text:
    Louis Duschnes, App’lt, v. Julia Heyman, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Trial—Dismissal or complaint.
    1 Where payments which are agreed to be made are contingent on receiving money from a third party, and the complaint in an action for breach of the agreement does not allege, nor the evidence show, that the defendant has received any of such money, nor that he has failed to receive it because of his neglect or refusal to collect it, the action is properly dismissed.

      % Pleadings—Admissions.
    Where the plaintiff seeks to avail himself of affirmative allegations in the answer as admissions of the defendant, those allegations cannot he extended beyond their fair meaning.
    Appeal from a judgment in favor of defendant
    E. W. S. Johnston, for app’lt: John Frankenheimer, for resp’t.
   RUMSEY, J.

This action was brought against Julia Heyman in her lifetime, and after her death, the defendant, as her executor, was substituted in her stead. The foundation of the action was a contract entered into between Mrs. Heyman, the defendant, and her daughter, on the eleventh day of January, 1893. That portion of the contract which is material .is as follows:

‘‘The said Julia Heyman agrees to pay said HattieS. Simm, nee Heyman, from' and after December 5th, 1892, the sum of twenty-five dollars per week out of the one hundred dollars per week which Greorge W. Venable, under his agreement with said Julia Heyman, dated October 5th, 1892, is to pay to the latter until September 21st, 1893; and the said Julia Heyman further agrees to pay to said Hattie Simm the sum of two hundred dollars on March 28, 1894, being one-fourth of the amount which said Julia Heyman has received from Greorge W. Venable from October 5th, 1892, to December 5th, 1892, and one fourth of the two notes of Greorge W. Venable, each for five thousand dollars, one payable September 28th, 1893, and the other payable March 28th, 1894, as soon as said notes or either of them are paid.”

The breach of said contract alleged was that the said Julia Hey-man did not pay the sum of $25 a week, nor did she pay to the said Hattie S. Simm one-fourth of the two notes aforesaid, nor any part thereof. It was further alleged in the complaint that the plaintiff served upon Julia Heyman a notice in writing, requiring her to enforce the note of said Venable, and to pay to the plaintiff the proportionate part thereof, as provided by the agreement, and to inform the plaintiff whether or not she had enforced the agreement entered into between Heyman and Venable, and whether or not she had enforced the two notes; and that said Julia Heyman refused and neglected to enforce the agreement, or to. enforce the payment of the .notes; and that she refused to pay to the plaintiff the proportionate part thereof as provided for by said agreement. The defendant admitted in his answer the making of the agreement, and the death of Julia Heyman, and the appointment of himself as executor, and that she had in her lifetime received notice requiring her to enforce the agreement and the notes, and denied each and every other allegation contained in the complaint. The answer contained a further clause, which will be considered later.

The defendant, by his general denial, presented an issue which required the plaintiff to prove all the facts alleged in his complaint, or, at least, so many of them as would enable him to establish a cause of action at the trial. Just what cause of. action was intended to be relied upon is quite doubtful The plaintiff does not set up, as a breach of the contract, the failure to pay the $200 which was to have been paid on the 28th of March, 1894, but upon the trial the payment of that $200 was admitted. Such payment was the only one which was absolutely agreed to be made by Mrs. Heyman. ■ The other payments were contingent upon her receiving from Venable the $100 a week and money upon the notes he had agreed to pay. It is to be noticed that the complaint contains no -allegation that any such sums were received, and therefore it cannot be said to be an action for the recovery of the money which Mrs. Heyman agreed to pay. Nor does it contain any allegation that Mrs. Heyman neglected or refused to collect the money or the notes of Venable as to the sev- . eral sums back payable. Indeed, such an allegation would not of itself establish any cause of action, because Mrs. Heyman nowhere agrees to collect these sums of money, and she could only be put in default for a breach of her contract if she refused to collect them under such circumstances that the plaintiff could successfully establish negligence on her part which deprived him of the benefits of the contract. But, however faulty the complaint may be, the evidence was still more defective. . The plaintiff proved the making of the contract and the assignment to himself. He then offered in evidence a letter signed by Mrs. Heyman, and dated the 26th of February, 1894. This letter was offered and received, as stated by counsel, to show that the “only effort made by this woman in order to carry out the agreement, she having power to enforce these notes, was the proposition she never carried out.” It was received.for that purpose only, as stated by the court This letter was dated before the last of the notes became due. It expressed a willingness on the part of Mrs. Heyman to pay over a proper proportion of whatever was received pursuant to the contract, and, looking to a possible default of Venable, it agreed, if such default took place (and it had not then taken place as to the second note, whicli was not due), to turn over to the plaintiff a proper proportion of certain mining stock which she held as security for the notes. These facts did not tend in any way to establish a cause of action against Mrs. Heyman, and yet they were all the facts which were made to appear upon the trial. It was not shown that she had received any money from Venable; it was not shown that she might have collected these notes, and had refused to do so, or that any loss had accrued to anybody because the notes had not been collected. No proof was made with regard to the mining stock which she held as security, and there was nothing to show whether it was valuable or not. Indeed, it was of no importance, because no allegation was made about it in the complaint. This was the state of the evidence when the plaintiff closed his case, and upon that evidence there is no possible theory which will enable the plaintiff to have any recovery in the action.

It is said, however, that the answer admits a receipt of certain money from Venable. But that is not so. The answer admits nothing. It sets up, as an affirmative defense, that certain money had.been received from Venable which had been disposed of as therein stated; but there was no proof made upon that subject, and there is no allegation or admission that the money was received from Venable under the contract which was set out in the complaint. However, that is of no importance. When the defendant interposes a general denial to the complaint, plaintiff is bound to prove his case; and, unless he does prove it, he is not entitled to recover in the action. If he may avail himself of affirmative allegations in the answer as admissions of the defendant, which is not conceded, those allegations cannot be extended beyond their fair meaning; and in the answer there was nothing to show that it was received under this contract, or that it in any way had anything to do with the facts set up in the complaint, and any suggestion of that kind was negatived by the evidence. The plaintiff was properly dismissed, because the complaint established no cause of action, either at law or in equity. It is not necessary, therefore, to consider the question argued before us whether the defendant should have pleaded that there was no adequate remedy at law, because, upon the facts shown, there was no right to any remedy whatever.

The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: PARKER, P. J.

license: Public Domain

text:
    Village of Cortland, Resp’t, v. John H. Howard, App’lt.

      (Supreme Court, Appellate Division, Third Department,

      Filed Jan. 27, 1896.)

