author: 'Van Brunt, P. J.:

text:
    THE LEHIGH COAL AND NAVIGATION COMPANY, Plaintiff, v. THE CENTRAL RAILROAD OF NEW JERSEY, Defendant. In re Petition of HORACE L. HOTCHKISS.

      Receiver of a corporation — the power of the Supreme Court to appoint one is limited, to the cases prescribed by statute.

    The Supreme Court has no power to appoint a receiver of the property of any corporation, whether domestic or foreign, upon the filing of a bill by a creditor-at-large on behalf of himself and of all others similarly situated.

      Woerishoffer v. The North River Construction Company (99 N. Y., 398; affirming S. C., 6 Civil Pro. Rep., 113) distinguished.
    Appeal from an order denying a motion made by one Hotchkiss, a judgment creditor of the defendant, to vacate an order entered in •this action appointing a receiver of the defendant.

      Robert Sewell, for Horace L. Hotchkiss, appellant.

      Robert W. Deforest, for the defendant and its receiver, respondent.
   'Van Brunt, P. J.:

The order appointing a receiver in the case at bar is claimed to have been made in this action brought by the plaintiff as a creditor .and stockholder of the defendant, and that the action is similar in character to the case of Woerishoffer v. The North River Construction Company (99 N. Y., 398; 34 Hun, 634; 6 Civil Pro. Rep., 113), in which the appointment of a receiver has been sustained.

In the case of Woerishoffer, the bill was filed by a stockholder, ■but in the case at bar, although the points of the respondent claim that the bill was filed by the plaintiffs as stockholders as well as ■creditors, an examination of the complaint shows that the bill was filed by the plaintiffs as creditors, and as creditors only, of the defendant, there being no allegations in the bill that the plaintiffs ■were stockholders of the defendant.

It is not pretended that the plaintiff was a judgment creditor of the defendant, but the only allegations in the complaint are that ■they hold claims against the defendant which have not been established by judgment.

It is thus seen that the facts in the case of Woerishoffer were essentially different from the one at bar, and that case is no authority to sustain the proposition that this court has any general power to appoint receivers of the property of any corporation, whether domestic or foreign, except such as is derived from our statute. This statute distinctly provides that a receiver of a corporation could only be appointed by the Supreme Court, and in one of the cases enumerated therein, and the case of a creditor-at-large is not mentioned therein. It would seem, therefore, that the plaintiff filing its bill simply as a creditor-at large, on behalf of itself and of all others similarly situated, conferred no jurisdiction upon the court appointing the receiver.

This question, however, should not bo finally adjudicated perhaps, without formal notice to the plaintiff, although probably it has had full notice of these proceedings, because the counsel appearing upon this appeal for the receiver was the attorney for the plaintiff herein when the bill was filed, and verified the same as such attorney.

The order appealed from should be affirmed but without costs, and leave should be given to renew the motion upon giving notice to the plaintiff in this action.

Brady and Daniels, JJ., concurred.

Order affirmed, without costs, and with leave to renew on notice to plaintiff.


source: Caselaw Access Project

author: Van Brunt, P. J.:

license: Public Domain

text:
    THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent, v. DANIEL D. WYLIE, Appellant.

      Estoppel — when one entering into a contract with a corporation cannot assail it~as. being ultra vires — what evidence shows an agreement of an assignee of q lease.to pay rent.

    This action was brought against the defendant, as the assignee of a lease of-a pier in the East river given by the plaintiff to one Darrow, in 1865, for the term of ten years, to recover rent falling due in 1875. In 1868 the defendant took an assignment of the lease, with the consent of the comptroller of the city, and entered into possession.

      Held, that even if it were conceded that the city, when making the lease, did not comply with all the statutory requirements, yet as the act of making the lease was not prohibited by statute, and as the defendant had enjoyed all the benefits of the lease, he was prohibited from raising the defense of irregularity
    The defendant claimed that there was no privity of contract between the plaintiff and himself created by the assignment of the lease, as the right of collecting wharfage conferred by it was simply an incorporeal hereditament.

      Held, that it was not necessary to determine this question,-as an express- contract to pay the rent could be deduced from the evidence showing that the defendant, on receiving an assignment of the lease, gave security for the payment of the rent, and that he had in fact paid the same for several years.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    On the 25th of April, 1865, the plaintiffs made a lease for the term of ten years, from May 1,1865, to one Daniel Darrow, of Pier No. 7, East River, at an annual rent of $5,000, payable quarterly. In October, 1868, the defendant took an assignment of the lease, with the consent of the comptroller of the city, and entered into possession. This action was brought to recover $1,250, rent due February 1, 1875, and $1,250 rent due May 1, 1875.
    The defendant testified that there was an understanding with the comptroller, at the time of the assignment, that he should have the pier for $3,000 a year, and that he paid at that rate until August 1, 1870, when rent at the rate of $5,000 a year was paid down to and including November 1, 1874. The receipts given during the time rent was paid by the defendant at the rate of $3,000 a year, were for the full amount of rent, viz , $5,000 a year, and were followed by a memorandum stating that an allowance had been made by the comptroller, so that the rent actually paid was only $3,000 a year. The defendant claims to have paid the full rent under protest, and the receipts contained a memorandum that the protest was on account of a claim for allowance in consequence of the condition of the pier.
    The plaintiff offered in evidence a bond whereby,'for and in consideration of the transfer of the lease in question to the defendant, the obligors in the bond became sureties for the punctual payment of the rent and the performance of the covenants in the agreement mentioned. A motion to dismiss the complaint was made upon the ground that no valid lease or consent to the assignment had been shown, that the assignment established no privity of contract between plaintiff and defendant, which was denied, and an exception taken. The case was then submitted to the jury under the charge of the court, to the effect that if the jury believed that the comptroller, at the time of the assignment of the lease, made an agreement that the rent should be reduced from $5,000 to $3,000, the defendant was entitled to a verdict. The jury returned a verdict for the plaintiff, and from the judgment thereupon entered and from an order denying a motion for a new trial, this ■ appeal is taken.

      William G. Trull, for the appellant.

      John J. Townsend, Jr., for the respondent
   Van Brunt, P. J.:

The grounds upon which the appellant seeks a reversal herein seem to be as follows: 1. That no valid lease was proven from the plaintiffs to Barrow, and that it was error to refuse to allow the defendant to prove that the advertisements required by law were not made prior to the execution of the lease to Barrow. 2. That the defendant did not go into possession of the pier under the lease to Barrow, or as assignee of that lease. 3. That even if the defendant had, as assignee of Barrow, entei’ed into possession of the premises, still the assignment from Barrow to the defendant created no privity of conti-act between the defendant and plaintiff, and i. That the verdict was against the evidence, the defendnt’s testimony as to the agreement with the comptroller being un contradicted.

The defendant concedes that if the lease was simply ultra vires, the same-having become an executed contract, the fact that it was ultra vires would be no defense, but claims, however, that although the lease was not ultra vires the plaintiff, yet, because all the requirements of the statute in respect to the manner of execution of leases were not complied with, the lease was void and illegal, and no recovery could be had thereon, even though the other party may have received all the benefits therefrom. In other words, if the corporation, having no power at all to make the lease, had made one in form, a recovery could be had thereon when it became an executed contract, but having the power, no recovery can be had because a strict compliance with the procedure provided by statute has not been shown, even though the contract has become an executed contract. If this contention is true, then the greater the violation of the law in the attempted making of a contract, the greater the power to enforce. The authorities cited do not sustain this proposition.

In the cases of the New York Trust and Loan Company v. Helmer (12 Hun, 35); Pratt v. Eaton (18 id., 293); Madison Avenue Baptist Church v. Oliver Street Baptist Church (73 N.Y. 82), the decisions were based upon the fact that the transactions forming the basis of the actions were expressly forbidden by the laws of the State. The court says in the latter case that “ corporations may incur responsibilities by acts which are ultra vires, but contracts which they are prohibited from making, whether executory or.executed, cannot be held valid. They may sometimes be estopped from asserting the invalidity of such contracts, and thus be practically bound by them. But that is not because the contracts are valid, but because it would be a fraud upon the other party to assert iheir invalidity.”

There is thus made a broad distinction between a contract which is prohibited and one which is ultra vires, or merely irregular because the preliminary statutory regulations have not been complied with, and one expressly prohibited by statute. It may be true that all the statutory requirements may not have been com phed with in the making of the lease at bar, yet the act of making the lease not being prohibited by statute, and the defendant having enjoyed all the benefits of the lease, he is now prohibited from raising the defense of irregularity under the rule established by the cases cited by the defendant. The claim that the defendant did not go into possession of the pier under the lease to Darrow, or as assignee of that lease, is disposed of by the pleadings and the verdict of the jury. The pleadings admit that the defendant went into the possession of the pier, and the verdict of the jury was that there was no agreement made by the comptroller at the time of the assignment, that the rent should be reduced from $5,000 to $3,000, and this verdict was not against the evidence in the case. It is true that there was no oral testimony contradicting the story of the defendant, but the documentary evidence seems to be incon sistent with the existence of such an agreement. The bond of the sureties executed upon behalf of the defendant, the receipts given after the alleged agreement, all for the full rent, containing, however, an allowance by the comptroller, and last, but not least, the ground upon which the protest was based at the time full rent was demanded, such ground being, not that the city had agreed to take less, but that less should be paid because of the condition of the pier. These circumstances fully justified the jury in coming to the conclusion that the defendant was mistaken in supposing that any agreement reducing the rent was entered into between the defendant and the comptroller.

