text:
    THE HIBERNIA NATIONAL BANK, Respondent, v. LEOPOLD LACOMBE and others, as Commissioners in Liquidation of THE MECHANICS’ AND TRADERS’ BANK OF NEW ORLEANS, Appellants, Impleaded, &c.

      A cause of action upon a draft arises in the place where the drawee refuses to pay it — effect in this State of a foreign adjudication of bankruptcy — a creditor may hold property here, as against the foreign assignee — %e may do so though he is domiciled in the State appointing the assignee.

    This action was- brought upon a draft drawn, on March 17, 1879, upon bankers in New York city, by the Mechanics’ and Traders’ Bank of New Orleans, to the order of the plaintiff, both the drawer and the payee being national banks, organized and carrying on business in the city of New Orleans. On March 10, 1879, the Mechanics’ and Traders’ Bank, having become insolvent, a decree was duly entered in an action brought against it in acourt of Louisiana, having jurisdiction thereof, declaring its charter forfeited, and appointing, as commissioners in liquidation, the appellants, to whom the assets of the bank in the State of Louisiana were thereafter delivered.
    The draft having been presented for payment and payment refused on March 26, this action was commenced on March 27, by the issue of an attachment against the said bank, arid a levy thereunder, upon funds belonging to it, which were then in the hands of the bankers upon whom the draft was drawn, the summons being subsequently served upon it by publication. Thereafter the commissioners in liquidation were, upon then-application, made parties defendant herein.

      Reid, that the draft being drawn upon residents of this State, and payment thereof having been here refused by them, the cause of action arose in this State.
    That the fact that prior to the commencement of this action the charter of the bank had, by the decree of the court in Louisiana, been forfeited, and its corporate existence thereby terminated, did not affect the right of a creditor of the bank to proceed against it, in this State, as to ^property situated herein.
    That the fact that the plaintiff was domiciled within and subject to the laws of the State of Louisiana, did not prevent it from maintaining this action here.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of tbis action by the court without a jury.
    This action was brought against the Mechanics’ and Traders’ Bank of New Orleans upon a bill of exchange for $10,000 dated New Orleans, March 17, 1879, drawn by it upon M. Morgan’s Sons, New York, payable to the order of the plaintiff, a national bank, located in New Orleans, at sight, which was presented' for payment on the 26th of March, 1879, and payment thereof having been refused, it was, on the said day, duly protested for non-payment, and notice thereof given.
    The defendant, the Mechanics’ and Traders’ Bank, failed on the 19th of March, 1879, and on the same day judgment was entered against it in a court in New Orleans, declaring its charter forfeited, and appointing commissioners in liquidation to wind up its affairs. The sheriff of the parish of Orleans took possession of the assets of the bank in Louisiana, on the 19th of March, and on the 30th of April, 1879, delivered them to thé above defendants as commissioners.

      The statute of Louisiana bearing upon the question (1 Ray’s Revised Statutes of Louisiana, § 284), was as follows, i iz. : “Every banking company established under this act shall, on proof of any act of insolvency or non-complianc'e with any of the conditions of this act, forfeit its corporate rights; and it shall be the duty of the district court of the district in which said corporation is situated, at the instance of any creditor, or of the auditor of public accounts, and on proof of the alleged facts, to decree such forfeiture, and to appoint thereupon commissioners to effect the liquidation of the affairs of the corporation, to convert into cash, as speedily as may be, under the direction of the court, all the assets of the corporation, including the sum that may have remained unpaid by stockholders upon their respective shares of the capital stock; and after providing for any unpaid balance which maybe due to the bill-holders, to distribute the same, as now provided by law, in case of insolvencies of individuals.”
    This action was commenced on the 27th of March, 1879, against the Mechanics’ and Traders’ Bank, by the issue of an attachment under which its funds, in the hands of M. Morgan’s Sons, were levied upon on that day. Service of the summons upon the bank was made by publication. The commissioners in liquidation of the bank were made defendants, upon their own application, July 11, 1879.

      Wm. Henry Arnowx, for the appellant.
    The instrument sued on in this action is a Louisiana contract, because it is admitted that such instrument was made and delivered in New Orleans; and the cause of action therefore did not arise within this State. The contracts of makers, acceptors, and indorsers of commercial paper are separate and distinct; and their relations to each other do not affect the law governing their respective obligations. (.Everett v. Y&nd/ryes, 19 N. Y., 436 ; and see cases hereinafter cited.) It is the established law in respect to the contract of indorsement that the indorser is held according to the law of the place oí indorsement, without regard to the residence of the maker or the place of payment. ([Aymar v. Sheldon,, 12 Wend., 439 ; Oodk v Litchfield, 5 Sandf., 330; Lunseomb v. Bvmdcer, 2 Mete., 8;
      Lowry's Adm’rs y. Bcmh of Georgia, 7 Ala., 120; Dunn y. Adams, 1 Id., 527 ; Cox v. Adams, 2 Kelly [Geo.], 158; Hatcher v. Morine, 4 Deyereux, 122; Dow v. Rowell, 12 N. H., 49; Yeat mcm v. Cullen, 5 Blackf., 240 ; HoTbrooh y. Yibba/rd, 2 Scammon, 4G5 ; Trimley v. Yignier, 1 Bing. N. 0., 151; Slocum v. Pomery, 6 Cranch, 221; Story on Prom. Notes, § 339, and notes ; Dundas v. Bowler, 3 McLean, 397; Connecticut M. L. A. Co. v. C. C. ds C. R. R., 23 Iiow., 180 ; Overton v. Bolton, 9 Heist. [Tenn.], 762; 24 Am., 367.) Acceptance in New York is a New York contract. {Norton v. Cooh, 9 Conn., 314 ; Burrows v. Jernino, 2Stra., 733 ; Story on Prom. Notes, § 168 ; Story on Bills, § 165; Roquette v. Overmamm, L. R., 10 Q. B., 536.) The same is held as to a surety. {Olapham y. Hall, 51 Miss., 482.) Drawers are simply sureties, and are held according to the law of the place where the bill is drawn; that is, the place where their contract is made. {Allen v. Merch. Banh of N. Y., 22 Wend., 215, 240; Banh of Rochester v. Gray, 2 Hill, 227; Ca/rroll y. Upton, 2 Sandf., 171; Phillimore’s Internal Law, § 1349, 4 ed., p. 661; Hides r. Brown, 12 Johns., 142; First National Bcmh of Toledo v. Slum, 61 N. Y., 283, 293; 'Willetts y. Wctite, 25 N. Y., 577; Cantwell v. Dubuqice W. R. R., 17 How., 16; Artisan’s Bcmh v. Pcwh Bcmh, 41 Barb., 599; Western Bcmh v. The City of Col/wrhhus, 7 How., 238; The Bcmh of the United States v. United States, 2 How. H. S., 711; De Wolf y. Johnston, 10 Wheat., 366; 6 Curtis, 438.) And in accord with this see Cope v. Alden, 53 Barb., 350; Dolman y. Code, 1 McCarter, 56; Champion v. Kille, 1 McCarter, 229 ; Andrews v. Torrey, 1 McCarter, 355 ; CJuose v. Dow, 47 N. II., 405 ; In re Glyn, 15 Nat. Bank. Peg., 495 ; Kilgore y. Dempsey, 25 Ohio St., 413; 18 Am., 306; Depcrn v. Humphreys, 10 Martin (La.), 1; Kuenzi y. Elvers, 14 La. An., 391; Mix y. Madison Ins. Co., 11 Ind., 117; Hunt v. Stamdamt, 15 Ind., 33; lennig v. Ralston, 23 Penn. St., 137; Hazelhust y. Kean, 4 Dali., 20; Allen v. The Banh, 5 Wliar., 425 ; Hyatt v. Bh. of Kentucky, 8 Bush, 193 ; Price y. Page, 24 Mo., 65 ; Cooper v. The Earl of Waldegrame, 2 Beav., 282; Timbey v. Yignier, 1 Bing., N, C., 151; Rouqueiie v. Overmamm, L. R., 10 Q. B., 525;
      Snaith v. Mmgay, 11. & S., 87; Baker v. Sternes, 9 Ex., 684. This is the general principle of all personal contracts, that they are to he governed by the law of the place of contract. (Ivey v. Lolland, 42 Miss., 444 ; 2 Am., 606; Tipton v. Hubbard, 28 Conn., 274, 286 ; Bwrns v. Provincial Ins. Co., 36 Barb., 625; succession of Wilder, 22 La. An., 219; 2 Am., 721; Lerniig v. Ralston, 23 Penn. St., 137, 140; Daniels on Negotiable Instruments, § 920.) The defendant bank was a corporation organized under and by virtue of the laws of the State of Louisiana; and as the money that had been deposited by it with M. Morgan’s Sons, on whom the draft in question was drawn, was simply a debt due and owing by them to the said bank, and it being a Louisiana corporation, the money due to it was, in the eye of the law, likewise located in that State; it had no property within the State of New York, nor within the jurisdiction of this court. Therefore, the attachment granted and the judgment entered in this action were void, there having been no personal or voluntary appearance of said bank. The right of action against foreign corporations exists only by statute, and is limited to property in this State. (HuTbert v. Hope M. I. Co., 4 How., 275; Gibbs v. Queens Ins. Co., 63 N. Y., 114; Brewster v. Michigan C. R. R., 5 How., 183; Whitehead v. Buffalo c& L. H. R., 18 How. Pr., ,218, 232 ; Case v. Ohio Ins. Co., 2 O. R., 82; Van Buskirk v. The Hartford Fire Ins. Co., 14 Conn., 583; Matter of Franklin Bank, 1 Paige, 249 ; Chapman v. White, 6 N. Y., 412; Commercial Bk. v. Hughes, 17 Wend., 94; Grames v. Dudley, 20 N. Y., 76; WilUtts v. Waite, 25 N. Y., 584; Hoyt v. Commissioners of Taxes, 23 N. Y., 224 ; Atwood v. Protection Ins. Co., 14 Conn., 555, 562; Van Buskirk v. Hartford Fire Ins. Co., 14 Conn., 583 ; Milne v. Moreton, 6 Binn., 361.) Where a citizen of a State pursues an insolvent fellow-citizen in another State, he may be treated as a trustee and called to account as such in the courts of his own State. (Story Conf. Laws, § 403, etc.; Sill v. Wo'rswick, 1 H. Bla., 690; Phillips v. Hunter, 2 Id., 402; Hunter v. Potts, 2 T. R., 182; Exporte Frank, 1 Cook’s B. L-; 336 ; Harris v.MandeviTle, 2 Yeates, 99; May v. Breed, 7 Cush., 16; Peck v. Hibbard, 26 Yt., 698; Blake v. Williams, 6 Pick., 312.) Or, instead of treating Mm as a trustee, where equity demands it, a court may enjoin its' own citizens from commencing, or, having commenced, from prosecuting any litigation in the courts of another State. (Engel v. Scheuerman, 40 Ga., 206 ; 2 Am., 573; Dehon v. Foster, 86 Mass., 545 ; Vail v. Knapp, 49 Barb., 299; Field v. Holbrook, 3 Abb., 377; Dobson v. Pecvrce, 12 N. Y., 169; Mitchell v. Bunch, 2 Paige, 606; Mead v.' Merritt, 2 Paige, 402; Bushby v. Munda/y, 5 Mad., 297; Van Buskirk v. Hcvrtford Fi/re Ins. Go., 14 Conn., 583, 588; Potter v. Brown, 5 East, 131.) Every subject is to be deemed to be a party to the laws of his own government. (.Mather v. Bush, 16 Johns., 233; Gonsequa v. Fanning, 3 Johns. Oh., 587; Toutrng v. Hubba/rd, 3 Bos. & P., 291; Gorvwcvy v. Gray, 10 East, 536; 2 Parsons on Cont., 568 ; Gampbell v.- Hall, Cowp., 208, per Lord Mansfield ; Keyser v. Bice, 47 Md., 203; 28 Am., 448).

