author: Martin, J. Hardin, P. J.

text:
    Jane D. Rogers, App’lt, v. Thomas Dwight, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed, September 23, 1893.)

    Chattel mortgage—Temporary removal prom clerk’s office.
    A temporary removal of a chattel mortgage from the clerk’s office by the mortgagee in obedience to a subpmna duees tecum in supplementary proceedings brought by a judgment creditor of the mortgagor, without intent to withdraw it from the files, and a failure by mistake or accident to return it in four days, does not aifect its"validity as to such creditor.
    .Trial at the Chenango circuit. Verdict for the defendant. Plaintiff alleges that on the 3d of August, 1885, she was the owner of thirteen dairy cows of the value of $325 ; six yearling heifers of the value of $90, and two jmarling bulls of the value of $20, and that the defendant on that day seized, carried away and converted the property to his use. In the defendant’s answer it is alleged that on the 15th of December, 1884, one James O. Hammond owned the cows and personal property described in the complaint, and to secure an indebtedness to the defendant of about $1,000 “the said James O. Hammond duly sold and assigned the same to this defendant by a chattel mortgage duly executed as security for the payment of the said $1,000, payable on or before April 1, 1886; * * * and that on the 17th day of December, 1884, this defendant caused the said chattel mortgage to be duly filed and entered in the town clerk’s office; ” and that after the removal of the mortgagor and his wife to the town of Oxford with the said property, “ this defendant caused a copy of said chattel mortgage to be duly filed and entered in the office of the town clerk of the said town of Oxford. That the said chattel mortgage and the said copy respectively have since remained on file and duly entered in the said offices of the said town clerks of the said towns respectively." It is also alleged that thereafter the defendant seized the property under the chattel mortgage; sold the same at public auction “ and that on such sale this defendant became the purchaser of such property.” It is alleged that the plaintiff recovered a judgment against Hammond, and issued an execution thereon which was returned wholly unsatisfied, and that the plaintiff commenced supplementary proceedings against Hammond before the county judge of Chenango county, who appointed a referee to examine Hammond as to his property and take such evidence as might be produced, and the 12th day of June, 1885, was appointed for taking such evidence at Oxford.
    It is also alleged that the plaintiff knew that defendant’s mortgage was filed in the clerk’s office, and that on or about the 11th day of June, 1885, plaintiff and her attorney “caused a subpoena duces tecum to be issued and served upon this defendant commanding him under severe penalties to bring and produce the said chattel mortgage before the said referee on the said 12th day of June.” It is also alleged that in pursuance of such subpoena the defendant, on the 12th of June, informed the clerk of such subpoena and obtained permission of him to take and produce said chattel mortgage before the referee “ as his agent or deputy.” It is also alleged “ that on the 17th day of June, 1885, the said plaintiff and her said agent and attorney procured the sheriff to levy upon the said property by virtue of the said execution and well knowing that the said James 0. Hammond did not own any interest therein.” It is also alleged that the sheriff, on the 31st of July, 1885, at the request of the plaintiff, sold the .property mentioned in the complaint and at the sale. “ the plaintiff assuming and pretending to become the purchaser thereof.” Upon the issues framed by the pleadings the question was presented, at the trial whether the plaintiff was the owner of the property or whether the defendant was the owner thereof by virtue of his chattel mortgage and the foreclosure thereof and purchase thereunder. A verdict was rendered for the defendant. A motion was made for a new trial on the minutes and denied, an opinion being delivered by the trial judge. Judgment was entered for the defendant dismissing the plaintiff’s complaint, and the plaintiff appeals from the judgment and the order denying a motion for a new trial.
   The following is the opinion of the court below:

Martin, J.

This action was for the conversion of a quantity of livestock. The defendant denied the plaintiff’s title, and alleged ownership in himself. The property which was the subject of this litigation was formerly owned by James 0. Hammond. The plaintiff claims title by virtue of a levy and sale under an execution upon a judgment against Hammond. The defendant bases his title upon a sale under a chattel mortgage given by Hammond to him. The chattel mortgage under which defendant claims was duly made and filed in the proper clerk’s office before the entry of plaintiff’s judgment, and it is substantially conceded by the parties that, if defendant’s mortgage had remained continuously in the clerk’s office where it was filed, his title would have been superior to that acquired by the plaintiff. After the plaintiff had obtained her judgment she issued an execution thereon, which was returned wholly unsatisfied; whereupon she instituted proceedings supplementary to execution against Hammond, and duly subpoenaed the defendant to produce his chattel mortgage on so-hearing by the referee before whom such proceedings were pending. The defendant, in obedience to the requirements of such subpoena, went to the clerk’s office where his mortgage was filed, obtained the same, and produced it before the referee. The defendant lived about seven miles from the place "where such reference was held. Upon his return home the defendant, who was a physician, was immediately called away to attend one of his patients. He omitted to return his chattel mortgage "to the clerk’s office until after the plaintiff had caused the property to be levied on under a second execution issued by her on said judgment. Thus the question presented is •. Did the plaintiff, by virtue of such levy -and sale under it, obtain a title to this property which was superior to that acquired by the defendant upon a sale under his mortgage? The court, upon the trial, declined to so hold as a matter of law. It, however, submitted to the jury the question whether the defendant, when he took his mortgage from the clerk’s office, intended to withdraw it from the files of that office, and, if he did not, whether he returned it within a reasonable time, and also whether its retention by him was the result of mistake, oversight or accident. The court, in substance, charged that if the defendant intended to withdraw such mortgage from the files of the clerk’s office, or if he did not so intend, but did not return it within a reasonable time, or if he was guilty of negligence in not returning it, or its retention by him was not the result of mistake, oversight or accident, then the plaintiff acquired a title to the property superior to that of the defendant, and was entitled to "a verdict. The jury, by its verdict, in effect found that the defendant did not intend to withdraw his mortgage from the files of the clerk’s office; that he returned it within a reasonable time, and was guilty of no negligence; but that its retention was the result of oversight or accident. If there were any questions of fact for the jury, I think those submitted were proper, and that they were properly submitted. If the want of due diligence on the part of the defendant in returning such mortgage to the clerk’s office forfeited his rights under his mortgage as against "the plaintiff, the question of his negligence was, I think, a question of fact for the jury.

But a more serious question in "this case is whether the court should not have held as a matter of law that the plaintiff’s title under the levy and sale upon her execution was superior to that acquired by the defendant under and by virtue of his mortgage. The statute provides that every chattel mortgage, where there is not an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, unless the mortgage, or a true copy, shall be filed in the office of the clerk of the town where the mortgagor shall reside at the time of the execution of the mortgage. The clerk is required to file such mortgage, and indorse thereon the time of receiving the same, and deposit the same in his office, to be kept there for the inspection of all persons interested. Laws 1833, chap. 279. That defendant’s mortgage was duly and properly filed in the clerk’s office, as required by statute, is admitted. The plaintiff, however, contends that it was not kept there as the statute required: that as the defendant removed it from the clerk’s office, and she procured a levy to be made upon the prop■erty while it was absent from the files of that office, she secured a lien by virtue of such levy which was paramount to that of the defendant. Thus the question is presented whether the removal of the defendant’s mortgage from the clerk’s office, under the circumstances established by the evidence in this case, destroyed or suspended his rights as mortgagee as against the plaintiff, so that she acquired a superior lien by virtue of such levy. If the defendant had voluntarily removed his mortgage from the •clerk’s office under such circumstances as to evince an intention to permanently withdraw it from the files of that office, then I should have no doubt but such would have been the effect of such withdrawal. I am also inclined to the opinion, if the defendant had voluntarily taken his mortgage from the clerk’s office, although with an intention of returning it, and while it was absent from the office a levy upon the mortgaged property had been made, that the rights acquired by the plaintiff under such levy would have been superior to the defendant’s rights under his mortgage. As much was intimated in the cases of Fox v. Burns, 12 Barb., 677, and Swift v. Bari, id., 530. But in this case can it be said that the defendant voluntarily removed his mortgage from the files of the clerk’s office ? It was removed by him in obedience to the commands of a subposnv issued out of this court on the application of the plaintiff, and which was signed by her attorney, as well as the referee, and which, in clear and positive terms, commanded the defendant to produce before such referee the chattel mortgage in question under the penalties of law in case of disobedience. That the removal of this mortgage from the clerk’s office was not the voluntary act of the defendant, but was procured through the agency of the plaintiff, and by means employed by her, is quite manifest.

Assuming, then, that the removal of the defendant’s mortgage was procured by plaintiff, and we are led to inquire whether she can take advantage of its absence from the clerk’s office unless the defendant has been guilty of some act or omission which has changed his relation to the act of such removal so that its absence from the clerk’s office when the levy was made was not the result of the act procured by the plaintiff, but was the result of his subsequent voluntary act or omission. It seems to me that if the absence of this mortgage from the clerk’s office was by the procurement of the plaintiff, and the defendant was free from negligence or any fault on his part by which its absence from the proper office was unduly continued, then the plaintiff cannot secure to herself any advantage by reason of her own act in procuring its removal from the files of the clerk’s office. If the plaintiff had abstracted the mortgage from the clerk’s office, she could have acquired no additional rights by reason of her wrongful act. In this case, while she has not herself removed the defendant’s mortgage from the proper office, she has procured its removal. It was her act, and' it is not apparent to me how she can take advantage of it in the one case, and not in the other. It seems to me, as the removal of the defendant’s mortgage from the clerk’s office was procured by the plaintiff, and was not by the voluntary act of defendant, and the jury having found that defendant did not intend to withdraw the same from said office, and was guilty of no negligence in not returning it, that the plaintiff could not and did not secure any superior right to the property in question by reason of its absence from the clerk’s office at the time when her levy was made. The only authority which has been cited as having any bearing upon this question is the, case of Swift v. Hall, 23 Wis., 532. In that case the plaintiff held a chattel mortgage which he sent by another to be, and which was, filed in the town clerk’s office February 19, 1867; the same day the plaintiff sent his son to the clerk’s office to see if the mortgage was filed. The son, misunderstanding him, told the clerk his father wanted the mortgage, and he took it to him. The plaintiff then attempted to send it back to the office by a third person, but it was in fact not delivered at the office until February 26th, seven days after- ' wards. On the 25th, six days after its first delivery at and removal from the clerk’s office, a creditor of the mortgagor went to the clerk’s office, and inquired for the mortgage, when the clerk told him that it was not on file; that the plaintiff or his son had taken it. Such creditor thereupon, and on the 25th of February, sued out an attachment, which was levied upon the property covered by the mortgage. On the next day after the levy the plaintiff ascertained that the person employed by him to return the mortgage had forgotten to do so, and plaintiff caused it to he filed at six o’clock that afternoon. The property covered by the mortgage was sold by the defendant under an attachment execution. The action was for conversion by such sale.