    1. Pleadings—Complaint—Excise law.
    A complaint, which avers that defendant sold liquors “contrary to law,” without setting out in what manner he violated the excise law, is sufficient.
    2. Justice’s court—Pleading—Indefinite complaint.
    There is no provision for moving to make a complaint more definite and certain in a justice’s court. If it is not sufficiently explicit to be understood, the remedy is by demurrer. So held, as to defendants'" demurrer to a complaint, charging him with a violation of the excise law, which fails to disclose any facts which would apprise him of the nature of his offense.
    3. Same—Error cured.
    The fact that subsequently sufficient proof was made to establish a cause of action, does not cure the error in the justice’s refusal to sustain the demurrer and require the complaint to be so amended as to give the requisite information, or else to have rendered judgment against the plaintiff.
    Appeal from a judgment in favor of plaintiff.
    Tin's action was brought in a justice’s court to recover a penalty of $100 imposed by the village of Cortland under a provision of •its charter against any person selling within its limits “intoxicating liquors, contrary to law.” The complaint, after setting forth the ordinance, the authority of the village to enact it, and the service of a copy thereof upon the defendant, further sets forth its cause of action in the following words : “ That on or about the 26th day of Ap.iil, 1895, at his saloon and place of business, No. - Port Watsori street, in the village and county of Cortland, in the state of New York, the defendant unlawfully . sold and delivered to Charles White, and to divers other persons, whose names are unknown to the plaintiff, intoxicating liquors, to wit, whisky, brandy, rum, gin, ale, wine, beer, cider, as such, or disguised under other names, or mixed with other substances to conceal their identity or true character,- contrary to law and the aforesaid ordinance; whereby the defendant incurred the penalty of one hundred "dollars provided for the violation of such ordinance ; whereby the defendant became indebted and liable to the plaintiff in this action in the sum of one hundred dollars, besides the costs of this action.' Wherefore the plaintiff demands judgment against the defendant in the sum of one hundred dollars besides the costs of .this action.” The defendant appeared on the return day, and filed a written demurrer to such complaint on two grounds: First, that it is not sufficiently explicit to be understood ; second, that it does not state facts sufficient to constitute a cause of action. Such demurrer was overruled, and exception duly taken. The plaintiff thereupon proceeded to the proof of its case. The defendant gave no evidence, and took no further part in the proceedings. Upon the evidence given, the justice rendered judgment against the defendant for a penalty of $100 and costs. The defendant thereupon appealed to the county court of Cortland county, where such judgment was affirmed, and from such judgment of affirmance the defendant appeals to this court.
    Dougherty & Miller, for app’lt; Irving H. Palmer, for resp’t.
   PARKER, P. J.

The first question presented upon this appeal is whether such demurrer should not have been sustained. It is a familiar rule that the complaint must state “ in a plain and direct manner the facts constituting the cause of action.” Code, § 2986. In the complaint before us the statements of what the defendant did do not show any violation of the excise law, nor any right to a judgment against him for the penalty claimed. The defendant might have sold to Charles White and others, on the day charged, the intoxicating liquors specified, and yet have not violated any law. Something further than a sale of intoxicating liquors must appear to show an illegal sale. It must appear that they were sold without a license, or, if a license was had, that less than five,gallons were sold at the time, or that the amount sold was to be “ drunk or used on the premises,” before the sale can be said to be unlawful. Laws 1892, c. 401, § 31. Also such' sale to Charles White was not necessarily a violation of any of ■ the many prohibitions contained in section 32 of that act. It is manifest, therefore, that unless the phrases “ unlawfully ” and “ contrary to law ” can be deemed an averment of all the omitted facts necessary to complete the charge, the complaint fails to state a cause of action. Such phrases are a mere statement of a conclusion of law. It is true that “facts may be stated according to their legal effect.” So a resultant fact, or “a conclusion of fact,” may be pleaded. Brown v. Champlin, 66 N. Y. 214; Thayer v. Gile, 42 Hun, 268. But that is very far from holding that a mere conclusion of law may be stated as a fact. To aver that the defendant sold liquor contrary to law states no facts. The facts are in the mind of the pleader; his conclusion merely is stated in the pleading. The object of the complaint is to apprise the defendant of the facts upon which the plaintiff relies for a cause of action, so that he may meet and disprove them. In the case before us, if the averment that the sale is contrary to law is to be deemed an averment of all the omitted facts necessary to show that the sale made to Charles White on the day charged was a violation of the excise law, the plaintiff would have the right under it to show either one of a dozen modes by which such a violation occurred, not one of which can be discovered from his complaint; and the defendant would be left in ignorance of which one, or how many,, the plaintiff expected to prove, until he entered upon the trial. We think that it would defeat the very purpose of a complaint to allow such an averment to have the effect which the plaintiff claims for it.

It is to be also noticed that the Code (section 2939) allows a demurrer in a justice’s court “where the complaint is not sufficiently explicit to be understood”; and, if it be conceded that the averment of a sale contrary to law is the statement of an issuable fact, yet it would seem, when used to charge a violation of the excise laws, and without the averment of any other facts than are contained in this complaint, to be a very indefinite method of stating the cause of action. It charges that the sale to White was a violation of the excise law; but for what reason is it claimed to be such? Is it claimed that White was under sixteen years of age, or that he was intoxicated at the time, or an habitual drunkard, or a pauper, or an Indian, or that the sale came within several other prohibitions contained in section 32 ? The complaint does not disclose, and the defendant may v-ery well say that it is not explicit enough for him to understand, upon what facts the cause of action about to be proven against him rests. This action is for a penalty, is of a quasi criminal nature, and is, therefore, one of a class in which the rule that the defendant should be accurately informed of the exact charge against him should not be relaxed. The following cases show the views which the courts have taken upon similar questions in similar cases, and tend to sustain the conclusion above reached: People v. Olmsted, 74 Hun, 324; 56 St. Rep. 311; People v. Pillion, 78 Hun, 74; 60 St. Rep. 810; People v. Bradt, 46 Hun, 445. There seems to be no provision in a justice’s court for moving to make a complaint more definite and certain. If it is not sufficiently explicit to be understood,—aud by that is meant sufficiently explicit to. fairly inform defendant upon what the cause of action is based,—his remedy is by demurrer. This remedy the defendant took in this case, and we think he was entitled to it. The justice should have sustained the demurrer, and have required the complaint to be so amended as to give the requisite information, or else have rendered judgment against the plaintiff. It does not cure the error that subsequently sufficient proof was made to establish a cause of action. Defendant was not required to meet that proof under that pleading, and he made no attempt to. This conclusion renders it unnecessary to examine the other questions presented by the appellant. The judgment of the county court and of the justice should be reversed, with costs.-

Judgment of the county court and of the justice’s court reversed, with costs.

All concur.


author: WARD, J.

text:
    Troy Carriage Company, Pl’ff, v. William B. Simson et al., Def’ts.

      (Supreme Court, Erie Special Term,

      Filed January, 1896.)

      1. Usury—Mortgage—Foreclosure.
    Though a contract, fixing interest at eight per cent., is not usurious in the state where made aud to be performed, securities taken in tiiis slate to secure the original indebtedness are usurious aud cannot be enforced.

      2. Same.
    In an action brought to enforce a usurious security, which embraces a valid debt arising out of a prior transaction, recovery may be had for the amount of such valid debt, and the usurious security discarded.
    3. Judgment—Bqxjitt.
    Though the court may not be able to afford the equitable relief claimed, still, if the facts warrant a recovery of a personal judgment for a debt, the court may retain the action and give relief.
    Action by the Troy Carriage Company against William B. Simson and another to foreclose a mortgage and for a judgment of deficiency.
    Boot, Orton, Baldwin & Baldwin, for pl’ff; Simpson, Harrington & Prernus, for def’s.
   WARD, J.

