purchaser at a rate of interest exceeding seven per cent.’

      “ Hall v. Wilson (16 Barb., 548) is to the 'same effect, as the note was stolen before it had any inception and sold for a usurious rate and therefore held invalid. * * *

      “ It was competent for the debtor to change the rate of interest from three and a-half per cent to seven by his contract. Had tha rate not been changed by contract and the notes had fallen due, the interest would have remained at the lower rate until the debt was merged in a judgment or decree. (Miller v. Burroughs, 4 Johns. Ch., 436.) The contract or stipulation of the debtor to change the interest upon his notes from three and a-half to seven per cent being made by the debtor bound him, and the creditor John T. had a right to sell the notes as thus changed, and the debtor was not required to pay any more to satisfy his legal obligations when they were in the hands of' the plaintiff than he had lawfully undertaken to pay to the original payee of the notes. Though the referee seems to have been of the opinion that the debtor would have been obliged to pay seven per cent after the notes matured, if the agreement had not, been made, it is not such a mistake of law as materially to affect the result reached, as the payments upon the debt must be assumed to have satisfied the interest. (Mowry v. Bishop, 5 Paige, 98; Bitter v. Phillips, 53 N. Y, 590; N. Y. Life Lns. and T. Co. v. Manning, 3 Sandf. Ch., 58.) * * *

      “ On the 22d day of December, 1877, as security for the payment of the two notes of $10,000 each, Charles N. Briggs assigned and transferred and set over to the plaintiff ‘ all money and sums of money that may become due upon some forty-eight orders, receipts or contracts in order books for seeds, to hold 'and retain the same * * * until said notes are paid; it being understood that the said Corning is not repaired to notify the person signing or making said contract, orders or receipts of this transfer, also that said Corning shall at any time deliver and surrender to said Briggs any of said contracts, orders or receipts upon being paid the amount thereof as expressed upon the face, less the commissions and reductions therein made and allowed, to the persons making said orders, receipts or contráete.’

      “ The assignment contained the following :• ‘ It is understood that the said Corning is not repaired to take any steps to perform said contracts, receipts or orders on the part of Briggs & Brother, and that when said notes shall ha/oe become due and payable (if the same shall not be paid) then the said Corning may sell said books, contracts, orders and receipts at public auction, first giving said Briggs & Brother ten days’ notice of the time and place of such sale, and apply the net proceeds of such sale upon said notes, and the purchaser at such sale shall acquire the absolute title to such books, orders, contracts or receipts.’ '
    “ It is furthermore agreed that when the above described are paid, then the said Corning is to give up and surrender the book attached thereto.
    “ The referee found that the persons making said orders resided in eleven different States, and that the orders had been obtained by ‘sending out agents over different routes in said States; that the said books were marked and arranged according to said routes, and numbered so that each book contained usually one hundred orders and corresponding receipts and contracts.’
    “ Eight of the books were returned, and ‘ the remaining forty of said books were permanently retained by the plaintiff as collateral security for the payment of said notes.’
    “ It appeal’s the seed orders fell due in the summer of 1878, and that the proper and best time to make collections on them * * was from the middle of July, 1878, and onward for three, four or five months thereafter, of, which the plaintiff had notice, and the usual course of business had been to send out agents on the different routes in different States during that period of the year, to obtain new orders for seeds and at the same time make collections upon the orders * * obtained the year before.
    “It was found that on the 14th of September, 1878, John T. Briggs made a general assignment of all his property to Pond for the benefit of creditors, who about the same time also became the assignee of Charles N. Briggs.
    “ The referee has also found that on the 26th of September, 1878, the said Pond called upon the plaintiff and urged the plaintiff to 'collect the money due and .collectible upon the orders, or allow him to collect them as assignee, insisting it was plaintiff’s d/wty to do so. Plaintiff insisted he was not obliged to make collections, and declined to do so. Pond offered to collect, or have agents collect, and apply money upon the notes. Plaintiff declined to allow Pond to collect by his agents unless he would guaranty the faithfulness of the agents. Prior to Charles N. Briggs’s assignment, he had transferred all his right, title and interest in the unsold seeds and contracts to Hiram Sibley & Co., a responsible firm in Rochester, and that firm desired to obtain possession and control of the seed books, and the firm claimed that unsold aDd unreturned seeds belonged to said firm, and the plaintiff claimed they were pledged to him and declined to give up the books to th,at firm unless they ‘ would pay or secure him the whole amount unpaid on said notes, and in that event he would transfer them with all his securities for the payment to them.’