      Thomas S. Moore, for the respondent.
    The cause of action arose in the State of New York. The court had jurisdiction of the action, and the attachment was properly granted. (§ 427, Qode of Procedure; Ohittyon Bills, p. 144, 11th English ed.; Cumberland Goad Go. v. Hoffman Goal Go., 30 Barb., 168; Bu/rckle v. Eckhcurt, 3 N. Y., 132; 2 Kent Com. *p. 460, citing Oooper^r. Ecvrl of Waldegra/ve, 2 Beavan, 282; Bank of Gommerce v. But-land B. B. Go., 10 How., 1; Whitehead and Buffalo v. L. H. B. B. Go., 18 How. Pr., 233; Pomeroy v. Ainsworth, 22 Barb., 128 ; Gown. Mat. Life Ins. Go. v. Cleveland B. B. Go., 41 Barb., 9'; 23 How. Pr., 180 ; Everett v. Vend/ryes, 19 N. Y., 436; Spencer v. Bogers Locomotive Works, 8 Bosw., 612.)
    The corporation, the Mechanics’ and Traders’ Bank, was not dissolved as against creditors attaching its property in tMs State. (1 Ray’s Statutes of La., § 284; In re Independent Ins. Go., 1 Holmes, 103, H. S. Circuit Ct., Mass.; Thornhill v. The Bank, 1 Woods, 1; Washington Marihe Ins. Go., 2 Benedict, 292.)
    Even though the decree of the District Court of Louisiana dissolved the Mechanics’ and Traders’ Bank, it could only do so as regards its property in Louisiana; as to property in the State of New York, it could take effect only subject to the claims of creditors. The property in this State is a fund for the benefit of those creditors who invoke the protection of its laws ; and it will be held by our courts to satisfy their claims, notwithstanding any judicial proceedings in other States. (Hamilton v. Accessory Transit Co., 26 Barb., 46; Tinkham v. Vanderbilt, 39 Barb., 140; City Ins. Co. v. Comm. Bank, 68 111., 348 ; Murray v. VaAiderbilt, 39 Barb., 140; Holmes v. Bemsen, 24 Johns. R., 229 ; Abrahams v. 'Plestoro, S Wend., 548; Hoyt v. Thompson, 5 N. Y., 341; Hoyt v. Thompson, Eos., 19 N. Y., 224; Willitts v. Wcuite, 25 N. Y., 577; Kelly v. Crapo, 45 N. Y., 86.)
   Barrett, J.:

The main question in this case is whether a Louisiana creditor of the defendant bank, who has attached property here, takes precedence over liquidators appointed by a Louisiana court, under an act of that State, which is in the nature of a bankrupt or insolvent law.

1. It is incidentally argued that the present proceedings were absolutely void because of the forfeiture decreed by the Louisiana court. The contention is that thereby the bank had ceased to exist, and consequently could no more be sued than a natural person deceased. This is but another way of saying that the liquidators take precedence. 'Whatever rights they have flow from the judicial proceedings against the bank. They claim the property thereunder. Now it is evident that if, on general principles, well settled in our courts, the liquidators’ title, thus acquired, cannot prevail against the rights of attaching creditors, this legal status cannot be affected by either the form or substance of the foreign tribunal’s judgment. No act of the foreign jurisdiction, no special provision of the foreign decree, can be permitted to prevent the free exercise of rights conferred by our laws. The corporation lives and exists, therefore, at least, so far as to enable creditors to proceed against property here, quasi inrem. (City Ins. Co. v. Commercial Bank, 68 Ill., 348.) In this case the court said: “ If it be- conceded that it is proven this bank has forfeited. its franchises %mder the laws of Bhode Island, the obligation of its contracts survives, and this action may be maintained on the ground that it is a proceeding against the property of the bmlc (not in the hands of a bona fide purchaser), to enforce payment.”

To subject the property of the bank within the State to the payment of their claims, is a right of which creditors cannot be deprived, either directly, by conveyance in vmibum under a foreign bankrupt law, nor indirectly, by a decree, which in effect is nothing more nor less, so far as we are concerned, than a declaration of the foreign court that the debtor ca/rmot be sued. Nor can the liquidators be heard to set up this defense. The only effect it could have, if successful, would be to defeat the creditor, and enable the liquidators to reduce the property to possession — the very thing which our law will not suffer. The law of Louisiana, under which the liquidators claim, has no extra-territorial force. On this head the principle of comity has been repeatedly but unsuccessfully invoked. The light of the liquidators to appear in our courts, and litigate, is not a strictly legal one, but depends upon the comity. Such comity should not be extended so far as to permit them to set up the provisions of a decree which could possibly have the effect contended for.

But further, we do not think that there was an absolute dissolution, analogous, in legal contemplation, to the death of a natural person. The act under which the decree proceeded provided for a forfeiture “ of corporate rights ” upon proof of insolvency, but, as was said in In re Independent Insurance Company (1 Holmes, 103, U. S. Circuit Ct., Mass.), “ A corporation may, for certain purposes, be considered dissolved so far as to be incapable of doing injury to the public, while it yet retains vitality so far as essential for the protection of the rights of others.” Under the decree in question the bank was put in liquidation. Its assets were placed in the hands of the liquidators. The power to carry on business was taken away. Undoubtedly, it ceased to be, so to speak, a going corporation ; nay, more, as its corporate rights were forfeited, perhaps it could not be sued with a view to an ordinary judgment in personam. But it could be impleaded in many ways : e. g., by parties having liens to be foreclosed or other rights to be secured, not demanding a personal judgment to be collected by execution against its general assets. So also, where the proceeding is in substance, though not in form, against the thing sought specially to be subjected.

2. The next subdivision of the main point urged by the appellant is, that the court below had no jurisdiction, for the reason that both jdaintrff and defendant are foreign corporations, an¿l that the cause of action did not arise within this State. It is true, that the plaintiff and defendant are foreign corporations, but the appellant is in error in supposing that the cause of action did not arise within this State. The action is founded upon a bill of exchange, drawn by the defendant bank, in New Orleans, on Messrs. M. Morgan’s Sons, in this city. The drawer’s contract was that Morgan’s Sons should pay the bill here upon demand. That contract was broken upon the refusal of .Morgan’s Sons to so pay. The cause of action was this breach. The question is not what law shall govern in the enforcement of the • contract, but where the breach occurred. Clearly that was here. The cause of action was complete upon presentment, refusal, protest and notice — all acts occurring here. The authorities, with the single exception of the Special Term case of Cantwell v. Dubuque Western R. R. Co. (17 How. Pr., 16), fully support this j>osition. (Bank of Commerce v. Rutland R. R. Co., 10 How. Pr., 1; Conn. Mutual Life Ins. Co. v. Cleveland R. R. Co., 23 How. Pr., 180, followed, 41 Barb., 9; Spencer v. Rogers Locomotive Works, 8 Bosw., 612 ; Burckle v. Eckhart, 3 N. Y., 132; Johnson v. Adams Tobacco Co., 14 Hun, 89.) The Cantwell Case is overshadowed by the authorities cited. Besides, it was evidently decided under a misapprehension of the ruling in Western Bank v. City of Columbus (7 How. Pr., 238). The latter case was well decided upon the actual facts, for the action was on a loan made and payable in the foreign State. The bill of exchange was merely collateral, and the defendant corporation was not a party to it.

