author: Bockes, J.:

text:
    JESSE B. ANTHONY AND HENRY O. DUSENBERRY, Respondents, v. JAMES STYPE, Appellant.

      Threats by debtor to make an assignment, with preferences — what acts, accompanying suah threats, show a fraudulent intent to dispose of his property.

    The papers, upon which an attachment was issued, showed that the defendant, a merchant, was indebted to the plaintiff for goods sold and delivered; that on the plaintiffs’ applying for payment defendant stated that he was insolvent; that he was willing- to turn out his goods to his creditors, if they would accept them pi’o rata on their claims, and discharge him from further liability therefor; that if he was sued he would make an assignment with preferences, and leave those suing him out, so that they should get nothing on their claims ; it was also shown that notwithstanding his admitted insolvency, he kept his store open, and continued to dispose of his goods, and appropriated the proceeds thereof to other purposes than to the payment of his debts, refusing to pay anything, either in goods or money, to his creditors.
      Held, that these facts showed such an attempt to fraudulently dispose of his property as to justify the issuing- of an attachment.
    Appeal from an order made at Soecial Term, denying a motion to vacate an attachment.

      D. A. Johnson, for the appellant.

      33. II. Heavy, for the respondents.
   Bockes, J.:

This is an appeal from the order of the Special Term, denying a motion to set aside an attachment.

The warrant of attachment was granted under, and pursuant to, section 636 of the Code of Civil Procedure, on the ground that'the defendant was about to assign or dispose of his property, with intent to defraud his creditors. The motion to discharge-the warrant of attachment was made on the papers used in obtaining it; and was based on the insufficiency of those papers alone.

It was made to appear, from those papers, that the defendant was justly indebted to the plaintiffs on contract, for goods, wares, and merchandise sold and delivered in the sum of $275.14,. besides interest; that the defendant had been, and still was, a merchant, doing business at Gouverneur, N. Y.; that he had become, and was, insolvent; that the plaintiffs (through agents)called on the defendant for payment; that he admitted his inability to meet his engagements and to pay his debts in full; that he was willing to turn out his goods to his creditors, if they would get together and agree to take and apply them, pro rata, on their claims, and discharge him from further liability ; that .ho asserted that, if sued, ho would make an assignment, with preferences, and would leave out those suing, so that they should get nothing on their claims; that, notwithstanding his admitted insolvency, he kept his store open, continued to dispose of his goods, and appropriated the avails of sales to other purposes than to the payment of his debts, refusing to pay anything, either in goods or money, to his creditors, and declaring that he would not pay anything unless his creditors all agreed to take his goods and apply them, pro rath, and discharge him ; that a large number of his creditors refused these terms, but, so far as was known, they were willing to take the goods and apply them on his indebtedness ; but this-he refused, and continued to dispose of them, and that he deterred, his creditors from suing him on penalty of losing their claims.

It seems to me that here is abundant proof of an attempt to-make a fraudulent disposition of his property. Indeed, his disposition of his property daily, appropriating the avails of sales otherwise than to the payment of his debts, was a fraud upon his. creditors. He was irrevocably insolvent, yet he continued to dispose of his property, refusing to apply the avails to the use of his. creditors, and threatening them with the entire loss of their claims in case they should exercise their legal right to obtain their pay. Being insolvent, his creditors had a right to the immediate^ application of his property in satisfaction of their claims. He refused this application, except as it was to be accompanied with unconscionable terms, and threatened an unequal distribution, to-be based on an unfair discrimination. A creditor had a right to sue him, and should he do so it would give no just or honest cause for placing him where he would lose his entire claim.

It has been held that it was no evidence of fraud for an insolvent debtor to threaten an assignment, for this would but imply an equal distribution among his creditors ; and equality is equity. (Dickerson v. Benham, 20 How., 343.) So, too, it has been hold that a threat to give preference might not bo evidence of a fraudulent intent, because in some cases this would be just and equitable. But such a threat gives suspicion of fraudulent purpose,, and, with slight circumstances tending in the same direction, uphold a presumption of fraudulent intent. It was held in Gasherie v. Apple (14 Abb., 64), that a debtor cannot use the power-he has of assigning his property preferentially to intimidate creditors into abstaining from pressing the remedies allowed by law to collect debts, without being chargeable with intent to defraud them. In this case, Wilson v. Britton (26 Barb., 562), is, I think, properly commented on. In Livermore v. Rhodes (27 How., 506), the debtor made threats similar to those made in this-case. The court remarked that the threats evinced an intention to dispose of property so as to baffle the creditors in the speedy collection of their debts, which, of course, could only he done by illegal means, I commend the following remarks in Gasherie v. Apple (supra), as sound, to wit: “ The law allows a debtor to assign his property to pay his debts, and even to make preferences ; but compels him to make his selection without any conditions for personal gain to himself thus he cannot, by an assignment, hold out a hope of an extra share of his assets, or a fear of loss of any participation therein as a means to induce a creditor to abandon all, or any part of his claim, or to forbear pursuing his legal remedies “therefor.” Now, what' would be fraudulent in this regard, in an assignment would be fraudulent out of it. But this case is much stronger than any cited in the books. Here it is made to appear that the defendant employed the threats stated to prevent legal action by his creditors, while he could make disposition of his goods fraudulently from day to day, for it is shown that he continued to make sales of goods, appropriating the avails to some purpose other than to the payment of his debts, refusing their payment at all either in goods or money. Here was the fraudulent act itself continued from day to day, affording absolutely conclusive evidence of the fraudulent intent charged.

The order appealed from should be affirmed, with ten dollars costs of appeal and expenses for disbursements.

Boardman, J., concurred.

Present — Learned, P. J., Bocees and Boardman, JJ.

Order affirmed, with ten dollars costs and printing disbursements.


source: Caselaw Access Project

author: Bocees, J.:

license: Public Domain

text:
    MARIA ARREX, Respondent, v. ANDRIES L. BRODHEAD and others, Appellants.

      Officer executing process regular on its face, protested thereby.

    Where, after a judgment and sale in foreclosure, a writ of assistance, regular and. fair upon its face, is issued against one of the defendants therein, the officer executing the same, and those assisting him, are protected thereby, even, though the writ were irregularly issued, and the defendant would be entitled to have the same set aside on motion.
    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.
    This action was brought to recover damages for a wrongful eviction of the plaintiff from premises, of which she was in. possession, and of which she claimed to be a part owner.
    On the 4th day of March, 1876, the defendant Yandemark purchased certain premises lying in the town of Rosendale, Ulster county, at a foreclosure sale, and on the 14th of March, 1876, he received the referee’s deed therefor. He found one Maria Arrex in possession of the premises, who, on demand made, refused to yield possession. She was a party to the foreclosure suit and had appeared by attorney therein, and he had notice of the application for judgment. On proof of these facts an application was made for an order for a writ of assistance, which was granted, and the writ issued to the sheriff' of Ulster, who deputized the defendant Brodheaci to execute it. He requested the defendant Yandemark, the purchaser, to assist in its execution. The writ was executed on the 22d of March, 1876, and the plaintiff brings this action for damages for the eviction and for injury to her person, claiming an interest in the property, not subject to the mortgage foreclosed.

      J. Newton Fiero, for the appellants.

      J. E. Van Etten, for the respondent.
   Bocees, J.:

The defendant, Brodhead, in removing the plaintiff from the premises, was acting as a public officer under process, which he was by law authorized to execute; and the defendant, Vandemark, acted under him in his aid. There is here no question of excess of force in the execution of the process, as the court held, that, irrespective of that question, the process afforded the defendants no protection whatever for their acts in making the removal. In this ruling we are of the opinion that the court was in error. The process was fair on its face. The court awarding it had, in this case, not only apparent, but actual, jurisdiction both of the person and subject-matter of the action in which it issued ; and the plaintiff was a party defendant in that action. Process thus issued by the court, if fair on its face, will protect the officer in its execution. (O'Reilly v. Good, 42 Barb., 521; Hudler v. Golden, 36 N. Y., 446 ; The Troy, etc., R. R. Co. v. Kane, 72 N. Y., 614; Deutsch v. Reilly, 7 Weekly Dig., 523 ; Shaw v. Davis, 55 Barb., 389 ; Field v. Parker, 2 Hun, 342.) There are many other cases to the same effect. It has been repeatedly decided that process in due form, issued by a competent tribunal or officer authorized to act in that regard, will protect a ministerial officer who acts under it according to law; that such process will afford complete protection to the officer charged with its execution ; and so, too, as to those who act in aid of the officer. (Landt v. Hills, 19 Barb., 283 ; Doolittle v. Doolittle, 31 Barb., 312; Elder v. Morrison, 10 Wend., 128.) Nor does it make any difference that the officer is indemnified. (Horton v. Hendershot, 1 Hill, 118.) In the last case cited it is said that taking indemnity does not deprive the officer of the protection which his process affords ; nor would knowledge by him of a want of jurisdiction deprive him of its protection, so be it that the process is fair on its face. (Noble v. Holmes, 5 Hill, 194; The People v. Warren, 5 id., 440 ; Webber v. Gay, 24 Wend., 485.) He may not, however, build up for himself a title under process, unless it be well issued in law.