Prior to December 1, 1893, the defendant William B. Simson, transacting business at Tonawanda, H. Y., obtained from the plaintiff, a foreign corporation transacting its business at Troy, Ohio, a number of carriages and wagons, for which he agreed to pay it the sum of $840. The demand was not paid when due, and on the 1st day of December, 1893, to carry out a promise he had made to the plaintiff to furnish security for the debt, he made and forwarded to it his promissory note dated that day, and made at Tonawanda, H. Y., whereby he promised to pay to the.order of the plaintiff the $840 at the German-American Bank, Tonawanda, 1ST. Y„, twenty days after date, with interest at eight per cent. He also, at Tonawanda aforesaid, executed a bond to secure the said note, and be and his wife, Sara D. Simson, executed and acknowledged a mortgage as a further security for the said note. Each of said instruments stated that they were given as a security for the payment of the said sum of $840, and the interest thereon at eight per cent., and payable at the German-American Bank, Tonawanda. The defendants allege that the bond, mortgage, and note were executed upon a usurious agreement, whereby the plaintiff was to have and receive a rate of interest exceeding six per cent, upon the said bond and mortgage, and they are, therefore, void, and cannot be enforced. This contention seems to be sustained, not only by proofs in the transaction, but upon the face of the papers themselves, they all being executed, payable, and to be performed in the state of Hew York. The learned counsel for the plaintiff argues that, inasmuch as the defendant ordered the wagons, etc., from Ohio, they were in fact delivered to him in Ohio, and thus the contract in realty was made in that state, and the contract is governed by the laws of that state, and therefore is not usurious, eight per cent, being lawful interest in that state. However, this may be as to the original indebtedness, it will not aid the plaintiff as to the securities taken in this state to secure the indebtedness. They are plainly in contravention of our laws against usury, and cannot be enforced.

An interesting question arises whether, in this action, the plaintiff cannot obtain a personal judgment against the defendant William B. Simson, its debtor. While no case has come under my notice exactly parallel to this, yet the principle has been often asserted by the courts of this state that in an action brought to enforce a usurious security, which embraces a valid debt arising out of a prior transaction, recovery may be had for the amount of such valid debt, and the usurious security discarded. Cook v. Barnes, 36 N. Y. 520; Bank v. Webb, 39 id. 325-328; In re Consalus, 95 id. 340; Gerwig v. Sitterly, 56 id. 214; Freer v. Denton, 61 id. 492. The complaint in this action, as a preliminary to setting forth the securities sought to be enforced, sets sorth the original indebtedness for the wagons sold, which the answer admits, both the defendants-answering. The relief demanded in the complaint is for the foreclosui’e of the mortgage and the sale of the premises in the usual form, that the defendant William B. Simson be adjudged to pay any deficiency which may remain after applying the moneys applicable from the proceeds of the the sale, and that the plaintiff have such other and further relief as may be j ust and equitable.

The defendants having answered, the Code of Civil Procedure provides (section 1207) that the court may permit the plaintiff to take any judgment consistent with the case made by the complaint and embraced within the issues.'1 And in Bank v. Webb, 39 N. Y. 328, the court says:

“ It is perfectly settled that the right to sustain the action upon the facts alleged does not depend .upon the prayer for judgment Any relief to which, upon the facts alleged, the plaintiff is entititled, the court should grant when the defendant has appeared and answered,”—citing cases.

Although this is an equitable action, it is well settled that, while the court may .not be able to afford the party the equitable relief claimed, still, if the facts warrant a recovery for damages, or a personal judgment for debt, the court may retain the action, and give that relief. Sternberger v. McGovern, 56 N. Y 13; Bidwell v. Insurance Co., 16 id. 263, Baker v. McLoughlin, 19 Wkly. Dig. 29; Chester v. Jumel, 24 St. Rep. 229; Pom. Cont. & Spec. Perf. §§ 474-480, and notes; New York Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357. It seems unnecessary to put the plaintiff to the cireumlocation of another action to recover of Mr. Simson the amount of this conceded debt when such recovery may be permitted'within the issues embraced in this action. The plaintiff should have judgment against the defendant William B. Simson in this action upon and for the original indebtedness and interest at six per cent., after deducting such payments as have been made thereon, being the sum of $779.57, with costs against him, but only such costs as could have been recovered in .a legal action upon the original indebtedness. As to the defendant Mrs, Simson, the complaint should be dismissed as against her, but without costs.

Judgment' ordered against defendant William B. Simson for $779.57 and costs, and complaint dismissed as to defendant Sara D. Simson, without costs.


author: RUMSEY, J.

text:
    The People ex rel. Henry W. Steffan, App’lt, v. Joseph Murray et al., as Excise Commissioners, etc., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1„ Excise board—Employes—Discharge.
    The board of excise commissioners of the city of New York has power to remove excise inspectors at its discretion.
    S. Same—Request to resign.
    A resolution of such board, requesting an inspector to resign and declaring that if he did not resign by a certain hour he was discharged, is, ■without further action, effective as a discharge on his failure to resign.
    Certiorari to review the action of the excise commissioners in removing relator from his employment
    Chas. Blandy, for relator; J. M. Mayer, for resp’ts.
   RUMSEY, J.

Up to the time of his discharge complained of, the relator was an excise inspector, having been appointed in (889. On the 28th day of February, 1895, the board of commiseioners of excise at a meeting resolved that the clerk should be <md was directed to request the resignation of the inspectors, among whom was the relator. It was further resolved at the «ame time that, in case of the refusal of any of them to resign as requested by four o’clock in the afternoon of that day, each one who did not resign was dismissed from the service of the department • A notice of the passage of this resolution was given to the relator. He was requested to resign, hut refused, and thereupon he was informed that his services were no longer required, and that he should consider himself dismissed. He brings this writ to review the action of the respondents in dismissing him.

It is not seriously contested by the relator but that the position which he occupies was that of a mere employe, and that the power of the removal was intrusted to the commissioners, to be used practically at their discretion. This was the opinion of the court of appeals with regal'd to persons bolding the same position, as expressed in the case of Gregory v. Mayor, etc., 113 N. Y. 416; 22 St. Rep. 703. Occupying, as the relator did, simply the position of an employe, it is well settled that the respondents, to whom was given the right to employ him, had also the right to ■remove him whenever they saw fit. People v. Morton, 148 N.Y. 156. But the complaint of the relator is not so much that he was dismissed by the respondents as that the resolution which they passed, although purporting to discharge him if he did not resign, was not in fact sufficient for that purpose. We can see no forye in this contention. It seems that under civil service rules certain disabilities follow the discharge of one who has been employed in the public service. For that reason, it having been determined by the respondents that the services of the relator were no longer necessary, they desired to relieve him from the disabilities which accompanied the fact of his discharge by permitting him to resign, if he saw fit to do so, upon receiving the notice. But their resolution was plain and positive that, if he did not resign, he was dischsrged. The action of the commissioners in discharging him was conclusive, and there was no doubt about the meaning of the resolution. They might have discharged him without any conditions whatever, they saw fit to permit him to resign as a favor, rather than exercise their undoubted right. If they had done this by two resolutions, one requesting his resignation, and the other, passed after the time fixed for the resignation, simply discharging him, nobody would suggest that they had done anything more than they had a rght to do. The fact that they exe- ■ cised their undoubted right in a different way cannot affect the validity of their action.