It is, however, claimed' that there was no privity of contract between the defendant and the plaintiff arising out of tho assignment of the lease by Darrow to the defendant, the right to collect wharfage being simply an incorporeal hereditament. It is’ not necessary to determine this question in this case, because an express contract can be deduced from the evidence. That the defendant agreed to pay the rent is evidenced by the fact of his having given security to do so and by the fact that he has paid such rent for years, and this evidence is more than sufficient to establish prima facie a contract between' the defendant and the plaintiff. Such' contract being established it is entirely immaterial whether or not the assignment created any privity of contract. It is true that some of the evidence Was not introduced until after a motion to dismiss upon this ground' had been made and denied, but the rule is well established that even if a ground of dismissal is well taken at the time' the' motion is>made and denied, yet if subsequent evidence removes' such ground, the exception taken is not available.

Upon the whole case, therefore, it does not ap'pear that any error has been committed, and the judgment must be affirmed with .costs.

Daniels and Bartlett, JJ., concurred.

Judgment affirmed with costs.


author: Daniels, J.:

text:
    GEORGE M. BIRDSALL, Appellant, v. JAMES B. DAVENPORT, Respondent.

      When an unauthorized• use of bonds■ constitutes, a. conversion thereof— the right to recover therefor passes with an assignment of the bonds.

    This action was brought to recover the value oí' two- bonds, of $1,000 each, loaned by Thomas Davenport, as the executor of an estate, to the firm of Davenport, Johnson & Co. to use temporarily, upon the agreement of that firm to return them to him when called for. The bonds were delivered to the defendant, a member of the firm, but they were not passed over to or used by it, but were deposited by him as collateral security for the payment of his individual note.

      Held, that this unauthorized disposition of the bonds constituted a conversion.
    That the fact that this use was made of the bonds before the time at which the executor sold and transferred the bonds to the plaintiff, without specifically assigning to him a right of action for their conversion, did not prevent the plaintiff from maintaining this action.
    Appeal from a judgment re-entered at the New York Circuit on the dismissal of the plaintiff’s complaint.

      Arthur G. Brown, for the appellant.

      Putney & Bishop, for the respondent.
   Daniels, J.:

The action was to recover the value of two bonds for the sum of $1,000 each, loaned by Thomas Davenport, as the executor of the estate of B. L. Johnson, to the firm of Davenport, Johnson & Co. The bonds were loaned under a receipt, or agreement, subscribed by the firm in the following form;

“N. Y., 21 st July, 1882.

“Rec’d from Thomas Davenport, ex’r of the estate of B. L. Johnson, one bond for $1,000, No. 4,408, of the C. and N. W. R. R. Co., and one bond, same amount, No. 4,764, of the Grand Rapids and Ind. R. R. Co. Which bonds we agree to return to him when called for, as they are loaned to us to use temporarily. Coupons 1st August and February, and 1st October and April.

“DAVENPORT, JOHNSON & CO.”

And. they were delivered under this receipt to the defendant, but they were not used by the firm of Davenport, Johnson & Co.; but it was admitted on the trial that James B. Davenport, the defendant, had given his individual note to Wells, Fargo & Co. for $1,250, and deposited these bonds with them as collateral security for the payment of that note on the day of the date of the receipt, and this deposit was relied upon by the plaintiff, as the assignee of Thomas Davenport, executor, as establishing a conversion of the bonds by the defendant.

No authority was given to the defendant .in the receipt or agreement, permitting him to use these bonds as security for his own indebtedness, or upon a loan of money to himself, but they were loaned to the firm to be used by that firm temporarily. They do not appear, however, to have been passed over to the firm by the defendant, but he took the bonds and appropriated them to his own use, and as this was done wholly without authority, and outside of and beyond the object for which the bonds were delivered to him, it was under the authorities a conversion. For any misappropriation or unlawful use of another’s property is a conversion; (McMorris v. Simpson, 21 Wend., 610), where it was held that an entire departure from the authority given for the disposition of the property would be a conversion of it. (Id., 615.) And this principle was followed in Scott v. Rogers (31 N. Y., 676), and in Bank of Rochester v. Jones (4 Comst., 497, 503, 504.)

This use of the bonds was made before the assignment was executed by Thomas Davenport as executor, and delivered to the plaintiff; that was made on the 6th of November, 1884, and it sold and transferred the bonds to the plaintiff, without specifically assigning to him this right of action for their conversion. But that was not necessary to enable the plaintiff to take advantage of this unlawful hypothecation of the bonds, for the assignment of the bonds themselves carried with it the right of action against the defendant for this unauthorized and unlawful appropriation of them. (Sherman v. Elder, 24 N. Y., 381, 384; Oneida Bank v. Ontario Bank, 21 N Y., 490, 497, 499; McKeage v. Hanover Fire Ins. Co., 81 N Y., 38, 42.) This rule in no way conflicts with anything that was said in Hall v. Robinson (2 Comst., 293). And these cases are entitled to be accepted as authoritv, although they may differ in the application of the law from those cited in support of the ruling at the trial.

The judgment should be reversed and a new trial ordered with costs to abide the event.

Van Bbunt, P. J., and Bartlett, J., concurred.

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


author: Beady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN McCABE v. THE BOARD OF FIRE COMMISSIONERS OF THE CITY OF NEW YORK.

      Bemoml of an officer of the fire department •of Bew York for incapacity— a mere error of judqment will not support the charge.

    Tlie relator, the second assistant chief of the fire department of the city of New York, was removed for alleged incapacity upon the ground that, hy unneces sarily sending out a signal at a fire hy which more engines and trucks were called than were necessary — thereby uncovering and depriving of all fire extinguishing apparatus, and seriously endangering life and property in, a large and important section of the city — he had violated a general order of the department, which declared that an officer should “he responsible for any want of judgment, skill, neglect or failure, which may muse unnecessary loss of life, limb or property." It was not claimed that any actual loss of life, limb or property had occurred hy reason of the signal so given, nor that the relator did not successfully extinguish the Are, and it was shown that the question as to whether or not the signal should have been given was one upon the answer to which firemen of skill and experience might differ.

      Held, that the general order only included cases in which an actual loss had been caused.
    That as the charge of incapacity rested upon this single act, which was neither a violation of duty nor conduct injurious to the public welfare, nor'the cause of loss of life, limb or property, it was hut au error of judgment, which did not authorize the removal of the relator.
    Certiorari to review the proceedings of the Are commissioners of the city of New York in removing the relator from bis office in the said department.

      Flihu Boot, Boswell D. Hatch and George B. McGloshey, for tlie relator.

      I). J. Dean and William L. Findlay, for the respondent.
   Beady, J.:

The relator was the second assistant chief of the fire department, and was removed for alleged incapacity. The specification accompanying the charge was that at a fire on the 5th of July, 1886, he unnecessarily sent out a signal known as the three-sixes, or simultaneous call, the effect of which was to put in motion more engines and trucks on the way to the fire, some of which only arrived, however, the order having been countermanded by the chief. The other charge, which was a corollary of the first, was not proved. It is that having given the signal mentioned he thereby, without due cause and reason, and'for want of judgment or skill on his part, which may have caused unnecessary loss of life, limb or property, uncovering and depriving of all fire extinguishing apparatus and seriously endangering life and property in a large and important section of the city, and thereby leaving only two companies in quarters on Manhattan Island north of Fourteenth street during the celebration of' Independence Bay, when fires are invariably of very frequent occurrence, and when it was of the utmost importance that no part of the fire-extinguishmg force should unnecessarily be out of quarters; and this was based upon a general order, which is as follows, declaring that an officer shall “ 3. Be responsible for any want of judgment, skill, neglect or failure which may cause unnecessary loss of life, limb or property.”

The rule, it will be perceived, contemplates the actual happening of one of the several events stated, namely, unnecessary loss of life, limb or property; but the specification is “ may have caused,” which is entirely different in form and substance — all the difference between the affirmative and possible. If the rule is designed to include what might happen as contradistinction from what did happen, then we are in the realm of possibilities, and dealing with shadows and not substances — with what might be but is not — and this the rule does not accomplish. The word unnecessary, in its relation to the other words of the rule, indicates clearly, indeed, that one of the several losses may occur, and, therefore, if not unnecessary, it has no vitality. In other words, if an error be made and it causes any of the losses designated, but not an unnecessary one, then the- officer is not responsible. If the design were to provide against any contingency of the kind mentioned, it should have been that the officer would be held responsible for any loss of life, limb or property caused by his want of judgment or skill, neglect or failure, and if to include possibilities as well, it should be that he would be held responsible for any loss which might occur, through his want of judgment, skill, neglect or failure. The rule does not embrace such possibilities, and if it did, it would seem to be unreasonable. As the rule must be interpreted, however, the proof failed to show its violation. The charge resting upon it clearly -was not established, no loss having resulted from the call made*

It is not supposed that the commissioners meant to base their judgment upon the theory that although the call might have caused a loss but did not, the relator was responsible and must be dismissed, but that they thought his incapacity proved and his unfitness established. The alleged incapacity rests therefore upon a single act, yielding to the respondents all they can claim. And this act was neither a violation of duty, nor conduct injurious to the public welfare, nor the cause of loss of life, limb or property, but an error of judgment and an error of judgment only. It was not charged that the relator had failed in his efforts to subdue the fire or that in the management or control of the different instruments and agents actually employed for that purpose he had erred or had shown his incapacity, but that he had in the exercise of his judgment, and it would seem from excessive caution or zeal, called into requisition more power than the emergency demanded. It was no want of skill, therefore, in handling the ap]iaratus at the fire, no want of judgment in commanding, directing or guiding the men under his command, but simply and only in calling out too many engines and trucks by which for a time other parts of the city might be exposed in consequence, although in fact the" were not so exposed, no fire having occurred.