The plaintiff’s counsel insists that the writ pf assistance could only issue to dispossess those whose rights had been determined by the judgment in the action in which it issued — that is, could only regularly issue. If this be admitted, it would but .raise a question of irregularity. The writ would still remain good until set aside. So, too, it is urged that the plaintiff had rights as tenant in common of the premises which were available to her against the execution of the writ, because as was claimed .such rights were not determined by the judgment in the foreclosure suit. Still, the fact remains that the writ was against her, .and. was, on its face, regular and fair. So the officer would be protected in its execution. Even if she could set it aside on motion, it would afford protection to the officer while it remained in force. And, again, .it is said in the MSS. opinion of Judge Allen, in Wilbor v. Daniels, furnished us by counsel, that “ whether the purchaser shall have the benefit of the summary proceeding, or resort to some other remedy to secure the fruit of his purchase ; and whether the party resisting the claim of the purchaser to immediate possession upon some claim of right, independent of the judgment,-and consistent with it, shall be permitted to retain the possession and drive the purchaser to his action, or shall yield possession, and himself seek any relief to which he may be entitled by proper action, are questions addressed to the court having jurisdiction to give the process.” The case, then, still stands upon the ground that the writ of assistance, being against the plaintiff, and on its face regular and fair in all respects, afforded protection to the person entrusted by law with its execution. The judgment and order appealed from must be reversed.

Judgment and order reversed, new trial granted, costs to abide the event.

Learned, P. J., and Boardman, J., concurred.

Judgment and order reversed, new trial granted, costs to abide > event.


author: Learned, P. J.

text:
    CATHARINE WIEL, Respondent, v. CORNELIA M. STEWART, Appellant.

      Action for nuisance— ibhen the declarations of parties affected by, inadmissible — measure of damages.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action was brought to recover damages for an alleged nuisance, which it was claimed consisted in the manufacturing of soap in a certain laundry near to the plaintiff’s premises, and also in discharging from said laundry a stream of foul water which ran under the plaintiff’s premises. These causes it was averred produced an offensive smell, which rendered the plaintiff’s premises unfit for habitation.
    The plaintiff kept a summer hotel, and claimed that, by reason of this offensive smell, some of her boarders went away, and that other persons refused to become boarders there on that account..
    The pourt at General Term said : “In the course of the trial evidence was offered by, the plaintiff, and admitted against the objection, of the defendant, that the guests of the plaintiff complained about the smell; that they said that they came there for’ the good of their health, and not for the nasty smell there was. in the house ; that they spoke of the smell, and said they would not stand it any longer and would rather leave.
    “ This evidence, we think, was objectionable. It was not any part of the res gestee ; for it did not accompany the act of going away from the house. It was merely ordinary talk. It was no evidence that an offensive smell existed, which was one of the principal facts in controversy. The guests whose conversation was thus detailed could have been called to prove the fact of 'an offensive smell.
    “Again, the rule of damages is laid down in Francis v. SchoellTcqpf (53 N. Y., 152), to be the difference in rental value, free from the stench and subject to it. And this was the rule which the plaintiff herself seems to have adopted. For she gave proof on that point. Therefore, even if the guests had gone away on account of the offensive smell, and even if their language, when going away, had been proved, in order to characterize their act, still the difficulty remains, that it was immaterial whether they went away or not. This evidence might have influenced the jury in their verdict. They might have given damages for the loss of boarders.”

      Charles 8. Lester, for the appellant.

      Putnam <& Fustis, for the respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Bockes and Boardman, JJ.

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


author: Boardman, J.

text:
    PHILIP H. WOOLSEY, Respondent, v. MIDAD T. MORSS, Appellant.

      Adverse possession — occupancy for forty years raises a presumption of ouster of a co-tenant.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was for trespass in entering upon land of the plaintiff. The court, at General Term, after holding that plaintiff’s title to the lot, about 13 J acres, was established by adverse possession, said : “Upon the other branch of the case, the defendant’s position is not maintainable. He claims to be the grantee from one of the heirs-at-law of the 13-| acres of the l-108th part thereof, or about one-twelfth of an acre of land, and that he is thus a tenant in common with plaintiff, and has an equal right to the possession.

      “ But, since 1834 at least, the plaintiff, and those under whom he claims, have boon in the entire and exclusive possession of those premises. They have cultivated the same, and received the rents and profits for all that time. From time to time conveyances have been made purporting to convey the entire lot, and possession has been taken and held under and by virtue of such deeds. No one, so far as appears, has ever questioned the rights of those in possession, or demanded to be let into possession, or asserted any right to the property or its possession. After .so great a lapse of time — over forty years — a jury might properly find an actual ouster. (Doe ex dem. Fishar v. Prosser, Cowp., 217.) Says Justice Aston: ‘What is adverse possession or ouster if the uninterrupted receipts of the rents and profits, without account for forty years, is not?’ Willis, J., says : “After a peaceable possession for such a length of time, I think it would be dangerous now to admit a claim to defeat such possession.’ Ashurst, J., says : ‘After so long an acquiescence, I think the jury wore well warranted to presume anything in support of the defendant’s title, and they might presume either an actual ouster or a conveyance.’ In Frederick v. Gray (10 Ser. & Rawle, 182, 188), Tilghman, Ch. J., says : “Where one tenant in common enters on the whole, and takes the profits of the whole, and claims the whole exclusively for twenty-one years, the jury ought to presume an actual ouster, though none be proved.’ (See also McHaffy v. Dobbs, 9 Watts, 363 ; Law v. Patterson, 1 Watts & Serg., 184 ; Bolton v. Hamilton, 2 id., 294 ; Clapp v. Bromagham, 9 Cow., 530; Jackson ex dem. Bradt v. Whitbeck, 6 id., 632; Butler v. Phelps, 17 Wend., 642 ; Florence v. Hopkins, 46 N. Y., 182 ; Calhoun v. Cook, 9 Penn. St., 226.)
    “ The learned judge was, therefore, justified, and, in the language of one of the cases, it was his duty to find an ouster and an adverse possession barring defendant’s claim.”

      W. J. Gros, for the appellant.

      Benjamin Reynolds, for the respondent.
   Opinion by

Boardman, J.

Bockes, J., concurred ; Learned, P, J., taking no part.

Judgment affirmed, with costs.


text:
    GEROTHMAN W. CORNELL, Assignee, etc., Respondent, v. EMERSON P. MARKHAM, Appellant.

      'Contract — admissibility of evidence as to the value of services to be rendered, as bearing on the question whether a certain contract was made.

    Appeal from a judgment in favor of the. plaintiff, entered upon the report of a referee.
    The action was originally brought by Reynolds Carpenter and Andrew P. Carpenter, to recover of the defendant the rent of certain dwelling-houses occupied by him. Pending the action the ■Carpenters made a general assignment for the benefit of creditors to the present plaintiff, who continued the action in his name.
    There was no dispute as to the fact of occupation. The defendant claimed that ho was to keep the books of the assignors, and of one Green, from whom they had purchased ; and that ho and Potter were, each of them, to have the rent of a house, and of a store, for the services of the defendant as such book-keeper. The real dispute between the parties was whether, for such services as book-keeper, there was to be allowed the rent of the .store only, or the rent both of the store and the houses.
    The referee found this fact in favor of the plaintiff.
    The court, at General Term, after holding that this finding was -sustained by the evidence, said : “ But the defendant insists that the referee erred in excluding evidence.as to the rental value of the store, and as to the value of defendant’s services. Of course-this evidence could not change the bargain between the parties. Whether it was good or bad for defendant, he must abide by it. Nor did the defendant offer the evidence for that purpose. But on the disputed question between the parties as to what the bargain was, he desired to show that the bargain, as testified to on the part of the plaintiffs, was so unreasonable as to throw doubt on the correctness of their theory.
    “We think the defendant should have-been allowed to prove their facts. In the case of Kavcincigh v. Wilson (70 N. Y., 177),. the plaintiff sought to recover commissions for selling real estate. A witness testified to the alleged contract which fixed a certain sum for commissions. Proof was given tending to show that this sum was greatly in excess of the ordinary value or price of such services. No intimation is given that such evidence was improper. And the Court of Appeals say that it should have allowed its weight, and therefore that the case should have to the jury. In that case, there was no direct contradictory evidence, as to the terms of the contract. So that evidence was admitted, showing that its terms were unreasonable and excessive.
    " In like manner on the question what was, that being in dispute, wo think that, in this case, the defendant should have been allowed to show the attendant circumstances ; 'that is, the value of the things, in respect to which the contract was made, being the services and the rent; and this, not to change the contract, but as evidence of what it was. For instance : if a plaintiff sued a defendant for the, contract price of a watch, and testified that the defendant agreed to pay $1,000 for it, while the defendant testified that he agreed to pay only* $100, would it not be material evidence to show that the watch was worth only $50 ?

      E. F. Bullard, for the appellant.

      Edgar L. Eursman, for the respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment reversed, new trial granted, reference discharged, costs to abide event.


author: Bocees, J.;

text:
    THEODORE A. DODGE Trustee, etc., Respondent, v. THOMAS FEAREY and others, Appellants.
    Tetndei— when it must he kept good up to and at the time of the trial.