The writ must be dismissed and the proceedings affirmed, with $50 costs to the respondents.

All concur.


text:
    Isaac Levy, Resp’t, v. Adolph Bernhart, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    Arrest—Vacation.
    Whenever a motion to vacate an order of arrest is made, the court should examine the affidavits and decide the motion as the facts therein are made to appear, no matter whether the grounds of arrest are identical with the facts'which establish, or are extrinsic to, the cause of action.
    Appeal from an Order denying a motion to vacate an order of arrest.
    Simon Sultan, for app’lt; A. A. Redfield, for resp’t.
   RUMSEY, J.

This action was begun in October, 1895. The complaint alleged substantially that on the 1st day of November, 1893, the plaintiff was the owner or certain goods of the value of $26,000, which were in the possession of the defendant as the factor and agent of the plaintiff, under a.n agreement by which he was to sell the goods, and account to the plaintiff for the sales, and pay over to him the proceeds; and that on the said 1st day of November, 1893, the defendant, being such factor as aforesaid unlawfully and fraudulently converted, misapplied, and disposed of said property to his own use; and that the plaintiff had frequently demanded the property, but the defendant refused to deliver the same to him. The affidavit upon which this order was granted stated more in detail the same facts, and described the time when the conversion took place as the 1st day of November, 1893. The date is important. It further stated, however, that after the 1st day of November, the plaintiff himself had sold a certaid portion of the goods to the firm of Herzog Bros, gave a check for the price of them to the defendant; and that the defendant on that day .converted this check to his own use. Upon these facts, made to appear somewhat more at large, the order of arrest was granted. Upon the motion to vacate the order, it was made to appear that on the 11th day of Hovember, 1893, the plaintiff released the defendant from all claims which he had against him, and that the result of the settlement was that the defendant was to sell certain goods of the plaintiff’s then in his possession, and to retain out of their proceeds the sum of §5,000 which was due from the plaintiff to him. It is fair to infer from the evidence that the $4,000 of Herzog was a portion of the $5,-000 which the defendant was entitled to retain. Upon the affidavit showing these facts, the motion to vacate was made. The facts appearing by the moving affidavit were uncontradicted and unexplained, and they establish almost conclusively, not only that the plaintiff had no ’cause of action against the defendant upon which this order of arrest was issued, but that he knew he had no cause of action, and that his affidavit was utterly false and known to be so at the time he made it. The learned justice, however, who decided the case, in spite of these facts, denied the motion to vacate the order of arrest. Ho opinion was written by hita, and we are therefore not informed of the ground upon which he puts his decision. It may be inferred, however, that it was decided upon the authority of certain cases, which seem to lay down the rule that, when the order of arrest is granted upon the grounds which are identical with the cause of action, the controversy should be left to an investigation at the trial, and should not be decided upon conflicting affidavits upon a motion to vacate the order of arrest. Welch v. Winterburn, 14 Hun, 518. It is quite true that that rule is stated by the justice delivering the opinion in the case last cited, and is laid down in some cases; but in our judgment, it does not state the true rule which should be applied to cases of this kind, and it is not necessarily decided to be the true rule in any of the cases which we have been able to discover, ■even the one cited above. By sections 567 and 568 of the Code of Civil Procedure, the right is expressly given to the defendant to move to vacate the order of arrest either upon the papers upon which it wás founded, or upon new papers, at his discretion. The right is one of considerable .importance in actions of this kind. The court of appeals have said that, where an order of arrest is granted in these actions, the defendant can contest the right to arrest him upon a preliminary motion to set aside the order, and may also contest the alleged cause of action, of course, upon the trial. Elwood v. Gardner, 45 N. Y. 349, 352. It would be useless for the defendant to move to vacate the order of arrest in these cases if his motion was not to be heard upon the merits; and, if not so heard, it is idle to say that he could contest the right to arrest upon the motion to vacate. We think that he has that right, and that it is not only given to him by the Code, but it exists and the authorities recognize it to the fullest extent In the case of Liddell v. Paton, 7 Hun, 195, where the order of arrest was issued in an action of the same nature as this, it was urged, upon a motion to set aside the order, that the defendant could only contest his liability to arrest upon the trial by making a successful defense there. But that principal was repudiated by the court; which says that the right to apply for his discharge upon a motion to vacate is secured to all persons who have been arrested in -a civil case, and that, when such a motion is made, the affidavits should be carefully examined, and the application disposed of according to the just preponderance of the proof. That case has been examined and cited in two cases not reported in the regular series, and has been approved in each. Bailey v. Prince, 24 St. Rep. 632; Hayes v. Beard, 13 Supp. 692. In each of these cases the rule is laid down that when a motion to vacate an order of arrest is made, although the right to arrest grows out of the cause of action, it is the duty of the court to examine the affidavits, and to dispose of the case according to the just preponderance of the proof as contained in them. The case of Welch v. Winterburn, cited above, does not conflict with this rule. In that case the court say that, upon the merits, the facts were sufficient to sustain the order, and all else that is said in the opinion is dictum, and not necessary to the decision of the case. The case of Peck v. Lombard, 22 Hun, 63, was decided without any particular examination, solely upon what was supposed to have been held in the case of Welch v. Winterburn, supra. The case of McClure v. Levy, 68 Hun, 525; 52 St. Rep. 568, does not lay down any different rule from that stated by us above. We think that in cases of this kind, where-ever a motion - to vacate the order of arrest is made, the courts should examine the affidavits, and decide the motion as the facts therein are made to appear, no matter whether the grounds of arrest are identical with the facts which establish the cause of action, or extrinsic to the cause of action.

The order denying the motion should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.

All concur.


author: O’BRIEN, J.

text:
    In the Matter of the Judicial Settlement of the Accounts of John J. McCord et al., as Executors, of Albert McCord, deceased.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Executor—Compensation.
    An agreement, allowing any other or greater compensation for services of an executor, which his official duty imposes upon him, however meritorious, than the amount fixed by law, cannot be enforced.
    2. Same.
    Where services are performed by an executor, outside of his official duties, he may be allowed compensation therefor, and an agreement to that effect, which is just and fair, will be enforced..
    3. Same.
    Where an executor, who is a son of the testator, had been employed by his father, in his life time, at a fixed compensation, to care for, repair, and collect the rents on, two buildings occupied by tenants, to which he devoted his whole time, an agreement between the heirs, after the father’s death, under which such services are continued to be rendered, allowing the same compensation, is properly enforced.
    . Appeal from an order disallowing certain objections to the account of the executors.