The relator ’ was not said to have been unfit for duty by any act of indiscretion or folly, or to have shown incapacity in any other respect than that mentioned, namely, in ordering to the fire by a signal, and, on one occasion only, more engines than were needed. It must be noted also, as bearing upon the subject, that the chief officer, who was his superior in rank and called against him, testified that he was a fireman of skill and experience, accustomed to command and had commanded at fires, and that no complaint had ever before been made against him. It appeared, indeed, that he rose to the position he occupied by merit, having 6hown the necessai’y capacity to warrant his advancement, and whether the order which induced his removal was an error of judgment, depended, it must be said, upon the opinion of experts, who admitted that a difference of opinion on the subject might exist between firemen and firemen of skill and experience. Thus far, therefore, we have arrayed against the charge of incapacity many cogent facts, namely, that the relator is a fireman of.skill and experience who rose by force of his own merits to the position he occupied, and who has not only discharged the duties faithfully and well of humbler places in the department, but also in his last and highest position, and has commanded at several fires successfully; and, consequently, it must be said that, having so commanded, he must have had the capacity to discharge that important duty. Indeed, it must' be further said that he commanded at this fire successfully, inasmuch as no complaint of any result in reference to it has been made against him, and the inference fairly to be drawn from all these facts is not one of incapacity, but that a mistake was made, and that, too, not in the manner in which the apparatus at hand was employed or the force present was directed, but in giving a signal for further aid, which, while it seems to have been unnecessary, might at the moment the order was given have been quite justifiable in the exercise of a vested discretion.

This last suggestion is made for the reason that after the call a change occurred in the existing conditions by the falling of beams without causing the fall of the walls, and which diminished the danger of a more extended conflagration. It must be conceded in the estimate of the evidence against the relator, which consists chiefly of opinions that the various elements which are to be contended with in contemplating an extensive fire, when the double purpose of extinguishing it and preventing its advance is to be accomplished, may well lead to errors of judgment in the ablest and most experienced fireman. Indeed, the testimony justifies the view that it has done so, and this conclusion alone seems to demand that more than a single error of judgment shall be proved to warrant a dismissal on the ground of incapacity. No adjudicated case bearing directly upon this subject has been found except The People ex rel. Folk v. Board of Police (69 N. Y., 411), and that is not at all analogous, for the reasons that there were many charges of omission and commission, which, grouped together, were regarded as sufficient to justify the charge of incapacity. They were acts which affected the discharge of the relator’s duty in various and several aspects, and therefore entirely different from this case in which the charge rests not upon omission of duty or error in the performance of duty, or error in actually extinguishing the fire, but an error of over zeal, by which too much was done to render success beyond question in combatting a destroying element. The history of all struggles when subjected to criticism, whether arising in time of peace or war, reveals errors of judgment, errors committed by commanders of acknowledged, unquestionable ability and experience, but this has not been regarded as evidence of incapacity. Indeed, it may be said truthfully, that the man is yet to come who, in all emergencies, has not blundered, whether he be lawyer, juror or judge, major-general, minister, governor, crowned head or president! And while the error committed has demonstrated that as to the particular subject a failure to deal with it properly could not be denied, it has not been regarded as evidence of incapacity to discharge the duties of the position held or to command. Indeed, giving the full measure to capacity in its broadest sense, it does not mean infallibility, and incapacity e converso does not imply absolute fitness, unerring and unfailing ability. It means general unfitness to command, a defect of intellectual grasp, experience or aptitude to cope with the emergency in all its varied aspects, not on one occasion only but generally, a want of comprehension to appreciate surroundings and conditions and to deal with them skillfully, if not successfully, not on one occasion but generally. Experience, the master teacher, often demands the occurrence of more than one incident to prepare and instruct, and rarely contributes to success, to great achievements, to grand results, except after many impressive events. In the language of a distinguished author: Experience, like the light in the stern of a vessel, illumines only the path that is past. The conclusion, therefore, which impresses itself irresistibly, is that a single error of judgment by him, assuming one to have been committed, such as proved herein, is not sufficient evidence' of the relator’s incapacity to warrant his removal. The power of this court to review and reverse for this reason cannot .be doubted. (People ex rel. Dumahaut v. Fire Commrs., 96 N. Y., 672; People ex rel. Munday v. Fire Commrs., 72 id., 445; People ex rel. Mayor v. Nichols, 79 id., 588.)

The findings and sentence against him should, therefore, be annulled, and he reinstated.

Yan Brunt, P. J., and Daniels, J., concurred.

Finding and sentence against the relator annulled, and he reinstated with costs.


text:
    ALFRED M. SEIXAS and GEORGE PARDO, Plaintiffs, v. GEORGE P. OCKERSHAUSEN and CATHARINE A. HEALY, Defendants.

      Tender of a part of goods sold — right of the purchaser to purchase other goods, after rejecting those tendered which do not comply in quality with the contract — when he is not obliged to accept a second tender made by the vendor.

    On February 4, 1885, bought and sold notes were exchanged by which the plaintiffs sold to the defendants 150 hogsheads of choice Ponce molasses " to be shipped either by sail or steam, whichever quickest.” On the arrival of the “ O. M. Marrett,” from Ponce, with 210 hogsheads of molasses consigned to the plaintiffs, they, on March eighteenth, wrote to the defendants that they had received the papers of the “ O. M. Marrett,” and found that she only brought forty-nine puncheons and fourteen tierces of their (defendants’) molasses, and that the balance would arrive by the “ Ocean Home,” for which they had already the bill of lading They thereupon tendered, as part performance of the contract, the forty-nine puncheons and fourteen tierces of molasses to the defendants, who, on the nineteenth or twentieth of March, sampled the molasses, and finding it not of the quality called for, refused to accept it, and on March twenty-one purchased molasses to supply their wants of other persons.
    Subsequently, and on the same day, the plaintiffs tendered to the defendants one hundred and sixty-one hogsheads and fifteen tierces of Ponce molasses, which had come upon the “O. M. Marrett,” in fulfillment of their contract, which tender the defendants refused to receive upon the ground that the plaintiffs could not make a second tender after the first had been rejected. On the arrival of the “ Ocean Home ” the molasses brought by it was sampled, and found not to comply with the contract. '

      Held, that the defendants had a right to assume from the letter that the plaintiffs had purchased a particular lot of molasses in order to fulfill their contract; that forty-nine puncheons were upon the “ O. M. Marrett” and the balance upon the “ Ocean Home,” and that as the forty-nine puncheons did not comply with the contract, that the whole lot was of the same quality, and that no proper tender could be made of the molasses so purchased.
    That they had a right to assume that the plaintiffs could not comply with their contract, and to go into the market and supply their wants if they felt so disposed, and after they had done this the plaintiffs could not compel them to accept other molasses, even though it came by the first vessel which arrived after tne making of the contract.

      Borrowman v. Free (L. It., 4 Q B. Div., 500) distinguished.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict had been directed in favor of the plaintiffs at the New York Circuit.
    On the 4th of February, 1885, bought and sold notes were exchanged between the plaintiffs and the defendants in the following language: “ Sold for account of Seixas & Pardo, to George P. Ockershausen & Co., 150 hds. of choice Ponce molasses at 30c. per gallon, cost and freight, to be shipped either sail or steam, whichever quickest. Cash on presentation of documents.”
    The first vessel which arrived at this port after making this contract of sale, from Ponce, was the “ O. M. Marrett,” which vessel arrived here on the lOtli or 17th of March, 1885, and had on board 210 hogsheads of molasses consigned to the plaintiffs. On the 18th of March, 1885, the plaintiffs wrote to the defendants as follows : “ Dear Sirs: We beg to inform you that we have just received the papers of the schooner O. M. Marrett at our office, and find that she only brought 49 (forty-nine) .pclis. and 14 (fourteen) tierces of your molasses. The balance will arrive by the Ocean Home, for 'which we have already the bill of lading.” And thereupon the plaintiffs tendered, as part performance of the contract, the forty-nine puncheons and fourteen tierces of molasses to the defendants, and accompanied such tender with a bill. On the nineteenth or twentieth of March the defendants sampled the molasses and found that it was not of the quality called for by the bill of lading. They thereupon refused to accept and pay for the said molasses as not complying with the contract, and on the twenty-first went into the market and purchased molasses to supply their wants of other persons. Subsequently, on the same day, the plaintiffs tendered to the defendants 161 hogsheads and fifteen tierces of Ponce molasses, which had come upon the schooner “ O. M. Marrett,” in fulfillment of their contract of the 4th of February, 1885. The defendants refused the tender upon the ground that the plaintiffs could not make a second tender after the first had been rejected. The plaintiffs, claiming that their tender was a good one, insisted upon the same, and, after the defendants had refused to accept such tender, sold the said merchandise on account of the defendants, realizing a certain sum not necessary to be stated in this statement of the case. Afterwards, on or about the 1st of April, 1885, the “ Ocean Home ” arrived, and the molasses upon the “ Ocean Home ” was sampled and found not to comply with the contract of the 4th of February, 1885. The plaintiffs thereupon brought suit against the defendants upon the contract of the 4th of February, 1885, and asked judgment for the difference between the contract price of the molasses and that which they realized from the sale thereof. The defendants, in answer, set up the fact of the tender of the forty-nine puncheons and its rejection, and alleged that after such rejection, and before the second tender of the plaintiffs, they had supplied their wants with other molasses without any notice or intimation from the plaintiffs that they had or proposed to have any other molasses to offer to the defendants. They also set up a counter-claim for . insurance upon the molasses, alleged to have been paid by them while the same was in transitu,. Hpon the trial of the case, the learned justice directed a verdict in favor of the plaintiffs, and ordered the exceptions in the first instance to be heard at the General Term.

      Joseph A. Shoudy, for the plaintiffs.