    Appeal from a judgment of the Albany County Court, in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying defendants’ motion, for a new trial, upon the minutes. The action was replevin, and was brought to recover three heelbiurnishiiig machines.
    The plaintiff is the trustee of the owners of several patents and manufacturers of heel-burnishing machines under such alleged patents, and does business in Boston, Mass. . The defendants are shoe manufacturers at Albany, and claimed to have bought and paid for, and to own absolutely, the machines in question. The plaintiff’ however, claimed that the defendants are only lessees of the machines, and are bound to pay a royalty for the use of them.
    Four or five months after the purchase, the plaintiff tendered the defendants the amount paid by them, and interest, and demanded the machines. The defendants refused.
    The court, at General Term, after holding that the transaction was, in effect, an absolute sale of the machines to the defendants, said : “ But there is still a difficulty in the case which should have .a passing notice. The plaintiff received and used the checks sent him by the defendants in payment of the machiues. Before he •could recover back the machines in replevin, he was bound to, return the money so received by him, in any view of the case. He offered it back before suit, and it was refused. The tender was not kept good, nor offered to be made good on the trial, and therefore, in a case like this, where the right of action is made to ■depend upon the tender, it will go for nothing, unless in some way kept good or made good to the party from whom the property is to be taken. The plaintiff should not have both the money and the property. This would be unjust, even although •an action might be maintained for the money. The party might be insolvent; in which case an action for the money would afford inadequate relief. The money should be placed where the person, to whom it was tendered might obtain it if he so chose to do, or it should be offered and paid into court on the trial. In this respect the case is like that where notes are required to be returned or surrendered before suit. They may be left with a third person for the party to whom they were tendered ; or it. will be sufficient- to surrender them on the trial. In either case, the rights of the latter, in that regard, are secured to him by the party whose duty it is to make the tender. If the tender be necessary at all, it should be made available, either by keeping it good,, or, what would be equivalent, the making of it good on the trial. This case is unlike Kortright v. Cady (21N. Y., 343) where the tender was held to discharge the security. It more resembles The BrooklynBank v.Z>e Gramo (23 Wend., 342), where the tender went to-, the discharge of the right of action. There it was held that it must be kept good, which is sound doctrine, because it is based on justice and right. (See, also, Roosevelt v. The Bull’s Head Bank, 45 Barb., 579; Becker v. Boon, 61 N. Y., 317.) Here the tender was necessary to the right of action for return of the property,, hence should be kept good or made good at the trial.”

      G. L. Stedman, for the appellants.

      R. W. Beckham, for the respondent.
   Opinion by

Bocees, J.;

LeakNed, P. J., and BoakdmaN, J., concurred.

Judgment and order reversed, new trial granted, costs to abide event.


text:
    MARY F. WILCOX as Guardian of MINNIE F. PERKINS, an Infant, Appellant, v. JAMES A. VAN SCHAICK, Respondent.

      Guardian — accounting by — he cannot compel the property of Ms ward to conbi'ibute to pay’tax, assessed against him individually.

    Appeal from a decision of the surrogate of Saratoga county, in the matter of the accounting of Janies A. Van Schaick, as guardian of Minnie F. Perkins, formerly Wilcox.
    Van Schaick was the guardian of Minnie F. Perkins; and he and one Watson were administrators, with the will annexed, of one Wilcox ; under which will the ward was entitled to one-eighth of the residuum, tie acted as guardian for ten years ; and during that time he kept no separate account; deposited the moneys received by him, as guardian, in his own name; invested moneys in his own name, and took no securities in the name of the infant; and never credited the infant the interest on any specific bond and mortgage.
    After considering certain other questions, the court, at General Term, said : “ The defendant was also allowed a certain share of taxes assessed against him, individually, for personal estate for several years. And this allowance was made on the ratio that his own personal property bore to the personal property of his ward. The defendant appears to have been assessed, individually, as executor and as guardian. He explains the assessment as executor and as guardian to refer to other estates than that of this infant. And he claims that part of the personal estate for which he was individually assessed was really her property. But the surrogate finds that the defendant owned, individually, during these several years, the sum of $10,000 personal property. And the amount of his assessment on personal property was never over $6,000, and sometimes only $4,000. It does not, therefore, appear that he ever paid an assessment upon a greater amount of personal property than he owned. On what principle, then, should this, infant be charged ? He was not assessed as her guardian (1 R. S. [m. p.], 391, § 10). It would be wrong to permit him now, when be has not been assessed on all bis own property, to throw part of bis taxes upon her, on the ground that he has successfully concealed from the assessors that he held some personal property as her guardian. In other words, he claims that she should pay his taxes, because her property was not taxed. This will not answer.”

      Putnam <& JEuslis, for the appellant.

      Edgar L. Eursman, for the respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J. ; Bocees and BoaedmaN, JJ.

Decree modified so as to charge defendant with the $3,210, and interest, and so as to disallow the assessments made, and to be made, in respect to the bank stock as a credit, and also so as to disallow that portion of the taxes on the personal estate allowed by the decree, with costs of appeal against defendant, personally.


author: Bockes, J. ;

text:
    EMILY SNOW, Respondent, v. SAMUEL W. CABLE, Appellant.

      Mamed woman — right of, to recover for her seimces— objection that husband should sue cannot be first taken on appeal.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought by the plaintiff, a married woman, to recover the value of services rendered by her as a general housekeeper to defendant, and for extra services, which she claimed to have rendered to him while so employed.
    The court, at General Term, said : “ The defence that the plaintiff was a married woman, hence not entitled to recover for her own services, was not set up in the defendant’s answer to the complaint ,• nor was this defence urged on the trial, either by motion for nonsuit, objection to evidence or otherwise. To make this defence available on this appeal, it should appear in the xecord, that it was in some way, and at some time, before the case was submitted for decision, insisted on.
    “ But, waving this difficulty in the defendant’s case, it plainly appears that the agreement counted on was with the plaintiff as a feme sole, with her husband’s express approval. As to this fact there is no question. It is most unequivocally proved. Her husband permitted her to engage in the defendant’s service, for herself, on her own account, and in her own right, and ho consented to the use of her property for the defendant’s benefit, under an arrangement between the parties that' recompense should-be made to her. The husband might, as he did do, permit his wife to engage in business on her own account, and have her own personal earnings. In such case the avails or proceeds are her own ; and she may claim them, and recover them the same as if she were a feme sole. (Brooks v. Schwerin, 54 N. Y., 348.) In the case cited, Judge Earl, in speaking of the rights of married women under the married woman’s act, says : ‘ When she labors for another, her services no longer belong to her husband, and whatever she earns in such service belongs to her as if she were a feme sole.’ (See, also, Birlcbeck v. Aekroyd, 74 N. Y., 356; Adams v. Ourtis, 4 Lans., 164.) The amendment of the married woman’s act (1860, chapter 90), expressly empowers a married woman to labor on her own separate account, and to have the fruits of it in her own right. These remarks also apply to the extra work performed by the plaintiff for the defendant; and as to this work, it seems that it was performed outside the special agreement between her and the defendant, hence ivas a proper subject of recovery outside the contract.”

      N.C.& M. W. Marvin, for the appellant.

      A. D. Peake, for the respondent.
   Opinion by

Bockes, J. ;

Learned, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.


author: Bocices, J.;

text:
    THE MASON AND HAMLIN ORGAN COMPANY, Respondent, v. WILLIAM PUGSLEY, Appellant.

      Commission to take testimony, cannot be issued without an orde¡' of the court — where issued by consent, an order must be entered on stipulation— commission must be under seal — Stipulation to waive irregularities must be in writing — Rule 11 —• When a pwrty is not bound to move to suppress a deposition.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee, and from an order made at Special Term, denying a motion for a new trial made on the ground of surprise.
    The court at General Term said: “The only ground of error now urged is that the deposition of the witness, Dayton, talcen on comimission, was improperly excluded. But no' authority for the issuing of the commission was shown. It seems to have been issued without the sanction of an order from the court or judge. This was necessary to its validity. (Code of Civil Procedure, § 889; Tracy v. Suydam, 30 Barb., 110; Whitney v. Wyncoop, 4 Abb., 370, 374.) So, too, if issued by consent there must be an order on stipulation. (Code of Civil Procedure, § 908.) Here there was no stipulation or order. The commission should - also have been under the seal of the court. (Tracy v. Suydam, svrpra, 115; Whitney v. Wyncoop, supra, 374; Ford v. Williams, 24 N. Y., 366.) The Code of Civil Procedure (§ 24) has effected no change of the law in this particular. A seal is still necessary when the writ or process is issued by special, order of the court. The commission being without authority of law, the acts of the commissioner under it would, according to some authorities (30 Barb., 115, and cases there cited), be extra judicial, and the deposition no better than the unverified statement of the witness. Nor was there any direction by the court or by any officer as to the manner of its return. This objection should not, however, be held important, as it was not specifically made. The answer to the objections ui’ged against the admission of the deposition is, that all the irregularities on which they were based were waived by the plaintiff's attorney. But no binding valid waiver is shown. To be valid, the waiver should have been evidenced by a writing signed by the party to be concluded, by it. This is required by Rule 11 of this court. But a waiver by parol even is here unequivocally denied by the plaintiff’s attorney. It was to avoid the disagreeable necessity, often imposed upon the court, of looking into conflicting affidavits of attorneys to settle questions of veracity between them relating to proceedings in suits, that this rule was-adopted. But it is urged that the plaintiff’s attorney should' have moved to suppress the deposition, and could not urge the' objections interposed by springing them upon his adversary on the trial. This course, however, is only obligatory when the party has knowledge of the irregularity in the issuing or execution of the commission a sufficient time before the trial to enable' him to make the motion to suppress. {Newton v. Porter, 69 N. Y., 183.) Under this rule of practice, the party was excused from making the motion, because of the want of time to make it after the return of the deposition and before trial; the commission and deposition, it seems, wore not returned and filed in the clerk’s-office until December the 4th, and this was not known to the’ plaintiff’s attorney until the day before the trial, which was set down for the 12th, and commenced on that day. So the plaintiff,, in this case, was not bound to move to suppress the deposition,, but was at liberty to urge the objections when it was offered to be road on the trial. Especially was this so, as the objections went to the validity of the writ or process, by virtue of which the deposition was taken, and were, therefore, of more significance than would be objections for mere informality in its execution or return. But this distinction, formerly well recognized and clearly marked {Goodyear v. Vosburgh, 41 How., 422; Burrill v. Water-town Loan Co., 51 Barb., 115; Bust v. Bolder, 41 N. Y., 497),, seems to be very much, if not enthely, taken down in Newton v.. Porter, above cited. There was no error in tire rejection of Dayton’s, deposition, entitling the defendant to a reversal of the judgment.”

      Johnson & Carver, for the appellant.