On the trial the court submitted to the jury the questions:: First. Did the plaintiff direct his son to withdraw the mortgage from the clerk’s office? Second. Did he use due diligence in returning it? and refused to charge that the absence of the mortgage from the files of the clerk’s office invalidated it as against, an attaching creditor, or that the plaintiff was bound to return it the next day after it was removed, or that such withdrawal and keeping made it invalid against the attaching creditor. The plaintiff had a verdict and judgment thereon, and upon appeal the judgment was affirmed. The court, in substance, held in that case that the removal of the mortgage was not the act of the plaintiff, because he did not authorize it or assent thereto; and, if it was refiled with due diligence, his lien remained as against one who with knowledge of the facts attached the property while the-mortgage was absent from the files; and also held that the question-of the plaintiff’s diligence was properly submitted to the jury. The statute under which this decision was made provides that “no mortgage of personal property hereafter made shall be .valid against any other person than the parties thereto unless possession of the mortgaged property be delivered and retained by the mortgagee, or unless the mortgage or a copy thereof be filed in the office of the town clerk where the mortgagor resides.” Under the Wisconsin statute it has been held, as it has as to creditors-under our statute, that knowledge in a creditor will not preclude Mm from availing himself of the omission of the mortgagee to properly file his mortgage. It seems to me that the case cited, while not perhaps precisely in point in all respects, is an authority which goes far towards sustaining the conclusion at which I have arrived in this case. I am of the opinion that the court properly refused to hold that the defendant, by virtue of the levy and sale under execution, acquired a title to the property in question which was superior to that acquired by the defendant under his mortgage; that it properly submitted to the jury the question of defendant’s negligence or want of due diligence; and that the verdict of the jury should be regarded as final. From these considerations it follows that the plaintiff’s motion for a new trial should be denied, with costs.

Samuel S. Stafford, for app’lt; George W. Ray, for resp’t.

Hardin, P. J.

Upon the trial the court submitted to the jury to find whether the defendant took his mortgage from the clerk’s office with the intention and for the purpose of removing it from the files, and whether he took it to Oxford at the request and pursuant to the subpoena and request of the plaintiff. The court charged the jury that if he did not intend to remove it from the files, and took it to Oxford for use in court at the request of the plaintiff, and in pursuance of her subpoena to produce it, intending to return it, and that if the defendant’s delay in not returning it was occasioned by mistake or accident, the defendant was entitled to a verdict. When the defendant applied to the town clerk for a loan of the mortgage he made no avowal of any intention to withdraw the mortgage from the files of the clerk’s office; on the contrary, he avowed that he had been subpoenaed to produce it, and that in obey anee of the subpoena he desired the clerk to permit him to take the mortgage before the referee in obedience to the subpoena. He took it before the referee, and was examined in respect thereto; the plaintiff and her attorney having notice of the purpose for which it was presented, and of the contents-of the mortgage. The defendant was a physician, and when he returned home his patients required his attention; and evidence was given tending to indicate that by mistake and accident he failed to return it to the clerk’s office for a period of about four days; during that period the plaintiff caused a fresh execution to be issued oh the 16th of June, 1885, and the deputy sheriff who had returned the first execution levied on the mortgaged property. As soon as the defendant learned of the levy he immediately returned his mortgage to the clerk’s office. The plaintiff caused the property to be sold on the execution, and bid it in herself, her attorney being present at the sale and acting as clerk. The following Monday the defendant took the property and sold it under his mortgage, and insisted upon the trial that as to this plaintiff the mortgage was on file all the time, and that the plaintiff could not be permitted to take advantage of her own act to deprive the defendant of his lien and rights under his mortgage.

Section 1 of chap. 279, of the Laws of 1833, relating to chattel mortgages provides that a mortgage “ shall be absolutely void as against the creditors of a mortgagor, or as against subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof shall be filed as directed in the succeeding section of this act. Defendant's mortgage was filed and from that time it was, so far as the act relates to it, valid. It did not fall within the condemnation of the section from which the quotation has been made.

In Griswold v. Sheldon, 4 N. Y., 599, it was said : “ The object of filing the mortgage is to give notice of its existence to all persons who choose to inspect it, and whenp roperly filed it is legal presumptive notice, binding on all persons interested.” In the case here the notice was given by the filing to the plaintiff, and she and her attorney had actual notice and knowledge of defendant’s mortgage. The sheriff who returned the first execution presumptively did so upon the assumption that the mortgage was regularly on file and was a valid lien upon the property in question. In the supplementary proceedings the plaintiff caused a subpoena duces tecum to be issued. Defendant’s mortgage was referred to in that subpoena and it was produced by the request and by the command of the plaintiff before the referee from the clerk’s office. A complete obedience to the subpoena could not take place without á temporary loan by the town clerk from his office of the instrument filed therein. All of the objects of the statute were fulfilled by the filing of the mortgage in the clerk’s office. The filing thereof operated as notice to the plaintiff and the evidence abundantly discloses that she had actual knowledge of the mortgage and that it had been properly filed,, which knowledge was made very apparent to her and her attorney on the 12th of June. On that day the defendant had a lien upon the property and the plaintiff had full knowledge thereof upon that day, which notice and knowledge were possessed bv the plaintiff and her attorney prior to the issuing of the second execution under which' she caused the property to be levied upon and sold and which she assumed to purchase at the sale. She ought not to profit by her act in causing the mortgage to be taken from the clerk’s office. Trenton Bank Co. v. Sherman, 24 Alb. L. J., 390; S. C., 86 N. Y., 221.

The plaintiff did not part with any consideration; did not become a creditor while the mortgage was temporarily out of the office of the town clerk in the faith that there was no lien upon the property; she was not misled by the fact that the instrument was temporarily removed from the clerk’s office; she is not equitably entitled to the position that would have been held by a creditor whose debt was contracted while the instrument was temporarily out of the office. Again the second section of the act of 1833 provides that the instrument mentioned in the first section shall be filed in the several town clerks offices mentioned, and then provides, viz.: “ And such register and clerks are hereby required to file all such instruments aforesaid presented to. them respectively for that purpose, and to. indorse thereon the time of receiving the same and shall deposit the-same in their respective offices, to be kept there for the inspection of all persons interested.” As we have already seen, the defendant filed his mortgage in the clerk’s office, and thereby complied with the requirements of the statute. The statute required the clerk to file it; he did so, and he deposited the same in his office. It was his, duty to keep the same there for “ the inspection of all persons interested.” The command of the statute is upon the clerk; the keeping is to be by the clerk; there is no duty laid in terms upon the mortgagee as to the keeping it; there, is no provision in this section declaring the clerk’s failure to keep it fatal to its validity. There is no provision to the effect that if it be not “ kept there ” by the clerk that it shall be void. In Bishop v. Cook, 13 Barb., 326, near the close of the opinion it is said: “ The party should not be deprived of his rights by the neglect of the officer.” In Dodge v. Potter, 18 Barb., 193 and 202, it was said: “ It was the duty of the town clerk and non of the mortgagee to number the mortgage. The rights of the mortgagee could not be impaired by the omission to perform that duty.” The case is entirely destitute of evidence to indicate an intention on the part of the defendant to withdraw or suppress his mortgage. The evidence does indicate that it was the act of the plaintiff which caused the temporary removal of the mortgage from the physical possession of the clerk. Surely she ought not to profit by an act performed at her request under the command of her subpoena, which, at most, may be said to have interfered with the duty of the clerk to retain the mortgage in his office. It was her act which induced the clerk to part temporarily with the mortgage from the files. It appears the clerk was advised that it was in pursuance of the subpoena, and that the mortgage was only temporarily to be used before the referee for the purpose of complying with the tenor of the subpoena.

Our attention is called to Fox v. Burns, 12 Barb., 677; in that case it appeared that the chattel mortgage was executed on the 15th of March, 1849, and “ on the 18th or 19th of June, 1850, it was taken from the town clerk’s office by the mortgagee; ” and in considering that case Strong, J., observes: “ The withdrawal of this mortgage from the clerk's office by the mortgagee, leaving the cow with the family of the mortgagor, would have invalidated the mortgage as against a subsequent purchaser, etc., in good faith, if it had not before ceased to be valid to that extent.” We think the case is quite distinguishable, from the one before us. Evidently the language was used with reference to a voluntary, absolute, intentional removal of the mortgage from the file by the mortgagee ; and it is to be observed that the expression used by the judge is that such removal “ would have invalidated the mortgage as against a subsequent purchaser, etc., in good faith.” In the case in hand, as we have already seen, the plaintiff had notice; had knowledge of the existence of the mortgage ai)d that it had been regularly filed, and was herself instrumental in the temporary loan of it by the clerk from his office. We think the case before us is quite unlike that one.

Our attention is called to Swift v. Hart, 12 Barb., 530. We think that case is quite distinguishable from the one before us. The principal question decided in that case is unlike the one here; the remarks found in the opinion evidently relate to a voluntary withdrawal of the mortgage from the files with the intention to suspend the lien; and it was held that a second filing of a mortgage after an expiration of a year, accompanied with a statement of the amount due thereon, is valid against an execution “ not levied until after the second filing.” We think nothing is to be found in the case sustaining the contention of the appellant. We think no error was committed in refusing to direct a verdict for the plaintiff; nor in refusing to set aside the verdict and the motion for a new trial made upon the minutes. Swift v. Hall, 23 Wis., 533; Jones on Chattel Mortgages, § 269.

The foregoing views, as well as those expressed in the opinion of Martin, J., delivered in the court below, lead us to sustain the verdict and the judgment entered thereon.

Judgment and order affirmed, with costs.

Merwin and Parker, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Court of Appeals.
    Filed October 3, 1893.
    Richard Highton et al., Resp’ts, v. Simon Dessau, App’lt.

      William Irwin, for resp’ts; Leon Lewin, for app’lt.
   Judgment affirmed on opinion below, with costs. All concur.

Affirming 46 St. Rep., 922.


text:
    Frederick A. Phillips, Jr., Resp’t, v. Maria N. Winne, App’lt.

      Frank H. Gray, for resp’t; Andrew J. Shipman, for app’lt.
   Order affirmed, with costs. All concur.

Affirming 47 St. Rep., 412.


text:
    The Board of Education of Union Free School District No. 1, of Town of Waterford, Resp’t, v. Alexander Cunningham, Impl’d, App'lt.

      J. W. Houghton, for resp’t; G. B. Wellington, for app’lt.
   Order affirmed, with costs. All concur.

Affirming 51 St. Rep., 939.


text:
    Louisa S. Adams, Resp’t, v. Anthony N. Brady, Adm’r, App’lt.