      George W. Ellis, for the defendants.
   Van Brunt, P. J.:

The only question which seems to be involved in this case is, whether the plaintiffs had a right to make the second tender to the defendants after the rejection of the forty-nine hogsheads of molasses as not complying with the terms of the contract. In the disposition of this question it is not not necessary to determine whether, in any case, such a second tender might not be permitted, because the facts in the case at bar are peculiar. It appears from the correspondence which was exchanged between the plaintiffs and defendants in reference to this molasses, that, at the time of its arrival, the defendants were notified by the plaintiffs that only forty-nine puncheons and fourteen tierces of molasses, suitable for their contract, had arrived upon the “O. M. Marrett,” and that the balance would arrive by the “ Ocean Home,” for which the plaintiffs already had a bill of lading. These forty-nine puncheons and fourteen tierces were tendered and were rejected. From this letter the defendants had a right to assume that the plaintiffs had purchased a particular lot of molasses in order to fulfil this contract; that forty-nine puncheons were upon the “ O. M. Marrett,” and that the balance was upon the Ocean Home,” and the forty-nine puncheons having failed to comply with the contract in consequence of its inferior quality, that the whole lot was of the same quality, and that no proper tender could be made of the molasses so purchased. As to the quality of that contained upon the “ Ocean Home,” the evidence shows that that was of the same quality as that shipped by the “ O. M. Marrett,” and that neither fulfilled the contract. They thus having been informed that these particular .lots were the ones which the plaintiffs intended to apply upon their contract, and the tender having been made and, refused upon the ground of the failure to comply with the contract in respect to quality, they-had a right to assume that the plaintiffs in this action could not comply with the contract, and to go into the market and supply their wants, if they felt so disposed, and, after they had done this, the plaintiffs certainly could not compel them to accept other molasses, even though it came by the first vessel which arrived after the making of the contract, because they had notified the defendants in this action that all the molasses which they could apply to the contract in question, which had come by the “ O. M. Marrett,” was forty-nine puncheons and fourteen tierces, and in their subsequent action the defendants had the right to rely upon this representation. It was equivalent to a notice by the plaintiffs that they had no other molasses except such as would arrive by the “Ocean Home,” and that that was of a quality similar to that which was tendered as coming from the “0. M. Marrett.”

These facts and circumstances clearly distinguish the case at bar from the case of Borrowman v. Free (L. R., 4 Q. B. Div., 500). In that case a tender was rejected from a certain ship because the tender was not accompanied by the proper shipping documents. The tender was immediately renewed from another ship accompanied by the proper shipping documents, and the court held that if the first tender was not good the party making the tender had a right to with-' draw it and tender anew. There was no pretense in that case that there was any notification given to the defendant that the goods tendered wore all the merchandise which they had which would comply with the contract, and that thereupon the party to whom the tender was made went into the. open market and supplied his wants, assuming, as he had a right to do, that no sufficient tender could be made under the contract. In the case at bar, just such a notice was given, and the defendants had a right to assume, from the notice which was given, and the merchandise which was tendered, that the plaintiffs could not comply with their contract, they having been notified that the only molasses which could be applied to their contract, and which had come by the “ O. M. Marrett,” was forty-nine puncheons, and that the balance was to arrive by the “ Ocean Home.” The forty-nine puncheons tendered being of an inferior quality they had a right to reject and to assume that the balance of the lot would be of the same quality, as the evidence seems to show it was. It does not seem that the plaintiffs in this case had the right to make tender after tender, and certainly if the position of the defendants was changed after the rejection of the first tender, the plaintiffs having given no intimation that they intended to renew the same, they could not be compelled to accept that which was subsequently tendered.

The claim of the defendants for insurance does not seem to have any foundation in fact. The delivery of the molasses was to be made in New York. The title to the molasses wa.s in the plaintiffs until its arrival here; the defendants had no interest in it. Until it was tendered and accepted by them as complying with the contract, the title remained in the plaintiffs. There was, therefore, no necessity for them to insure the molasses, having no title to it, and running no risk in its loss, their only insurable interest really being the profits which they might make upon the contract. They, therefore, were not called upon to insure, and if they did so, it was at their own peril, and for the loss-arising therefrom a recovery cannot be had. We, however, being of the opinion that under the circumstances of the case, if the jury found that the defendants had, in good faith, changed their position after the rejection of the first tender, the defendants could not be called upon to accept the molasses subsequently tendered by the plaintiffs.

The exceptions must, therefore, be sustained and a new trial ordered, with costs to abide the event.

Lawrence and Potter, JJ., concurred.

Exceptions sustained, new trial ordered, costs to abide event.


author: Bartlett, J.:

text:
    JOHN A. BALESTIER, Receiver, etc., of THOMAS C. CLARK, Respondent, v. THE METROPOLITAN NATIONAL BANK OF NEW YORK and THOMAS C. CLARK, Appellants.

      Action against a banlc — it cannot be compelled to pay money into court to abide the event of the action, on the ground that it is insolvent.

    In this action, brought by the plaintiff as receiver of the property and effects of one Clark, to recover from the defendant, The Metropolitan Bank, $1,100, being a portion of $5,000 alleged to be in the possession of the bank, the bank denied that the said sum, or any part thereof, belonged to him, and alleged that the money was its own. Upon an affidavit stating that the bank was insolvent — which statement was denied by it — the plaintiff obtained an order requiring the bank to forthwith pay into court the sum of $1,400 to the credit of the action, to abide the event thereof.

      Held, that the order should be reversed, as the court had no power to make it.
    Appeal from an order directing the defendant bank to pay $1,400 into court.

      Fisher A. Balter, for the appellant,.

      William II. Beeor, for the respondent.
   Bartlett, J.:

The plaintiff, as receiver of the property and effects of Thomas C. Clark, sues the Metropolitan National Bank to recover $1,100, being a portion of $5,000 in possession of the bank and alleged to be the property of the said Clark. The bank denies, by its answer, that the said sum of $5,000, or any part thereof, is his property or was his property at the time of the beginning of the action, and alleges, on the contrary, that the money is its own. Upon an affidavit that the defendant bank is insolvent, which statement is denied in its behalf, the plaintiff has obtained an order at Special Term requiring the bank forthwith to pay into court the sum of $1,400 to the credit of this action and to abide the event thereof. Of this amount, the sum of $1,100 appeal’s to be on account of the plaintiff’s claim, and $300 for costs, interest and expenses.

We have been referred to no principle or authority upon which such an order can be sustained. Even assuming it to be true that the defendant bank is insolvent, the laws of this State do not authorize an attachment against the property of a resident debtor, simply by reason of his insolvency, and the practical effect of this order is the same as that of an attachment. To sanction the practice of thus directing defendants to pay money into court, under the circumstances disclosed in this case, would be to introduce a new method of legal procedure into the jurisprudence of this State.

The order appealed from should be reversed, with costs and disbursements.

Yan Brunt, P. J., and Maoomber, J., concurred.

Order reversed with ten dollars costs and disbursements.


author: Yan Brunt, P. J.:

text:
    In the Matter of the NEW YORK AND WESTERN UNION TELEGRAPH COMPANY, Appellant, v. HUGH J. JEWETT, as Receiver of the Erie Railway Company, Respondent.

      Proceedings to compel a receiver to pay claims — cease upon the discharge of the receiver —power of the court to vacate an order of discharge.

    This proceeding was begun in February, 1878, to compel the defendant, Jewett, as receiver of the Erie Railway, to pay to the petitioner, from the funds in his hands, a sum alleged to be due as rent for the use of certain portions of a telegraph line. While the proceedings were pending before a referee, and on December 30, 1879, the receiver was discharged.

      Held, that the moment that the receiver was discharged and relieved from the obligations of his office, all right upon the part of the court to proceed against him upon the application of the claimant summarily ceased, and that he was no longer subject to its jurisdiction, except such jurisdiction as is required in the ordinary methods available to all suitors.
    That an objection that this rule, if applied in this case, would work a great hardship, because the petitioner had no notice of the application for the discharge of the receiver, and that it could not now bring an action, because the statute of limitations had attached to the claim, was not insuperable, as the court might, if proper reasons were shown, vacate the order discharging the receiver, and thus reinstate the petitioner to the position it occupied prior to his discharge.
    Appeal from an order made at Special Term, denying the prayer of the petitioner and dismissing the petition upon the merits.
    The proceeding was brought to compel Mr. Jewett, as receiver of the Erie Railway, to pay to the petitioner from the funds in bis hands as such receiver the sum of $38,250, which they alleged to be due as rent for certain portions of a telegraph line from April 1, 1865, to January 1, 1878. The proceeding was begun in February, 1878. Upon the bearing before the referee it was shown that the receiver had been discharged on December 30th, 1879.

      Ira D. Warren, for the appellant.

      W. W. Mae Farlcmd, for the respondent.
   Yan Brunt, P. J.:

I entirely fail to see bow the court has now any power to enter judgment in this (supposed to be) summary proceeding against the receiver, who has been, discharged from bis office by the court. It is because a receiver is the servant o£ the court, and because the funds in bis bands and property in bis custody are in the possession of the court, that the summary jurisdiction can be exercised. The moment that the receiver is discharged and released from the obligations of bis office, all right upon the court to proceed against him, upon the application of any claimant summarily ceases, and be is no longer subject to their jurisdiction, except such jurisdiction is required in the ordinary methods available to all suitors. It is ui’ged that such a rule, if applicable to the case at bar, would wort a great hardship because the petitioner bad no notice of the application for the discharge of the receiver, and that they cannot now bring an action because the statute of limitations has attached to their claim. This objection is not by any means insuperable, because if a proper reason is shown the courts may vacate the order discharging the receiver, and thus reinstate the petitioners to the position which they occupied prior to his discharge.