3. The appellant next invokes the comity in favor of the liquidators, especially as against this plaintiff, on the ground that the latter is a Louisiana creditor, and should not in this manner be permitted to obtain a preference which would not be allowed in the homeforwm. This in our judgment is the gravest question arising on this appeal. If it were original we would certainly hesitate before rejecting the appellant’s claim. The departure in this country from the English rule, with respect to the universal operation, upon all personal property, of an assignment under a foreign bankrupt law, was mainly attributable to considerations affecting domestic creditors. Our own attaching creditors were to be preferred to any foreign assignees. So our local laws were to be defended and sustained as against those of any foreign State. From this it resulted that a foreign assignment, void under our laws, would not be here enforced. It was maintained that every country may, by positive law, regulate as it pleases the disposition of personal property found within it (Story Conf. of Laws, § 410); that a statutory conveyance, made under the authority of any legislature, can operate intra-territorially only, (§§ 411, 414), and that- national comity, which is all that a foreign assignee can invoke, requires us to give effect to such assignments only so far as may be done without impairing the remedies or lessening the securities which our laws have provided for our own citizens. It is apparent that the reason of the rale does not include foreign creditors, domiciled in the State wherein the assignment originated, and subject to its laws. There would appear to be no good reason why the comity should be withheld from the foreign assignee, in favor of such foreign creditor. In England, a British creditor, who thus seeks to defeat the operation of the law of equality, is treated as a trustee, and in an action by the assignee may be compelled to refund what he secured by attachment in foreign parts, or, he may be restrained by injunction from proceeding against the estate of the insolvent in the foreign jurisdiction.

But the weight of authority in this country is against even this limited application of the doctrine of national comity. To sustain and fortify the position taken for the protection of domestic creditors, the courts have substantially shut out the foreign assignment altogether. Chief Justice Marshall, in Harrison v. Sterry (5 Cranch, 289, 302), declared that the bankrupt law of a foreign country is incapable of operatmg a legal trrcvnsfer of property in the United States. It lias even been doubted whether the assignee can sue here at all; but the better opinion would seem to be that he may. Not, however, as an assignee having an interest, but as the representative of the bankrupt. (Holmes v. Remsen, 20 Johns., 259; Hoyt v. Thompson, 1 Seld., 351, Opinion of Paige, J.; Willitts v. Waite, 25. N. Y., 584, Opinion of Allen, J.) In Abraham v. Plestoro (3 Wend., 548) it was held that the assignee was not entitled to an injunction to restrain even the banlarupt from receiving property which was on the high seas, on its way from England to New York, at the time of suing out the commission of bankruptcy. In Johnson v. Hunt (23 Wend., 91) Abraham v. Plestoro was commented upon and followed, the court giving its view of what was decided in that case in the following language: “ The amount of the decision, as I understand it, is that an assignment in i/mihu/m, under the law of one State or nation, has no operation in another, even with respect to its own citizens. That the bankrupt, a subject of the very country under whose laws he was proceeded against, may, on crossing the territorial line, dispose of the property which he has brought with him ; may withhold it entirely from the creditors who are proceeding against him in the foreign jurisdiction; and it follows that other creditors, coming from the same jurisdiction, may either pursue him by attachment, by judgment and execution, or take a voluntary transfer of the property so brought by the debtor in satisfaction of claims.”

Both of these cases were considered in Hoyt v. Thompson, ubi supra, Ruggles, Oh. J., took a different view of Abraham v. Plestoro, and dissented from Johnson v. Hunt, but Paige, J"., declared that the effect of these decisions was to establish “ the absolute invalidity of the foreign statutory assignment, as it respects property in this State ; not only as between the foreign assignees and domestic creditors, but also as between such assignees and creditors residing in the country under whose laws the assignment was made, and who are proceeding agahnst the property by< attachment or otherwise in our courts.” To like effect is Willetts v. Waite (supra), where Sutherland, J., said: “I understand that in this case the court held that such title will not be recognized by the courts of this State, even where the question arises entirely between the bankrupt and his assignee and creditors all residing in the country under whose loros the assignment was made.”

The tendency of the cases in the Supreme Court of the United States, and in the other States of the Union, is in the same direction. (Ogden v. Saunders, 12 Wheat., 218; Booth v. Clark, 17 How. U. S., 322; Zipcey v. Thompson, 1 Gray, 243 ; Birch v. McLean, 1 Harris & McH., 286 ; Wallace v. Patterson, 2 Id., 463 ; Blake v. Williams, 6 Pick., 303 ; McNeil v. Colquhoon, 2 Hayw., 24; Lanfear v. Sumner, 17 Mass., 110; Payne v. Lester, 44 Conn., 204; Upton v. Hubbard, 28 Conn., 274; City Ins. Co. v. Commercial Bank, 68 Ill. 351; Betton v. Valentine, 1 Curtis, 168.)

In Booth v. Clark, tbe doctrine laid down by Chief Justice Marshall in Harrison v. Sterry, was reasserted; and, speaking of a receiver appointed by the Court of Chancery in this State, the court remarked: “ lie has no extra-territorial power of official action, none which the court appointing him can confer with authority to enable him to go into a foreign jurisdiction to take possession of the debtor’s property.”

Upton v. Hubbard was a contest in Connecticut between a Massachusetts assignee and a creditor who was also from that State. The court, held that although a foreign assignee may in some cases be allowed to sue in our comts as a matter of courtesy, yet the courtesy will be denied in all eases where there are claims upon the property adverse to the assignment, whether the elemmemts be citizens of ou/r own or of some other State.

In City Ins. Co. v. Commercial Bank, both the attaching creditor and the debtor were corporations created by the laws of Rhode Island. The attachment was sustained.

In Payne v. Lester, the court alluded to the fact that the plaintiff was a citizen of Rhode Island, but remarked that that did not affect the case. “ The citizens of dll oum sister States,” said Granger, J., “have by the Constitution of the United States the same privileges with our own citizens, and any one of them who has availed himself of the legal remedies furnished by our laws to secure payment of a debt due him, has the same claim to the assistance of our courts that one of our own citizens would have.”

We feel constrained by this strong current of authority to hold that the Louisiana creditor has a right, as against the liquidators, to take advantage of our laws and to proceed thereunder; that the liquidators are not vested, as assignees having an interest, with the property within our jurisdiction; and that, treating them, as we must, merely as representing the bankrupt, they have no status to dissolve the attachment or to oust the plaintiff.

A Some minor points were made which need not be considered at length.

It is said, for instance, that there was nothing to attach but a debt; and that, as such debt was due by Morgan’s Sons to the defendant bank in New Orleans, the moneys were in the eye of the law located in Louisiana; ergo, the defendant had no property in this State. There is nothing in this point. The books are full of just such cases. . The Code expressly provides for the attachment of debts. But without pursuing this further, we need only say that the findings below, made upon consent, show that at the commencement of this action, there were “ fionds ” in the hands of Morgan’s Sons “ belonging to the bank,” and that the attachment was levied upon such “ funds.” There is nothing here about a debt; on the contrary, the relation of bailor and bailee may be presumed. The fwids are within this State.

Upon the whole we are of the opinion that the judgment must be affirmed with costs.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed with costs.


source: Caselaw Access Project

author: Barrett, J.:

license: Public Domain

text:
    THE UNION NATIONAL BANK OF RAHWAY, NEW JERSEY, Respondent, v. HOWARD L. UNDERHILL, Appellant, Impleaded, &c.

      Giving of a firm note by one partner for his individual debt — when the person receiving it is changeable with notice of his lack of authority so to do.

    The plaintiff, a bank, held a protested check drawn by one Cheyney and indorsed for his accommodation by one Vail. The bank, knowing that Vail was an accommodation indorser, having pressed him and Cheyney for payment, the latter was induced to give his firm note to Vail, who indorsed it, and with it took up the protested check from the bank, paying to it a small balance due on the latter in cash.
    Underhill, Cbeyney’s partner, knew nothing of the giving of the firm note, and never assented thereto.
    In an action upon the note, held, that the transaction itself was notice to the bank, and put it upon inquirj7 as to whether Underhill had assented to the giving of the firm note; and that, as he had not assented, to it, he was not liable thereon.
    Appeal by tbe defendant Underhill, from a judgment entered against him, upon a verdict directed by the court in favor of the plaintiff, and from an order denying a motion for a new trial, made upon the minutes of the judge before whom the action was tried.