      “ There was no offer by Pond, or John T. or Charles,£ to furnish any money to the plaintiff to pay the costs and expenses of making collections on said books. The referee has found that the balance due and unpaid upon said notes might have been collected by the plaintiff, with the costs and expenses of collection upon said books •* * * Py his employing and sending out a sufficient number of suitable agents for that purpose, and advancing the money to them to pay their expenses, becoming responsible to them for their pay, and assuming the burdens, risks and responsibilities incident to the business.’
    “ There is no finding or evidence that any of the debtors on the orders or seed books became insolvent after the assignment and before the sale of them at auction, pursuant to the power in the assignment, which sale took place on the 15th of February, 1879, after proper notice.
    “ It is now insisted, on behalf of the appellants, that it was the duty of the plaintiff to collect the securities and the seed-book orders. Turning to the agreement under which they were assigned, we find no express duty stipulated for, no requirement in terms that the creditor should collect or enforce them, no such covenant to take proper means for the collection as in Hoard v. Garner (10 N. Y., 261), but, on the contrary, it is provided that the creditor may, ‘ when said notes shall become due and payable, then the said Corning may sell said books at public auction.’
    “This provision provides for a mode of realizing money out of the securities, and it is not too much to say that it was the mode and the' only mode contemplated by the parties for realizing money out of the orders', in case payments were not voluntarily made.
    “ In the same instrument is a provision that ‘ Corning shall at any time deliver and surrender to said Briggs any of said contracts * * , * upon being paid the amount thereof as expressed upon tbe face,’ which provision is also suggestive of the intent of the parties that the creditor should not be required to enforce the contracts or attempt to realize out of them otherwise than by a sale, in case it should become necessary to realize, ‘ when said notes shall become due and payable.’ By their terms, one of the notes was due and payable 1st of January, 1878, and.the other not until 1st of January, 1879, and it is not apparent that the parties intended to impose duty upon the creditor, as to the seed-book contracts in the summer and fall of 1878, to make collections. It is more reasonable to suppose it was their intent that the debtor should, by paying the full value of any book he might wish to use, regain possession thereof to collect. It follows from these views of the contract of assignment that the plaintiff was not guilty of a breach of duty in not making collections or suffering others to take the seed books, without paying him his debts. The case is unlike Remsen ■ v. Beekman (25 N. Y., 552), where it was said by the court that a duty was imposed upon the creditor to proceed to realize out of the primary fund, and that his negligence was the predicate for refusing him the right to call upon his surety' or his collateral.
    “ As we have seen, there was no stipulated, express obligation to collect the debt out of the collaterals; rather it was within the contemplation of the parties that, in case there was need to resort to the collateral orders, a sale of them should be had, rather than a collection. That being the case, we are of the opinion that the creditor was £ not under an equitable duty to collect his debt from the collaterals of the principal debt,’ or otherwise than by a sale thereof.
    “John T. Briggs could have paid off the plaintiff and thus received the seed orders and collected them, and in that manner protected himself against the consequences of delay. (Wells v. Mann, 45 N. Y.,-327; Board of Supervisors v. Otis, 62 id., 88; Clark v. Sickler, 64 id., 231; Colgrove v. Tollman, 67 id., 95 Toles v. A dee, 84 id., 239 ; Sehroeppell v. Shaw, 3 id., 460.)
    “ By the assignment of the seed orders no duty to take the risks, burdens and expenses, as well as dangers in their collection, was imposed upon the creditor, and as there was no proof that any of the debtors upon the seed orders became insolvent after notice to collect and before the sale, we are of the opinion that the referee properly refused to find damages against the creditor because he did not proceed to collect or allow Pond or Sibley & Co. to take possession of the order books and collect them. It is urged that the creditor ought to have sold the seed orders earlier. By the terms of the assignment of them, it was provided that, ‘ when said notes shall become due and payable, * * * then the said Carney may sell said books, contracts or receipts at public auction.’
    “The language ,seems to refer to one sale. It is not made to apply to the notes separately.
    “ The last note did not fall due until the 1st day of January, 1819, and the notice was given- on the fifth of February or earlier, of a sale to be held on the 15th of February, 1879. There is nothing in the findings or in the case to indicate that any loss was suffered between the 1st day of January, 1879, and the day of such auction sale of the seed-book orders, nor was there any request that an earlier day be fixed or that a sale be had under the power either before or after the 1st of January, 1879. Mere delay is not sufficient to predicate damages upon in such case. {Sehroppel v. Shaw, ■supra.)