The case of Woodruff v. Jewett (37 Hun, 205) is no authority opposed to this view. In that case an action had been commenced against a receiver, and before the entry of the judgment the receiver had been discharged. The court held that as a judgment could only bind funds held by the defendant as receiver, a judgment entered could not do any harm, as no claim could be made against him individually thereon. The court had acquired jurisdiction by action, and such jurisdiction did not at all depend upon the fact of his being ieeeiver, an officer of the court, as in the case at bar; without a vacation of the order discharging the receiver, there seems to be no way by which the petitioners herein can enforce, by these proceedings, any claim they may have.

The learned counsel speaks of getting a judgment in these proceedings, but we have not been referred to any authority or practice which will authorize the entry of a judgment upon proceedings of this description. No relief could be obtained enforceable by an execution as upon a judgment; the only relief would be an order directing the receiver to pay out of the funds in his hands, the authority to make which seems to depend entirely upon the fact that the receiver is but the servant of the court, acting in its stead, and that all the funds and property in the hands of the receiver are in the custody of the court, and the court is administering a trust which has devolved upon it.

For those reasons, I think that the order appealed from must be affirmed, with costs.

Lawrence, J., concurred.

Judgment affirmed with costs.


text:
    JOSEPHUS PLENTY, Respondent, v. ARTHUR E. RENDLE, Appellant.
    Bight to open and close the case — a judgment will be reversed uecause of am, error of the trial court in deciding it.

    The plaintiff set up in his complaint, in hmc verba, a promissory note, and alleged that it was given as evidence of an existing indebtedness, stating the circumstances under which such indebtedness arose. The defendant admitted the making of the note, and alleged facts tending to show that nothing was due thereon. Upon the opening of the case by the plaintiff at the trial, he stated that he relied solely upon the note, the making of which was not denied.

      Held, that, the court erred in denying a motion made by the defendant to be allowed to open and close the case. ’

      Oonselyea v. Swift (108 N. Y., 604) followed; Olaflin v. BaeVe (28 Hun, 204) distinguished.
    Appeal by the defendant from a judgment entered on a verdict, and from an order denying a motion for new trial made on the minutes of the justice before whom the action was tried.

      Henry H. Man, for the appellant.

      F. F. Parker and G. L. Prentiss, for the respondent.
   Van Brunt, P. J.:

The plaintiff in his complaint íd this action sets up in hcee verba a promissory note, and alleged that the said promissory note was given by the defendant to the plaintiff as evidence of an indebtedness then existing from the defendant to the plaintiff. Then follows an allegation of the circumstances under which such indebtedness arose. The defendant, in bis answer, admitted the making of the promissory note in question, and alleged certain facts tending to show that nothing was due thereon. Upon the opening of the case by the plaintiff at the trial, the counsel for the plaintiff stated that be relied solely upon the note set forth in the complaint, the making of which was not denied by the answer. Thereupon the defendant’s counsel moved that he be allowed to open and close the case, which motion was denied and an exception taken. That the right to open is a substantial one is recognized by the Court of Appeals in the case of Conselyea v. Swift (103 N. Y., 604), in which case the judgment 'was reversed because the right to open was denied to the defendant, and solely for that reason. In the case at bar the plaintiff, relying solely upon the promissory note, which was admitted in the pleadings, had nothing to prove, and the defendant was entitled to the affirmative. The objection was taken in time, because, from the nature of the allegations in the complaint, the defendant had reason to suppose that the plaintiff intended to rely for his right to recover upon proof of the contract between the plaintiff and defendant, out of which the note in question arose; and the first notice that the defendant had that he intended to rely solely upon the promissory note, was given when the plaintiff opened the case, stating that to be his sole cause of action.

It also appears from the requests of the plaintiff’s counsel to charge, that that was his position, because he requested the court to charge the jury that having put the note in evidence (which was an entirely unnecessary procedure, as the note was admitted by the pleadings) it made a prima facie case for the plaintiff, and that the burden of proof was on the defendant, which the court substantially charged. Thus it appears that the court, having determined that the burden of proof was upon the defendant, nevertheless refused the defendant the substantial right of opening and closing to the jury. This seems to have been error.

The case of Claflin v. Baere (28 Hun, 204) is not opposed to this view. The.court construed the complaint in that case to allege that the amount agreed to be paid for the goods mentioned therein became due prior to the commencement of the action, and that the answer denied this allegation in the complaint and required the plaintiff to prove that the price for the goods became due prior to the commencement of the action before a recovery could be allowed, thus throwing the burden of proving the contract upon the plaintiff, which was not the case in the action at bar.

The judgment must be reversed and a new trial ordered, with costs to the appellant, to abide the event.

Bartlett and Lawrence, JJ., concurred.

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


text:
    FREDERICK W. POSTHOFF, as Assignee, etc., Appellant, v. HENRY BAUENDAHL and Others, Respondents.

      Eaeh of several trespassers is liable to the party injured for all his damages — where he brings an action against pan-ties who have given an indemnity bond his right to recover against them is not imited by the fact that other bonds are held by the

    Upon tlie trial of this action, brought by the plaintiff to recover damages for an alleged wrongful tailing and conversion of property, it appeared that the goods had been seized by the sheriff under a warrant of attachment issued in an action brought against the plaintiff’s assignor, and that the defendants herein gave a bond of indemnity to the sheriff for the amount of the claim, which exceeded $18,000; that at the time of the levy the sheriff held one other bond of indemity for a levy under an attachment issued in another action, and subsequently received other bonds in other actions. The court limited the recovery of the plaintiff in this action to the proportion which the defendants’ bond of indemnity bore to the whole amount of bonds held by the sheriff.

      Held, that it erred in so doing.

      0 'Donohue v. Simmons (81 Hun, 267) distinguished.
    That as the plaintiff had the right 'to recover against any one, two or more of the trespassers his whole damages, he was entitled to recover his whole damages against the defendants in this action.
    Appeal from an order denying a motion to set aside the verdict rendered in this action, and for a new trial made upon the exceptions taken upon the trial and on the minutes of the justice before whom it was tried, because the verdict was for insufficient damages and contrary to evidence and to law.
    The plaintiff brought this action to recover from the defendants the sum of $50,000, as damages for trespass. The plaintiff, as assignee of H. W. Stehr & Co., claimed certain property, taken by the sheriff on January 14,1885, under an attachment issued in an action brought against H. W. Stehr & Co., and sought to hold the defendants, who had given an indemnity bond to the sheriff, liable for the damages. Upon the trial, the defendants were allowed, against the objections and exception of the plaintiff, to prove that after the delivery of the defendants’ bond, other bonds were delivered in other actions brought against the plaintiff’s assignor, amounting in all to $82,000, inclusive of that given by the defendants. This action was commenced February 28, 1885, after all the bonds had been executed.

      The court charged the jury that the plaintiff could only recover of these defendants the proportion which the amount of their indemnity bond bore to the whole, which, by mistake, was stated to be $72,000 instead of $82,000, hence five-twelfths of the value. The jury found for the plaintiff against the defendants the sum of $10,439.09.

      W. B. Putney, for the appellant

      Blumenstiel & Hirsoh, for the respondents.
   Van Brunt, P. J.:

It is admitted in this case that the total value of the goods illegally seized amounted to over $25,000, and the jury have found that the plaintiff was the owner thereof, and that the goods were seized by the sheriff at one time, and that the defendants gave the first bond of indemnity, and that the defendants’ claim amounted to over $18,000. At the time of lew the sheriff held one other bond of indemnity, and subsequently other bonds were given. Evidence as to the bonds of indemnity, other than that given by defendants, was objected to by plaintiff’s counsel, but his objection was overruled and an exception taken.

The learned judge limited the recovery of the plaintiff in this action to the proportion which the defendants’ bond of indemnity bore to the whole number of bonds held by the sheriff. In this we think the learned court erred. It is a well settled rule that where there are joint trespassers, the party injured may proceed against one, several or all for the recovery of his damages, and that he may recover his whole damages against any one, and that he may bring separate actions against each trespasser, but the satisfaction of a judgment obtained against any one of the trespassers is a bar to any further procedure in any of the other actions. (Wehle v. Butler, 61 N. Y., 245.) In the case of a trespass by -several persons, the wrong is joint and several. Therefore the satisfaction of the judgment in the case under consideration would be a bar to any action against any of the other trespassers. Each party to the trespass being liable for the whole damage, the plaintiffs in this action had the right to recover their whole damage against the defendants.

The learned court, it is claimed, based his ruling upon the case of O’Donohue v. Simmons (31 Hun., 267). Even if it be true that the sheriff can only recover pro rata of indemnitors, which is all that is intimated in that case, which can be claimed to be pertinent to this appeal, such a rule has no application to the case at bar. This was not an action upon the bond of indemnity. The bond was only evidence that the defendants aided and abetted the sheriff in the trespass, and was proof of the same character, as evidence of the presence of the defendants with the sheriff, at the time of the trespass, would have been. The plaintiff, having the right to recover against any one, or two, or three of the trespassers his whole damage, was entitled to recover his whole damage in this action. It is not necessary to pass upon any other question raised upon the the argument of this appeal.

Judgment must be reversed and a new trial granted, with costs to the appellant to abide event.

Bartlett, J., concurred.

Judgment reversed, new trial granted, with costs to appellant to abide event.


text:
    In the Matter of the Petition of COURTLANDT PALMER to Vacate an Assessment.

      Special proceeding to vacate an assessment — ecmnot be revived on the death of the petitioner — it cannot be brought after the assessment has been paid.