      Hamilton Odell, for the appellant.
    The authority of one partner to bind his copartners is strictly and without exception limited to transactions within the scope of, and pertaining to the business of the partnership. ( Welles v. Mar eh, 30" N. Y., 344 ; Oodkroft v. Olaflin, 64 Barb., 464; Elliot v. Dudley, 19 Id., 330; Pinckney v. Keyler, 4 E. D. Smith, 471; Sweetser v. French, 2 Cush., 314; Moran v. Prather, 22 Wall., 492; McQuewans v. Hamlin, 35 Pa., 517; Bankhead v. Holloway, 6 Coldw., 56; Goodman v. White, 25 Miss., 163; Hotchkiss v. Kent, 8 Mich., 526; Oayton v. Hardy, 27 Mo., 526; Selden v. Bank of Commerce, 3 Minn., 166.) The indorsement by one partner of his individual note in the firm name is notice to all that the indorsement is outside of the firm business, and unauthorized. (Tanner v. Hall, 1 Pa. St., 417.) A .creditor of one partner who accepts a partnership security, on account or in discharge of his claim, is chargeable with knowledge that such security is' wrongfully issued. (.Elliott v. Dudley, suy.j Kemeys v. Richards, 11 Barb., 312; Haldeman v. Bank of Middletown, 20 Pa., 440; Baird v. Cochran, 4 Serg. & R., 397; Whitmore v. Adams, 17 Iowa, 568; Ghazournes v. Edmards, 3 Pick., 5; Da/oemyort v. Runletí, 3 N. IT., 336; Arden v. Sharye, 2 Esp., 524; Wills v. Masterman, 2 Esp., 731; Green v. Deakin, 2 Stark., 347; Wilson v. Williams, 14 Wend., 146; Geery v. Ooclcroft, 1 J. & S., 146 ; Bendelt .v. Hettric, 3 Id., 406.) And in accepting it, is himself guilty of a fraud on the other partners. (Rogers v. Batchelor, 12 Pet., 230 ; Tomykins v. Woody and, 5 W. Ya., 216 ; Manldin v. Branch Bank, 2 Ala., 502; Cotton v. Evans, 1 D.& Bat. Eq., 284; Long v. Gander, 3 Ired. Law, 241; Mecutchen v. Kermady, 27 N. J. L., 230; Gansemoort v. Williams, 14 Wend., 138; Exy. Darlington Go., 4 De Gex, J. & S., 581; Galkins v. Smith, 48 N. Y., 618 ; Venable v. Levick, 2 Head, 351; Hiekman v. Reineking, 6 Blackf., 389.) No transferee of partnership paper who knows, or from any circumstances has reason to believe, that it was issued by one partner for his individual benefit, or in a transaction outside of the partnership business, is a bona fide holder of such paper. (Smyth v. Strader, 4 How. [U. S.], 404, 416; King v. Faber, 22 Pa., 21; New York Fire Ins. Oo. v. Bennett, 5 Conn., 574; Cotton v. Evans, 1 D. & Bat. Eq., 284; Fielden v. Lahens, 3 Tr. App., 220 ; Bank of Vergennes v. Cameron, 7 Barb., 150 ; Stall v. Catskill Bank, 18 Wend., 478; Fall River BankY. Stmlevcmt, 12 Cush., 375; La/oerty v. Burr, 1 Wend., 529.) And he cannot enforce it against the other partners, without showing their authority or assent. (Cases sugar a ; Butler v. Stocking, 8 N. Y., 410; Williams v. WaTbridge, 3 Wend., 415 ; Joyce v. Williams, 14 Id., 145; Rust v. Hcmselt, 9 J. & S., 467; Lanier v. McCabe, 2 Fla., 32; Andrews v. Planters' Bmik, 7 Smedes & M., 192; Zuel v. Bowen, 78 III., 234; Williams v. Gilchrist, 11 N. H., 540 ; Sweetser v. French, 2 Cush., 314 ; Scott v. Bandy, 2 Head, 197; Sedgwick v. Lewis, 70 Pa., 217; Burleigh v. Panion, 21 Tex., 585 ; Weed v. Richardson, 2 D. & Bat. Law, 535 ; Lmig v. Waring, 18 Ala., 157; Ilendrie v. Berkowitz, 37 Cal., 113 ; Robinson v. Aldridge, 34 Miss., 352 ; Austin v. Vandermark, 4 Hill, 261; Leverson v. Lowie, 13 C. B. [N. S.], 278.) One partner cannot render his copartners liable on a note given for his individual debt, by including in it a small indebtedness due from the firm. {King v. Faber, 22 Pa., 21; Brooke v. Evans, 5 Watts, 196 ; Banter v. Plunkett, 4 Houst., 450.)

      Robert S. Green and A. E. Woodruff, for the respondent.
    The case shows, that these notes were discounted for Mr. Yail, and that, with the proceeds of the discounted notes and his own check on another bank, he took up the protested check, on which he was liable as indorser. The bank held the protested paper of Cheyney with Yail as security, it had a present cause of action — it gave up the protested check, thereby surrendering its right of action against Yail and the evidence of indebtedness, and took therefor the notes in suit payable at two, three and four months. Under the decisions in this State such a transaction constituted the plaintiff a holder for value. {Stettheimer v. Meyer, 33 ¿Barb., 215 ; Pratt v. Goman, 37 N. Y., 440; Youngs v. Lee, 12 N.' Y., 551; Pa/y v. Saunders, 37 How. Pr., 534; S. C., 1 Tran. App., 353 ; Brovm v. Leamtt, 31 N. Y., 113 ; GlotMer v., Aclrienee, 51 N. Y., 326; Glvrylois v. Benois, 43 N. Y., 209; Qovoing v. Altman, 71 N. Y., 435.) Conceding that Cheyney made the note in the partnership name, and, without authority, used it for his individual purposes, it simply threw upon the holder the burden of proving that it was received bona fide, and for a valuable consideration. {Bank of St. Albans v. Gilliland, 23 Wend., 311; LLarger v. Worrall, 69 N. Y., 373; Gatsldll Bank v. BtaM, 18 Wend., 465.) Proof of the existence of facts and circumstances, even if calculated to excite suspicion, will not deprive a party of the right to be considered a bona fide holder of negotiable paper. {Ghapmcm v. Bose, 56 N. Y., 139; Welsh v. Sage, 47 N. Y., 143 ; Seybel v. Currency Bank, 54 N. Y., 288; Murray v. Lcordner, 2 Wall., 110.) The burden of proving that the notes were not given for partnership purposes was on the defendant. {Lmingston v. Boosevelt, 4 Johns., 278; Gatsldll Bk. v. Stall, 18 Wend., 465 ; Lfafl Union Bank of Watertown v. London, 66 Barb., 189; affirmed in Court of Appeals, see mem., 40 How. Pr., 721.)
   Barrett, J.:

For some time prior to the transaction in litigation, the plaintiff bank, and Jesse S. Cheyney, had had dealings together, which finally resulted in an indebtedness to the former of some $5,000. For this, the bank held Cheyney’s protested check, indorsed by one Tail. The latter was an accommodation indorser, of which the bank was aware. After holding the protested check for some time, the bank began pressing both Cheyney and Vail for a settlement. Thereupon, Vail went to Cheyney, and induced him to give his firm' notes to take up the check. This firm was composed of Cheyney and the defendant Underhill. The firm name was Jesse S. Cheyney & Co. Underhill knew nothing of Oheyney’s action in the matter, and never assented thereto. Vail took the firm notes (which were payable to his order and indorsed by him) to the bank, and thereupon settled, the protested check, he paying a small difference in cash. The ■ court at Circuit directed a verdict for the plaintiff Underhill. This we think was error. The verdict should have been the other way. The bank may have been a holder for value, having taken the notes in payment and satisfaction of the check, but it was not a bona fide holder. This results from the fact that the precedent debt was Cheyney’s individual obligation. It is well settled that where a note is given in the firm name by one partner for his private debt, or in a transaction unconnected with the partnership business, which is the same thing, and it is known to be so given by the person taking it, the other partners are not bound, unless they have assented. (Gansevoort v. Williams, 14 Wend., 138 ; Joyce v. Williams, Id., 145; Wilson v. Williams, Id., 157; Livingston v. Hastie, 2 Caines, 246 ; Stall v. Catskill Bank, 18 Wend., 477; Elliott v. Dudley, 19 Barb., 326. And see Bank of Rochester v. Bowen, 7 Wend., 159 ; Dob v. Halsey, 16 Johns., 34; Bank of Vergennes v. Cameron, 7 Barb., 151; Fielden v. lahens, 6 Abb. Pr. N. S., 341.) Upon the face of the transaction, the bank was chargeable with notice. (Same case.) In Green v. Deakin (2 Starkie, 347), where a partnership bill was given by one member for his private debt,the court held that the nature of the transaction was intrinsically notice. “ The notice which defeats the plaintiff,” said Bronson, J., in Wilson v. Williams (supra), “is notice that the indorsements were not made on account of a partnership transaction.” In Elliott v. Dudley, supra, the court, Welles, J., said: “It is impossible for one partner, by his acts or admissions, to bind his copartners without their assent, express or implied, for án individual debt of his own. The plaintiff does not occupy the position of a bona fide indorsee, because the case shows that the note was taken by his clerk and agent for a debt previously existing and owing by De Witt (one of the partners) to the plaintiff.” (See also Arden v. Sharpe, 2 Esp., 524 ; Wells v. Masterman, Id., 731; Whitmore v. Adams, 17 Iowa, 567.)

There can be no doubt about this where the firm note is actually handed to the creditor by the partner, who is his individual debtor. It is urged, however, that the present case is not within these rules, because the final settlement was with Vail, not Cheyney. Indeed, the president of the hank talks of having dis* counted the firm paper for Yail, quite as though it were an independent and ordinary business transaction. This gentleman must have reconciled his testimony with his conscience, by theorizing as to the legal effect of the facts. He knew very well that Cheyney was the principal debtor, and that Yail was" merely liis smety. Yail kept no account with the bank. . He brought the notes for the express pmpose of taking up Cheyney’s protested check. The president knew that the firm signatures were in Cheyney’s handwriting. Finding that the notes were not quite sufficient in amount, Yail gave the bank his own check for the difference, and closed the matter. To talk of this as a discount of the notes in the regular course of business, is worse than absurd. It verges upon untruthfulness. There was a simple substitution of Jesse S. Cheyney & Co.’s notes, indorsed by Yail, for Jesse S. Cheyney’s check similarly indorsed. Whether the notes were received by the bank directly from the hands of Cheyney or Yail, was entirely immaterial. In either case, the 1/rcmsaobion itself was notice. The possible idea, attributed to the bank, that Yail might himself have acquired the firm notes hi some independent business transaction, and parted with them in the manner and for the purpose indicated, is far-fetched. The bank believed in no such coincidence. The truth was plainly before it, namely, that Yail had procured these notes to take up the check, and it was clearly put upon inquiry as to Underhill’s consent.

It is also urged that some of the money procured on Oheyney’s individual checks was used in the firm’s business. This was not established. 'Hr. Cheyney said that “some small amounts may home been,” but the main body of the indebtedness was previous to the existence of the firm. Again, he said that “ the indebtedness was due for bills ordered by myself previous to the existence of the firm, and possibly, as I cannot say positively, to the contrary, for some debts incurred after January 15, 1877,” the date of the formation of the firm. But even if a small firm indebtedness has been included, that would not render Underhill liable for Cheyney’s large individual debt. (See King v. Faber, 22 Pa., 21.)

The judgment and order denying a motion for a new trial should therefore be reversed, and a new trial ordered, with costs to abide tlie event.

Such, new trial sbould not take place upon the short calendar day. Tlie cause is too important to be tried at the special circuit.