      Alden Chester, for resp’t; Andrew Hamilton, for app'lt.
   Order affirmed, with costs. All concur.

Affirming 50 St. Rep., 848.


text:
    Henry A. Gildersleeve, Trustee, Resp’t, v. G. Harry Lester, Impl’d, App’lt.

      John W. Boothby, for resp’t; L. C. Waehner, for app’lt.
   Order affirmed, .with costs, on opinions below. All concur.

Affirming 53 St. Rep., 316.


text:
    Christian F. G. Meyers et al., App’lts, v. Frances E. Herbert, Resp’t.

      M. Cleiland Milnor, for app’lts; A. B. Carrington, for resp’t.
   Appeal dismissed, with costs. All concur.

See 45 St. Rep., 626.


text:
    Frank E. Parshley, App’lt, v. The Third M. E. Church in the City of Brooklyn, Resp’t.

      Charles M. Stafford, for app’lt; W. J. Groo, for resp’t.
   Order affirmed, with costs. All concur.

Affirming 53 St. Rep., 430.


text:
    Charles G. Stevens et al., Trustees, Resp’ts, v. Marietta R. Stevens, Impl’d, App’lt.

      Geo. Zabriskie, for resp’ts; Melville H. Regensburger, for app’lt.
   Appeal dismissed, with costs. All concur, except Gray, J., not sitting.

See 53 St. Rep., 238.


text:
    Thomas M. Hart, Resp’t, v. The Mayor, etc., of the City of New York, App’lt.

      John C. Robinson, for resp’t; William H. Clark, for app’lt.
   Order affirmed, with costs. All concur.

Affirming 53 St. Rep., 353.


text:
    In the Matter of the Judicial Settlement of Account of Emily A. Smith, Trustee.

      Chas. Donohue and Wm. A. Boyd, for app’lt; Frank D. Sturges, for resp’t; Eugene H. Pomeroy, guardian ad litem, for infant resp’t.
   Appeal dismissed, with costs against the trustee personally. All concur.

See 52 St. Rep., 772.


text:
    Francis A. H. Bergmann et al., Resp’ts, v. Hamilton H. Salmon et al., App’lts.

      Lloyd McK. Garrison, for resp’ts; Edward W. S. Johnston, for app’lts.
   Appeal dismissed, with costs. All concur.

See 53 St. Rep., 236.


text:
    Elizabeth C. Kinmouth, Resp’t, v. William McDougall, App’lt.

      J. W. Whitman, for resp’t; L. H. Northrup, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 46 St. Rep., 211.


text:
    Meyer Bukofzer, Resp’t, v. The U. S. Grand Lodge I. O. Sons of Benjamin, App’lt.

      Herman Aaron, for resp’t; Mitchell Levy, for app’lt.
   Judgment affirmed, with costs, on opinion helow. All concur.

Affirming 40 St. Rep., 653.


text:
    Andrew H. Frank, Resp’t, v. George W. Batten, App’lt.

      Elias Root, for resp’t; E. M. Ashley, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 35 St. Rep. 999.


text:
    Frederick A. Ringler et al., Resp’ts, v. William M. Reynolds et al., App’lts.

      Henry Daily, Jr., for resp’ts; Anthony R. Dyett, for app’lts.
   Judgment affirmed, with costs, on opinion below. All concur. '

Affirming 46 St. Rep., 612.


text:
    David Butler, Resp’t, v. Thomas Dinan, App’lt.

      E. A. Brewster, for resp’t; Calvin Frost, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 47 St. Rep., 363.


text:
    Frank Wennemer, Resp’t, v. Philip Braender, App’lt.

      Lewis Sanders, for resp’t; Philip L. Wilson, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming46 St. Rep., 966.


text:
    Nancy E. Pickard, App’lt, v. James Carr et al., Resp’ts.

      Amasa J. Parker, for app’lt; H, V. Howland, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 45 St. Rep., 940.


text:
    George H. Studwell et al., App’lts, v. The Mutual Benefit Life Association of America, Resp’t.

      William W. Jenks, for app’lts; E. T. Lovatt, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 46 St. Rep., 902.


text:
    Louis P. Weigmann, Resp’t, v. Benjamin Sire et al., App’lts.

      H. M. Gescheidt, for resp’t; Albert I. Sire, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 43 St. Rep., 27.


text:
    Edward E. Erwin, Resp’t, v. Francis Erwin et al., App’lts.

      Frederick Collin, for resp’t; George T. Spencer, for app’lts.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 44 St. Rep., 6.


text:
    Thomas S. Bassford, Resp’t, v. Charles H. White, App’lt.

      Ernest Hall, for resp’t; James C. DeLaMare, for app’lt.
   Judgment affirmed, with costs.' All concur.

Affirming 47 St. Rep., 936.


text:
    William L. Reynolds, App’lt, v. Sylvester H. Kneeland, Resp’t.

      William H. Arnoux, for app'lt; Robert G. Ingersoll, for resp’t,
   Judgment affirmed on opinion below, with costs. All concur.

Affirming 44 St. Rep., 458.


text:
    The People, App’lts, v. Lucius E. Holden, Resp’t.

      J. H. Jennings, for app’lts, M. N. Tompkins, for resp’t.
   Appeal dismissed, on ground order is not reviewable, with costs. All concur.

See 49 St. Rep., 919.


text:
    Valda M. Canfield, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      John Laughlin, for resp’t; James V. Gluck, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 46 St. Rep., 911.


text:
    Elizabeth A. Culliford, Resp’t, v. Montgomery Gadd, App'lt.

      F. Spiegelberg, for resp’t; Sidney Harris, for app’lt.
   Judgment affirmed, on opinion below, with costs. All concur.

Affirming 44 St. Rep., 222.


text:
    Henry Weill, Resp’t, v. Charles J. Close et al., App’lts.

      Moses Shire, for resp’t; Simon Fleischmann, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 44 St. Rep., 662.


text:
    Vito V. Campanello, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      Simon Fleischmann, for resp’t; James F. Gluck, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 46 St. Rep., 964.


text:
    Marie T. Upington, Resp’t, v. Louis J. Pooler, App’lt.

      James M. Hunt, for resp’t; George Bliss, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 47 St. Rep., 30.


text:
    Filed October 10, 1893.
    Jackson Montgomery, Overseer, v. Marcellus C. O’Dell.
   No papers.

Motion to dismiss denied, with ten dollars costs.

See 51 St. Rep., 444.


text:
    Filed October 17, 1893.
    Edward S. Stokes, Resp’t, v. John W. Mackay et al., App’lts.
   Ho papers.

Reargument ordered.

See 46 St. Rep., 940.


text:
    The People, Resp’ts, v. Denton Fowler et al., App’lts.

      Wm. McCauley, dist. att’y, for resp’ts; Irving Brown, for app’lts.
   Judgment affirmed. All concur.

Affirming 43 St. Rep., 415.


text:
    Andrew J. Applebee et al., Exr’s, Pl’ffs, v. William Duke, App’lt, et al., Resp’ts.

      George H. Blackman, for app’lt; Chas. S. Cary, guardian ad litem, for Hanford and Myron Duke, resp’ts.
   Appeal dismissed, with costs. All concur.

See 50 St. Rep., 92.


text:
    Clare A. Benedict, Resp’t, v. Milton T. Richardson, App’lt.

      Thomas Raines, for resp’t; Pierre C. DuBois, for app’lt.
   Order affirmed, with costs. All concur.

Affirming 51 St. Rep., 892.


text:
    John T. Barnard, Adm’r, Resp’t, v. John F. Gantz et al., App’lts.

      George G. Barnard, for resp’t; L. B. Warren, for app’lts.
   Appeal dismissed, with coats. All concur.

See 52 St. Rep., 604.


text:
    The People ex rel. The Standard Gas Light Co., Resp’t, v. Thos. F. Gilroy, Com’r, App’lt.

      Delos McCurdy, for resp’t; David J. Dean, for app’lt.
   Order affirmed on opinion below, read in connection with § 36 of chap. 687, Laws of 1892, without considering the point as to power of legislature to repeal rights granted by chap. 248, Laws of 1886, with costs. All concur.

Affirming 51 St. Rep., 653.


text:
    Helena Baas, Resp’t, v. Henry J. Pain, Impl’d, App’lt.

      Hector M. Hitchings, for resp’t; William S. Cogswell, for app’lt.
   Appeal dismissed, with costs. All concur.

See 54 St. Rep., 80.


text:
    Jacob Rothschild, App’lt, v. Alfred Zucker, Resp’t.

      Gustavus W. Rawson, for app’lt; John B. Green, for resp’t.
   Appeal dismissed with costs. All concur.

See 53 St. Rep., 939.


text:
    Anna Walsh, Resp’t, v. Andrew J. Walsh, App’lt.

      J. W. Russell, for resp’t; George C. Sawyer, for app’lt.
   Appeal dismissed, with costs. All concur.

See 54 St. Rep., 158.


text:
    The People, Resp’ts, v. Georgiana Bishop, App’lt.

      H. D. Hufcut, dist. att’y. for resp’ts; Frank H. Cassidy, for app’lt.
   Judgment affirmed. All concur.

Affirming 53 St. Rep., 6.


text:
    George F. Perkins et al., App’lts, v. Collis P. Huntington, Resp’t.

      Joseph H. Choate, for app’lts; Frederic R. Coudert, for resp’t.
   Judgment affirmed, with costs, on opinion of general term. All concur.

Affirming 46 St. Rep., 353.


text:
    Samuel M. Marks et al., Resp’ts, v. La Societe Anonyme De L’Union Des Papeteries, App’lt.

      Abram Kling, for resp’ts; Frederic B. Coudert, for app’lt.
   Order affirmed on opinions of general term, with costs. All concur

Affirming 46 St. Rep., 660.


text:
    Filed October 24, 1893.
    Mary Fowler, App’lt, v. The Metropolitan Life Ins. Co., Resp’t.

      Henry C. Willcox, for app’lt; William Henry Arnoux, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 37 St. Rep., 622.


text:
    Amelia H. Bumstead, App’lt; v. Walter T. L. Sanders, Resp’t.

      James Lansing, for app’lt; Martin I. Townsend, for resp’t.
   Judgment affirmed, on opinion of general term, with costs. All concur.

Affirming 39 St. Rep., 618.


text:
    Edward Millott, Resp’t, v. The N. Y. & N. E. R. R. Co., App’lt.

      John W Lyon, for resp’t; W. C. Anthony, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 46 St. Rep., 145.


text:
    Mary A. Peckham et al, Resp’ts, v. The Dutchess County R. R. Co., App’lt.