    In December, 1885, the executors of one Palmer applied to revive this proceeding, commenced by Palmer in December, 1873, to vacate and reduce an assessment upon property owned by him, which he had conveyed in June and November of the latter year. The assessment was paid on March 21,1874, and in June of that year letters testamentary were issued to the executors of Palmer, who died on May 10, 1874.
    Upon an appeal from an order reviving the proceeding and reducing the assessment:

      Held, that as it was a special proceeding, not within the provisions of the law relating to the revival of actions after the decease of the party prosecuting or defending them, it abated by the decease of the testator.
    That if the executors had authority to revive the proceeding, it would, from the time of its revival, be practically a new proceeding, and would be legally answered by proof of the payment of the assessment before the commencement of the proceedings to vacate it.

      Matter of Santiago, Lima (77 N, Y., 170) followed, Pursell v. Mayor, etc. (85 N. Y., 330) distinguished.
    Appeal by the mayor, aldermen and commonalty of the city of New York from an order reviving- the above entitled proceedings, and reducing an assessment by deducting the sum of $3,714.22 therefrom.

      G. L. Sterling, for the appellant.

      P. A. LTargous, for the respondent.
   Daniels, J.:

The proceeding was commenced by Courtland Palmer, in December, 1873. He conveyed away the property affected by the assessment in June and November of that year, and he himself died on the 10th of May, 1874. Letters testamentary were issued to his executors in June of that year, and they applied in December, 1885, for an order continuing the proceedings in their names as executors of the deceased testator. The assessment was paid on the 21st of March, 1874. And was a special proceeding. (Matter of Jetter, 78 N. Y., 601.) And not being within the provisions of the law relating to the revival of actions after the decease of the party prosecuting or defending, it abated by the decease of the testator. (People ex rel. Wicks v. Oswego County Court, etc., 2 T. & C., 431; Leavy v. Gardner, 63 N. Y., 624.) And it consequently, under these authorities, could not be revived, or continued in the names of the executors. But what they should have done, inasmuch as the payrnen t or removal of the assessment was necessary to complete the title to the property which had been conveyed, was to have commenced a new proceeding to set it aside, or reduce it in its amount, before making payment of the assessment. By that payment they deprived themselves of even this right, for a payment of the assessment-before proceedings are taken to vacate, or reduce it, has been held to be a legal answer to the application. (Matter of Santiago, Lima, 77 N. Y., 170.)

The proceeding is not saved by what was decided in Purssell v. Mayor, etc. (85 N. Y., 330), for it had abated, and was necessarily thereby out of the court. If the executors had the authority to revive it, it would consequently, from its revival, be practically a new proceeding, and capable of being legally answered by this fact of the payment of the assessment. Without, therefore, considering the effect of the long period of time intervening between the decease of the testator and the application for the revival of the proceeding, this order, under the authorities, seem to have been erroneously made, and it should be reversed and the motion denied, together with the usual costs and disbursements.

Yan Brunt, P. J., and Brady, J., concurred.

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


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. THE KNICKERBOCKER LIFE INSURANCE COMPANY, Defendant. Claim of PLEASANT H. PENDLETON and Others, Appellants.

      Beceiver of an insolvent corporation — when he makes himself a party to an action by conducting an appeal talcen by the company from a judgment recovered against it before its dissolution — he is bound by a judgment recovered against the company upon a new trial ordered by the appellate court.

    On May 19, 1881, a judgment was recovered upon the trial of the issues in an action brought against the defendant corporation in the Circuit Court of the United States in Tennessee, to review which judgment a writ of error was taken on May twenty-eighth from the Supreme Court of the United States, a supersedeas bond for a stay of proceedings being given by the company in the sum of $20,000, the sureties in which were secured to the extent of $21,000.
    Under an interlocutory judgment entered on December 29, 1882, in an action brought in this Slate, dissolving the company and forfeiting its privileges and franchises, a receiver was appointed to settle its affairs, who took charge of the proceedings in the first mentioned action and employed counsel, by whom the case was argued in 1884, and January, 1885, before the Supreme Court of the United States, which reversed the judgment and directed a new trial, but retained the mandate until the adjournment of the term. Before such adjournment the court, having discovered, in considering a motion for a reargument made by the plaintiff in that action, that the writ of error and citation thereon had been addressed to but one of the plaintiffs in the action, ordered the parties to show cause why the judgment of reversal should not he vacated and the writ of error be dismissed.
    Upon the petition of the receiver, stating what had been done to secure the sureties, the court permitted the writ of error to be amended and the other plaintiffs to be made parties upon the condition that a reargument should be ordered; the condition was accepted, a reargument was had, and the judgment was again reversed, the mandate being filed in the Circuit Court on December 11, 1885, where an order was made directing the cause to be docketed to stand for trial at that term..
    A judgment recovered by the plaintiff in that action, upon a trial had at that term of the Circuit Court, having been presented by persons to whom it had been assigned to the referee appointed to pass upon the claims of the receiver of the defendant corporation, was by such referee rejected upon the ground that it was recovered against the company after its dissolution.

      Held, that he erred in so doing.
    That the receiver, by taking charge of the writ of error while it was pending, and controlling and directing all the proceedings, including their extension so far as to bring in new parties, made himself the defendant in the litigation as completely as though he had been named as such in the action.
    That as the receiver had proceeded so far with the litigation as to deprive, by his efforts, the plaintiffs of the judgment which they had recovered against the company before it was dissolved, and in that manner obtained the securities provided for the indemnity of the sureties in the bond, the fact that he did not attempt to defend the action upon its retrial did not render the judgment recovered thereon any the less effectual as against him.
    Appeal by Pleasant H. Pendleton and others from an order affirming the report of a referee, disallowing a claim presented by them to the receiver of the defendant and against its assets.

      A. Walker Otis, for the appellants.

      Leslie W. Russell, for the receiver, respondent.
   Daniels, J.:

The receiver was appointed to settle the affairs of the insurance company under an interlocutory judgment recovered on the 29th of December, 1882, by which the company was dissolved and its corporate rights, privileges and franchises forfeited. The judgment, which was the foundation of the claim presented to the receiver, was recovered in the Circuit Court of the United States, including the western division of the western district of Tennessee, on or about the 25th of January, 1886, and it was rejected by the referee as unauthorized and incapable of legally sustaining the claim, by reason of the fact that it was recovered against the company after it was so dissolved. But it appeared further, from the evidence before the referee, whose report was confirmed, that a preceding judgment had been recovered on the trial of the issues in the same court on the 19th of May, 1881. From this judgment, on the twenty-eighth of the same month, a writ of error was taken from the Supreme Court of the United States, and a supersedeas bond for the stay of proceedings was given by the company in the sum of $20,000, the sureties in which were secured to the extent of $21,000. After the appointment of the receiver, he took charge of the proceedings in the action on the writ of error, and employed counsel to argue the cause before the Supreme Court of the United States. It was so argued by the counsel in 1884, and in January, 1885, the court reversed the judgment and directed a new trial, but retained the mandate until the adjournment of the term. Before such adjournment, the counsel for the plaintiff in the action filed a petition for a reargument, and while that was pending it .was discovered by the court that the writ of error and citation thereon had been addressed to but one of the plaintiffs in the action, and on that discovery the court ordered the parties to show cause why the judgment of reversal should not be vacated and the writ of error dismissed. The receiver filed a petition stating what had been done to secure the sureties in the bond, and asking for an amendment of the writ of error by bringing in the other plaintiffs in the action. This was allowed by the court, and the writ of error was amended and the other plaintiffs made parties upon the condition that there should be a reargument of the case. That condition was accepted, the cause was afterwards reargued, and the judgment was again reversed and a new trial ordered, and on that decision a mandate to that effect was issued to the Circuit Court. This was filed on the 11th of December, 1885, and an order entered on the ahthority of the mandate, directing “ that the cause be docketed to stand for trial at this term.” And it seems to have been tried and the judgment recovered pursuant to this direction.

The referee considered that this interference in the litigation by the receiver did not authorize the Circuit Court afterwards to try the cause and direct judgment in favor of the plaintiffs. And whether that was the correct view to be taken of the effect of his interference in the litigation is the point which must control the disposition of this appeal. If he made himself a party to the pro- ' ceeding by taking charge of the writ of error and employing counsel, who represented him upon the argument and in the other proceedings before the Supreme Court and afterwards in the Circuit Court, then he could not, by subsequently abandoning the action, prevent the plaintiffs from bringing it to trial and obtaining a judgment in it entitling them to participate in the distribution of the proceeds of the assets of the company That he was not named in the title of the cause as the receiver of the company was not important, for a person may become a party to a legal proceeding without that formality, as was held in Jay v. De Groot (2 Hun, 205), and in Castle v. Noyes (14 N. Y., 329). To make himself a party to the action and to conclude him by the judgment, no more was required than the enjoyment of the right to appear and control it, to appeal from the judgment, and produce and resist evidence upon the trial of the issues. (Id., 332.) And the receiver was allowed to place himself, as he voluntarily did, in a position where he secured these rights ; for, while he did not himself bring the writ of error from the judgment, he took charge of it after his appointment and while it was pending, and controlled and directed all the proceedings under it, including their extension, so far as to bring in the other plaintiffs in the action, and which, as to them, had the effect of a new writ. Beyond that, the mandate of the court reversing the judgment and directing a new trial was filed under his authority, and the cause was in like manner directed to stand for trial; and as he had been allowed by the court to take charge of the litigation in this manner, he undoubtedly was in a position where he had the right to contest the plaintiff’s cause of action' upon the trial. And the fact that he voluntarily failed to do that, cannot be permitted to relieve him from the effect of his preceding conduct, by which he made himself a party to the action. In the proceedings carried on at his .instance and under his authority, the Supreme Court of the United States must have taken this view of his relation to the litigation, and that his proceedings were regular for that purpose, without being himself substituted as the nominal defendant in the action; for, if that view had not been adopted, the receiver would not have been permitted to carry on the litigation as he did, and to be represented in the argument of the cause, as that was done while it was pending in the Supreme Court. No other view can reasonably be taken of what there transpired than that the court considered him regularly entitled to proceed with the litigation as he did, as the receiver of the company, although the company itself had previously been dissolved, and, in what he did, he has as completely made himself the defendant in the litigation as though he had been named as such in the action.