Davis, P. J., and Brady, J., concurred.

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


author:
Barrett, J.:
     Davis, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWARD COPPERS, GEORGE COPPERS, and FREDERIC COPPERS, Respondents, v. THE TRUSTEES OF ST. PATRICK'S CATHEDRAL IN THE CITY OF NEW YORK, JOHN KELLY and others, Trustees and Officers of said Corporation, Respondents and Appellants.

      Receipt for the purchase price of a lot in a cemetery — when the rights of the vendee are subject to the rules and doctrines of the church, with which the cemetery is connected — power of an offices' of the cemetery to agree that the lot snap be used without regard to such s'ules — in what cases a mandamus should, not issue.

    The defendant is a corporation created by chapter 239 of 1817, and is authorized to hold certain lands in Queens county for burial purposes; it is attached to the Roman Catholic Church, the rules and doctrines of which forbid the burial, in consecrated ground, of the body of one who was not a Roman Catholic, or who was a member of the Masonic fraternity. On December 1, 1873, the defendant executed and delivered to one Dennis Coppers an instrument, of which the following is a copy:
    Office of † Calvary Cemetery, ) New York, Dec. 1, 1873. j.
    Received from Mr. Dennis Coppers, seventy-five dollars, being the amount of purchase money of a plot of ground, 8 feet by 8 feet, in Calvary Cemetery.
    $75. D. BRENNAN,
    . Superintendent of Office of Qalmary Gemetesp.

    Section 7. Plot D.
    Range 35. 4 Graves, 5, 0, 7, 8.
    Thereafter, and prior to August, 1879, the mother, wife, sister and two children of the said Coppers, all of whom were Roman Catholics, were buried in the said plot.
    In August, 1879, Coppers, being at that time a Freemason, died, his funeral' services being héld, as directed by bis will, in an Episcopal church, under the direction and management of the Masons, o The defendant having refused to allow the body to be buritfd in the plot for that reason, though the usual fees and charges for digging the grave had been paid to and accepted by its officers, the plaintiffs,- his three brothers, applied for a mandamus to compel the defendant to have ,the grave opened, and to allow the body to be deposited therein. Coppers left two children, one nine and the other thirteen years of age. His will had not, at the time of tlje application, been admitted to probate.

      Held, that the instrument delivered by the defendant to Coppers was not a conveyance nor a grant, nor did it operate to vest the title of the said plot in him, nor would a court of equity have compelled the defendant, on his application, to execute and deliver to him an absolute conveyance of the plot.
    That, in determining the nature of the contract, the relative situation of the parties and the surrounding circumstances were to be considered.
    That the instrument operated as a certificate of his right to use the lot for burial purposes only, such use to be subject to and in conformity with the established rules and by-laws of the corporation, in so far as they were not iir violation of any law.
    That the application should be denied.
    Where a party applies for a burial lot at the cemetery of a distinctively Roman Catholic cemetery, it is with the tacit understanding that he is either a Roman Catholic, and as such eligible to burial therein, or that he applies iu behalf of those who are in communion with that church.

      Qumre, as to whether the superintendent of the cemetery could, under his ordinary powers, agree with the applicant that the latter should have the right to use the lot, without regard to the rules and usages of the church to which the cemetery association was attached.

      Held further, that as the relators were neither the legal representatives, next of kin, or assignees of the deceased, they could not enforce any rights he might have acquired under his contract with the defendant.
    The cases in which the writ of mandamus will issue, considered; and its use' in this case disapproved of, by Barrett, J.
    Appeal from an order granting a peremptory mandamus to compel tlie defendants to open or canse to be opened a grave in a certain plot of ground purchased, or alleged to have been pm-chased, by one Dennis Coppers, in his lifetime, iu Calvary Cemetery, for the purpose of enabling the relators to inter the body of the said Dennis Coppers therein. .
    The proceeding was originally instituted by three brothers of the deceased, his nearest next of kin, except two children, one nine and the other thirteen years of age, against “ Calvary Cemetery, John Kelly, Hugh Moore, and James O’Rorke, Trustees and officers of the said corporation, exercising the duties and functions of such officers, and being the committee on cemeteries of such corporation, as sucli officers, Trustees, and committee,” but by stipulation of counsel and by the order of the court, “ The Trustees of St. Patrick’s Cathedral, in the City of New York” were thereafter substituted as respondents therein. The defendants are a corporation created by chapter 239 of the Laws of 1817 of this State, and are thereby empowered to hold certain real estate for the purposes mentioned in the said act, and among others “ the said Cathedral and burying place thereto adjoining.” By virtue of chapter 87 of the Laws of 1864, the defendants also hold certain lands in the County of Queens for burial purposes, and those lands are known as “ Calvary Cemetery.”
    On the 1st day of December, 1873, the defendants executed and delivered to the said Dennis Coppers, who was then living, but is now deceased, an instrument in writing, in the words and figures following, to wit:
    Office of † Calvary Cemetery, ) New York, Dec. 1, 1873. j
    Received from Mr. Dennis Coppers seventy-five dollars, being the amount of purchase money of a plot of ground, 8 feet by 8 feet, in Calvary Cemetery. '
    $75. ' D. BRENNAN,

      Swp&rmtmdmt of Office of CaTma/ry Cemetery.

    Section 7. Plot D.
    Range 35. 4 Graves, 5, 6,7, 8.
    Thereafter, and prior to August, 1879, the mother, wife, sister and two children of Coppers, all of whom were Roman Catholics, were buried in the said plot.
    Dennis Coppers departed this life on the 14th of August, 1879, at Hoboken, in the State of New Jersey, and, by his last will and testament, directed that his body should “be buried in Calvary Cemetery, New York, with or near the remains of my mother, and in the burial lot of ground now owned by me there.” In such will he further said: I do hereby declare my wish and desire to be that my funeral services be had and held in some Protestant Episcopal Church, and that such services and funeral shall be under the direction, control and management of the order of Ancient Free and Accepted Masons.”
    On the 16th day of August, 1879, the undertaker who had charge of the burial, at the request of the -relators and plaintiffs, made application at the office of the cemetery to have a grave opened in the burial plot purchased as before mentioned, and paid to the parties in such office the sum of seven dollars'-for the labor of such opening, which money was accepted, and a receipt given therefor. On the succeeding day (August 17, 1879), upon the arrival of the funeral procession with the body of Dennis Coppers, the interment ■ in the burial plot and in the grave which had been prepared was refused and forbidden, and permission given to place the same temporarily in the receiving vault of the cemetery, from which its removal and burial elsewhere than in the lot of deceased were threatened, when an action to restrain the removal of the body and these proceedings were commenced for the objects before stated.
    The interment of the body was forbidden because such burial would be contrary to the doctrines of the Roman' Catholic Church, which, it was claimed, forbid the burial in consecrated ground of the body of a non-Catholic, or of one who was a member of the Masonic fraternity.
    The opinion of Westbrook, J., at ¡Special Term, is reported in 7 Abb. New Cas., at page 121.

      T. James Glover and T. G. Barry, for the appellant.
    No court has power or jurisdiction to issue a mandamus to enforce the specific performance of a contract. (3 Bl. Com., 110; Bac. Abr., Mandamus ; Parker v. The Jxtdges of the Cirexoit Gowrt of Md., 12 Wheat., 541; 2 Johns. Cases, 2 ed., 217, note; Crary’s Special Proceedings, 271.) The relator must have a clear legal right to liaye what is asked for in his writ. If his title is doubtful, that is a complete answer to his demand. (The People, c&e. v. Supervisors of Ghencmgo Go., 1 Kern., 563; The People, c&e. v. The Gomal Board, 13 Barb., 444; The People, c&e. v. Supervisors of Greene Go., 12 Barb., 217; The People, tfec. v. Corporation of Brooklyn, 1 Wend., 324; The People, c&e. v. Supervisors of Go-

      l/wmbia Oo., 10 Wencl., 366; Peeside v. Wallcer, 11 How. H. S., 272 ; The People, do. v. Wcurdell, 71 N. Y., 172; The People, do. v. Sups. Greene Oo., 61 N. Y., 600; The People, do. v. G. E. Qhrurch, 53 N. Y., 109.) In practice a mandamus is an action at law between private parties. (Per Taney, Ch. L, Eentnohy v. Denison, 21 How. H. S., 97; The People v. Balcer, 35 Barb., 102; The People v. Sup. Westchester, 15 Barb., 613.) There must lie not merely a legal right, but there must be no other legal remedy, to justify the gi’anting of the writ. (The People v. Meced, 21 N. Y., 120, 122; Qorrwnonweallh v. Posseter, 2 Binney, 360; Peg. v. Trustees of B. d W. Turnpilce, 16 Eng. L. & Eq., 276; The People v. Sup. of Ghenango, 1 Kern., 573, 574; The People v. Mead, 21 N. Y., 121, 121.) Sepulture in churchyards and in private cemeteries belonging to churches, though paid for, never created or implied any right or title to the land; it was a privilege to be used in the mode permitted by the religious society. (Bryan v. WMstly, 8 B. and C., 288; Wood v. Leadbetter, 13 M. and W., 838; Pbtlcin v. L. I. P. P., 2 Barb. Ch., 230 ; Brown v. Woodworth, 5 Barb. Ch., 550 ; Mumford v. Whitney 15 Wend., 380 ; Wolf v. Frost, 2 Sandf. Ch., 72.)

      G. W. BrooTce, for the respondent.
   Barrett, J.:

The consideration of the important questions presented by this appeal should be approached with a clear understanding of the relations of the respective parties to each other and to the deceased.

It is conceded that the relators are neither the legal representatives, nor, strictly speaking, the “ next of kin ” of the deceased Mr. Dennis Coppers. • They are not corporators of the defendant corporation, nor connected in any manner with the church whose temporalities are represented by such defendant. The same was true o'f the deceased. The defendant corporation was created by chapter 239 of the Laws of 1817. It is not to be regarded as an ecclesiastical corporation in the sense®of the English law, but as belonging to a class of civil corporations, to be controlled and managed according to tbe principles of tbe common law, as administered by tbe ordinary tribunals of justice. (Robertson v. Bullions, 11 N. Y., 257.)