      C. B. Herrick, for resp’ts; Milton A. Fowler, for app’lt.
   Judgment affirmed on opinion below, with costs. All concur, except Andrews, Oh. J., Earl and Gray, JJ., dissentihg.

Affirming 47 St. Rep., 182.


text:
    John W. Cleary, Resp’t, v. The Municipal Electric Light Co., App’lt.

      James D. Bell, for resp’t; Robert Payne, for app’lt.
   Judgment affirmed, on opinion below, with costs. All concur.

Affirming 47 St. Rep., 172.


text:
    James Nunan, Resp’t, v. Andrew T. Doyle, App’lt.

      William Stone, for resp’t; Charles J. Hardy, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 44 St. Rep., 826.


text:
    The Mayor, etc., of New York, App’lt, v. The N. Y. & Harlem R. R. Co., Resp’t.

      David J. Dean, for app’lt; Henry H. Anderson, for resp’t.
   Judgment affirmed, on opinion below, with costs. All concur.

Affirming 46 St. Rep., 349.


text:
    Charles Schendel et al., Resp’ts, v. Samuel Silver, App’lt.

      Joseph L. Levy, for resp’ts; Marshall P. Stafford, for app’lt.
   Judgment affirmed, with costs, on opinion at general term. All concur.

Affirming 44 St. Rep., 401.


text:
    The Worthington Co. et al., App’lts, v. The Pfeister Book Binding Co. et al., Resp'ts.
   No papers.

Motion to advance, etc., denied, without costs.

See 52 St. Rep., 448.


text:
    Jean Albert Tauziede v. Francois Henry Jumel.
   No papers.

Motion to show cause, etc., granted and remittitur recalled for the purpose of amending it so as to grant but one bill of costs, and that to Schermerhorn.

See 53 St. Rep., 4.


text:
    Martha E. Seymour, Resp’t, v. The Spring Forest Cemetery Association et al., App’lts.

      Edward K. Clark, for motion; A. D. Wales, opposed.
   Motion to put cause on preferred calendar denied, with costs, on ground that plaintiff does not sue as executrix and this court cannot make the inference from what is contained in the record. The case does not fall within § 791.

See 45 St. Rep., 520.


text:
    Solomon May, Resp’t, v. The City of Brooklyn, App’lt.

      Ira Leo Bamberger, for resp’t.
   Dismissed on argument.

See 46 St. Rep., 552.


text:
    James M. Johnson et al., App’lts, v. Henry W. Bates et al., Resp’ts.

      Ira Leo Bamberger, for app’lts; F. H. Cowdrey, for resp’ts.
   Judgment affirmed, with costs, on ground of revocation of will by subsequent marriage. All concur.

Affirming 46 St. Rep., 546.


text:
    Filed October 27, 1893.
    Ida L. Phillips, App’lt, v. The Northern R. R. of New Jersey, Resp’t.

      W. Tazewell Fox, for app’lt; Wm. C. De Witt, for resp’t.
   Appeal dismissed, with costs. All concur.

See 41 Sc. Rep., 780.


text:
    Thomas White, Resp’t, v. The City of Brooklyn, App’lt.

      William E. Osborn, for resp’t; William F. Gilbert, for app’lt.
   Judgment affirmed on opinion in White v. City of Brooklyn, 122 N. Y., 53; 33 St. Rep., 307, with costs, with ten per cent damages under § 3251 of Code of Civil Procedure. All concur.


text:
    John M. Holmes, App’lt, v. The Union Telegraph & Telephone Co. Resp’t.

      A. J. Cheritree, for app’lt; Richard L. Hand, for resp’t.
   Judgment affirmed, on opinion below, with costs. All concur.

Affirming 41 St. Rep., 767.


text:
    Caroline B. Powers, Adm’rx, App’lt, v. Francis W. Savin et al., Resp’ts.

      L. C. Waehner, for app’lt; Thaddeus D. Kenneson, for resp’ts.
   Order affirmed and judgment absolute ordered for defendants on stipulation, with costs, on opinion of general term. All concur.

Affirming 46 St. Rep. 709.


text:
    Ann Sharp, Adm’rx, Resp’t, v. George L. Rose, App'lt.

      Samuel Hoff, for resp’t; Abraham Gruber, for app’lt.
   Judgment affirmed, with costs, on opinion of general term. All cancur.

Affirming 49 St. Rep. 420.


text:
    Hannah Clark, Resp’t, v. George H. Bradley, Ex’r, App’lt.

      John H. White, for resp’t; Leon M. Sherwood, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur.


text:
    Frank Goff, an Infant, Resp’t, v. Frederick Akers, App'lt.

      Charles Steckler, for resp’t; James P. Niemann, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 49 St. Rep., 615.


text:
    Matilda A. Powers, an Infant, Resp’t, v. The Village of Champlain, App’lt.

      John H. Booth, for resp’t; Royal Corbin, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 49 St. Rep., 457.


text:
    In the Matter of the Probate of Will of John Gannon, Deceased.

      Abram Kling, for app’lt; William, F. Clare, for resp’ts.
   Order affirmed, on opinion of general term, with costs. All concur.

Affirming 51 St. Rep. 415.


text:
    William T. Hart et al., Resp’ts, v. The Ogdensburgh & Lake Champlain R. R. Co. et al., App’lts.

      Charles O. Tappan, for resp’ts; John C. Keeler, for app’lts.
   Appeal dismissed, with costs. All concur.

See 52 St. Rep., 799.


text:
    The Same, Resp’ts, v. The Same, App’lts.

      Charles C. Tappan for resp’ts; John C. Keeler and Louis Hasbrouck, for app’lts.
   Same as above.

See 52 St. Rep., 799.


text:
    The Same, Resp’ts, v. The Same, App’lts.
   Same as above.

See 52 St. Rep., 834.


text:
    The People ex rel. Orville Crouse, Resp’t, v. The Board of Supervisors of Fulton Co., App’lt.

      Frank B. Towman, for resp’t; Andrew J. Nellis, for app’lt.
   Order affirmed, with costs. All concur.

Affirming 53 St. Rep., 796.


text:
    William E. Wamsley, Resp’t, v. H. L. Horton & Co. (Limited), App’lt.

      Alexander S. Bacon, for resp’t; John R. Dos Passos, for app’lt.
   Order affirmed, with costs. All concur.

Affirming 54 St. Rep., 935.


text:
    The New York Security & Trust Co., App’lt, v. Ernest Lipman et al., Resp’ts.

      Howard A. Taylor, for app’lt; Antonio Knauth, for resp’ts.
   Order affirmed, with costs. All concur!

Affirming 53 St. Rep , 762.


text:
    In the Matter of the Application of Board of Street Opening, etc. (127th St., New York City).

      George G. Munger, for app’lts; Henry A. Powell, for resp’t.
   Order affirmed, with costs, on opinion below. All concur.

Affirming 52 St. Rep., 567.


text:
    Philip Becker, Resp’t, v. The Town of Cherry Creek, App’lt.

      Lewis, Moot & Lewis, for resp’t; C. R. Lockwood, for app’lt.
   Order affirmed, with costs. All concur.

Affirming 53 St. Rep., 555.


text:
    The People ex rel. Louis L. Lorillard, Resp’t, v. Edward P. Barker et al., Tax Com’rs of New York City, App’lts.

      John M. Bowers, for resp’t; David J. Dean,- for app’lts.
   Order affirmed, with costs, on opinion of special term. All concur.

Affirming 54 St, Rep., 107.


author: Per Curiam.

text:
    Supreme Court—General Term—First Department.
    Filed June 30, 1893.
    Ambia Boody, Pl’ff, v. The Lincoln National Bank of New York et al., Def’ts.
   Per Curiam.

The sum of $4,450.50, on deposit with the Lincoln National Bank to the credit of A. B. Harris, agent, must he paid to the plaintiff, Ambia Boody, with no costs to any party.


text:
    The National Park Bank, App’lt, v. Moses S. Levy, Impl’d, Resp’t.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Otillie Sentennis et al., App’lts, v. Edward R. Ladew et al., Resp’ts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    William E. Wamsley, Resp’t, v. H. L. Horton & Co., Limited, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of Van Ness.
   Referred to F. S. Wait to take proof.


text:
    Katherine Palmer, Resp’t, v. George Jones et al., App’lts.
   Motion denied, with ten dollars costs.


text:
    The De Bordeleben Coal & Iron Co., Resp’t, v. The Buena Vista Iron Co., App’lt.
   Judgment affirmed.


text:
    Joseph Arthur, Resp’t, v. Harry Lacy, App’lt.
   Motion granted, with ten dollars costs.


text:
    Elizur V. Foote, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.
   Per Curiam.

The question involved having been previously decided by the general term, the judgment should be affirmed, with costs.


text:
    Sells E. Woodhull v. The Mayor, etc., of New York et al.

   Motion granted upon payment of ten dollars costs.


text:
    Wealthy A. Stevens, by Guardian, Resp’t, v. Clinton G. Baker, App’lt.
   Judgment affirmed, with coste.


text:
    Felix St. Anna Govin et al., Pl’ffs, v. Luciana Govin De Miranda et al., Def’ts.
   Exceptions sustained as to the amount of damages for detention. All other exceptions overruled, and judgment directed upon the verdict for a return of the bonds mentioned in the complaint, and. in default of such return, for the value of said bonds, $17,950; and the verdict for damages for detention modified by awarding as such damages legal interest upon said amount from the date of demand, which appears tobe the 13th of January, 1892, to the date of trial, without costs of this application.


text:
    Luiz Diaz Govin, Pl’ff, v. Luciana Govin De Miranda, Def’t.
   Exceptions sustained as to the amount of damages for detention. All other exceptions overruled, and judgment directed upon the verdict for a return of the bonds mentioned in the complaint, and in default of such return, for the value of said bonds, $9,478; and the verdict for damages for detention modifled by limiting such damages to legal interest upon said amount from the date: of demand, which appears to be the 13th of January, 1893, to the date of trial,, without costs of this application.


text:
    William L. Reynolds v. Sylvester H. Kneeland.
   Motion denied.


text:
    Philip Schuyler, Resp’t, v. Ernest Curtis et al., App’lts.
   Judgment affirmed, without costs.


text:
    William Baumgarten v. William G. Nichols et al.

   Application granted.


text:
    Herman Gernau, Adm’r, App’lt, v. The Oceanic Steam Navigation Co., Resp’t.
   Per Curiam.

Judgment affirmed, with costs.


author: Pratt. J.

text:
    General Term—Second Department.
    Filed July 28, 1893.
    In the Matter of the Application to Widen Main Street in Port Jefferson.
    Application to confirm order of county court, directing that said highway be widened and altered.