    “ Plaintiff was not called upon to show that the delay did not cause injury. The rule laid down in cases where the creditor has by an actual release discharged a security, that the burden of proof is upon the creditor to show that no injury' was caused to the party thereby, has no application,
    “ Such is the rule laid down in Fielding v. Waterhouse (8 Jones & S., 424), cited by appellants. In Blydenburgh v. Bmgham (88 N. Y., 371) it was held that the burden was upon the creditor to show that the debtor in fact had no interest in the lands released from a nominal lien. That rule adopted in Fielding v. Waterhouse {supra) has no application here. Appellants now argue that ‘ the conduct of the sale of the securities was in fraud of the rights of John T. Briggs, and Corning has therefore forfeited his right to call upon him or the security furnished by him.’

      “ This seems to be based upon the fact that the plaintiff attended the sale, made a bid which was raised, and thereupon one Charles T. Briggs, acting as agent for Tripp, asked the plaintiff not to bid any more, stating that he wanted Tripp to buy the seed books and promising his honor that all that was realized upon them should be applied to the discharge of the plaintiff’s debt, and that the plaintiff thereupon ceased to bid, and the books were sold 'on a further bid of $10,300 to Tripp. This took place in the presence of Tripp, Pond, John T. Briggs, Charles N. Briggs, an attorney of Sibley & Company, and two members of that firm and a number of others.
    '■ “ It seems the sale was free from actual fraud, and it remains for us to consider whether the plaintiff, by omitting to bid, was guilty of fraud or a breach of duty. Pond, the assignee of both Charles and John Briggs, was present and could have protected his rights, and it must be assumed that he acquiesced in the sale.
    ■ “But it is'said that because the plaintiff had bid, though he was not bound to bid, and his purchase at the sale would not have cut off the parties in interest from the right of redemption (Edw. on Bailment, 260; Pulver v. Richardson, 3 T. & Cook, 436; Fraser v. Gilbert, 11 Ilun, 634), the sale which took place was void. To sustain this position the learned counsel for the appellants refer us to the cases in the sixth, eight and thirteenth of Johnson, which we must examine.
    “The case of Doolin v. Ward (6 Johns , 194) was one where two parties agreed to attend the sale, and agreed that one should not bid against the other and that one should bid off as he did the articles and ‘ divide the same equally.’ Subsequently upon refusal to divide suit was brought for half the profits, and the court held the agreement was a nudum, pactum and that there could be no recovery. Wilbur v. How (8 J olins. 444) was where a similar agreement was made between two parties, as to a contract for making a road and it was struck off to one, ‘and on suit brought for damages by reason of refusal to divide, the court held the agreement was without consideration and void.’ Thompson v. Davies (13 Johns. 112) was a case where a sale upon several executions was to be had and there was an agreement to prevent competition, and it was held that as'the law had regulated the course of sales on execution, £ that a .combination to prevent a competition was contrary to public policy,’ and from the case it may be said that it was decided that any agreement by which a party suffered himself to be bought off in a way which might prevent a fair competition was void.
    ?£ The position taken by the appellants is not supported by these oases. The sale now in review' was open, public and fair in the presence of parties interested and others, and the property was sold to the highest bidder. And he was competent to purchase and acquired a valid title, and there is no occasion or attempt to assert and enforce any supposed agreement between the plaintiff here and Tripp or his agent. The power of sale was executed and the plaintiff has been charged with the proceeds of that sale, and we see nothing in the evidence or findings requiring us to go behind it at the instance of John T. Briggs or his assignee. This action is'upon the bond and mortgage of the defendant John T. Briggs, and he is made a party defendant together with his general assignee, and we see no error in the conclusion of the referee that Charles N. Briggs was not a necessary party.