Tims it is apparent that we have to deal with a matter of simple contract between an individual and a corporation, and to determine the question of right by the application of ordinary legal rules. Now what is the claim of the relators ? In brief, that their deceased brother purchased and paid for a burial plot in the defendants’ cemetery, that consequently they had a right to place his remains therein; that such right has been denied them by the defendants; and that a mandamus should issue to compel its enforcement. In support of this claim, the relators are bound, under established rules, to show a clear legal right, and the absence of a plain and adequate legal remedy. (People v. Hawkins, 46 N. Y., 10; People v. Supervisors of Chenango, 11 N. Y., 563; Exparte Lynch, 2 Hill, 45 ; People v. Supervisors of Columbia Co., 10 Wend., 366; People v. Supervisors of Greene Co., 64 N. Y., 600; People v. Wardell, 71 N. Y., 172.) This legal right must be complete, not inchoate. (People v. Trustees of Brooklyn, 1 Wend., 318,) It must also be vested in the relators. (People v. Collins, 19 Wend., 65.) This last rule is applicable, where, as here, it is sought, by mandamus, to enforce some matter of private interest. In such case,” said Cowen, J., in People v. Collins, “ the title to relief, at the suit of the relator, must appear.” In matters of public right, it is otherwise. The question, therefore, is whether a clear legal right has been shown. That depends, first, upon the title acquired by the deceased; and,' second, upon the special position occupied by the relators.

As to the first, it is undisputed that Dennis Coppers never received a deed or other conveyance in writing of the plot in question. He therefore had no title in fee simple. No estate or interest in the land ever passed to him (2 "JR. S., 134, § 6), nor, for the same reason, did he acquire an easement. An easement always implies an interest in the land in or over which it is to be enjoyed. (Wash-bum on Easements & Servitudes, 5.) It lies in grant, and a freehold interest in it cannot be created or passed otherwise than by deed. (Hewlins v. Shippam, 5 Barn. & C., 221.) What evidence, then, of legal right, had the deceased % A simple receipt, signed by the Superintendent of the cemetery office,” unsealed, acknowledging the payment, by Coppers, of $75, with the following explanatory addendum, upon which the whole case rests: “ Being amount of purchase money of a plot of ground, eight feet by eight feet, in Calvary Cemetery.” Beneath the signature, appear the following words and figures: “ Section 7, range 35; plot D. 4 graves, 5, 6, 7, 8.” This is the whole of it.

The contention is, that, as this receipt identifies the plot, acknowledges payment of the purchase-money, and was followed by the exercise of the right of burial, it should be treated as a deed in fee, under the maxim that what was agreed to be done, and what onglit to be done, shall, for the advancement of justice, be regarded as done.” One difficulty with this position is, that the statute stands in the way. It provides a specific means of acquiring title to land, and declares that no estate or interest shall be “ created, granted, assigned, surrendered or declared ” in any other manner. Another objection is, that the receipt does not clearly indicate that what has been agreed to be done, and what ought to be done,” is the execution and delivery of a deed or conveyance in fee simple absolute, or even of a base fee. "When purchase-money ” is spoken of, in connection with church pews, vaults and burial plots, it by no means points to such a transaction as might be implied from the use of those, words between an ordinary vendor and vendee. On the contrary, it imports nothing more than the purchase of a right to the appropriate use. It is only where formal conveyances are made, expressly granting the fee simple of an estate in land, for the purpose of sepulture (as in the Brick Church Case, 3 Edw. Ch., 169), that an intention to sell and dispose of the land will be admitted. Even where a certain specific piece of ground in a church-yard was conveyed, with the usual formula of heirs and assigns forever,” it was held that no title to the freehold passed, but a mere right of burial, standing upon the same footing as the right of public worship in a particular pew of the consecrated edifice.” (Richards v. Northwest Prot. Dutch Church, 32 Barb., 42.) It is well settled that pew rights, though acquired by deed, are only easements, and that the pew-holder has no title to the freehold. ( Voorhees v. Presbyterian Church of Amsterdam, 8 Barb., 137 ; Cooper v. First Presbyterian Church of Sandy Hill, 32 Id., 222; Wheaton v. Gates, 18 N. Y. 404.)

Even as to independent cemeteries it was held, in Buffalo City Cemetery v. City of Buffalo (46 N. Y., 505), that a conveyance for burial purposes only confers upon the grantee a right to use for the purposes of interment. “No such estate,” said Eolger, J., “ is granted as makes him an owner in such sense as to exclude the general proprietorship of the association. The association remains the owner in general, and holds that relation to the public and to the government, while, subject to this, the individual has a right, exclusive of any other person, to bury upon the subdivided plat assigned to him. He holds a position analogous to that of a pew-holder in a house of public worship.” (See also Windt v. German Reformed Church, 4 Sandf. Ch., 471.)

When distinct words of grant have been thus limited, owing to the nature of tJiepurchase, howis it possible to infer, from language merely characterizing the payment an intention to convey an estate in fee simple or a base fee ? And how is this intention aided by the fact, treated by the relators as evidence of possession under tJie receipt, that the deceased was permitted to and did use the plot in question ? That fact has no significance, when dealing with the question of intent. It is as consistent with the idea of an easement or mere parol agreement for the rights of burial, as with that of an estate in fee.

We have thus far considered the-case as though the receipt were to be treated as, at least, a contract. But it is not, in any just sense, the contract between the parties. In fact, it is not a contract of sale at all. It possesses none of the features of an executory agreement. It contains no stipulation to sell or to buy, specifies no terms or conditions, and embodies no covenant to convey. It is simply a receipt for the purchase-money of a plot of ground. It presupposes an existing contract. In Filkins v. Whyland (24 N. Y., 338), this effect was explicitly given to a receipt for the purchase-money of a horse. Wright, J., said : “ The paper cannot be read as a present agreement of sale. It contains no stipulations to sell or to buy, nor declares any present undertaking by either party. The vendor acknowledges payment, but he does not profess by the writing to sell. The vendee does not execute, but accepts it. . . . The paper does not by its own force at the time of its execution, vend the horse or assume to do so. It admits that a sale has been had, but does not effect one. . Had it read, ( Received of C. B. E. $150, in payment of one horse bought by him of me,’ it would not have been doubted that it was a mere receipt or acknowledgment of payment, cmd not the contract of pinchase. . . . . That can hardly be named a written contract which contains no contract stipulations, but simply recites the fact of a past sale, as preliminary to and explanatory of, the admission of payment.” (See also Allen v. Pink, 4 Mees. & W., 140). In Hotchkiss v. Mosher (48 N. Y. 478), the same rule was applied to a certificate of deposit issued by a bank.

The importance of these considerations consists in the effect given to the receipt in question by the court below. It was treated as the completed contract between the parties, as embodying the entire agreement, consequently subjecting the defendants to the rigid rule of law, that nothing dehors the instrument could be taken into consideration. It was conceded by Weight, J., in Filkins v. Whyland, (supra), that if the receipt amounted to a contract, parol evidence of a warranty of soundness was inadmissible. “ When a contract is consummated by writing,” said that learned judge, “ the presumption of law is that the written instrument contains the whole of it. . . The agreement to which the contractors bound themselves, is to be ascertained exclusively by the writing.” The fallacy of the relator’s position consists in treating the receipt as an iron-clad contract, containing the entire agreement of the parties, whereby the defendant conferred upon the deceased, at the very least, an absolute and unqualified right of burial, without reservation or restriction of any kin d. We freely concede the relator’s deduction from these premises. The defendants, as we remarked at the outset, are to be treated, in all matters of contract, simply as a civil corporation, and mast abide by their grants or covenants. Where those grants or cove nants are clear, explicit and unambiguous, they cannot be varied or explained by ecclesiastical polity, usages or laws. But, with respect and diffidence, wo are compelled to deny the premises. The receipt is not such a contract as is claimed. The real contract rests in' parol, and is to be implied from the surrounding circumstances, in connection with the receipt and the subsequent use of the plot. In Robertson v. Bullions, supra, it was argued that the nature of the trust may be ascertained, not only from the language' of the deeds by which the property is conveyed, but may be inferred from the tenets, faith and practice of the creators of the fund. “ This doctrine,” said Selden, J., “if it means anything more than that, where the language of a deed is ambiguous, it may be explained by proof of the surrounding circumstances, I deny.” If then the surrounding circumstances may be resorted to, when the language of a deed is ambiguous, a fortiori, may they where there is nothing whatever to throw light upon the contract, except a paper admitting the receipt of the purchase-money.

What then are the surrounding circumstances of the present case ? Clearly the rules, relations and customs of the defendant with regard to burials in its cemetery. Every applicant is presumed to know, that it is not an ordinary cemetery, incorporated and conducted for the purpose of general and indiscriminate burial, but a corporation attached to the Roman Catholic Church, with power to make lawful rules, regulations and by-laws. In fact, that the cemetery is part of the temporalities of this great church. It is in evidence, witliowt dispute, that under the rules and usages applicable to the cemetery in question, the burial of nonCatliolics or of Freemasons is forbidden, and that such right is reserved exclusively for Roman Catholics dying in communion, with the church. It also appears that the cemetery was duly consecrated by appropriate rites and ceremonies, that the trustees are members of the church, spiritually subject to its laws, usages and' discipline, and, in substance, that .the business affairs of the cemetery were and are being conducted in good faith by these trustees to give effect to such laws,-usages and discipline. In the absence of any special contract, excluding this stat/us by the omission of a restriction in a formal deed or. agreement, the presumption. is a just and reasonable one, that such stat/us was a part of the transaction, and that the laws and usages, to which we have referred, were understood by both parties as lying at the very root of the negotiation and pervading it throughout.