      Timothy M. Griffing, for application; Strong & Spear, opposed.
   Pratt. J.

This matter has been carefully considered by the county court of Suffolk county, and all the objections raised satisfactorily answered.

All parties have seemed to assume that § 90 of the general highway law passed in 1890. chap. 568, applies to this proceeding, and the matter has been conducted in accordance therewith.

The objection that the awards are unequal and unjust does not come before us in a shape so that we can well refuse to confirm, as no violation of a mile of law in making the award is suggested.

The commissioners making the award view the premises and see the witnesses and can better judge of the amount of damages sustained than a court of review and, unless some error of law is manifest, their award will not be. disturbed.

I think it fair to assume the legislature intended § 90, before referred to, to apply to such a proceeding as the present.

The two opinions of the county court, in which we concur, render it unnecessary to discuss the matter further.

Application confirmed.

Barnard, P. J., and Dykman, J., concur.


text:
    General Term—Third Department.
    Filed September 15, 1893.
    William H. Armstrong v. The Lake Champlain Granite Company.
   Judgment affirmed, with costs.


text:
    William T. Hart et al., App’lts, v. The Ogdensburg & Lake Champlain Railroad Company, Resp’t.
   Order modified so as to allow an appeal to the court of appeals. Motion for reargument denied.


text:
    John Bowe, as County Treasurer, Resp’t, v. Charles M. Jenkins, App’lt.
   Motion for leave to go to court of appeals denied.


text:
    Byron H. Sykes, App’lt, v. Abram Temple, Resp’t.
   Motion denied, with costs.


text:
    General Term—Fourth Department.
    Filed September 23, 1893.
    Frank B. Chapman v. Albert P. Fowler. Administrator of George F. Comstock, Deceased.
   Motion denied.


text:
    George G. French, Resp’t, v. Susan Row et al., App’lts.
   Motion granted, with ten dollars costs


text:
    Charles McCarthy v. The Thousand Island Park Association.
   Motion for leave to appeal to the court of appeals denied.


text:
    In the Matter of the Application to remove Lewis E. Moshier, a Justice of the Peace of the town of Horseheads.
   Order to show cause, etc., granted.


text:
    The People, Resp’ts, v. Samuel P. Hill, App’lt.
   Order filed with the clerk of Oneida county.


text:
    Augustus Ross, Ex’r, Impl’d, App’lt, v. De Witt A. Gleason et al., Resp’ts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Diana Ozmun, Resp’t, v. Louis A. Loomis et al., App’lts.
   Order affirmed, with ten dollars costs and disbursements. The appellant is granted leave to comply with the order of the special term within ten days from service of the order of affirmance.


text:
    Phœbe Jones, Resp’t, v. Etta Pennoch et al., Adm’rs, App’lts.
   Decree of the surrogate’s court affirmed, with costs of the appeal against appellants personally.


text:
    The People ex rel. Burr J. Davis, App’lt, v. The Excise Board of the Town of Owego, Resp’t.
   Order affirmed, with ten dollars costs and disbursements.

(See stipulation as to costs.)


text:
    William Cooley, App’lt, v. Gideon Lobdell, Resp’t.
   Order affirmed, with ten dollars costs and disbursements. See 137 N. Y., 497; 51 St. Rep., 204, which states a rule applicable to the case.


text:
    Henry L. Watson, App’lt, v. G. Ambrose Blatchley et al., Resp’ts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The City of Syracuse, Resp’t, v. John Cornwell, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Eliza A. Martin, Resp’t, v. The Manufacturers’ Accident Indemnity Company, App’lt.
   Judgment and order affirmed, with costs.


text:
    The Mercantile National Bank of Hartford, Conn., Resp’t, v. Rebecca. C. Jenkins, App’lt.
   Order reversed, with ten dollars costs and disbursements.

(See § 1676 of the Code of Civil Procedure.)


text:
    Charles Livingston, Resp’t, v. Clarence Phelps, App’lt.
   Order affirmed, with ten dollars costs and disbursements.

(Pickert v. Bunkey, 65 Hun, 623; 47 St. Rep., 934, and cases there cited.)


text:
    Mary J. Bowman, App’lt, v. Isaac Knowlton, Resp’t.
   Order reversed, with ten dollars costs and disbursements.

Held, the defendant was not entitled to costs. See 57 N. Y., 652.


text:
    John J. Sharpstein, Resp’t, v. Frank L. Davis, App’lt.
   Judgment and order reversed on the exceptions and a new trial ordered, with, costs to abide the event.


text:
    Anson E. York et al., Resp’ts, v. William W. Conde et al., App’lts.
   Judgment and order affirmed, with costs.


text:
    The People, App’lts, v. Patrick Sullivan, Resp’t.
   Judgment reversed and the demurrer overruled, and the clerk of Oneida Bounty directed to enter judgment and a certified copy of the entry remitted to-the clerk of Onondaga county, and proceedings remitted to the court of sessions of Onondaga county, pursuant to §§ 547 and 548 of the Code of Criminal Procedure.


text:
    The First National Bank of Watkins, N. Y., Resp’t, v. O. Park Smith, App’lt.
   Order affirmed, with ten dollars costs and disbursements.

See 59 N. Y., 110; 64 Hun, 848; 45 St. Rep., 548; S. C., affirmed 135 N. Y., 536; 48 St. Rep., 545.


text:
    William H. Wait, Resp’t, v. O. Park Smith, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Peter Eckert, Resp’t, v. Lewis King, App’lt.
   Judgment affirmed, with costs.


text:
    Henri C. Tobey, Sole Overseer, Resp’t, v. Samuel F. Reynolds, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Loius House, App’lt, v. The New York Central & Hudson River Railroad Company, Resp’t.
   Motion denied.


text:
    The West Side Railroad Co. of Elmira, N. Y., App’lt, v. The New York, Lake Erie & Western Railroad Co., Resp’t.
   Order so far as appealed from reversed, with ten dollars costs.


text:
    Aretas P. Williams, Resp’t, v. George W. Harman, App’lt.
   Judgment "of the county court affirmed, with costs. Mem. by Merwin, J.

      Not for publication.


text:
    Mary L. Wager, Resp’t, v. Morris Slaught, Impl’d, App’lt.
   Judgment affirmed, with costs.


text:
    Superior Court of Buffalo—General Term.
    Filed July 14, 1893.
    Joshua Davis, Resp’t, v. Mary Davis, App’lt.
    Appeal from judgment in favor of plaintiff, entered upon report of a referee.

      Cuddeback, Kenefick & Ouchie, for app’lt; M. E. Gearon, for resp’t.
   Per Curiam.

This is an appeal from a judgment entered upon the report of a referee in an action for divorce on the ground of adultery. We think the judgment in this case must be reversed for errors in the admission of the evidence on the trial. Considerable evidence was taken under objection, and clearly the rulings of the referee cannot be sustained. It is insisted by the counsel for the respondent that the evidence is immaterial, and that the errors are consequently harmless. While we recognize and give full force to the rule that a new trial should not be awarded in actions for divorce unless for substantial error, showing that a fair trial has not been had, and affording reasonable doubt as to the justice of the result, Forrest v. Forrest, 25 N. Y., 501, yet we do not think that it can be fairly said that no force was given to the testimony improperly admitted, or that it was harmless. The proof of the commission of the adultery of the defendant is not at all conclusive and of such a satisfactory character as carries conviction to the mind. The defendant denies the adultery, and the plaintiff’s witnesses are disputed in many particulars, and the proof of defendant's previous conduct must have exercised a considerable influence on the mind of the referee in determining where the truth rested.- As was said in one case, the defendant was not being tried for her general conduct, but on specific charges. The testimony had no tendency to establish either of the charges, and the plaintiff had not the right to show general or specific conduct of the defendant. Beadleston v. Beadleston, 20 St. Rep., 21. We think, for the reasons above stated, the judgment should be reversed, and a new trial ordered, with costs to abide the further order of this court.


author: Yawn, J.

text:
    Gilbert Murdock, Adm’r, et al., Resp’ts, v. Harriet Robinson et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    Limitation—Mortgage—Payment.
    A payment upon a mortgage made by the heirs of two mortgagors while in possession of a part of the mortgaged premises, inherited from those who gave the mortgage, keeps the mortgage alive as to a person holding the rest of the land by a prior grant from one of the mortgagors and from the heirs of the other which contained no mention of the mortgage.
    Separate appeals by the defendants Clarissa Waterman, Mary Lamb and Harriet Robinson from a judgment of the supreme court, entered upon the decision of a special term thereof after the trial of certain issues of fact at circuit court before a jury. Also like appeals from two orders of substitution.
    This was an action to foreclose a mortgage, dated September 21, 1861, and duly recorded on the 26th of October following, given to the predecessors of the plaintiff by Daniel Lamb and Alanson Lamb, his son, who were at the time tenants in common of the mortgaged premises, each owning an undivided half thereof. Said mortgage and the bond of even date, to which it was collateral, were conditioned for the payment of the sum of f>826 in four equal annual payments, with interest on the unpaid principal payable on the 21st day of September in each year. Alanson Lamb died on the 23rd of April, 1870, intestate and unmarried, leaving the defendant, Mary Lamb, as his only heir-at-law. On the 7th of January. 1871, Daniel Lamb conveyed to one George W. Palmer an undivided half of a part of said premises, known as the north house and lot; and on the same day Mary Lamb, who was then an infant, by Edward 1ST. Griswold, her special guardian, conveyed to said Palmer the other undivided half of said portion. Ho mention of said mortgage was made in either conveyance, each of which was given for “ a full consideration,” with covenants of warranty. July 4, 1874, said Palmer conveyed the north half to the defendant Clarissa Waterman by warranty deed, without reference to the mortgage, and she still remains the owner of the same.

      Daniel Lamb died intestate on the 1st of August, 1872, owning an equity of redemption in an undivided half of the rest of the premises, known as the south house and lot, and leaving as his only heirs at law and next of kin one Lucinda Lamb, now deceased, and the defendants, Mary Lamb and Harriet Robinson. June 4, 1883, Harriet Robinson, Lucinda Lamb and Mary Lamb conveyed to one Andrew Shaw a small portion of the mortgaged premises, in consideration of the sum of fifty dollars, the full value thereof, and the plaintiffs released the same from the lien of said mortgage. Lucinda Lamb died, intestate, November 8, 1887, leaving as her only heirs at law and next of kin the said Mary Lamb and Harriet Robinson, who thereupon became and still are the owners of the equity of redemption in the south house and lot, which is now worth the sum of $1,500. The value of the north house and lot does not appear.
    The interest on the principal of the mortgage was paid in full to September 21, 1865, but no other payment, either of principal or interest, has been made thereon by anyone, except that on the 8th of August, 1885, the sum of one dollar was paid to the plaintiffs or their predecessors in title, by Lucinda Lamb, on behalf of herself, Mary Lamb and Harriet Robinson, in their presence, with their approval, and in recognition of the mortgage lien. The defendant Clarissa Waterman has never recognized the existence of the mortgage in any manner. The whole amount unpaid upon said bond and mortgage on the 20th of February, 1893, was the sum of $2,300.56. This action was commenced on the 13th of January, 1891. No personal representative of the estates of Daniel, Alanson or Lucinda Lamb has ever been appointed. Judgment was rendered in favor of the plaintiffs for the foreclosure of the mortgage for the amount unpaid thereon.