      Albert MeCord, the testator, died in 1886, possessed of personal property, and seised of two houses; and in and by his will, after payment of the debts and a legacy, he bequeathed his personal estate to his five children, in equal shares, gave to his wife one-third of the net rents of the real estate, and to his five children the remaining two-thirds, to be “ collected and paid over by his executors during the life of his wife.” The said will further provides and directs that ■“ immediately after the death of my said wife, or as soon as my executors shall deem it most convenient, said property to be sold," and the proceeds divided among said five children. The will was admitted to probate, and letters testamentary were granted to John J. McCord and Albert McCord, Jr., the accounting executors herein. After they had qualified and entered upon their official duties, Albert McCord, Jr., one of the executors, prepared and presented to the widow and heirs the following paper: “We the undersigned, heirs to the estate of Albert McCord, Sr., deceased, do hereby agree to pay Albert McCord, Jr., the sum of thirteen dollars per week, until other arrangements may be made, for taking charge, cleaning, and doing such repairs to the property as are necessary.” The executors were allowed full commissions, and in their accounts they credit themselves with weekly payments of thirteen dollars made pursuant to such agreement, which was objected to by Almira Busenbury, one of the children of the testator, who had signed the agrément,— which objection, "however, was overruled, and the credit allowed. This presents the question upon this appeal.
    W. C. Beecher, for app’lt; Frank L. Young, for resp’ts.
   O’BRIEN, J.

It is insisted that the services for which Albert McCord, Jr., claimed compensation outside of his commissions were only those which his official duty imposed upon him; and the rule is invoked that an agreement allowing any other or greater compensation for such services, however meritorious, than the amount fixed by law, cannot be enforced. While this rule is settled and firmly supported by authority, it is equally well settled that if services are performed by an executor, outside of his official duties, he may be allowed compensation therefor, and that an agreement to that effect, which is just and fair, will be enforced. There is therefore no trouble about the law, but the question in each case will reduce itself to one of fact,—as to whether the services rendered, and for which compensation is claimed, were those which the executor was bound to render in his official capacity as executor, or were those which were outside of his official duties. In this case, it appears that the executor, during the lifetime of the testator, his father, was engaged at the same rate of compensation in collecting the rents, and in cleaning and doing such repairs to the property as he was able. The agreement provides that he should continue to render similar services to the estate. It is, no doubt, within the official duty of an executor, generally, to take charge of the property and to collect the rents; and, where-such services alone are rendered, he could not recover more than the compensation allowed by law executors. Here, however, the evidence shows that he did more, and in addition to taking charge of the property and collecting the rents, that he devoted his time daily to the care of the property, and did the cleaning, calcimining, and repairing and painting, and all the repairs, with the exception of plumbing work and some plastering, and that this consumed his whole time; the testimony being that he went to the property every day about nine o’clock, and continued there until five in the afternoon. We think that the extra services thus rendered were outside of his official duties, were not executorial, and were such as the parties could legally enter into-a contract with him to pay for. So viewed, we think that the agreement and the rate of compensation were fair and just, and after he had thus devoted his time to rendering such services for nine years, under an agreement with one who now objects, that it would be inequitable to deprive him of the compensation which she expressly agreed he should receive.

Stress is placed upon the finding of the learned surrogate, made at the request of this appellant: “That the services rendered. * * * consisted in the taking charge of the two houses, renting of the same, and the collecting of the rents thereof.’’ It will not do, however, to have resort to a single isolated finding, because, when we come to the decision in this case as made by the surro- ■ gate, and examine the testimony upon which it is based, we find the facts in regard to the character of the work performed to be as we have detailed. Our conclusion, therefore, is that the agreement for extra compensation, being for services entirely separate and distinct from the duties imposed upon an ececutor by virtue of his office, was just, fair and valid, and the contestant having had the benefit of the services so rendered, and having received without objection her share of the income during the entire period, receipting therefor, it would be inequitable to permit her now to' repudiate her agreement.

We think the decree was right, and should be affirmed, with costs and disbursements against the contestant. All concur.


text:
    James J. Matchett, App’lt, v. Theodore Lindberg et al., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Appeal—Evidence.
    Under the provisions of § 1022 of the Code, an exception taken to the decision puts the matter at large and authorizes the appellate court to review the whole case, including the facts as well as the conclusions of law.
    2. Same—Requests to eind.
    Requests to'find are not now necessary, where the court has made a decision containing the findings of fact and conclusions of law.
    8. Same.
    Where the decision has been made containing findings of fact-and conclusions of law separately stated, the defeated party is at liberty upon ap- ? peal to review the facts without having filed any exception to the decision, if he is otherwise in a situation to do so.

      4. Same;.
    But, in order to put himself in such position, he must make it appear , that the case contains all the evidence given upon the trial.
    5. Same.
    Unless this is done, the court, finding that some evidence has been omitted, will assume that the omitted evidence is sufficient to sustain (lie findings of fact, whatever may have been its conclusion upon the evidence contained in the case.
    6. Same.
    Where it appears affirmatively from the case that, in addition to the oral evidence, a considerable amount of documentory evidence was given which does not appear in the papers, a stipulation at the end of the case which states that it contains all the '‘oral evidence” given upon the trial, is not sufficient.
    7. Evidence—Trade-mauks.
    In an action for infringement of a trade-mark, evidence by plaintiff that ■ other parties than defendants acknowledged and acquisced in plaintiff's claim to the trade-mark, is properly excluded
    Appeal from a judgment in favor of defendants,
    H. W. Grindal, for app’It; W. H. Phillips, for resp’ts.
   RUMSEY, J.

The action was brought to restrain the use of the plaintiff's trade-mark by the defendants, and for damages. After evidence had been given upon both sides, the court dismissed the complaint, and from the judgment entered upon that decision this appeal is taken. But two exceptions are found in ■this case, and each of these is an exception to the ruling of the court upon the admission or rejection of evidence. We have examined the rulings of the court in each case, and each of them was »clearly correct.