Where a party applies for a burial plot, at the office of a distinctively Roman Catholic cemetery, it is with the tacit understanding that he is either a Roman Catholic, and as such eligible to bxuial, or at least that lie applies on behalf of those who are in communion with the church. The entire business is transacted on that basis. The parties may, notwithstanding, contract, if they choose, in such a manner that any one, even a Buddhist, Mohammedan, or avowed Atheist, will have a legal right to sepulture in the plot; and the law will give effect to their bargain. But to accomplish such an object, to contract in entire disregard of the church laxvs, usages and cxxstoms applicable to the cemetery, to give the vendee an absolute right to disturb what is believed to be the spiritual harmony of the surroundings, a very different instrument from this simple receipt would have to be secured. We might go furthei’, and say that such an instrument, to be of any validity, should emanate from some one duly authorized to make a contract, so unusual axid contrary to the spirit of the institution. It might well be doubted whether the superintendent of the “ cemetery office ” could confer such a right-under his ordinary power, which seems to be limited to the issuing of receipts similar to that under consideration. (Adriance v. Roome, 52 Barb., 399; Dabney v. Stevens, 10 Abb. Pr. N. S., 39.)

It is quite clear to us that, in no aspect of the case, was there a legal light. There was no conveyance of an estate in fee, none of an easement. There was not even a written contract for a right of burial. At most, there was a parol understanding which embraced conditions excluding the deceased. Even if the corporate rules and customs wei*e not engrafted upon the agreement, still there was no legal right, for such agreement was void under the statute of frauds. It is even doubtful whether equity would decree a specific performance. Payment of the consideration will not in general be deemed such a part performance as to relieve a parol contract from-the operation of the statute. (Rhodes v. Rhodes, 3 Sandf. Ch., 284.) “ That doctrine,” says Mr. Story (Eq. Juris., § 760), “is now finally overthrown. “ The reason for this,”, said the vice chancellor, in Rhodes v. Rhodes, “is, that in such case, the repayment of the consideration will place the parties in the same situation in which they were before.” The question, if depending upon possession, as xve have already seen, is by no means free from doubt. Resides, the rule upon that head seems to have been intended to cover cases whore, unless the agreement is fully performed, a fraud would be put upon the vendee, — os whore the latter builds a house or makes improvements in reliance upon the parol agreement. In an action for a specific performance, the rule would also have to be encountered, that the contract must be established by competent and satisfactory proof, which must be clear, definite and certain (Lobdell v. Lobdell, 36 N. Y., 327). Could it be said that the right of a non-Catholic or Mason to burial in the plot was established so clearly and satisfactorily as to justify an equity decree specifically enforcing such a demand ? Re that as it may, and without expressing any decided or definite opinion upon the point, we may say that it is not the province of mandamus to enforce a doubtful equity, or aught save a clear legal right.

Indeed, it has been expressly held, that where the right is an equitable one, and such as is not- enforceable at law, mandamus will not lie. (Rex v. Marquis of Stafford, 3 Term R., 616 ; Reg. v. Trustees, 16 Eng. L. & E., 276.) Mandamus is an extraordinary remedy, to be resorted to with great caution. It cannot be substituted for the ordinary and appropriate legal remedies. If a pewholder be disturbed in his right, he may have trespass querré clemsum (Jackson v. Rounseville, 5 Metc., 127), or an action on the case. (Rossiter v. St. Mary's Church, 2 Binney, 360.) In the latter case, it was in substance argued that there could be no compensation for a denial of the right thus to worship, and consequently that there was no adequate legal remedy; yet, the court refused the mandamus to compel the trustees to restore the relator to the possession of his pew. Mandamus is appropriate where a public duty is imposed, or some act- specifically directed by statute. Rut it will not lie to enforce mere private contracts (Exparte Robbins, 7 Dowl. P. Cas., 566.) However special or peculiar their nature. (Rossiter v. St. Mary's Ch., supra) This principle might be enforced by many illustrations with regard to special works of art, rare books, prized relics, heirlooms, and other things peculiarly within the domain of feeling, sentiment, or faith. Nor are illustrations wanting as to similarly valued rights appertaining to realty. . The law does not provide remedies all sufficient to satisfy every need of the heart. This it cannot .do. The remedy may be adequate in a legal sense, yet entirely inadequate to satisfy the earnest desire of the suitor. .

It comes to this: if the party have title, he may bring ejectment; if some special right or interest, an appropriate action for the violation of such right or deprivation of such interest. Or, in if. proper case, the strong hand of equity may be interposed to compel a party to do or refrain from doing some specific act. ‘While these remedies exist, the great prerogative writ of mandamus wi]l not be set in motion. What we conceive to have been the error of the court below on this head, was the assumption that the respondent was bound by law ” to open this grave and permit this burial. In a general sense, a person may be said to be bound by law to do that which he has contracted to do. But that is not the specific legal duty which entitles the party to a mandamus. It is disobedience of some statutory command, or of some specific requirement of law. Here the defendant, if bound at all, was so bound by contract, and not by lorn.

Further, the relators have no status. They are neither the legal representatives, next of kin, nor assigns of the deceased. In legal contemplation, they aire strangers to the alleged contract sought to* be enforced. It may be their duty to see to the proper burial of their brother. That right may, as contended, be exclusively vested in them as adult next of kin. (3 Edw. Ch., 155.) But, where the .right to burial, in a particular place or manner, depends upon legal rights vested in the deceased, such rights can only be enforced by those to whom they have descended. We hate seen that the title to relief must be vested in the relators. The reason is obvious. The people are but nominal or formal parties. In practice, the mandamus is analogous to an ordinary action at law between private parties. (See Commonwealth of Kentucky v. Denison, 21 How. U. S. 66.)

It is said, that when the present proceedings were instituted, the will of the deceased had not been probated, and that there was urgent necessity for haste. But legal rights cannot be conferred by the exigencies of the particular case. And, after all, the question of time in legal controversies is one of degree. For instance, a legal or equitable action, instituted by proper parties, could readily have been tried and decided while this mandamus proceeding has been pending. 'Mandamus is not necessarily summary. There may be an alternative writ, followed by trial of issues of law or fact, and supplemented by the due course of appeal. Pending a legal or equitable action, the remains of the deceased could as well have rested in the receiving vault as they do now.

We may add that, pending this controversy, they could as well have rested in any other receiving vault as in that of this defendant.

The fact that a sum of money was paid for the opening of the grave does not call for special remark. It neither adds to nor takes from whatever rights flow from the material facts existing at Mr. Coppers’ death. Besides, the clerk accepted the fee in reliance upon the understanding previously referred to, and in entire ignorance of the fact as to Mr. Coppers’ position. Even if it were clear that it was the relators’ money, a mandamus will scarcely issue to compel the defendant to open' a grave because it has contracted for a specific sum to perform that service.

In every aspect of this case, we think that a mandamus should not have been granted..

The order appealed from must be therefore reversed, with $10 costs and disbursements of the appeal, and the motion for a mandamus be denied, with $10 costs.

Brady, J., concurred.

Davis, P. J.:

Without expressing concurrence in or dissent from all the views of my brother Barrett in his able and exhaustive opinion, I concur in his conclusion that the order of the court below must be reversed. In my opinion, the instrument called a receipt and acknowledging payment of the consideration and identifying the plot and the use to which the same was to be devoted, accompanied by the actual occupancy on the part of Denuis Coppers, was sufficient to vest him with certain rights of property in the use and enjoyment of the lot of which he could nqt be disposessed or deprived. But it was not a grant or conveyance. It was ratlier a certificate, of his interest in the cemetery owned by the corporation, and of his right to the use of the same sub modo and in conformity to the established rules and by-laws of the corporation in so far as they were not in violation of any law. I think it cannot be doubted that religious corporations may lawfully establish cemeteries and burying-grouuds exclusively denominational, and guard and protect the same by such rules and regulations as make effective the objects and purposes of their organization. When established, the corporation may impress upon them rules and regulations operating equally upon all who use or seek to use the privileges of burial within them. Whoever purchases a right of burial and takes a certificate of his right which does not grant or convey some absolute interest or title free from such rules and regulations, must be deemed to take subject to them, and, in short, to have contracted with the corporation that his rights shall be subject to and controlled by such lawful rules and regulations as the corporation may have prescribed.

The principle that should govern the case would be quite analogo us to that which applies to the owners or renters of pews in church edifices, who must be deemed to take the right of use in subordination to such by-laws or regulations as the society owning the fee has thought proper to establish. If, then, a Presbyterian, Episcopalian, or any other religious denomination becomes the owner of a cemetery which it devotes to burial purposes, there is no rule of law to prevent its dedication of the same exclusively to persons in communion with its own church or denomination; and however much its sectarian exclusiveness may be criticised by those hostile1 to such restrictions, nevertheless in law the action of the corporation is not 'invalid. In this case, the rights of Dennis Coppers, though in my judgment valid, were restricted by rules and regulations which affeeted and limited them to uses within the rules sought to be enforced against' them. ‘ If I were called upon to criticise the good sense and reason of the rules, I should certainly differ from the appellants, for I can see no good reason why the fact that Coppers was in his life a Freemason should prevent the burial of his body, after death had separated him from all such societies, by the side of his wife and children. It may have been a harsh and uncharitable tiling to have clone; but the law is not changed because the consequence of upholding it seems severe and cruel.

The religious corporation owning the cemetery have seen fit to make the rule. The purchaser toot his rights subject to it. A rule which cannot he enforced is of no value. If valid to ho made, it is valid to he enforced; and hence, as its invalidity cannot he established, the courts cannot interfere by mandamus to prevent its enforcement.

I concur, therefore, in tlio result.

Order reversed with $10 costs and disbursements, and motion for a mandamus denied with $10 costs.


author: Beady, J.: Bakeett, J.:

text:
    JAMES DOUGLAS BROWN, Respondent, v. NICHOLAS H. DECKER, Appellant.