      E. M. Harris, for app’lts Waterman; James W. Tucker and George Brooks, for app’lts Lamb and Robinson; Lynn J. Arnold, for resp’ts.
   Yawn, J.

The main question presented by this appeal is whether a payment upon a bond and mortgage, macje after a part of the land covered thereby had been conveyed without mention of the mortgage, by one who inherited the mortgaged premises from the deceased mortgagor, prevents the statute of limitations from running in favor of the grantee? It has been held by the court of appeals of this state, and by the supreme court of the United States, that a partial payment made by the mortgagor himself, éven after he has conveyed away the premises, arrests the operation of the statute as to both grantor and grantee. New York Life Ins. & Trust Co. v. Covert, 6 Abb. Pr., N. S., 154; Hughes v. Edwards, 9 Wheat., 489, 498. See, also, Barrett v. Prentiss, 57 Vt., 297. This is upon the ground that as the grantee of the equity of redemption takes his title subject to the lien of a mortgage," duly recorded, he has constructive knowledge of the existence of the debt and of the power of the mortgagor to prevent the exoneration of the land, through the presumption of payment arising from lapse of time, by making partial payment or written acknowledgment. As payment is simply evidence from which an intent to renew the original promise may be inferred, it has been held that a payment, which is to operate as a new promise, must be made by the debtor - himself, or by his agent duly authorized to make the acknowledgment or to do for him the act which is to be the evidence of the new promise. Littlefield v. Littlefield, 91 N. Y., 203, 209 ; Smith v. Ryan, 66 id., 352 ; Miller v. Magee„ 17 St. Rep., 547, 549 ; Kelly v. Weber, 27 Hun, 8.

The heirs of a mortgagor are not his agents, nor do they stand upon the same basis that he did with reference to the debt secured by the mortgage. The debt represented by the bond is for the mortgagor to pay. He can renew it, and, in so doing, renew the lien of the mortgage which was collateral thereto, even after he has parted with his interest in the premises. But after his death, what is the obligation of his heirs in respect to a bond given by him ? Clearly "their promise to pay his debt, without some consideration moving to them, would be a nudum pactum and void, even if, as in the case before us, the evidence of debt was a bond purporting to bind the mortgagor, himself, his heirs, executors, and administrators. One, therefore, who sustained simply the legal relation of heir to the deceased mortgagor, but who had actually inherited nothing from him, could not bind himself to pay the bond by a promise without consideration. As partial payment is only evidence of a promise to pay the remainder of the debt thus recognized, such a payment, when there is no obligation to pay and no interest to protect, can have no more binding effect than an actual promise without consideration.

When, however, the heirs have inherited the mortgaged premises, or even a portion thereof, from.the mortgagor, and they have accepted the inheritance, how then do they stand with reference to the debt of their ancestor ? Whatever the rule was at common law, it is now provided by statute that, “ Whenever any real estate subject to a mortgage executed by any ancestor or testator shall descend to an heir, or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of his own property without resorting to the executor or administrator of his ancestor, unless there be an express direction in the will of such testator that such mortgage be otherwise paid.” 1 R. S., 749, § 4; 4 R. S. (8th ed.), 2461. Under this statute it has been held that the: obligation of the heir to pay the mortgage is measured by and may not exceed the value of the property which descended to him, including lands other than the mortgaged premises. Hauselt v. Patterson, 124 N. Y., 349 ; 36 St. Rep., 354. If the heir has conveyed any part of the land, the obligation to pay becomes personal to the extent of its value, otherwise it is in the nature of an obligation either to pay or to lose the entire inheritance, id.

Ho question is raised on this appeal as to whether the persons making the payment or new promise would be personally liable for any deficiency, as judgment was not rendered against them to that extent, nor was it rendered against any one, except for the enforcement of the lien of the mortgage. Whether payment by the administrator would revive as to the heir, or vice versa, is not ■here material, as no personal representative of either mortgagor has been appointed.

A promise to pay by the heir in possession of the mortgaged premises, or of a part thereof, would have the support of a sufficient consideration, when, as in this case, it was necessary in order to prevent lawful dispossession through the process of legal foreclosure. An actual promise to pay the bond, made by the heir in proper form, upon such a consideration, would adopt the debt and make it his own. Tighe v. Morrison, 116 N. Y., 263 ; 26 St. Rep., 178; Smart v. Smart, 97 N. Y., 559; Mallory v. Gillett, 21 id., 412. So, where the heir had conveyed a part of the land and had received payment therefor, as in the case before us, he would be personally liable to the owner of the bond and mortgage to that extent, and this also would constitute a sufficient consideration to support his promise to pay the debt. Hauselt v. Patterson, supra.

The payment in question, therefore, was evidence from which the inference is permissible that such a promise was made. Partial payment, based upon a lawful consideration, has no other effect upon the remainder of the debt under any circumstances, according to the authorities. Harper v. Fairley, 53 N. Y., 442, 444. Aside from extinguishing the debt pro tanto, it renews the remainder, at least as to the person making the payment and thereby acknowledging and promising to pay it. While the statute now provides that an actual acknowledgment, or formal promise in terms, must be in writing, it expressly says that this does not alter the effect of a payment of principal or interest. Code Civil Procedure, § 395. A payment of part, therefore, is still evidence of a promise to pay the remainder. But whom does the payment, or promise, -bind ? Does it affect any one except the person making it, or does it keep the security alive as to all persons? Lord Cranworth answered this question in Roddam v. Morley, 1 DeG. & J., 1, by saying that, “when a part payment, or payment of interest has been made, which has the effect of preserving any right of action, that right will be saved not only against the party making the payment, but also against all other parties liable on the specialty.” The learned judge added that as the statute does not restrict the effect of payment, the court cannot restrict it. It was held in that case that payment of interest by the tenant for life of a devised estate keeps a specialty alive as to the persons entitled to the remainder.

Mr. Jones in his work on Mortgages, 4th ed., vol. 2, § 1202, ' says: “A purchaser with actual notice of the mortgage, or constructive notice by means of a registry, can avail himself of the presumption of payment from lapse of time only when the mortgagor could avail himself of it under the same circumstances. The grantee succeeds to the estate and occupies the position of his grantor. He takes subject to the encumbrance, and his title and possession are no more adverse to the mortgagee than was the title and possession of the mortgagor. The purchaser is bound by the acts and declarations of the mortgagor in respect to the mortgage while he retains the equity of redemption or any part of it; as, for instance, the purchaser of a part of the mortgaged premises cannot claim a presumption of payment of the mortgage from lapse of time; when this presumption is repelled by payments of interest made by the mortgagor within twenty years, or by his admission within this time that the mortgage was then subsisting. * * The record is notice of the mortgage to-a subsequent purchaser, and the mere fact he has had actual possession under his purchase for the statute period of limitation is no bar to a foreclosure of the mortgage.”

In Pears v. Laing, L. R, 12 Eq., 41, it was held that payment by one interested in the general residue of the real and personal estate of her ancestor, although not otherwise interested in the land covered by the mortgage upon which the payment was made, was sufficient to keep alive the debt and was binding u pon all persons interested either in the mortgaged property or in the general estate, which was liable for repayment by reason of a covenant. This case was carefully considered, and although, like all the modern English cases, it was dependent to some extent upon a statute, the reasoning applies directly to the case in hand. If payment is effective when made by one interested in a fund out of which the mortgage is payable, it must be equally effective when made by one interested in land out of which the mortgage is paj'able.

In Moller v. Duryee, 21 W. Dig., 458, it was held that payment upon a mortgage debt by the executor of the mortgagor kept the mortgage alive as against a grantee of the mortgagor. So we think that payment upon a mortgage made by the heirs of two mortgagors, while in possession of a part of the mortgaged premises, inherited from those who gave the mortgage, keeps it alive as to a person holding the rest of the land by grant from one of the mortgagors and from the heirs of the other. Such a payment is not made by a stranger, but by those having, so to speak, a legal hand to pay with, for if the payment had not been made-they might have lost their land. They were interested, because they paid to protect their title and possession. It was furthermore their duty to pay, under the statute quoted above, if they retained possession of any part of the mortgaged premises, and also to the extent of the value of such portion as they had conveyed. This duty to pay not only relieves the payment from the imputation of having been made by volunteers, but also furnishes an adequate consideration. As payment by a mortgagor after conveying binds his grantee, so far as the lien of the mortgage is concerned, so payment by the heir, after it has become his duty to pay, should have the same effect. This is the logical result of the decisions already referred to made by the highest courts, which work out exemption from the statute through the recording of the mortgage and constructive notice to the purchaser, who is warned in advance by the recording act of the contingencies that he may have to face, taken in connection with that other line of decisions which make payment evidence of a new promise. Whether it revives the debt to the extent of making anyone personally liable we do not decide, as that question is not before us, but we simply hold that it revives the lien of the mortgage as to all lands covered thereby, including those conveyed both by the mortgagors and their heirs. As the grantee would have been bound if she had made the payment herself, so she is bound, though perhaps to a less extent, when it is made by one whose duty it was to pay.

This conclusion makes it unnecessary to consider the position of the respondents based upon § 403 of the Code of Civil Procedure.

After considering all of the questions to which our attention has been called, we are of the ppinion that the judgment and orders appealed from should be affirmed, writh costs.

Hardin, P. J., and Merwin, J., concur.


author: Parker, J.

text:
    Frank B. Reynolds et al., Resp’ts, v. John A. Webster et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Mortgage—Record—Priority.
    The lien of a mortgage to secure future advances, duly recorded, is superior to that of a prior, unrecorded purchase money mortgage, of which the second mortgagee had no notice.
    2. Same.
    Such lien extends to the full amount of the mortgage, although the prior mortgage is recorded before all the advances have been made; such record not being constructive notice to the holder of the mortgage first recorded.
    Appeal from judgment in favor of plaintiffs.
    Action to foreclose a mortgage given by one Covell to secure future advances. Defendant Webster, in his answer, set up a, prior purchase money mortgage given to him by Covell, which was not recorded until after the record of plaintiff’s mortgage.