This case differs in these material circumstances from that of McCulloch v. Norwood (58 N. Y., 563), for there was no participation there, on the part of the receiver, in the action in the State of Ohio, in which the judgment sued upon was recovered, and beyond that the illegality of the judgment was determined upon the concession that the law of the State of Ohio, relative to the abatement and revival of actions was the same as that prevailing in this State, which required the receiver, as a matter of regularity, to be made a party after the corporation itself had been dissolved. There was neither no such concession in the present case, nor was it made to appear that by the law of the State of Tennessee, in which the action was pending, and was tried, there was any irregularity in carrying the litigation to a final termination in its name, when the company had, during its pendency, been dissolved and a receiver of its effects had been appointed. The presumption, on the other hand, would be from the course of the proceeding before the Supreme Court of the United States, that it was regularly conducted in the name of the company, notwithstanding its dissolution during the pendency of the action. This circumstance also distinguished this case from that of Matter of Norwood (32 Hun, 196), and it is supported to some extent, at least by a decision which was made in Hibernia Bank v. Mechanics', etc., Bank (21 Hun, 166), and Cruger v. Hudson River Railroad, Company (2 Kern., 190), warrants no other or different view, for in that case the conduct held not to be a waiver of the proceeding carried on in the absence of legal authority, consisted of mere objections, while here the receiver took charge of, and himself conducted, the litigation upon the writ of error, the filing of the mandate, and the entry of the direction for another trial. That was a litigation of the action upon its merits, which, even according to this authority, would have been a waiver in the proceedings under consideration. (Id., 201.)

The receiver proceeded so far with the litigation as to deprive, by his efforts, the plaintiffs of the judgment which they had recovered against the company before it was dissolved, and in that manner he obtained the secuiities provided for the indemnity of the sureties in the bond on suing out the writ of error. After that he had nothing to gain by continuing to resist the plaintiff’s action, unless he might have made a successful defense upon the trial. But that he elected not to attempt, but left the action to be tried under the order entered in the Circuit Court, containing the necessary direction for that purpose. By this abandonment of the litigation after he had made himself, for all practical purposes, a party to it, and had secured its control, direction and disposition, he could not relieve himself legally from the result of the proceedings. The action had become, for legal purposes, an action against himself as receiver, by these proceedings taken under his authority, with the sanction of the Supreme Court. After that, no necessity existed for a more formal revival of the action by inserting his name as defendant in place of the company, for he had sanctioned the regularity of the litigation in the shape in which it was terminated, by himself continuing ft in the name of the company. This rendered the judgment finally recovered legally effectual against him as receiver, and it should have been permitted to be included with the other claims to be paid, as far as that might be done, out of the proceeds of the assets of the company to be disposed of and distributed by the receiver.

The order should be reversed, with the usual costs and disbursements, and an order entered directing the allowance of the claim made, and the receiver to include it with those of other claims against the assets of the insurance company.

Van Brunt. P, J. and Brady, J,, concurred.

Order reversed, with ten dollars costs and disbursements, and order entered as directed in opinion.


text:
    LUCY A. DUNHAM, Plaintiff, v. JOHN TOWNSHEND and Others, Defendants.

      Sheriff's deed of property sold on execution — effect of, as proving the existence of a judgment — 3 R S. (6th ed.), 635, sec 83 — from, what circumstances the existence of a judgment will be inferred — only the purchaser at the sale can object to irregula/rities m the proceedings when a deed is executed, to a redeeming creditor— 8 R 8. (6th ed.), 634, secs. 80, 81.
    This action, brought by the plaintiff to recover the possession of an undivided one-half of certain lots of land situated on the south side of Ninety-ninth street in the city of New York, was defended by one Townshend, who claimed that the plaintiff was not the owner of the interest claimed, but did not claim in his answer to be himself the owner of any interest in the property. Upon the trial it was shown that the premises in question were, on December 21, 1840, sold by the sheriff of the county of New York, pursuant to an execution issued to him, which recited the recovery of a judgment against one Hall for the sum of $4,611.40, and directed its collection either out of the personal property of the defendant or any real estate which he owned oh January 21, 1839; that on April 22, 1842, a deed was executed by the sheriff conveying the premises, not to the purchaser, but to one Adriance, who, it was recited in the deed, had, as the assignee of another judgment creditor, redeemed the land under the statutes. It was further shown that the said Hall was on the said 21st day of January, 1839, the owner of the said premises, and that the plaintiff’s claim was based upon the title acquired by Adriance under the said deed. It was also shown that the defendant Townshend had, in 1876, taken deeds conveying an undivided one-sixth of the property from other persons, who were not shown to have acquired or owned any interest in the land.
    Held, that the omission to prove and read in evidence the judgment on which the execution was stated to have been issued, did not render the sheriff’s deed ineffectual as a conveyance of the title of Hall in the premises.

      It seems that section 83 of 3 Revised Statutes ([6th ed.], 635), declaring that the conveyance made by the sheriff “ shall be valid and effectual to convey all the right, title and interest which was sold by such officer,” requires the deed to be considered as evidence of the authority as well of the regularity of the sheriff’s proceedings.
    That, even if this were not so, yet as the sheriff’s deed was made about forty years before the commencement of this action, and it was not until 1876 that the defendant Townshend obtained the two deeds, put in evidence as a portion of his defense, and as during that time no person appeared to have questioned the legality or regularity of the sheriff’s proceedings, or his right to sell and convey the property under the execution, and as the property had been dealt with by his grantee and others upon the assumption that the deed had conveyed the title to it, it might well be presumed, as an inference of fact, that a judgment had been recovered, as it was mentioned in the execution, and that the deed made by the sheriff did convey the title to this land.

      Phillips v. Seltiffer (7 Lans., 347) followed.
    That the objection that proof should have been given of the acquisition by Adriance of the right to the deed, to the exclusion of the purchaser at the sale, could not be raised by the defendant, who was a mere intruder, hut only by the purchaser at the sale.
    Motion by the defendant for a new trial on exceptions ordered to be heard in the first instance at the General Term.

      A. B. Tappen, for the plaintiff.

      John Townshend, defendant, in person.
   Daniels, J.:

The plaintiff, claiming to be the owner of an undivided half, brought this action to recover the possession, of that part of five lots of land of twenty-five feet front each situated on the southerly side of Ninety-ninth street, 100 feet westerly of Second avenue, in the city of New York. Before, and at the time when the action was commenced, the other defendants were in the occupancy and possession of the property as lessees or assignees of the defendant, John Townshend. Possession of the property was demanded from the defendants before the commencement of the action, but it was not surrendered to the plaintiff. The defendant, John Townshend, defended the action, but he did not, by his answer, claim to be the owner of any interest in the property. It did appear that he had taken two deeds from other parties for an undivided one-sixth of the property, but it was not shown that either of the grantors in the deeds ever acquired or owned any interest in the land, or had any title whatever to convey to this defendant, and for that reason these deeds had no special operative effect by way of defense in the action.

The real defense which was made was that the plaintiff was not the owner of the interest claimed by her in the property, but that it was owned either by the city of New York, as land between high and low-water mark, or by a general assignee for the benefit of creditors, or a receiver appointed by the Court of Chancery. To support the allegation of title in the city, evidence was given on behalf of the defendants tending to prove the fact to be that the land was overflowed by the ordinary full tides. This was denied by the plaintiff, whose testimony tended to prove the contrary, and that the land, with the exception of certain creek bottoms in it, was above the ordinary full tide. But, as the case was made to appear, the title of the city to the property was not established by this evidence, for it was shown to have disclaimed title to it, and on the application of a person acting in part on behalf of the plaintiff, it had directed a deed to be executed and delivered conveying the right, title and interest of the city in the property for the benefit of the persons for whom this individual ivas acting. It was further proven that the city authorities had for many years taxed this property as belonging to private owners, and had assessed it for local improvements, and that such taxes and assessments had been paid; and this conduct would probably preclude the city from claiming title to this property upon such debatable evidence as was introduced upon the trial of this action, and the additional fact that this property had been conveyed and dealt in and used as private property justified the conclusion adopted at the trial, that the city had no title to it as land between high and low water.