      G. L. Sessions, for the respondent.
   Opinion by

Bocices, J.;

Learned, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs; order denying new trial on ground of surprise affirmed, with costs.


author: Barnard, P. J. .

text:
    PHILIP H. REID AND HERMAN H. SCHWIETERING, Respondents, v. THE LANCASTER FIRE INSURANCE COMPANY OF LANCASTER, PA., Appellant.

      .Policy on vessel — meaning of phrase “ lying at anchew ” — not applicable when the vessel is beached — when a policy is avoided by leaving a vessel unoccupied.

    This action was brought upon a policy of insurance, issued by the defendant upon the steamer “ Oceanus ” “while plying on Jamaica Bay, bay and harbor of New York, * * * or while lying at anchor, or at any bulk-head, dock or pier.” .At the time of her destruction the vessel had been beached by the plaintiff, and holes opened in her hull to allow the water to run in and out with the rise and fall of the tide. A cable from her bow was fastened to a piece of iron sunk in the beach, and another from her stern was attached to an anchor.

      Held, that the vessel was not “ lying at anchor,” within the meaning of the policy, and that it was error to leave that question to the jury.
    The policy also provided that “ if the premises should be vacated, in whole or in part, and shall remain unoccupied for the space of twenty days, * * * this policy shall be of no effect qnless the company shall be immediately notified and shall signify its assent thereto on the policy.”
    The vessel.was beached, her furniture taken out, and she was left unoccupied during the summer of 1878.

      Held, that the word “ premises ” meant the vessel insured, and that the policy was invalidated by reason of her having been left vacant and unoccupied for more than twenty days.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury and from an order ‘denying a motion for a trial made upon the minutes of the justice before whom the was tried.

      Flanagan & Bright, for the appellant.

      Philijp 8. Grooke, for the respondents.
   Barnard, P. J. .

The policy of insurance, upon which this action is brought, insured the plaintiff Reed against loss and damage by fire upon the steamer “ Oceanus,” “ while plying Jamaica bay and bay and harbor of New York, at such parts or places as it may be necessary to send her during the continuance of this policy, or while lying at anchor or at any bulk-head, dock or pier.” The steamer was destroyed by fire on September 28, 1878, while she was lying on the beach where the plaintiff had intentionally caused her to be driven by steam, head on, at high tide. Holes were also opened, permitting the water to run in and out of her hull as the tide rose and fell. A cable from the bow of the boat was fastened to a piece of railroad iron buried in the beach, and another cable from the vessel’s stern was attached to an anchor. The vessel had been thus situated for a number of months before her destruction by fire. The question was submitted to the jury to determine whether the vessel, at the time of the loss, was lying at anchor, within the true intent and meaning of the policy,” and a verdict was rendered for the plaintiff.

I am off opinion that the construction placed upon the policy, extending it to cover a loss occurring while the vessel was situated, as this vessel is conceded to have been, cannot be sustained.

The language of the policy is exclusive. The vessel was only insured while she was plying the water, or was lying at anchor, or at any bulk-head, dock or pier. It is not pretended that when the loss occurred she was plying any where, or was lying at any bulk-head, dock or pier. But it is claimed that she was lying at anchor. By a vessel lying at anchor is generally understood her floating upon the water, but held by her cable and anchor. The fact that a vessel with her anchor out might (as suggested by the judge in his charge) happen, by means of an exceptionally low tide, to touch the bottom, would not take her out of the protection of the policy. In such a case the grounding would be an accidental and casual circumstance ; but here the vessel iras intentionally beached at high tide, and her hull opened for the water to run in and out.

It is true she had an anchor out, but it ivas only as a greater . security in case of storm or very high tide. A number of Avitnesses testified as to what is generally meant by the term “lying at anchor,” and, with one exception, they agree that a vessel beached, as this was, cannot be said to be lying at anchor. A policy of insurance, like all other contracts, should be so construed as to carry out and give effect to the intention of the parties ; and, in ascertaining such intention, the language of the instrument should receive its usual signification, particularly Avhen, as in this case, it is not shown to have any technical meaning different from its ordinary one.

The policy also provided, that “ if the premises should be vacated, in whole or in part, and shall remain unoccupied for tlie space of twenty days, or if the risk shall be increased or rendered more hazardous by a change in the occupation of the premises, or by any other means whatever within the controof the assured, this policy shall be of no effect, unless the company shall be immediately notified, and shall signify its assent thereto on the policy.”

This vessel was vacant and unoccupied during the whole of the summer of 1878, and no notice to the company or assent by it is shown. She was left lying on the beach without any occupants ; her furniture was taken out, and no use was made of her during 1878. This was, therefore, a plain violation and forfeiture of the policy, unless we can hold that the above quoted provisious-do not apply to this vessel. The policy should be so construed as to give effect to every part of it. In the clause referred to, the term “ premises ” means the insured property ; in this case, the steamer “ Oceanus.” Such vessels are usually occupied by their creAvs, and when laid up are not unfrcquently the dwelling-place of those having charge of them. I fail to see how there could be any doubt or question, under the proof in this case, as to whether the insured property was vacated and left unoccupied for twenty days, and I think the jury should have been instructed to find for the defendant, on the ground of the violation of this condition.

The judgment should be reversed and a new trial granted, costs to abide event.

Dykman, J., concurred; Pratt, J., not sitting.

Judgment and order denying new trial reversed and new trial granted, costs to abide event.


author: Barnard, P. J. :

text:
    PHŒNIX INSURANCE COMPANY OF BROOKLYN, Respondent, v. WILLIAM FLOYD, ELIPHALET S. NEWINS and others, Appellants.

      .Policy of insurance— mortgagee clause — right of the company to subrogation — when the mortgagee is not affected by the right of the company to contribution from another company insuring the same premises.

    .Plaintiff issued a policy of insurance to Floyd & Newins, as owners, “ loss payablé to Hendrickson & Whitson, mortgagees, as interest may appear.” The policy contained a mortgagee clause, providing that the rights of the mortgagees should not be affected by the acts of the owner, and that in case a loss were paid to them, for which it would not be liable to the owner, the company should be subrogated to all the rights of the mortgagees. Thereafter the property was conveyed to Ruth Grade, whose name was inserted, as owner, in the policy, and who, thereafter, both companies assenting, procured additional insurance on the property from another company, and in cage of loss it was •agreed, as between the two companies and Ruth Grade, that such loss was to be paid by the two companies in certain proportions. The property was injured by fire to the extent of $2,788.44, of which, as between the owner and the two companies, the plaintiff was bound to pay $1,507.69. The plaintiff having paid H. & W. the whole amount of the loss, as required by the mortgagee clause, took an assignment of the mortgage, and brought this action to foreclose it.

      Held, that as against the owner, and Floyd & Newins, who, as mortgagors, were liable for any deficiency, plaintiff was only bound to credit upon the mortgage its proportionate part of the loss, viz., $1,507.69, and not the amount it had paid the mortgagees, viz., $2,788.44.
    Appeal from a judgment in favor of the plaintiff, entered upon •the trial of tbis action, by the court without a jury.

      The action was brought to foreclose a mortgage, which had been assigned to the-plaintiff, in pursuance of a clause inserted in a policy issued by it to the mortgagor, for the benefit of the mortgagee. By the mortgagee clause the plaintiff consented, “that the interest of the owner of the property, be assigned to the-mortgagees, who were not to be affected by any act or neglect of the mortgagor or owner. If the company shall pay the mortgagee for loss, and claim as to the mortgagor or owner that no-liability existed, the company shall be subrogated to all the rights of the mortgagee.”

      F. P. Bellamy, for the appellants, Floyd & Newins.

      I). P. Barnard, for the respondent.
   Barnard, P. J. :

The policy of insurance, when originally issued, insured Daniel Gracie and wife, as owners, with “loss payable to Valentine Bergen & Co., mortgagees, as interest may appear.” The policy also contained what is called a mortgagee clause, providing, in effect, that -the policy shall be for the security of the mortgagee, and not be affected by the acts of the owner; and that in case of payment to the mortgagor of any loss for which it would not be liable to the owner, the company may be subrogated to the rights of the mortgagee to all securities for the mortgage debt. The mortgage of Bergen & Co. was foreclosed, and Charles M. Newins became the owner of the property. The policy was then changed by striking out the names of Daniel Gracie and wife, and inserting the name of Charles M. Newins as the assui’ed party. Subsequently, the defendant, William Floyd & Eliphalet S. Newins became the owners of the property, and the policy was changed by striking out the name of Charles M. Newins and inserting the names of the defendants, William Floyd & E. S. Newins, as the assured, and by striking out the names of Bergen & Co. as mortgagees, and by inserting the names of Hendrickson & Whitson, to whom Floyd & Newins had mortgaged the property. The defendants, Floyd & Newins, subsequently conveyed the property to Ruth Gracie, as owner.

The policy was held throughout by the mortgagees, aud, so far as appears, the changes made in the policy, from time to time, were made with the express, or implied, consent of all parties concerned. Ruth Grade procured an additional policy upon the same property from auother insurance company, both companies assenting, and thereby, as between the two companies and Mrs. Grade, the sum payable, in case of loss, was to be paid by the two companies, in certain proportional amounts. The insured property was destroyed by fire. The whole loss was $2,788.44, and the amount which the plaintiff, in this action, was bound to pay, was adjusted at $1,507.69; but as between Héndrickson & Whitson, the mortgagees and the plaintiff, the latter was bound to pay the full amount to them, their rights not being affected by the acts of the owners in procuring another insurance. The plaintiff accordingly paid to the mortgagees the amount of their mortgage, $3,000, and took an assignment of it, and have brought this action to foreclose it. The appellants, Floyd & Newins, claim that, as against them, they being liable for any deficiency, the plaintiff is bound to credit the whole $2,788.44 as a payment upon the mortgage. The plaintiff claiming that it is only bound to credit the $1,507.69, being the portion of the loss for which, as between the plaintiff and Mrs. Grade, the owner, the plaintiff* became liable. The judge, at Special Term, sustained the position taken by the plaintiff, and, in my opinion, his decision was correct. The mortgagee clause was a contract between the company and the mortgagee exclusively, and gave the mortgagee a distinct and separate interest in the policy, independent of the owner. (Hastings v. Westchester Fire Ins. Co., 73 N. Y., 141.)