      “ He had made a general assignment to the defendant Pond, and there is nothing in the answer averring that the assignee of Charles was a necessary party. Nor was such a position taken upon the trial. It is now too late to raise that question for the first time upon this appeal.”

      J. (& Q. Van Voorhis, for the appellants.

      Edward Harris, for the respondent.
   Opinion by

Hardin, J.;

Smith, P. J., and E¿rker, J., concurred.

Judgment affirmed, with costs


text:
    J. DANIEL ACKERMAN and Others, Appellants, v. CHARLES C. DELUDE, Respondent.

      Change of place of t'i'ial — when an action is not brought to recover chattels “ distrained ” within the meaning of section 983 of the Code, of ¡Civil Procedure — Affidavit to change venue for convenience of witnesses — form of, when the pa/rty is an attorney and appears in person.

    Appeal from an order of the Oneida Special Term, changing the place of trial from the county of Onondaga to the county of Niagara.
    This action was brought to recover a quantity of ready-made clothing which is alleged to have been wrongfully taken from the possession of the plaintiffs by the defendant, at the city of Lockport in the county of Niagara, and which property he wrongfully detains from the plaintiffs. The motion to change the place of trial is made upon two grounds:

      First. That the action is local and that the defendant has the right to have the trial take place in Niagara county.

      Second. For the convenience of witnesses. . .
    The court at General Term said: “ Section 983 of the Code provides that 1 an action for either of the following causes must be tried in the county where the cause of action, or some part thereof, arose * • * * (sub. 3); to recover a chattel distrained, or damages for distraining a chattel.’
    “ It will be observed that this section does not provide that an action to recover a chattel must be tried in the county where the action arose, but it is an action to recover a chattel distrained. Bouvier defines ‘ distrained’ as follows: ‘ To take as a pledge property of another and keep the same until he performs his obligation, or until the property is replevied by the sheriff.’ Such was not the condition of this propérty at the time this action was brought. It had not been distrained by the defendant, and no such thing is alleged in his answer. He claims to be the owner of it by reason of an assignment made to him on the part of one Edward Hart for the benefit of creditors. An action to recover property so held we do not regard as being within the provisions of the section of the Code referred to. * * . *
    “ Prior to the argument of the motion to change the place of trial the plaintiff made a preliminary objection to the moving affidavits of the defendant, claiming * * * that the affidavits failed to show that the defendant stated to his counsel the facts which he expects to prove by each and every of his witnesses, etc. * * *

    “It appears from the affidavit that the defendant is himself an attorney and counselor at law; that he is the attorney for himself in this action and has thus far had the entire charge of the action for himself as such defendant. He himself swears that the witnesses which are named by him ‘ are and each of them is a material and necessary witness for the defendant in this action, and the defendant in this action cannot safely proceed to the trial of this action without the testimony of each and every of said witnesses.’ It cannot be that it is necessary for him to state in his affidavit that he has stated the facts to himself, and that he has been advised by himself as to the materiality of the witnesses. That rule only prevails where the party making the affidavit is not an attorney and counselor of this court. He then proceeds in his affidavit to state what he has been informed and what he expects to prove by the various witnesses named by him. We regard this affidavit sufficient in form and that the preliminary objections were properly overruled.”

      Samuel B. Stern, for the appellants.

      Cfiarles C. De Lade, in person.
   Opinion by

Haight, J.;

Smith, P. J., and Hakdin, J., concurred.

Order affirmed, with ten dollars costs and disbursements.