The general assignment, which was relied upon as including the conveyance of the property to a general assignee for the benefit of creditors, was executed by Charles Henry Hall and his wife to Daniel P. Hall and Charles Mullett Hall, on the 22d of November, 1839. This was an assignment in the ordinary form, for the benefit of the creditors of Charles Henry Hall; and after that, and on or abont the 24th of November, 1842, a further assignment was executed by Charles Henry Hall to a receiver of his property, appointed by the vice-chancellor of the First Circuit of the State of New York. But before either of these assignments were made the sheriff of the county of New York received an execution, which he was directed to levy and collect out of the property of the judgment debtor, Charles Henry Hall. This execution recited the recovery of a judgment against Charles Henry Hall for the sum of $4,611.40, and directed its collection either out of the personal property of the defendant or any real estate which he owned on the 21st. of January, 1839, or at any time afterwards. Under this execution the sheriff seized and sold the interest of the judgment debtor, Hall, in the land. This sale was made on the 21st of December, 1840, and it was followed by a deed on the 22d of April, 1842. It was not made to the purchaser of the property, but to Isaac Adriance, who, it is recited in the deed, had, as the assignee of another judgment creditor, redeemed the lands, as he was entitled to do under the statute, and upon such redemption and after the expiration of the statutory period, this deed was executed and delivered by the sheriff. And it was under this deed that the plaintiff in the action was held to be entitled to recover the possession of the property; for the grantee in it afterwards conveyed the property to Lewis A. Sayre, who, afterwards, with his wife and another, conveyed it to Maimice "Wurts. That conveyance was succeeded by another, executed by Wurts and others to Oliver D. Dunham, who was the husband of the plaintiff. He was shown to have died in 1859, leaving the plaintiff and a minor son him surviving. This son died without issue during his minority, leaving the plaintiff, his mother, his sole and only heir. And under this title the plaintiff was entitled to maintain the action, if the sheriff’s deed, as it was proven and read in evidence, conveyed the title of Charles Henry Hall in the property, which title had been derived under Samson Benson, and it was when he owned the land, a farm connected with the place, upon which McGown and his wife then resided. This portion of the farm consisted of low lands; McGown cultivated all the tillable lands, and the marshes or salt meadow he is stated to have used for pasture and to cut grass. The witness, who was his son, testified: “ He cut the sedge off the salt meadows, also the salt grass, which is fine grass. My recollection is my father cut the grass on the salt meadows and pastured cattle there during all the time he lived there. * * * This occupation by my father continued down to 1833. He lived there in 1833; then he rented it out, as I understand it. It was sold in 1835. Margaret McGown, my father’s mother, gave the deed.” She was the daughter of Benson, and executed and delivered the deed of the property to Edward Sand-ford, which appeared to , convey the title; for the occupancy of McGown under Benson was legal evidence that he and his daughter after him were the owners of this property. And Sandford, in 1835, by deed, conveyed the estate to Charles Henry Hall.

The objection most strenuously urged to the sheriff’s deed, as a conveyance of the title, was placed upon the omission to prove and read in evidence the judgment on which the execution is stated to have been issued; for the deed did describe the land in such a manner as' to locate and include the property in controversy. Whether the judgment should have been produced in evidence is, therefore:, the important and controlling point arising in the case. The execution issued to the sheriff recited or stated the recovery of the judgment, on which the sheriff proceeded in selling and conveying the property. But this mere recital, although evidence against the parties themselves, would not, under the settled principle of law, affect the defendants in this action, for a recital is not evidence against a stranger to the instrument in which it is contained. (Hardenburgh v. Lakin, 47 N. Y., 109; French v. Edwards, 13 Wall., 506-515.) Proof of the judgment has in earlier cases been considered to be essential to the support of a title derived under an execution sale (Jackson v. Roberts’ Executors, etc., 11 Wend., 422-441), and such proof has been made part of actions brought to recover on the strength of such a title. (Jackson v. Vanderheyden, 17 Johns., 167; Jackson v. Sternberg, 20 id., 49.) But these cases arose under the Revised Laws, which did not declare the effect of a conveyance made by the sheriff pursuant to a sale under an execution. They provided only for the course of proceeding, and declared the duties and obligations of the sheriff in advertising, selling and conveying the property. (1 R. L., 500-505.)

When the Revised Statutes were enacted, it was then further declared that the conveyance made by the sheriff under its provisions, shall be valid and effectual to convey all the right, title and interest, which was sold by such officer” (3 R. S. [6th Ed.], 635, § 83); and that would seem to have been intended to give the sheriff’s deed a much greater effect as evidence than it could have had prior to and in the absence of this enactment. This provision was not considered in Townshend v. Wesson (4 Duer, 342), but the old rule was referred to as applicable without any reference whatever to this statutory addition: It was not, however, important that it should be there considered in the decision of the case, for it appeared, as a matter of fact, that there was no judgment under which the sale, then in controversy, had been made. It was under this state of the law, that the sale and conveyance were made, through which the plaintiff claims to have derived her title. And the deed certainly could not be valid and effectual to convey the right, title and interest of the debtor, unless it is to be considered as evidence of the authority, as well as of the regularity of the sheriff’s proceedings.

But it is not necessary to dispose of this case wholly upon the effect of this provision of the statute, for the sheriff’s deed was made about forty years before the commencement of this action,' and it was not until the year 1876 that the defendant, Townshend, obtained the two quit-claim deeds, put in evidence in the case as a portion of his defense. To that time certainly no person appears to have questioned the legality or regularity of the sheriff’s proceedings, or of his right to sell and convey the property under the execution, but the property was dealt with, by his grantee and others, upon the assumption that his deed had conveyed the title to it. And under these circumstances,, with this lapse of time in its favor, it may well be presumed, as an inference of fact, that a judgment had been recovered, as it was mentioned in the execution, and that the deed made by the sheriff did convey the title to this land. A similar course to this was sanctioned sustaining a controverted title in Phillips v. Schiffer (7 Lans., 347), and no good reason appears for now rejecting this title.

It has been objected, that proof should have been made of the acquisition by Adriance of the right to the deed, to the exclusion of the purchaser at the sheriff’s sale. But what the statute provided for in that respect was to transpire, as it is stated to have done, wholly between the sheriff and the person acquiring the right to the deed (3 R. S. [6th Ed.], 634, §§ 80, 81), and even if he proceeded irregularly, or accepted evidence of the right of the vendee, inferior to that provided for by the statute, the only person who could complain of his conduct was the individual who became the purchaser at the sheriff’s sale. (Wood v. Morehouse 45 N. Y., 369, 378.) And the case of Moores v. Townshend (3 Cent. Rep., 441), is in no respect inconsistent with this authority. Neither are the others referred to on the part of the defendant. This title was paramount to that conveyed by the general assignment made by Hall for the benefit of his creditors, and so it was also to every interest which might otherwise have been affected by the conveyance or assignment to the receiver in chancery.

By the evidence given upon the trial the defendants were mere intruders upon this property, having no right, title or interest whatever therein, and even though the plaintiff’s title, under the sheriff’s deed, may have been to some extent irregular or defective, they had no such relation to the proceeding or the property as entitled them, or either of them, to raise the objection. (Jackson v. Harder, & Johns., 202-210.)

The title, in any view which may be taken of it, was sufficient against these defendants, and the motion made for a new trial should be denied, and judgment directed on.the verdict in favor of the plaintiff.

Brady and Bartlett, J J., concurred.

Motion for new trial denied, and judgment ordered for plaintiff on the verdict.


author: Brady, J.:

text:
    RICHARD W. HURLBUT, Appellant, v. MARGARET J. COMAN and Others, Respondents.

      Motion to set aside a judgment on the ground of fraud — the limit fixed by section 1290 of the Code of Oiml Procedure is not applicable to it.

    Section 1290 of the Code of Civil Procedure, limiting tlie time within which motions to set aside a final judgment should be made to two years from the filing of the judgment-roll, does not apply to a motion made to set aside a judgment upon the ground that it was obtained by fraud.
    Appeal by the plaintiff from an order vacating because of fraud, a judgment, entered in this action on November 9, 1866

      W. W. Goodrich, for the appellant.

      8. Untermeyer, for the respondents.
   Brady, J.:

The various statements made on behalf of the respondents, for the purpose of establishing fraud and imposition practiced upon Mrs. Coman and the infant defendants, may be regarded as substantially admitted; and, without going into any detail here in their presentation, inasmuch as the whole matter must be the subject of a more formal investigation, it is sufficient to say that they fully justified the exercise of the power of the court in vacating the judgment. If, however, the suggestion that these allegations are substantially admitted is incorrect, it must be said that they are abundantly established, and the result would be the same.

The only question of any significance which is set forth by the record is whether or not the limit created by section 1290 of the Code is applicable to the motion from which this appeal springs. It provides that a motion to set aside a final judgment for error in fact, not arising upon the trial, shall not be heard except as specified in section 1291, after the expiration of two years from the filing of the judgment record. The exceptions contained in section 1291 relate to persons against whom the judgment is rendered and who at the time of the filing thereof are either within the age of twenty-one years or insane, or imprisoned on a criminal charge, or under execution upon conviction of a criminal offense for a term less than for life. None of these exceptions apply to this case, inasmuch as the motion was made upon the ground of fraud and granted for the reason that the charges made were established.

It might perhaps be instructive and useful, to array the eases in which the Supreme Court has asserted its power over its own records to modify, amend or vacate them, independently of any special authority conferred by statute. But it is not deemed necessary to do moi’e than to refer to a case in which the Court of Appeals have plainly intimated that section 1290, does not apply to a proceeding like the one in hand. (Matter of Tilden, 98 N. Y. 444.) In that appeal various section, of the Code limiting proceedings under them were considered, and it was said that they would govern, except in cases where fraud and collusion were made the ground of the proceedings. And the court then proceeded to say: “An application to set aside a judgment on the ground of fraud or collusion, or as being void for any reason, or because the court has not acquired jurisdiction of the person against whom it is rendered, is, of course, not governed by those limitations. But when the ground of relief is the infancy of the party applying or the existence of irregularities ‘in the course of proceeding, we think the application is analogous to that provided by section 2481, and is governed by the provisions of sections I28S and 1290, and should, therefore, if two years have expired from the entry of the decree, be made within one year after the minor arrives at the age of twenty-one.”

Starting, therefore, with the proposition asserted that this court has an inherent power over its own records, and could not be deprived of the right, especially where the parties remain the same, to correct a fraud perpetrated through its process, and impressed with the various suggestions made in the case cited, there seems to be no other conclusion justifiable than that section 1290 was not intended to restrict the court in the exercise of its jurisdiction to the limit therein contained, but to leave the asserted and certain power of the tribunal in cases of fraud as it was and had been from its organization.

For these reasons, without going into any elaborate discussion of the subject, we think the order should be affirmed.

Yan Brunt, P. J., and Daniels, J., concurred.

Order affirmed.