The decision in this ease, as filed, contains a finding of fact and a conclusion of law. It is therefore not one of the short decisions permitted to be made by section 1022 of the Code. Under the provisions of that section an exception taken to the decision puts the matter at large, and authorizes the appellate court to review the whole ease, including the facts as well as the conclusions of law. No exception was taken to the decision in this case, and therefore the correctness of the conclusions of law cannot be reviewed. The appellant, however, insists that the finding of fact of the court was not warranted by the evidence. No- requests to find were made, and there is no indication in the case anywhere that the appellant intends to review the facts. But we do not think that requests to find-are now necessary, where the court has made a decision containing findings of fact and conclusions of law. As the Code of Civil Procedure was originally passed it was necessary, when one desired to put himself in condition to review the facts, where the trial had been had before the court or a referee, that he should; before the decision was made, present to the court or referee requests for findings. Code Civ. Proc. §§ 993, 1023. If that was not done, he was not in a situation where he could review the findings of fact.. These sections, however, were repealed at the same session of the legislature at which section 1022 was amended so as to permit a short decision to be filed, which should not contain findings of fact; and the Code was left without any provision for a review of questions of fact if the decision was made after the old fashion of stating separately the findings of fact and the conclusions of law. In that state of affairs it is "clearly not required of a party that he should make requests to find. It was never necessary that he should file exceptions to the findings of fact. Lefler v. Field, 50 Barb. 407. Under the practice before the Code of Civil Procedure no requests to find were necessary to enable one to review the facts upon an appeal from the judgment after a trial by the court. This state of affairs, as we think, now exists; and where the decision has been made containing findings of fact and conclusions of law separately stated, the defeated party is at liberty upon appeal to review the facts without having filed any exception to the decision, if he is otherwise in a situation to do so. To put himself in that situation he must make it appear that the • case contains all the evidence given upon the trial. Unless that is done, the court, finding that some evidence has been omitted, must assume that the evidence omitted was sufficient to sustain the findings of fact, whatever might have been its conclusion upon the evidence contained in the case. It does not appear in this case that the case contains all the evidence given upon the trial. The stipulation at the end of the case says that it contains all the “oral evidence” given upon the trial, but that stipulation is clearly not sufficient. In the case of Upington v. Pooler, 47 St. Rep. 30, which is not reported in the official series, the certificate stated that the case ■ included all the “ testimony ” given upon the trial. It appeared in that case that a considerable amount of documentary evidence which was material had been used upon the trial, and this evidence was omitted from the case. The court held that when that appeared the case was not complete, so that the facts could be reviewed. That is precisely the situation of affairs here. It appears affirmatively from the case that, in addition to the oral evidence, a considerable amount of documentary evidence was given which does not appear in the papers. Without that evidence the case cannot be intelligently reviewed ujion the facts. For this reason no questions are presented for examination upon this appeal, and the judgment must be affirmed, with costs to the respondents.

All concur.


author: INGRAHAM, J.

text:
    Chambers and McKee Glass Company, Resp’t, v. David H. Roberts, Def’t. John S. Huyler, Junior Attachment Creditor, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    Attachment—Affidavit.
    To entitle a plaintiff to a warrant of attachment, he must show by affidavit that a cause of action exists against the defendant, but he does not show such fact by merely stating that an indebtedness exists, and that such indebtedness is for goods sold and delivered by the plaintiff at an agreed price, which sum the defendant promised to pay.

      Appeal from an order, denying a motion to vacate a warrant of attachment and permitting the plaintiff to modify its attachment by reducing the amount.
    Thomas D. Adams, for app’It; J. Adriance Bush, for resp’t.
   INGRAHAM, J.

This is an appeal from an order denying a motion of the appellant, a junior attaching creditor, to vacate an attachment granted in this action. The attachment granted in this action was upon the affidavit of one Briclcell, who swears that he is vice president and treasurer of the plaintiff, and has full knowledge of its affairs. There is no complaint, and the affidavit sets up four separate items, aggregating $94,094.11; and an attachment was issued directing the sheriff to attach property to satisfy the plaintiff’s demand to that amount On a motion to vacate this attachment the court below found that the affidavit was not sufficient as to the third separate item or cause of action set forth in the affidavit, and reduced the attachment by deducting therefrom the amount of such cause of action insufficiently proved, which, in effect, amended the attachment by changing the ■amount from $94,094.11 to $25,181.91. We think the affidavit upon which the attachment was issued was entirely insufficient to show that a cause of action existed in favor of the plaintiff against the defendant. The only allegation as to the cause of action existing in favor of the plaintiff is that “ the vice president and treasurer of the plaintiff swears that the defendant’s indebtedness is as follows." Then follow four separate items, aggregating $94,094.11. The affidavit then states as to the first iiem as follows: “The first of said amounts, to wit, one thousand nine hundred and twenty-nine dollars and ten cents, is for goods, wares, and merchandise, to wit, glass, sold and delivered by plaintiff to defendant at the city of Pittsburgh, Pa., betxveen the 1st day of November, 1895, and the 5th day of November, 1895, at the agreed value and price of $1,929.10, which said sum said defendant promised and agreed to pay plaintiff therefor, but no part of which has been paid, although duly demanded.” There is here no allegation of a fact to show the existence of the cause ■of action. The allegation that the first amount that is claimed to be due the plaintiff from the defendant is for goods, wares, and merchandise sold is not an allegation that any of those goods, wares, and merchandise were sold or delivered to the defendant, or that the defendant agreed to pay therefor. The person' swearing to the affidavit might have told the truth, although he never saw the defendant, and had no personal knowledge of such sale or delivery. The fact that a claim against a person is for money loaned or goods sold and delivered depends upon the nature of the claim, and an allegation of the nature of ■such claim does not tend in any way to show that the claim is a valid one. To entitle the plaintiff to a warrant of attachment he must show bv affidavit that a cause of action exists against the defendant, lie does not show that such a cause of action exists by merely stating that an indebtedness exists, and that such indebtedness is for goods sold and delivered by the plaintiff at an agreed price, which sum the defendant promised to pay. There is here no allegation that the said goods were in fact sola and delivered, but only that plaintiff’s claim is for goods sold and delivered. We think, therefore, that there was no evidence before the judge who granted the attachment that a cause of action existed against the defendant, and for “that reason the attachment should have been vacated.

The order appealed' from must therefore be reversed, with $10 costs and disbursements, and the motion to vacate the attachment granted, with $10 costs.

All concur.


text:
    Waldemar A. Walthear, Resp’t, v. Pennsylvania Fire Insurance Company, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)
    1. Insurance—Policy—Cancellation.
    Where a policy provides, in case of its cancellation, that the unearned portion of the premiums shall be returned ou surrender of the policy, a notice to the insured of its cancellation, which states that the unearned premiums are held subject fo the order of the insured and the return of the policy, is sufficient, without further tender of the unearned premiums, to cancel the policy. ,

      2. Same. ■
    The statement in the notice that the unearned premium is held subject to the order of the insured and the return of the policy, is equivalent to a tender or offer of such unearned premium.
    8. Same—Tender.
    The coupling of the tender with the request for a return of "the policy does not destroy its efficacy as a tender.
    Appeal from a judgment in favor of plaintiff, entered on a verdict directed by the court.
    The action was brought to recover damages for loss by fire upon'a policy of insurance dated August 17,1892, issued by the defendant upon property of the plaintiff. The policy was in the standard New York form, and contained, among others, the following conditions : “ This policy shall be canceled at any time at the request of the insured, or by the company by giving five days' notice of such cancellation. If this policy shall be canceled as > hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender’of this policy or last renewal, this company retaining the customary short rate; except that when this policy is canceled by this company by giving notice it shall retain only the pro rata premium.” It is admitted that on October 3, 1892, the plaintiff received from the defendant a notice stating, among other things, that “on and after the 6th day of October, 1892, at noon, the said policy will be held by the company as canceled and void, and no claim thereunder for loss from fire occurring after said date will be recognized or admitted by the company. The' unearned premium due, if any, will be held subject to your order and return of the policy.” The plaintiff does not appear to have paid any attention to this notice, or in any way to have replied to it. Thereafter, the fire which damaged plaintiff’s property having occurred on November 5, 1892, he made a claim for the resulting, damages. The plaintiff never surrendered to the defendant or its agents the policy of insurance, and the defendant never returned to the plaintiff any portion of the premium. Both parties asked the court to direct a verdict in their favor respectively, and the court directed for the plaintiff, and from the judgment entered upon such verdict this appeal is taken.
    Michael H. Gardozo, for app’lt; Henry Thompson, for resp’l
   O’BRIEN, J.