In consideration of the increased security to the mortgagees, the company stipulated for and became entitled to subrogation. The right of the company to be subrogated, or to take an assignment of the mortgage, was wholly independent of the mortgagor, and the result of the contract directly made by the company with the mortgagee. When Floyd & Newins conveyed the property to Mrs. Grade, and their names were erased from the policy, and that of Mrs Grade inserted as owner, they ceased to be parties to the contract of insurance, and were no longer entitled to any benefit from it. The substitution of names was equivalent to the making of a now policy. From that time forward, Mrs. Grade was the owner and party assured, and her acts, in procuring the additionali nsurance, bound everybody interested in the property and in the insurance, except the mortgagees, Hendrickson & Whitson, who were protected by their separate contract with the company.

For these reasons, I think the appellants had no interest in or rights under the policy, and no right to require the plaintiff to credit on the mortgage any more than as between the plaintiff and Mrs. Grade, the owner, they wore bound to and did credit.

The decision at Special Term, and the judgment entered therein, should be affirmed, with costs.

Pratt, J., concurred.

Present — Barnard, P. J., Dykman and Pratt, JJ.

Judgment affirmed, with costs.


text:
    In the Matter of the Claim of GILBERT B. HENDRICKSON, Appellant, v. The Estate of DORA DICKSON, Deceased, Respondent.

      Reference of a claim against an estate — 2 R. 8., 89, § 36 — a claim due to the estate from the claimant may he determined hy the referee.

    _ Where a referee, to whom a disputed claim against an estate has been referred, under the statute, reports to the court that such claim is wholly unfounded, the court may, on the application of the executor, direct the referee to report upon any claim in favor of the estate and against the claimant.
    Appeal from an order made at Special Term, directing a referee to find and report as to what, if any, amount was due to the estate of Dora Dickson, deceased, from the claimant, Hendrickson.

      Delavan O. Scovitte, for the appellant.

      J. 8. Millard, for the respondent.
   Barnard, P. J. :

Gilbert B. Hendrickson presented a claim against the estate- of Dora Dickson, stating his claim to be $646, on which there was credited $125. The claim was disputed by the executor, and referred, by consent, under the statute. It appeared, upon the trial, that the entire claim presented was baseless. That it was made out for kindly services which were not designed to be paid for. The referee made a report dismissing the claim. The court, •at Special Term, upon application of the executor, directed the referee to report upon the claim of the estate against Hendrickson, the claimant. The claimant appeals. There seems to be no direct authority upon the question presented. There are no pleadings, which would determine the question. The statute, however,, requires that a claimant may be compelled to make affidavit that' his claim is justly due. “ That no payments have been made thereon, and that there are no off-sets against the same.”

The statute then provides, that if the executor doubts the justice of the claim so presented, he may enter into an agreement “ to refer the matter in controversy.” This seems to send, to the referee, not only the claim, but also payments and off-sets to it. If the claimant is right in his position that the claim only is-referred, there could be no off-sets. The statute, however, expressly makes a claim to be such a sum as remains over and above payments and off-sets. The reference thus includes power to establish off-sets, at least, to the extinguishment of the claim. The statute further provides, that the referee shall have the same powers as if the action was an action at law, and that the judgment be as valid, in all respect, as if commenced by ordinary process. It-thus appears that the matter referred includes off-sets; that the referee and court have full power to give judgment in'the matter, as if actions were in the Supreme Court. The Legislature have-always endeavored to prevent a multiplicity of actions, and it-would have limited the referee’s powers if, after giving him the-power to pass upon off-sets against a claim, he could not report irt favor of an estate when the off-set was larger than, the claim.

Order affirmed, with costs and disbursements.

Pkatt, J., concurred ; Dtkman, J., not sitting.

Order affirmed, with costs.


author: Barnard, P. J.:

text:
    In The Matter of LOUISA R. McADAMS, a Suppose Lunatic.

      Proceedings de lunático inquirendo— court cannot grant an extra allowance.

    Where, in proceedings de lunático inquirendo, an inquisition is found in favor of the alleged .lunatic, the court cannot grant an allowance for counsel fees, expert witnesses, etc., to him, and charge the same upon the petitioner.
    Appeal by Louisa R. McAdams, a supposed lunatic, from two-orders made at Special Term, denying a motion made on behalf of the alleged lunatic, for an order directing the petitioner herein to pay her costs and disbursements.
    This Was a proceeding de lunático inquirendo, instituted by one William A. McAdams, a son of the alleged lunatic, to have her, his mother, declared insane. The petitioner failed to establish the alleged lunacy.
    On the report of the commissioners, Mrs. McAdams’ counsel moved the court to confirm the report, and for an allowance to the commissioners, and for her costs and disbursements ; and presented to the court a statement of her disbursements, and among them were the following three items : “ To bill of Charles Corey, M. D., $125 ; to bill of Charles F. Young, M. D., $60 ; to bill of William. A. Little, M. D., $60,” with the following statement: “The above bills were incurred by the said Louisa R. McAdams, in having herself examined by each of the above-named physicians, to test her as to her sanity, and in their attending on the inquisition in the above matter, for the purpose of testifying, as experts, to the sanity of the said Louisa R. McAdams.’^
    The court allowed five dollars witnesses’ fees, and fifty dollars each to the commissioners, and refused to allow the items of expenses for expert testimony, or any costs or allowances to counsel, claiming that it had no power to do so,, and entered an order accordingly ; this order failed to provide for confirming the commissioners’ report, so an order to show cause was obtained why the same should not be confirmed, and for a rehearing of the motion for costs, etc., but the court again asserted that it had no power to grant them, and again denied the motion ; from these two orders the appeal is taken.

      J. Stewart Moss, for the appellant.

      Barnett & Patterson, for the respondent, Wm. A. McAdam.
   Barnard, P. J.:

Assuming the proceedings de lunático inquirendo to be special proceedings, within the meaning of chapter 270, Laws of 1854, the court had no power to grant extra allowances to the alleged lunatic, upon inquisition being found in her favor. (Matter of Rensselaer and Saratoga R. R. Co. v. Davis, 55 N. Y., 145.)

It is not a matter of course to charge a petitioner with costs when he fails to establish the lunacy charged. If he has acted in good faith, and upon probable cause, he will not be charged. (Matter of Giles, 11 Paige, 638.) The court made a more favorable order than was required by the practice in such cases, where the expense of the commission, sheriff and witnesses’ fees were charged upon the petitioner. Extra allowance, counsel fees and expert witnesses were properly disallowed.

Order affirmed, with ten dollars costs and disbursements.

Dykman, J., concurred ; Pratt, J., not sitting.

Orders appealed from affirmed, with ten dollars costs and disbursements.


text:
    JANE A. EBBETS, Respondent, v. JOHN MARTINE and others, as Executors of THEODORE MARTINE, Deceased, Appellants, Impleaded with THOMAS REILLY, and others.

      Application for leave to file a supplemental smnmons and complaint — notice of¿ need not be given to the party sought to be brought in.

    Where, after a decree in foreclosure, and a sale thereunder, plaintiff, on discovering that a person liable to pay the mortgage debt has not been made a defendant, applies at Special Term for leave to bring him in and to file a supplemental summons and complaint, notice of such application need not be . given to him.
    Appeal from an order made at Special Term, denying a. motion to vacate an order allowing the plaintiff to revive the action and bring in additional parties defendant by supplemental complaint.
    The action was brought to foreclose a mortgage on a lot in Brooklyn, made by Thomas Reilly, to secure the payment of the purchase-money to Theodore Martine, who assigned the mortgage-to the plaintiff, and in the assignment guaranteed the payment-of the same.
    The action was commenced in 1866, a judgment entered on October 2, 1866, and a sale made to Martine, who failing to pay the purchase-money, it was resold to the plaintiff, on January 16, 1867, the terms of sale allowing payment from the purchase-money of all taxes and assessments.
    On further search, it was found that in 1857 the property had been conveyed to Matilda Martine, the wife of Theodore. Martine, and that in such conveyance she had covenanted to pay the said mortgage. Before the amount of taxes had been determined, November 24, 1870, Mrs. Martine died. Mr. Martine died on March 22, 1877.
    After this, on the petition of the plaintiff, the judgment and sale of the premises were vacated, and then, on February 3, 1879, on motion of the plaintiff, an order was made, reviving the .action and allowing a supplemental complaint to bring in all the-executors of Matilda and Theodore Martine and others as parties défendant.
    This order was made, on notice to those defendants only who had appeared in the original action, and a supplemental summons was issued and served on the new parties.

      Charles A. Jackson, for the executors, appellant.