      M. M. Waters, for app’lts; F. H. Everhart, for resp’ts.
   Parker, J.

The defendant Webster, by his conveyance to Covell, transferred all his title and estate in the premises, and, upon receiving back the mortgage for a part of the purchase price, he acquired only a lien thereon to that amount. Bryan v. Butts, 27 Barb., 503 ; Trustees of Union College v. Wheeler, 61 N. Y., 88. He then stood in the position of an ordinary mortgagee for value, having transferred both, title and possession to Covell. The case cited from 59 N. Y., 541 (Dusenbury v. Hulbert), does not hold any different rule. Such case merely decides that intermediate the receipt of the title by Covell and the delivery back of the mortgage, it being all one transaction, Covell could not have given any lien that would be superior to such purchase money mortgage. While Webster held his mortgage, and before he had it recorded, the plaintiffs received the mortgage which they are now seeking to foreclose, and they promptly put it on record in advance of Webster. Their mortgage was collateral to a bond in the penalty of $3,000, conditioned to pay at maturity any and all balances of account, money, notes, etc., and indebtedness of any kind at any time hereafter owing by the firm of Covell & Dielcinson, or either of them, to the plaintiffs, and was intended as security for future sales of cigars, from time to time, to be sold to such firm by the plaintiffs. Such a mortgage is a valid security, and is a conveyance within the recording acts. Ackerman v. Hunsicker, 85 N. Y., 43. Both Webster and the plaintiffs, therefore, stood in their relations to Coveil as mortgagees of the same premises, the security of each being liable to be' affected by the provisions of the recording act. That act makes a prior, unrecorded mortgage void as against a subsequent mortgagee in good faith, and for value, whose mortgage is first duly recorded. Webster’s mortgage, therefore, although prior to plaintiffs’, became void as to it, provided plaintiffs are to be deemed purchasers in good faith and for value.

On behalf of Webster, it is claimed that plaintiffs were" not purchasers for value, because at the time they took and recorded their mortgage they had advanced nothing upon it; also, that at most they were purchasers for value to the extent only of the amount advanced at the time Webster’s mortgage was recorded, viz., ninety dollars, and that hence, under the recording act, plaintiffs’, mortgage is made superior to Webster’s to the extent of ninety dollars only. The case of Ackerman v. Hunsicker, above cited, decides both of such propositions against the defendants. It is there said that such a mortgage is a potential lien for its full amount, of which subsequent purchasers, or encumbrancers have notice through the record, and the rule is distinctly laid down that “ a party who takes a mortgage to secure further optional advances, upon recording his mortgage, is protected against intervening liens, for advances made upon the faith and within the limits of the security, until he has notice of such intervening lien, and that the recording of the subsequent lien is not constructive notice to him.” See, also, Farr v. Nichols, 132 N. Y., 327; 44 St. Rep., 555. These cases seem to be conclusive against the positions taken by the defendants upon this appeal. The judgment, therefore, should be affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.


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    Edward H. Foley et al., Resp’ts, v. The Farragut Fire Insurance Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    Insurance (fire)—Interest of owner in buildings in process of construction.
    The owner of premises upon which buildings are being erected under a contract which provides that the contractor shall furnish all the materials and be paid after the work is completed, has an insuiable interest in the buildings as they progress, and in case of a loss before completion is enti tied to recover the actual value of the buildings as they were at the time of the loss.
    Appeal from judgment in favor of plaintiffs, entered upon verdict directed by the court.
    Hiscock, Doheny & Hiscock, for app’lt; Riegel & Walker ( W. P. Goodelle, of counsel), for resp’ts.
   Parker, J.

The question presented upon this appeal, briefly, stated, is as follows: Plaintiffs insured with defendant three wooden houses in process of construction by a contractor upon their premises, and upon stone foundations built by themselves. Under the terms of the contract the builder was to furnish all materials and do all the work, and he was to be paid within ten days after the completion of the houses. The amount of the insurance was “four hundred dollars upon each of their three two-story frame, shingle-roofed buildings, and extensions thereto,” etc., and was not to exceed, in all, $1,200. Soon after the insurance, and before either building was completed or accepted, a fire-totally destroyed two of them, and injured another to the extent of $100. At the time of the fire the plaintiffs had paid only $250; upon their contract. Under such circumstances are the plaintiffs entitled, in an action upon the policy, to recover, as their damages, the actual value of the property burned, or must they be confined to the value of the foundations built by themselves?" Upon the trial the court held that the loss was to be ascertained from the actual value of the property destroyed, and, as there was no dispute over that amount, a verdict was directed in favor of the plaintiffs. From the judgment entered upon such verdict this appeal is brought.

The defendant claims that inasmuch as the contractor rhust furnish new materials and rebuild the houses entirely before he can claim any compensation whatever, the plaintiffs suffer no damage by the destruction of that part under contract, and hence that they can recover nothing for it. Unless the contract indicates that it was the intention of the assured to effect the insurance for himself and any other person who, during the continuance of the policy, should have an interest in the property insured (as was the case in Waring v. Indemnity Fire Ins. Co., 45 N. Y., 606), a policy of insurance is deemed a personal contract of indemnity, and the insured cannot recover beyond the extent of his interest-in the subject insured. Wood Fire Ins., § 473 ; Grosvenor v. Atlantic Fire Ins. Co. of Brooklyn, 17 N. Y., 391, 392; Shotwell v. Jefferson Ins. Co., 5 Bosw., 247; Murdock v. Chenango Co. Ins. Co., 2 N. Y., 210; Cross v. National Fire Ins. Co., 132 id., 133; 43 St. Rep., 482.

But the application of that rule to the case before us does not-sustain the position taken by the defendant’s counsel. The plaintiffs in this action were the owners and in possession of the premises and foundations upon which these houses were erected. Although they were not yet completed, and the plaintiffs were under no obligation to pay for them at the time they were burned, they were, nevertheless, the property of the plaintiffs. They were annexed to their freehold, and added to its value. Their destruction diminished its value by just the value of the houses as they stood there, and hence the plaintiffs had an interest in them to just that amount. The plaintiffs’ interest in the houses was-none the less an insurable one because they had not been paid for. Excelsior Fire Ins. Co. v. Royal Ins. Co. of Liverpool, 55 N. Y., 343. Nor were they any less their property because the contractor was bound to rebuild them before he could demand his-pay. Suppose the contractor refused to rebuild, and abandoned his contract. In that event, very clearly, the plaintiffs would lose the benefit of such houses to their premises. True, they might recover damages against him for a breach of his contract, but that would not be for the full value of the houses, and no adequate compensation for their loss. We think there can be no doubt but that the plaintiffs had an interest in the preservation of those houses upon their premises to the extent of their value, and hence they had the right to insure such interest. Cone v. Niagara Fire Ins. Co., 60 N. Y., 619; Riggs v. Commercial Mutual Ins. Co., 125 id., 7; 34 St. Rep., 465. They could do so for the very purpose of obtaining a better security against their loss than the personal obligation of the contractor. Hancox v. Fishing Insurance Co., 3 Sumn, 132. The defendant has contracted with them as if they had such interest, and the policy itself fixes the manner in which the loss or damage shall be ascertained ; that is, it shall be ascertained or estimated according to the actual cash value of the property insured. There is no claim that there was any misrepresentation or misconception of what the defendant’s interest was, and, therefore, no reason is shown why the defendant should be allowed to lessen the recovery against it below the amount fixed by its contract.

The judgment is correct, and should be affirmed, with costs.

Har'dim, P. J., and Merwin, J., concur. .


author: Parker, J. Hardin, P. J.

text:
    Emily Locke, App’lt, v. Hiram B. Locke, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    Divorce—Alimony—Hot subject to debts for which husband would NOT BE LIABLE.
    In an action for separation between the parties plaintiff obtained a decree for alimony, and thereafter gave a note for the accommodation of their adopted son, which defendant indorsed, and the son obtained the money thereon. At its maturity it was not paid and judgment was obtained against the parties thereon, which defendant paid. Held, that the amount of the judgment could not be set off against the alimony; that the debt was not one for necessaries which the husband would be bound to furnish, and therefore that the alimony was not subject thereto.

      (Romaine v. Chauncey, 129 N. Y., 566; 42 St. Rep., 267, followed.)
    Appeal from order denying plaintiff’s motion for leave to issue execution for alimony, and allowing defendant to set off against such alimony a judgment against the parties hereto paid by him.

      Reynolds, Stanchfield & Collin, for app’lt; Babcock, Baxter & Gibson, for resp’t.
   Parker, J.

In July, 1876, in an action for separation upon the ground of cruel and inhuman treatment, the plaintiff recovered a decree against her husband, Hiram B. Locke, awarding her as alimony the sum of $500 annually, and payable semiannually, in sums of $250 each, on the 27th day of January and July in each year, and further awarding to the plaintiff execution for the collection of such instalments as they became due. Default. "being made in the payment of the $250 that became due January 27, 1893, and no execution having ever been issued on such judgment, the plaintiff applied at special term for leave to issue execution against the defendant for that amount. The defendant opposed the issuing of such execution, on the following grounds: On the 22d day of April, 1892, the plaintiff made her promissory note for $1,000 payable to the order of John B. Locke, in three months from date, at the Chemung Canal Bank, Elmira, N. Y. •Such note was indorsed by the payee, John B. Locke,-and under him by the defendant, Hiram B. Locke. It was discounted by the bank, and the payee, John B. Locke, had all the avails thereof. -John B. Locke was the adopted son of the plaintiff and defendant, and they both became parties to such note at the request of John B. Locke, and solely for his accommodation, neither ■of them having any benefit from the note or its proceeds. Default was made in the payment of the note at its maturity. The bank ■sued all the parties thereon, and recovered a judgment against them all for the amount of the note, and costs. Such judgment was paid in full by this defendant, and the assignment thereof - was taken to him. The plaintiff and John B. Locke were insolvent, and nothing could be collected from them on the judgment. Upon such facts, the defendant claims that the plaintiff is indebted to him in the amount of such judgment and costs, that is, $1,036.43, and he asked from the court an order setting off against, the plaintiff’s claim for alimony due January, 1893, so much of his judgment as is necessary to satisfy it. The court denied the. plaintiff’s motion for leave to issue execution, and granted the defendant an order setting off his judgment against her claim as above stated. From such orders the plaintiff appeals to this court.