The legal question is, can a fire insurance company terminate a policy without actually returning and paying to the assured the unearned premium ? It is insisted by the respondents that the covenant not to retain the premium is an integral part of the cancellation proviso, and that the payment of the unearned premium is no less an essential part of the act of cancellation; that, to cancel the policy, it must retain the unearned premium; and that the language not to retain ” is not satisfied by an actual retention, nor is it any excuse for actual retention to say to plaintiff that “ the unearned premium, if any, will be held subject to your order and return of policy,” for the reason that the language calls for affirmative action on the part of the company; their duty being to get rid of the unearned .premium if they desire to get rid of their contract obligation. Support for this contention is claimed to be found in the case of Nitch v. Am. C. Insurance Co., 83 Hun, 614; 64 St. Rep. 878; and, following this decision, the case of Tisdell v. N. H. F. Insurance Co., 11 Misc. 20; 65 St. Rep. 306. We do not think the Nitch- Case goes to the extent claimed for it by the respondent, nor is it controlling, by reason of the difference which we will point out upon the facts here appearing. The learned judge, in writing the opinion in that case, presents the caso therein disposed of by saying:

The defendant i; contends that by nature of this language the insurance company can effectively and absolutely terminate its liability as an insurer simply by giving to the insured the prescribed five days’ notice, and without returning or tendering the unearned premiums.”.

And, after construing the provision = in the standard policy, and speaking of the company’s duty in regard to the unearned premium, he concludes the opinion as follows :

“ The latter requirement * * * can only be complied with by actually returning the unearned premiums, or offering to return it, to the insured. Reading the entire provision as a whole, I am clearly of the opinion that it makes the actual payment or tender of the unearned premium essential to a cancellation of the policy by the company.”

It will thus be seen that the court in that case did not hold that there must be an actual return of the unearned premium, but there must be either that or an offer to return it to the insured. Having regard to the language used in the notice of cancellation, we think that the latter was just what was done here, namely, that the company offered to return the unearned -premium upon a return of the policy, which was clearly within the language of the policy. As will be seen on reading its language, the duty was imposed upon the assured of returning the policy upon receipt of the unearned premium, and it would be violating the plain language of the provision to say that the company was pledged actually to deliver the money, irrespective of whether the insured would return the policy or not. Upon- receiving such a notice, we think the insured should have taken some action, either by replying to the letter or by going with the policy and receiving the money, or by sending it, and ordering just what he wished done in regard to the unearned premium ; for if we should take the view that the insured had no duty resting upon him, and notice was sent that the unearned premium was subject to his order, then he would hold the position where, if a fire occurred, as here, he could claim that the policy was in force, and, if no fire occurred, he could, after the policy terminated, recover from the company the unearned premium. The concluding statement of the notice, that “the unearned premium due, if any, will be held subject to your order and return of the policy,” was effectual, at the end of the five days in such notice specified, to cancel the policy, and to give the insured a right to the unearned premium upon returning the policy. The distinction therefore, between this and the Nitch Case will be found in the fact, which we have adverted ' to, that there was in that case no return or offer to return the premium, while in this case there was a distinct offer; because we think the statement that the unearned premium was held subject to the order of the insured and the return of, the policy was equivalent to a tender or offer of such unearned premium. And the coupling of the tender with the request for, a return of the policy did not destroy its efficacy as a tender, because the condition was one that the company, under the express language of the. provision, had a right to add to its offer.

Our conclusion, therefore, is that the direction of a verdict in plaintiff’s favor was erroneous, and that the judgment must be reversed, and a new trial ordered, with costs to appellant to abide event.

All concur.


author: LANDON, J.

text:
    Samuel S. Beman, Resp’t, v. Martha J. Douglas et al., App’lts.

      (Supreme Court, Appellate Division, Third Department,

      Filed February 5, 1896.)

    1. Vendor and purchaser—Record title.
    Ill the absence of evidence, the good faith'of a purchaser of land by the record title is presumed, and the burden of showing notice rests upon the party who seeks to impeach the record purchaser’s good-faith.

      2. Same—Unrecorded instrument.
    The purchaser in good faith of land, at an execution sale under a judgment against the holder of the record title, without notice, who records his deed, acquires a good title as against those claiming under an unrecorded contract of sale executed by the judgment debtor, though by such contract he parted with all Ms rights in the' land prior to the time when the lien of the. judgment attached.
    Appeal from a judgment in favor of plaintiff.
    Appeal from the judgment directing foreclosure of an executory contract for the sale of land. Nathan Beman, being the owner of the premises, did, February 15,1870, enter into a contract in writing under seal with Henry Yell, Amos Yell, and Joseph Sampica, whereby Beman agreed to sell" to the Yells and Sampica said premises for $1,000, $50 of which they then paid, and agreed to pay the balance in five equal, annual, successive payments, with interest; and, upon payment being fully made, said Beman was to execute and deliver to the vendees a good and sufficient deed of the premises. That November 5, 1870, Beman assigned the contract and all his interest in and to the premises therein to Wead, whose administratrix afterwards, and on July 2, 1884, assigned the same to plaintiff. The premises consist of 119 acres of uninclosed, unoccupied wood and swamp land in Clinton county. Some payments were made by the vendees, but there remained due and unpaid on the contract, November 20, 1894, when the action was tried, $1,619.03, principal and interest. September 11, 1873, a judgment was entered and docketed in Clinton county for $1,660.83 against the vendor, Nathan Beman, in favor of Seba Johnson and Darius Ayer, and execution afterwards issued thereon against the property of said Nathan Beman, under which execution the sheriff sold the premises described in said contract to William S. Douglas and John W. Beman, and afterwards in due time gave them a sheriff’s deed thereof, which deed they recorded in the Clinton county clerk’s office, August 11, 1876. March 18, 1880, John W. Beman conveyed his interest to said Douglas. There is no evidence that'Beman or Duglas, up to the time of receiving the sheriff’s deed, had any notice of the contract of sale or of any claim of the vendees therein named to the premises. The defendant Martha is the widow, and Hiram and Elfie Dougins are the children, of said William S. Douglas, who died intestate March 24, 1887, and they defend, alleging that by virtue of the sheriff’s deed to said Douglas and John W. Beman, and the due record thereof without notice of the said contract, they are the owners of the premises, and that their title is not affected by said contract. The court held otherwise, and they appeal,
    Cantwell & Cantwell, for app’lts; Weeds, Smith & Conway (T. F. Conway, of counsel), for resp’t.
   LANDON, J.