      Ii. Brewster, for the respondent.
   Barnard, P. J.:

After a decree in- foreclosure, and after a sale thereunder, the property being of little or no value, it was discovered that, by a mistake in the search, a person liable to pay the mortgage debt had been left out as defendant. The plaintiff applied, at Special Term, upon notice to all the parties who had appeared in the action, for leave to file a supplemental complaint. At the time of this application, Theodore Martine, one of the defendants in the action, had died. He had not appeared in the action. No notice was given to his executor. The order for leave to file the supplemental complaint was granted, and a supplemental summons and complaint was directed to bring them in. A supplemental summons and complaint was directed to issue to the executors of the deceased, Theodore Martine. These executors, after they were served with the summons, and after they had appeared generally in the supplemental action, made a -motion to vacate the order directing a supplemental summons to issue to bring them in, on the ground that they had no notice of the application. This motion was denied, and the executors of Theodore Martine appealed. It was not the practice of the Court of Chancery to require notice to be given of an application for leave to file a supplemental bill. (Eager v. Price, 2 Paige, 335 ; Lawrence v. Bolton, 3 id., 295.). Such notice does not seem to be required by the Code in cases where a defendant is brought in, not upon his own application. Section 453 of the Code of Civil Procedure provides, that when the court directs a new defendant thus to be brought in “ a supplemental summons must be issued to him. He is made a defendant, and an opportunity must be given- him to answer. The new defendant, or any party, may demur if so advised or answer. (Fleischman v. Bennett [unreported ; decided last term of this court].) Notice is held not to be necessary under the Code. (2 Wait’s Practice, 470 ; Fisk v. Albany and Susquehanna R. R. Co., 8 Abbott [N. S.], 310.) Such orders are granted by the court whenever it is decided upon the trial that it is necessary to bring in another party than those to the record, to have a complete determination of the issues presented. In such cases there is no notice given of the application for the order to the defendants to be brought in. They have the same rights as other defendants after they are brought in.

The order must be affirmed, with costs.

Dykman, J., concurred.; Pratt, J., not sitting.

Order affirmed, with costs and disbursements-.


text:
    EDMUND D. NORRIS, Respondent, v. THE CITY OF BROOKLYN, Appellant.

      Charter of Brooklyn — power of heads of departments to regulate salaries of clerks — sections 8 and 28 of title 19 of chap. 863 of 1873 — chap. 459 of 1877.
    Under sections 8 and 28 of title 19 of chap. 863 of 1873, the charter of the city of Brooklyn, the heads of departments were authorized to employ the necessai’y clerks and fix their salaries. Chapter 459 of 1877 authorized the common council to fix and regulate the salaries of the various officers, clerks, and subordinates.

      Held, that the last act imposed no duty upon the common council, but merely authorized it to fix and regulate salaries, and that until they acted thereunder the heads of departments could fix the compensation of their clerks.

      Quces’e, as to the right of a clerk to recover upon a quantwn meruit.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.
    The action was brought to recover $150, that being the alleged salary of the plaintiff Norris, as redemption clerk in the department of arrears, for the month of December, 1878.

      The plaintiff was appointed cleric in the said department by the then register, Daniel D. Whitney, August 1, 1875, at a salary fixed by that officer at $1,000 a year, or $83.33 a month. He served at that rate, and at higher rates fixed in the same way, until January 1, 1877, when the register fixed his compensation at $1,400 per year, or $116.66 per month. Under this salary the plaintiff’served until August 1, 1877, when he was promoted by register Whitney to the position of redemption cleric, and his salary fixed by that officer at $1,600 per annum, or $Í33.33 per month. He was serving at this rate on the accession to the department of arrears of Rufus L.-Scott, in November, 1877, who subsequently, December 1, 1877, raised his salary to $150 per month; then, in March, 1878, fixed it at $133.33, as before, at which figure it remained until after the first day of November, 1878, when it was raised by Rufus L. Scott to $150 per month.
    The mayor refused to sign the warrant of plaintiff for December, 1878, on the ground that the sum for which it was drawn exceeded $133,33, the amount to which he claimed plaintiff was entitled.

      Wm. G. Be Witt, for the appellant.

      Barrett & Patterson, for the respondent Norris.
   Barnard, P. J. :

By the terms of the charter of the city of Brooklyn, the heads of the departments had power to appoint necessary clerks. (Chapter 863, Laws of 1873, title 19, § 8.) By section 28 of the same title, such head of department could fix their compensation.

The Legislature, by chapter 459, Laws of 1877, authorized the, common council to fix and regulate the salaries of the various officers, clerks and subordinates. The common council have never acted under this law.

The plaintiff was a clerk in the department of arrears, appointed by the register. In November, 1878, his compensation was $133.33 per month. During the month the head of the department informed him that he had fixed his compensation for December, 1878, at $150.

It is not disputed but that the appropriation by the common council, for the department of arrears, is sufficient to pay this increased compensation. The claim is made by the city that the common council alone can fix compensation of clerks. I think the claim is untenable. There is no express repeal of the section of the charter which permits heads of departments to fix rates of wages. There is no duty put by the Law of 1877 upon the corn-common council. It is authorized to fix rates. These words do not necessarily require a repeal of that part of the charter alluded, to. In a certain sense the common council have acted upon thn subject. An appropriation has been made to cover all the expenses of this particular department of arrears. The expenses are within it. The plaintiff is either entitled to recover the amount fixed by the register of arrears, or he can recover upon a quantum meruit. The finding is that the services were worth $150, for the month of December, 1878.

The judgment should be affirmed, with costs.

Dykman, J., concurred; Pkatt, J., not sitting.

Judgment affirmed, with costs.


author: Barnard, P. J. i

text:
    SAMUEL A. LYON, Respondent, v. HUBBARD BLAKESLY, Appellant.

      Attachment — affidavit must state that a certain sum is due “ over and above alt comiter-claims ” — Code of Civil Procedure, section 636, subdivision 1.
    An affidavit, used on an application for an attachment, which fails to state that a. certain sum is due to the plaintiff “over and above all counter-claims known. to him,” as required by subdivision 1 of section 636 of the Code of Civil Procedure, is fatally defective, and an attachment granted thereon will be set aside.
    Appeal from an order made at Special Term, denying a. motion to vacate an attachment.
    The attachment was granted on the summons, complaint and. an affidavit.

      Reginald Hart, for the appellant.

      L. O. Platt, for the respondent.
   Barnard, P. J. i

By section 635 of the Code o‘f Civil Procedure, an attachment is; authorized against a non-resident defendant in an action for a breach, of contract, express or implied. By section 636, in such an action,, the affidavit must show that the plaintiff is entitled to recover a supi stated therein, “ over and above all counter-claims known to him.”' The affidavit in this case wholly omits, this clause of subdivision 1. of section 636. The omission is fatal to the attachment. A strict', observance of the statute is necessary. The omission of the words.: “ over and above all discounts,” in an affidavit to obtain an attachment from a justice of the peace when the statute required these words, was held fatal. (Kelly v. Archer, 48 Barb., 68.)

The omitted words were not in section 229 of the Old Code, which corresponds substantially with section 636, as now enacted..

The order refusing to vacate the attachment must be reversed,, with costs and disbursements, and an'order vacating attachment, granted, with costs.

Pratt, J., concurred ; Dykman, J., not sitting.

Order reversed, with costs and disbursements and attachment vacated.


author: Barnard. P. J.:

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    ANDREW HOOD AND HENRY HOOD, v. FREDERICK HOOD, DAVID MOFFAT AND JOHN N. HAYWARD, Impleaded with others.

      JBond of non-resident executor — when the sureties thereon are proper parties to an action for an accounting — Right of the court to bring in parties— Who may enforce an executor’s bond-— An accounting, void as to heirs and next of kin not notified — Proceeds of sale of real estate are covered by.

    The sureties to a bond, given by a non-resident executor, are proper parties defendant to an action brought to procure his removal on the ground of mismanagement, and to compel him to account for and pay over any money in his h ands.
    "Where, upon the trial of an action, brought by a legatee and next of kin, to pi’O-cure the removal of an executor, and compel him to account, it appears that the plaintiff has assigned his interest in the estate as security for a debt, the court may direct the party holding it as security to be brought in as a defendant.
    Xegatees under a will may enforce a bond given by a non-resident executor, though not parties to it.
    An accounting before the surrogate is absolutely void as to heirs and next of kin not notified thereof.
    The bond required to be given by a non-resident executor covers the proceeds of real estate received by him, on sales made under the will or by order of the surrogate.
    Motion by the defendants above named for a new trial on a «case and exceptions, under section 1001 of the Code of Civil Procedure, after the entry of an interlocutory judgment herein.
    This action was brought by the plaintiffs as legatees and next,of kin of Andrew Hood, deceased, against Frederick Hood and Maria L. Hood, as executors, to compel them to account, and to xemove Frederick Hood from his position as such executor. The defendants, Moffat and Hayward, were made defendants to enforce "their liability as sureties on the bond of Frederick Hood, who was a non-resident. The bond was made to the People of the ;State of New York.

      JEdward P. Wilder, for the defendant Frederick Hood.

      Aimer Q. Thomas, for the defendant Moffat.

      JRoscoe II. Ohanning, for the defendant Hayward.

      Alfred Roe and John I. Maolelin, for the plaintiffs.
   Barnard. P. J.:

The defendants Haywood and Moffat are proper parties. They were sureties liable for the default of Frederic Hood, a non-resident executor. The complaint alleges that Frederic Hood has mismanaged and wasted the estate committed to his hands, and. that the sureties to the bond' given by him became thereby responsible to the plaintiffs and others entitled under the will.. It is necessary that an account should be taken of the extent of the liability of the executor to them. The defendants Haywood and Moffat have a right, at the same time, to take part in this accounting. They would not be bound by an accounting in this action if they were not parties, and it would be necessary when the bond was prosecuted to take the accounting again. The same-matter would thus be litigated twice, once uselessly. Such a result is never favored, and, to prevent it, sureties to the bond of an executor have been held proper parties. (Carow v. Mowatt, 2 Edw. Chy., 59; Cuddeback v. Kent, 5 Paige, 92.)

It was not erroneous to bring in by order the defendant Frank. It appeared upon the trial that one of the plaintiffs had assigned his interest, in the subject of the controversy, as security for a debt.The Code of Civil Procedure has given courts great power to-bring in such parties as are needed for a complete determination of the matter in dispute. (Code, §§ 452, 453, 723.)