The case of Stevenson V. Stevenson, 34 Hun, 157, decided by this court in October, 1884, holds that such a claim for alimony, fixed by judgment in favor of the wife against the husband, may be reached and appropriated by the creditors of the wife by bill in ■equity, or upon proceedings supplementary to execution ; and it places this decision upon the theory that such a claim is a debt, and that, inasmuch as there is no statute exempting it from. liability for her debts, it may be taken to satisfy them as any other chose in action could be taken. It does not appear from the report of that case whether the claim against the wife was for necessaries or not, but the line of argument treats the alimony simply as a debt against the husband. The reasoning of that case fully sustains the decision in this. . In Romaine v. Chauncey, 129 N. Y., 566; 42 St. Rep., 267, the court of appeals has since decided that alimony awarded to a wife may not be taken for the satisfaction of a debt contracted by her, and actually subsisting prior to the date of the decree. In the case before us, the debt which the husband claims to set off was not contracted until long after her right to the alimony was decreed, but such debt was not one contracted for necessaries or for any benefit accruing to herself. It was an obligation incurred solely as a surety for her son John, and the husband has none of the equities which a creditor would have who had furnished her with such necessaries and means of support as the allowance of alimony is designed to provide her with. Applied to these circumstances, the reasoning of the latter case exempts this alimony from a liability to pay the debt which the husband seeks to set off against it. In that case it is said that: Alimony is not, strictly, a debt due to the wife, but rather a general duty of support made specific and measured by the court.” And the line of argument goes to the extent of holding that, while the alimony might be held liable to satisfy a debt contracted for her support with a creditor who had naturally relied upon it as a means of payment, it cannot be appropriated for the payment of debts contracted by her under such circumstances and of such a nature that her husband would never have been liable to pay them; that the object of the decree awarding alimony was but to continue the husband’s liability for support of his wife after the divorce, and not to compel him to provide a fund for the payment of debts not otherwise chargeable against him. Uor should the means so provided for the support of the wife be diverted to an entirely different purpose. Had no decree ever been' granted against the defendant, he would not, as husband, have been liable to pay the note which she signed for their son John, and hence, within the decision above cited, such note was not a debt that could be collected from her alimony. If the bank oould not have so collected it, there is no reason why the husband should be allowed to do so. Upon the authority of the case last cited, therefore, the order appealed from must be reversed, with costs.

Merwin, J., concurs.

Hardin, P. J.

Although I joined in the decision of Stevenson v. Stevenson, 34 Hun, 157,I feel constrained to concur in the foregoing opinion upon the reasoning and authority found in Romaine v. Chauncey, 39 St. Rep., 480, and the same case in 129 N. Y., 566; 42 St. Rep., 267. I therefore join Parker, J., in reversing the order in this case.


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    George W. Draper, Resp’t, v. Horace S. Draper, et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    Mortgage—Absolute deed and agreement to reconvey.
    A deed absolute on its face of property subject to encumbrances for an expressed consideration which was not in fact paid, and an agreement to re-convey the premises on payment of the claims against the place, considered together, constitute a mortgage, and not a gift with the privilege of repurchase.
    Appeal from judgment of special term in favor of plaintiff.
    _ On March 12, '1879, the plaintiff conveyed certain premises to Ms brother, the defendant Horace S. Draper, by a deed, absolute on its face, and for the expressed consideration of $500. Such premises were subject to about $6,000 of encumbrances thereon, and nothing was in fact paid by the defendant for such conveyance. On receiving such conveyance, he gave back to the plaintiff the following written agreement: “I hereby agree that whenever, after this date, George W. Draper pays to me the amount of claims, principal and interest, against the place transferred this, day by him to me, that I will transfer the same back to him without further cost to him. Geddes, March 12, 1879. Signed, Horace S. Draper.” This action is brought for an accounting by the defendant of the amounts paid by him upon the encumbrances-against the premises, and of the rents and profits received by him therefrom, and for a reconveyance upon payment to him of the-balance so found to be due him. Upon the trial at special berm the court held that the conveyance and paper taken back should be construed together, and constituted a mortgage; that the defendant stood in relation to the plaintiff as a mortgagee in possession of the premises, and was liable to account as such, and to re-convey the premises upon being paid the amount due him as-such; and ordered an interlocutory judgment to that effect.

      Homer Weston, for app’lts; Stone, Gannon & Pettit, for resp’t.
   Parker, J.

The appellants contend that the deed executed to the defendant, and the written agreement taken back by the plaintiff, should not be construed as a mortgage, because at the time the relation of debtor and creditor did not exist between the parties, and the defendant did not assume any obligation to pay or advance anything for the plaintiff ; that, for such reason, he was not in a situation to require any security from the plaintiff, and therefore the idea that the deed was intended as a mortgage is-effectually rebutted. His claim seems to be that the transaction was a voluntary gift of the premises to the defendant, with the privilege of repurchasing them upon paying the amount of the-liens then existing against them. It is utterly incredible that the plaintiff ever agreed to give the property to his brother, and purchase it back for something over $6,000, still covered with the encumbrance upon it. From the whole evidence it is manifest that the defendant was to advance the amount due upon the encumbrances, or at least so much of it as was necessary to beep the creditors quiet and prevent a sale of the property, and hold the title as a security for the. advances so made. In this case there was no sale from the plaintiff to the defendant. There is nothing in the writing taken back that indicates a resale was intended, but everything indicates that security for advances tobe made was intended. It does not require the citation of authorities to show that, under such circumstances, the relation of mortgagee and mortgagor must exist between the parties. Rogers v. N. Y. & Texas Land Co., 134 N. Y., 197 ; 48 St. Rep., 263; Simon v. Schmidt, 41 Hun, 318; 2 St. Rep., 388. None of the authorities to which we are referred by the appellants’ counsel contradict such a conclusion. Assuming that the defendant is a mere mortgagee in possession of the plaintiff’s property, there will be no dispute but that he is liable to account, and to reconvey' upon being paid his debt. Horn v. Keteltas, 46 N. Y., 607; Simon v. Schmidt, above cited.

It is further contended that the complaint is not sufficient to-warrant the judgment ordered by the special term. Every fact •necessary to establish the relation found to exist between these parties is averred in the complaint. When an answer is served, .and a trial had, any relief may be granted that is consistent with such averments. Rogers v. N. Y. & Texas Land Co., 134 N. Y., 219; 48 St. Rep., 263. We do not discover any error in the rulings made upon the trial, and, on the whole case, conclude that the judgment should be affirmed, with costs.

Hardest, P. J., and Merwbst, J., concur.


text:
    Thomas Kingsford, Resp’t, v. George A. Butler, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    Justice’s court—Default—Attachment.
    The summons herein was not personally served, but defendant’s property was attached under a warrant issued upon an affidavit which was insufficient to give the justice jurisdiction. Upon the return day the justice entered judgment by default, which was affirmed by the county court. Held, error; that the justice has no power under § 2918 of the Code to enter judgment by default in such a case.
    Appeal from judgment of the Oswego county court, affirming judgment of a justice’s court in favor of plaintiff, entered upon a default.

      D. P. Lester, for app’lt; L. W. Baker, for resp’t.
   Parker, J.

The facts disclosed by the appeal book in this action are substantially as follows: A justice of the peace issued a summons in favor of this plaintiff against the defendant upon the 13th day of August, 1892. At the same time he issued a warrant of attachment against the defendant’s property. The attachment was levied by the constable on certain personal property of the defendant, and a certified copy of it, and of an inventory of the property so levied upon, and of the summons, were each left by the constable at the defendant’s last place of residence, with a person of suitable age and discretion. Ho personal service of the summons was ever made upon the defendant, nor any service other than as above stated. The affidavit upon which the warrant of attachment was issued was wholly insufficient to give the justice jurisdiction. The case of Bump v. Daheny, 36 St. Rep., 114, is an authority precisely in point on that question, and its insufficiency is practically conceded on this appeal. Upon the return day of the summons no one appeared on the part of defendant, and judgment was taken against him by default, in plaintiff’s favor, for $47.25, debt and costs. The defendant subsequently appealed to the county court of Oswego county, where the judgment of the justice was affirmed, and from such judgment this appeal is brought

There is no statute giving a justice of the peace authority to enter judgment against a defendant on default unless the summons has been personally served upon him, except the provisions of § 2918 of the Code. By that section it is provided that when a defendant does not appear, and the summons has not been personally served upon him, nevertheless judgment may be rendered against him if his property “ has been duly attached by virtue of a warrant that had not been vacated." The section further provides that the judgment so rendered is only presumptive evidence of indebtedness, and that it can be satisfied by execution only against the property so attached. In the case at bar, therefore, the justice had no jurisdiction to enter judgment against defendant, unless his property had been duly-attached by virtue of a warrant that has not been vacated.” It is true that the warrant which the justice assumed to issue had never been vacated, but can it be said that defendant’s property had eAmr been “duly attached" by virtue of it? I think not. The attachment was entirely unauthorized. It ought never to have been issued, and the property of the defendant ought never to have been taken upon it. By § 2916 the justice is given authority, “ on his own motion,” to vacate the attachment on the return of the summons “ if he deems the papers on which it was granted insufficient to authorize it." Eeading all these provisions together, I think it is the duty of a justice, on the return of a summons that has not been personally served, to enter judgment by default only when the record shows an attachment lawfully issued and regularly executed. For the-want of a personal service of summons he has never acquired jurisdiction over the person of defendant, and for the want of an attachment, lawfully issued, the proceeding against the property of defendant is utterly unauthorized. Not even as against the property attached has- he acquired any jurisdiction, for, clearly, he cannot do so by issuing a process he had no authority to issue, nor by omitting to vacate such a process after-having assumed to issue it. On the return of the summons, therefore, the justice should have treated the case as if no attachment had ever been issued, and his entry of judgment by default against defendant was, therefore, unauthorized.

The respondent’s counsel claims that the defendant does not-dispute the validity of the debt; that the errors alleged are purely technical; and that, therefore, under § 3063 of the Code, the county court correctly affirmed the judgment. The difficulty with that argument is that the error complained of is not by any means a technical one. The question presented by this appeal is whether a justice of the peace may enter judgment against a party on default without first having, by some lawful process, acquired jurisdiction to do so. In the course of this action, the defendant has not, as yet, been called upon to .question the validity of the-plaintiff’s claim. When he shall have been lawfully summoned into court, or when his property shall have been lawfully subjected to the judgment of the court, by the service of a lawful process against it, it may be that he will successfully defend against the plaintiff’s claim ; and, until he has been called upon to-make his defense, it can hardly be said that “justice has been done" by rendering any judgment whatever against him. It does not appear, therefore, that the amount of the judgment, even, is correct, and it does appear that the justice had no jurisdiction-to render any judgment whatever against defendant. To such a case § 3063 does not apply, and the judgment of the justice should have been reversed. The judgment of the county court and of the justice should be reversed, with costs.

Merwin, J., concurs in the result; Hardin, P. J., not sitting.