      Defense that the plaintiff is not the owner of the judgment sued on — what evidence is admissible to establish it — property held by a banlc as trustee does not pass by an assignment of its assets.

    This action was brought upon a judgment recovered by the Rochester Bank against the defendant and others, and which the plaintiff claimed to own, by virtue of an assignment from tiro bank, and because he was the sole stockholder thereof at the lime it ceased to do business. The judgment was recovered on a note made by and discounted for the defendant. The defenses set up in the answer herein were that the plaintiff never became the owner of, or paid value for the judgment; that, if any judgment existed, is belonged to one Clark, and that the plaintiff was not the real party in interest.
    Upon the trial the defendant offered to prove by one Bid ridge, one of the indorsers of the said note, and one of the judgment debtors, that lie. had paid the note to the president of the bank, tlie plaintiff, and requested him to bring the action against himself, the defendant and'another, in order that he might avail himself of the judgment to collect the amount thereof from the other parties. The testimony was rejected, on the ground that it was immaterial, and tended to contradict a record, the witness having allowed a judgment by default'to bo recovered against liim on'the note.

      Ifeld, that it was error to exclude the evidence.
    That it did not tend to contradict the record, but only to show an independent agreement affecting the ownership of the judgment.
    That the fact that the particular defense sought to bo established was not set forth in the answer, was immaterial, as the evidence was not.rejected on that ground.
    That it was also admissible as tending to show that the bank held the judgment as a trustee for the benefit of Eldridgo, and that it did not, therefore, pass to the plaintiff, under tlie assignment, as part of tiie assets of the bank.
    Appeal from a judgment in favor of tlie plaintiff, entered upon tlie verdict of a jury, and from an order denying a motion for a new trial, made upon tlie minutes of tlie justice before whom the action was tried.

      Samuel G. Courtney, for the appellant.

      Hastus S. Hansom, for the respondent.
   Beady, J.:

'This action was brought to recover tlie sum of $2,056.19, being the amount of a judgment recovered on August 18, 1854, by the Rochester Bank against the defendant, tlie plaintiff claiming title to the judgment by virtue of an alleged assignment to him by tlie bank, and also because he was tlie sole stockholder of the bank at tbe time its business was closed. Tlie action against Decker was based on a promissory note, made by him, and discounted for him by the bank. The defendant averred in his answer that the plaintiff never became the-owner of the judgment mentioned in the complaint, that lie never paid any value for the judgment, and tliat if any such judgment existed, one Freeman Clark, of Rochester, and others whose names were unknown to him, were the owners of it, and that the plaintiff was not the real party in interest. During the course of the trial many exceptions were taken on behalf of the defendant, relating to tlie proof by which the plaintiff sought to establish his title to the judgment as the assignee of the bank, by a resolution of its board of directors, and also as to the sole ownership of tlie entire stock by him.

It is not necessary, however, to consider any of these exceptions, in the view we take of the exceptions taken to the admission of evidence which was sought to be elicited from John R. Eldridge, who was one of 'the indorsers of the note, and one of the judgment debtors in tbe judgmcn t of which this action is predicated. The defendant sought to show by .him that the note had been páid by him, which waso objected to on the ground that it contradicted a record, the witness having permitted a judgment to pass against him upon the note, by default. He was also asked whether he gave any instructions to or requested the president of the bank to bring an action against Decker, another and himself, which, was also objected to for the same reason, and excluded. lie was also asked whether he did not pay the Bank of Rochester the amount of the note after he had given instructions to have the suit brought, and before the judgment. The object of those questions, taken in connection with the testimony sought to be elicited from the attorney who conducted the proceedings on the note, and which related to the instructions given to him by the officers of the bank in reference to the note, was to show that Eldridge, the witness and indorser, paid the note at maiurity, and desired the bank, on his behalf, to bring an action upon it, in order that he might collect it from other persons including the appellant; and to show in that way that the Rochester Bank in fact had no interest in, and no title to, the judgment, and, therefore, could convey none to the respondent by any process which they might employ.

It is trae that this particular feature of the defence was not set forth in the answer in detail, the averment in reference to title being generally that the plaintiff was not the the real party in interest, and that the judgment, if any existed, belonged to one Freeman Clark. But the objection to the introduction of the evidence was not based upon the omission mentioned, but upon its ■immateriality and upon the proposition that it contradicted a record, and, in reference to Eldridge, that he was estopped by the record.

'We do not understand how that line of the defense, under the circumstances disclosed, could have been prevented, because it might well be that the defendant Eldridge, for the purpose of protecting himself, and relying upon the integrity of the officers of the bank, would pay the note, and request the bank to prosecute it to judgment against all, that he might upon the filing of the judgment call upon the other defendants for payment or contribution. Such proof would not'have the effect of contradicting a record. It would show an independent agreement in reference to the judgment itself, affecting its ownership. It did not conflict with the record, because it was conceded, by the very proposition which was then sought to be maintained, that the judgment was properly obtained against him by default and against the other defendants as well. The/ effort was to show the effect of the judgment, and that, though apparently the property of the bank, it was in point of fact his property, and put into the form which it assumed at his request and for a purpose which he designed to accomplish. ‘Whether this was correct or not, depended entirely upon the testimony affecting the issue, to be considered and determined by the jury. ■ But there can bo no doubt that if the fact -were established as asserted, the bank had no title to the judgment, and therefore none was possessed by the plaintiff as its' assignee. We think for these reasons that the judgment should bo reversed, and a new trial granted, with costs to abide the event.

Davis, P. J., concurred.

Bakeett, J.:

I entirely agree to all that my brother Brady has said in this case. There is one additional consideration, however, which it may be proper to notice. It was suggested by the court below, as a reason for excluding the evidence referred to, that the plaintiff taking from the bank, was to be treated as a trustee for Eldridge, and liable to the latter for whatever may bo here recovered, just as the bank would have been. But if the position of the bank wore that of a trustee for Eldridge, the judgment was not really a part of its assets, and consequently ivas not covered by the alleged transfer to the plaintiff. • The latter was president of the bank and knew all the facts. lie took with notice. He knew that Eldridge was the real owner of the judgment and that the bank was simply a trustee. I speak, of course, of the effect of the evidence if admitted. The bank could not constitute the plaintiff its successor to the trust nor did it attempt to do so. It simply, so it is claimed, assigned to him its assets / that is, what, when reduced to possession, it would have bqcn entitled to retain. If, therefore, the evidence bad been admitted, it would have tended to show, in addition to what is stated by Mr. Justice Beady, that the alleged assignment of its assets did not pass the judgment to the plaintiff, and that the legal title thereto is still vested in the bank.

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


author: Beady, J.: Baebett, J.:

text:
    THE GROCERS’ BANK OF THE CITY OF NEW YORK, Appellant, v. THEODORE W. BAYAUD, Responded.

      Examination of a defendant in supplementary proceedings — the affidavit used, on a second application, should state that one examination had already been had —as to whether notice must be given of a second application.

    Upon, an application to vacate an order made heroin, on February 18, 1880, directing the defendant to appear and be examined in proceedings supplementary to execution, it was shown that the defendant had already been examined herein, in pursuance of an order made on June 17, 1873, and that such examination had been completed, and a receiver appointed. The affidavit upon which the second order was granted made no reference to the previous application.

      Hifid, that the order was properly sot a,side for that reason.

      Qucere, as to whether a second application to examine a judgment debtor may be made ex parte, or whether notice thereof must be given.
    Appeal from an order vacating an order for the- examination of the defendant in supplementary proceedings.
    The order in question was made on February 13,1880. On the hearing of the motion to vacate this order, it appeared that the defendant had already been examined in this action, under an order made on June 17, 1872, that such examination had been finally concluded, and p, receiver duly appointed.

      Rockfellow c& Briesen, for the appellant.

      J. IT. Hull, for the respondent.
   Beady, J.:

The judgment of which the order in supplementary proceedings was predicated was recovered on March 6, 1872. In June, of the same year, the judgment debtor .was examined, and a receiver appointed of all bis property. Tbe affidavit, on wliich tbe order for tbe second examination was obtained, does not disclose tbe previous examination, and makes no mention of any proceeding under it. On tbe contrary, it states that no previous application bad been made for 'tbe order secondly obtained, which, though doubtless true as to that order, was not strictly correct, tbe error arising no doubt from tbe fact that the attorney making the affidavit bad no knowledge of tbe first order.

When it was disclosed upon the return of tbe order that there bad been a prior examination completed, tbe proceeding secondly instituted ivas dismissed, and very properly. It is established as a rule governing these summary applications, that after a judgment creditor has obtained a compílete examination of tbe debtor, be cannot institute another without application on notice, and an affidavit showing some reason for tlie further examination; or, at least, if notice be not necessary, that tbe affidavits shall disclose tbe prior examination, and allege facts which call ipon tbe court in tbe exercise of its discretion to allow another examination to be bad.

Tbe rule is a salutary one, and should be strictly enforced. (Orr's Case, 2 Abb., 457; Goodall v. Demarest, 2 Hilt., 534; Irwin v. Chambers, 40 Superior Ct., 432.)

The order appealed from should be affirmed with $10 costs, and disbursements of the appeal.

Baebett, J.:

I concur with Mr. J ustice Beady, excepit as to tbe intimation that a second order should only be granted upon notice. In my judgment, a second application may be exparbe. Further, in a case like the present, where much time has elapsed since the original examination, and the application is made by a receiver in the performance of his duty, a second order should bo granted and upheld upon very slight evidence of a change in the defendant’s position, or other facts calling for the exercise of discretion. T agree to the affirmance of this order, because the previous proceedings were entirely ignored, and nothing whatever was stated to justify fresh proceedings. •

Davis, P. J., concurred.

Order affirmed, with $10 costs aud disbursements.