The objection to the admission of the-executor’s bond seems to rest upon a mistake. The bond itself was produced in court from the surrogate's office, duly acknowledged. It was not made an exhibit in the cause, for the reason that the court did not think it best to take an important paper from the files in the proper office, and, therefore, made an exhibit of a certified copy instead of the original. The copy was admitted as proof of nothing. It was simply a copy of an original instrument duly proven.

It is of no importance that the plaintiffs are not parties to the bond of the executor. It was given for the benefit of those entitled under the will, and the plaintiffs, as such, are parties-interested and may claim the benefit of the bond to prevent loss to them. (Lawrence v. Lawrence, 3 Barb. Ch., 71.)

The accounting, in the surrogate’s court of Westchester county, was -of no binding force. It was instituted by the executors, and the children and beneficiaries under the will had no notice of it. None is shown, except by the recitals in the decree of the surrogate, and it is positively disproven that any such notice was given. No decree, unless the infant beneficiaries were parties to it, can bind them. They cannot be made parties unless an opportunity to contest is given them. The decree was absolutely void as to those heirs who had no notice.

I think the bond was intended by the Legislature to cover proceeds of the real estate sold under the will or by order of surrogate. Its penalty is double the amount of the personal estate, it is true, but the bond is conditioned that the executor shall “ faithfully execute the trust reposed in him as such, and also that he obey all orders of the surrogate.”

There is no trust created by the will in Frederic Hood, as distinguished from his duties as executor. None certainly to have alone, and no money ever came to the executor jointly as trustee. Before the operation of the eleventh clause in the will the .money'was squandered by Frederic Hood.

The exception should be overruled, and the motion for a new trial bo denied, with costs.

Pratt, J., concurred.

Present — Barnard, P. J., Dykman and Pratt, JJ.

Motion for new trial denied, and exceptions overruled, and judgment affirmed.


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    BENJAMIN ANDREWS, Appellant, v. TIMOTHY LONG, Respondent. ELIZABETH N. ANDREWS, Appellant, v. TIMOTHY LONG, Respondent.

      Order of county court, dismissing an appeal for defects in the notice, is appealable — Code of Civil Procedure, § 1342 —Notice of appeal from justices’ court — when it sufficiently specifies the grounds thereof — a notice signed by an attorney, unless his authority is shown, is insufficient.

    An order of a county court dismissing an appeal from a justices’ court, on tlie ground that the notice of appeal was defective, is appealable to the General Term, under section 1342 of the Code of Civil Procedure.
    „A notice of appeal by a plaintiff from a judgment of a justices" court, in favor of the defendant, stating that the judgment was rendered upon an issue of fact; that the claim in litigation was for more than fifty dollars, and that the judgment was rendered contrary to the evidence on the trial, sufficiently states the grounds of appeal.

      Amsdell v. McCaffrey (16 Hun, 255), distinguished.
    “Where a notice of appeal from the judgment of a justices’ court was signed, “John Andrews, plaintiff’s attorney,” and there was nothing in the case showing his authority to appear for the appellant, held, that it was insufficient.
    Appeals from orders of the County Court of Kings county, dismissing appeals from judgments of a justices’ court on the ground that the notices of appeal were not signed by the appellant, and also because they did not sufficiently state the grounds thereof.
    The notices of appeal, which were the same in each case, were in the following form :
    “Please take notice,-that Elizabeth,N. Andrews, the plaintiff - herein, appeals to the Kings County Court from the judgment of this court, entered herein on April 9, 1879, in favor of Timothy Long, the defendant, and for the sum of $5.87 costs, and from every part of said judgment, on the following grounds, viz.:
    “ I. That said judgment was rendered upon an issue of fact.
    “ II. That the claim in litigation herein was for more than fifty dollars.

      “III. That said judgment was rendered contrary to-the evidence on said trial.
    “ Dated April 23, 1879.
    Respectfully,
    “JOHN ANDREWS,

      “Plaintiff's Attorney, 44 Court Street, ProoMyn.

      “ To Timoti-iy Long, Defendant, Hon. E. W. Bloom, Justicey etc."

      Joseph 8. Ridgway, for the appellant.

      Thomas Vernon and George Hill; for the respondent.
   Barnard, P. J. :

This appeal is properly brought. The comity court dismissed the appeals brought from a court of a justice of the peace, upon the ground that the notice of appeal was not signed by the appellant, and because the grounds of the appeal were not sufficiently stated. By section 1342 of the Code of Civil Procedure, an appeal is provided from an order affecting a substantial right in an action brought in a court specified in section 1340. That section mentions a county court, but the claim is, that this order was not made in an action brought in a county court; we think, for the purposes of an appeal, the actions were brought in a county court by the appeals.

The notices of appeal specify that the judgment appealed from was rendered upon an issue of fact. That the claim litigated was over fifty dollars. “That the judgment rendered was contrary to the evidence on said trial.” We think this is a sufficient statement of the grounds of appeal under section 353 of the Code, applicable to appeals from justices’ judgments. We adhere to the decision of this court as pronounced in Fowler v. Westervelt (40 Barb., 374). The point was not presented in Amsdell v. McCaffrey (16 Hun, 255), whether the notice of appeal was suffb cient when it stated that the judgment appealed from was against law and evidence. The notice of appeal, in that case, was entitled in the Second District Court, city of Brooklyn; it did not state the amount of the judgment. It did not state that the judgment was rendered upon an issue of law or fact, and it was signed by one George E. King, as attorney for the appellant. The decision was proper, but the,general words in the opinion, in respect to the statement of the grounds of appeal in the notice of appeal, were not applicable to the case. presented. In the present case, the notice of appeal is far different in its statement from those in Amsdell v. McCaffrey. It states, a court and a judgment rendered upon an issue, and that the claim was for over fifty dollars. “ That said judgment was rendered contrary to the evidence on said trial.” To require a more particular statement of a ground for a new trial, which follows as matter of right, would apply an unneces'sary strict rule to courts, which the Legislature have uniformly attempted to free from technical objections which do not affect the merits.

The notice of appeal is not signed by the appellant, but by “ John Andrus, plaintiff’s attorney.”

In courts of justices of the peace there are no attorneys authorized to appear as such, without proof of their authority. There is no authority apparent in this case, which binds the appellant by the notice of appeal. In Sperry v. Reynolds (65 N. Y., 179), an attorney appeared for a defendant, in his absence and without proof of his authority so to appear, it was held that the justice of the peace obtained no jurisdiction of the defendant, and the court reversed the judgment upon a ground stated in the notice of appeal, "that the justice had no jurisdiction of the action, or of the person of the defendant.”

The orders should be affirmed, upon the ground that the appellant has not served a notice of appeal, with costs and disbursements.

Dykman and Pratt, JJ., concurred.

Order dismissing appeals affirmed, with costs and disbursements.


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    JOSEPH H. NEWINS, as County Treasurer of Suffolk County, Plaintiff, v. JAMES BAIRD, Defendant.

      Judgment, where an infant appears by guardian — when it may be entered —• Code of Civil Procedwe, § 1218 — only applicable to judgments by default.

    . In an action, brought to foreclose a mortgage, an infant defendant applied for and procured the appointment of a guardian ad litem, who put in the general answer. Subsequently, and before the expiration of twenty days from his appointment, the action was tried and judgment rendered in favor of the iHain- . tiff, the guardian appearing and making no objection thereto.

      Held, that the judgment was regalar; thataection 1218 of the Code of Civil Procedure, requiring twenty days to elapse between the appointment of the guardian and the entry of judgment, only applied where the judgment was - entered by default.
    Controversy submitted on agreed facts, under section 1279 of the Code of Civil Procedure. The question was whether, under /§ 1218 of the Code of Civil Procedure, the plaintiff, in a case where an infant defendant had appeared and answered by his guardian ad litem, was required to wait twenty days before entering' judgment.

      Payne & Benjamin, for the plaintiff.

      •S. M. & D. B. Meeker, for the defendant.
   Barnard, P. J.:

Section 1218 of the Code of Civil Procedure provides that a judgment shall not be taken against an infant, defendant, until twenty days have expired since the appointment of a guardian •ad litem for him. The plaintiff foreclosed a mortgage against 'George W. Townsend and others. Townsend was an infant, «owning two equal undivided thirds of the property. Upon due application of the infant, he being over fourteen years of age, a guardian ad litem was appointed, who put in a general answer. The case was tried and judgment entered before the expiration of twenty days subsequent to the appointment of the guardian ; but the guardian appeared upon the trial, and no objection was made to the judgment, and no appeal taken. The purchaser xefases to take title, upon the ground that the judgment is void as against the infant, for the reason that twenty days did not elapse after the appointment of the guardian. We think the ■objection of no force.

Section 1218 had no reference to judgment taken against infants other than' by default. In case the infant appears and makes an issue, it may be noticed for trial at once, like other issues. “At anytime after the joinder of issues” either party may serve notice of trial. (Code of Civil Procedure, § 977.)

The submitted case does not disclose whether the trial was upon plaintiff’s or the infant’s notice. After issue joined, a guard-ian ad litem had the right to control the due and orderly management of the action. He could accept short notice of trial,. but he could admit nothing to sustain the action. No injury to-the infant’s interests is pretended. The claim, solely, is that by section 1218 there must be an entire judicial inaction for twenty days after a guardian is appointed, whether issue be joined or not.

We think this is not the true meaning of the section.

There should be a judgment for the plaintiff upon the submitted case, with costs.

Dykman and Pratt, JJ., concurred.

.Judgment for plaintiff on submitted case, with costs.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. AUGUSTUS F. WEEKES, Appellant, v. FRANCIS R. BALDWIN, as Treasurer of the County of Queens, Respondent.

      Sale of land for taxes in Queens cownty —fees of county treasurer — chapter 20& of 1877 — chapter 226 of 1878.
    Section 21 of chapter 226 of 1878, relating to the sale of lands in Queens county for unpaid taxes, provides that “ the county treasurer shall be allowed, in case the proceedings be discontinued before the sale, in accordance with the provisions of this act, the amount actually paid by him for imblication in newspapers as aforesaid, and for his own fees upon the same, the sum of one dollar* for every lot, plot or parcel so assessed.”

      Udd, that the county treasurer was entitled to his fees whenever a tax was sought to be paid, after he had completed the list and notice of sale and delivered the same to the printer, though before the time of its first publication.
    Appeal from a judgment in favor of the defendant, entered upon an order overruling a demurrer interposed by the relator to the return of the defendant.
    On the 15th day of May, 1879, an order was made by Judge Pratt, requiring the respondent, as treasurer of Queens county, to show cause, why he, as treasurer, should not be compelled forthwith to receive the sum of $326.61 in full payment of the unpaid taxes, county and State, for the year 1877, upon the parcels of land in the town of Flushing belonging to the appellant, to mark said taxes paid, to give a receipt or receipts therefor, and to strike out the said lots from the list of unpaid taxes for 1877, and to refrain from and stop the publication of said property for sale for unpaid taxes for that year.
    The relator claimed that on the second day of May, 1879, he tendered to the treasurer $326.61 (being the taxes and accrued interest); that this was declined, and that he then tendered the same amount, with the printer’s fees added of seventy cents per lot; that this was also declined, and the treasurer told him he would receive the money provided he would pay the treasurer's charges also, which the relator refused to do.

      The treasurer had, some ten days prior to this tender, made out the Flushing list, showing the lots on which the taxes were-unpaid, and delivered it to the newspapers in which it was to be ' published,
    Nearly the whole of the notice was in type in the Flushing-Journal office before the second day of May, and the notice was first published on the tenth of May, 1879.
    The notice was received at the Whitestone Herald office several days prior to May second, and first published on the fourteenth of May.
    Upon the return to the order to show cause, the relator demurred to the return, for the reason that it showed no sufficient-ground or reason why the writ should not be granted. The demurrer was overruled and judgment entered for the defendant.

      Geo. W. Van Siclen, for the appellant.

      Jno. J. Armstrong, for the respondent.
   Barnard, P. J.:

There is but a single question presented by this appeal. By the provision of chapter 268 of the Laws of 1877, as amended by -chapter 226 of the Laws of 1878, the county treasurer had, whose duty it was so to do by these laws, prepared lists of the various lots in Queens county upon which the taxes were unpaid for the year 1877 ; and about the 20th April, 1878, had delivered the lists as required by these laws, together "with a notice that the same would be sold if the taxes and expenses were not paid by the day fixed in the notice. After these lists had been in the hands of the printers, and were almost entirely set up, the relator offered to pay his tax without any payment to the county treasurer.

Section 21 of chapter 226 of Laws of 1878, provides as follows : “ The county treasurer shall be allowed, in case the proceedings be discontinued before the sale, in accordance with the provisions of this act, the amount actually paid by him lor publication, in newspapers as aforesaid, and for his own fees upon the same, the sum of one dollar for every lot, plot or parcel so assessed.” We think that the county treasurer, in addition to the tax, was entitled to the sum of one dollar upon each piece, of" relator’s land separately assessed under this section. He had done' his duty in making out the list and delivering it to the printers. They had set it up in print, and the list was published on the tenth of May, a few days after the relator wished to pay the tax. The county treasurer was charged with no further duty until the day of sale. In case of sale, he was entitled to $1.50 for each lot. assessed separately. The proceedings were not initiated by the-printer, but by the county treasurer. They were commenced when the list was delivered to the printer for publication. The-discontinuance, intended by the act in question, is affected by a. payment at any time after the delivery of the completed list to: the printer.

The judgment and order appealed from should, therefore, be. affirmed, with costs.

Pratt, J., concurred.

Present ■— Barnard, P. J.; Dykman and Pratt, JJ.

Judgment affirmed, with costs.


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    THE UNION DIME SAVINGS INSTITUTION, Plaintiff, v. WILLIAM E. ANDARIESE, Defendant.

      Sheriff, power of, to sell after the expiration of his term of office— Code of Civil■ Proced/wre, § 184, sub. 4; id., § 186 — chapter 439 of 1876.
    On December 18, 1878, a decree in foreclosure was, in pursuance of chapter 439' of the Laws of 1876, delivered to Albert Daggett, the sheriff of Kings county,, with directions to execute it. His term of office expired December 31, 1878. On receiving the decree he advertised the property for sale on January 10,1879,. and on that day sold it in pursuance of such advertisement.

      Seld, that the advertisement of the property was a “ seizure ” within subdivision 4, of section 184 of the Code of Civil Procedure, and that under section; 186 thereof the sheriff was authorized to sell, though his term of office had expired before the day of sale.
    Controversy submitted upon agreed facts, under sections 1279' to 1281 of the Code of Civil Procedure.

      On May 27, 1879, plaintiff made an agreement with defendant to sell and convey to him certain real estate, the deed to be delivered June 12, 1879. By consent the time was extended to June 18, 1879. On that day plaintiff duly tendered to defendant a deed, and demanded performance. Defendant refused to perform,* upon the ground that plaintiff was not seized of, and could not convey a good title in fee simple of said premises.
    The only question was whether, on the 10th day of January, 1879, Albert Daggett, as sheriff of Kings county, had power to sell and convey the premises in question under foreclosure proceedings, in which the order of sale had been made and delivered to him December 18, 1878. The term of office of said Daggett, as sheriff, expired on December 31, 1878. :

      Wm. Henry Arnoux, for the plaintiff.

      Jos. A. Burr, Jr., for the defendant.
   Barnard, P. J.:

By subdivision 4 of section 184 of the Code of Civil Procedure, it is provided, that a sheriff whose term of office has expired, shall deliver to his successor “ all mandates then in his hands, except such as he has fully executed, or has begun to execute by the collection of money thereon, or by a seizure of or levy on money or other property in pursuance thereof.”

By chapter 439, Laws of 1876, it is provided that all sales of lands made under a decree of any court, except in actions for partition, and except when the parties agree upon a referee to be appointed by the court, shall be made by the sheriff of the county of Kings. Albert Daggett was sheriff of Kings county, in December, 1878 j his office expired on the 31st December, 1878. On the 18th December, 1878, there were delivered to him three decrees upon foreclosure of mortgage, directing Albert Daggett, sheriff of Kings county, to sell the real estate covered by the decrees. The sheriff immediately advertised the property for sale on the 10th of January, 1879. On that clay he made the sales, and the plaintiffs bought the property. The question presented is, whether the sheriff Daggett, had power to sell. We think he had. The advertisement, in obedience to the decrees,. was a seizure within the meaning of section 184 of the Code of Civil Procedure. There need be no entry upon the land by the sheriff, either for a levy under a money execution or to execute a decree of sale in foreclosure. Neither an execution or direction to sell, under decrees in foreclosure, justifies an officer in an interference with the possession of land. In Rodgers v. Bonner (45 N. Y., 379), the Court of Appeals held that a levy, under an attachment, required nothing further to be done by the officer than some act with intent to make the property liable to the process. That this would constitute a seizure.

In the present case the sheriff immediately subjected the property to the provisions of the decree for its sale. He advertised it as directed, and the seizure, in pursuance thereof, was complete within the meaning of the law. The sheriff was, therefore, under section 186 of the Code of Civil Procedure, bound to complete the sale, and there should be judgment for plaintiffs vpov the submitted case, with costs.

DyKMAN and Pratt, JJ., concurred.'

Judgment for plaintiff on submitted case, with costs.


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    THERESA WILLIAMSON, Trustee, etc., Respondent, v. ELIZABETH DUFFY, Appellant, Impleaded with MICHAEL DUFFY.

      Married- womans — when liable on her bond, though her separate estate is not eharged by the terms of the bond.

    This action was brought to foreclose a bond and mortgage executed by the defendant, a marx-ied woman, upon land belonging to her. The bond did not chai’ge her sepai’ate estate with its payment. The defendant alleged in her answer that she was a maiTied woman, not caiTying on any sepai'ate business, ’ and’ asked not to- be held liable for any deficiency.

      Held, that a demurrer thereto, interposed by the plaintiff, was properly sustained, as the mere fact that she received the money, upon her promise to repay it, was sufficieixt evidence that it was borrowed for the benefit of her separate estate.

      Appeal from so much of a judgment entered herein, as holds the defendant liable for any deficiency that may arise upon the sale of the mortgaged premises under a judgment of foreclosure entered herein. A demurrer interposed by the plaintiff to- a defence set up by the defendant, that she was a married woman and did not carry on any separate business, was sustained, ánd the appellant seeks to review the oi-der sustaining it, upon this appeal.

      Thomas J. Farrelt, for the appellant.

      James Ridgioay, for the respondent.
   Barnard, P. J. :

The defendant, Duffy,' borrowed upon a bond and mortgage upon her land the sum of $3,000. The bond did not charge her separate estate with the payment of the debt. The answer avers that the- defendant, Duffy,- is a married woman, and that she does not carry on any separate business, and asks that she be decreed to be not liable to pay any deficiency arising upon a sale of the mortgaged premises. We think the plaintiff’s demurrer to this answer properly sustained. The defendant, by the loan in 'question, increased her estate as between herself and the plaintiffs, to the extent of the amount of the loan. When she has the power by law to increase her separate estate, she should be held to perform the contract whereby it is increased. The mere fact, therefore, that a married woman receives money upon her promise to repay it, is sufficient evidence that the money borrowed went for fhe benefit of her separate estate.

Judgment affirmed, with costs.

Pratt, J., concurred.

Present — Barnard, P. J., Dykman and Pratt, JJ.

Part of judgment appealed from, and order sustaining plaintiff’s demurrer affirmed, with costs.