The trial court held that the under the sheriff’s deed could only take the actual interest which the execution debtor, Nathan Beman, had in the premises at the timé the judgment was docketed against him, September 11,1873; and that, as he had, November 5, 1870, by his assignment of the executory contract to Wead, under whom plaintiff holds, parted with all his interest, the sheriff’s grantees took nothing by the deed, and had nothing to protect by recording it. There is no evidence that William S. Douglas and John W. Beman, the purchasers at the sheriff’s sale, had notice, or were charged with notice, of the contract, or of the rights or claims of any of the parties to it. They bid and paid $327 for the land. This is some evidence—perhaps as much as it is reasonable to expect—in support of a negative sought to be proven after the death of the purchaser. We think that the finding of the learned trial judge that William S. Douglas was not a bona fide purchaser, and was not without notice of the lien of the contract, cannot be sustained. This finding seems to be based upon the assumption, stated in the opinion of the learned judge, that “the case is entirely barren of evidence in that particular.” But the burden of showing notice rested upon the plaintiff, who sought to impeach the record purchaser’s good faith. Brown v. Volkening, 64 N. Y. 76. Assuming that William S. Douglass was a purchaser in good faith, and not charged with notice of the contract, then we think that the sheriff’s deed to him and Beman was within the protection of the recording act. It is the law of this state that, in the absence of fraud, a judgment only takes effect upon the actual interest in land which the judgment debtor has at the time of the recovery of the judgment. Banking Co. v. Duncan, 86 N. Y. 221; Frost v. Bank, 70 id. 553; Clute v. Emmerich, 99 id. 342. The judgdebtor, Nathan Betnan, had the legal title, but had sold the equitable title. This naked legal title, destitute of any beneficial interest, the sheriff sold upon the execution to Douglas and John W. Betnan. Apart from the recording act, Douglas and John W. Beman practically acquired nothing. They recorded their deed, and being purchasers in good faith, without notice of the equities arising under the contract of sale, they acquired by their priority of record the better title. Hetzel v. Barber, 69 N. Y. 1. If Nathan Beman, instead of giving a contract of sale, had first given a deed of the land to the plaintiff, and he had failed to record-it, the subsequent recorded dped to the defendants would be preferred. If the unrecorded deed is not protected, much less the contract for it.

The judgment should be reversed, new trial granted, costs to abide event. All concur.


text:
    Samuel Eiseman et al., Resp’ts, v. Arnold B. Heine et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

      . 1, Appeal—Fikst instance.
    An objection that a Contract is within the statute of frauds and therefore not binding, if not taken, upon the trial, cannot be considered for the first time on appeal. 1

      2. Sale—Pboof.
    The evidence in this case, which was an action for breach of contract for the sale of goods, was held to warrant an assumption, as a matter of law, that a contract of sale existed.
    3. Same—Sample—Evidence.
    Where, in an action for breach of a contract for the delivery of silk sold by sample, there is an issue as to the grade of the sample, it is proper te allow plaintiff to ask the value of silks of the quality claimed by him to be represented by the sample.
    4. Same—Instbuctions.
    In such case, it is proper to refuse an instruction as to the measure oi damages which assumes, as proven, the grade of goods.
    Appeal from a judgment in favor of plaintiffs, entered on a verdict, and from an order denying a motion for a new trial.
    This action was to recover the sum of $1,500, as damages for breach of a contract to deliver goods ordered by the plaintiffs. There was no dispute that the goods had not been delivered, and that the time limited for such delivery had expired, but the answer denied that any contract had been made. Upon this appeal it is insisted that the .plaintiffs failed to establish a contract, and that the court erred in holding, as matter of law, that they had established one; the appellants claiming that the most favorable view to be taken of the transaction was tha't it presented a question of fact, as to whether there was or was not a contract between the parties. Whether such contentions are right, or not, we think depends upon the answer, which is to be sought in the testimony as to whether a contract was made by plaintiffs with defendants' agent when the order was originally given, or whether the contract is to be spelled out from the correspondence between the principals after the. agent of the defendants was on his way to Yokohama. Samuel Eiseman, one of the plaintiffs, testified that on the 5th day of September, 1892, he gave to defendants’ salesman an an order for 500 pieces of changeable Kaiki silks,—300 pieces positively, and 200 pieces conditionally,—at 32^- cents per yard.* A memorandum of the order given was made and retained by the defendants. This memorandum describes only 300 pieces, and no reference whatever is made therein to the additional 200 pieces mentioned by Mr. Eiseman in his testimony. On September 15th the defendants wrote to plaintiffs, saying, “We beg to hand you herewith copy of vour import order on Japanese silks,with which you favored our Mr. Maass.” In that letter, as indicated, there was inclosed a copy of the order for fhe 300 pieces. Plaintiffs replied to this letter as follows : “Your copy of order of 300 pcs. changeable Kaiki is not correct. The order was given for 500 pcs., the acct. for 200 pcs. to be given later. * * * Please send us the additional copy of order for 200 pcs.” The defendants thereupon wrote, sayiug: “We have order from you for 300 pcs. changeable Kaiki silks only. If the order given by you to our Mr. Maass was for 500 pcs., he must have omitted to mention that fact to us. We may say that the order as made out by you, which we hold, only calls for 300 pcs. However, may this be as it will, we shall write by Wednesday’s mail to our Mr. Maass, who is now on his way to Yokohama, and shall instruct him to give us his answer by cable, on receipt of which we shall communicate with you. In the meantime you will kindly acknowledge receipt of the copy of the 800 pcs., if you find the same correct in eyery particular except as to quantity.” To this letter the plaintiffs made no reply. About six weeks thereafter the defendants notified the plaintiffs that “according to advice received from Japan, and confirmed by Mr. Maass, * * * it is possible to produce changeable Kaiki silks in colors which would be satisfactory. * * * The striped Kaiki silks which turn out beautifully, will be delivered.” To this the plaintiffs replied that their order was for changeable, and not for striped, Kaiki silks, and that unless the order was filled they would buy them on the market for defendants’ account. In this last letter attention is called to the fact that at the time the order was given a sample piece was furnished the plaintiffs, and there is no serious dispute but that the sale was made on sample.
    O. E. Rushmore, for app’lts; Mr. Blumensteil, for resp’ts.
   O’BRIEN, J.

The plaintiffs did not sue for 500, but for the value of 300 pieces; and it will be noticed that the confusion which was created by reason of the departure of Mr. Maass, the defendants’ agent, for Yokohama, was in reference to the 'additional sale of 200 pieces. But there was no serious question but that the plaintiffs had ordered, and the defendants had agreed to deliver, 300 pieces. The situation therefore appears to us, as it undoubtedly did to the learned trial judge, that there was a contract for the purchase of 300 pieces, about which there was no dispute made at the time when the original order was given. The appellants’ contention that if this view were taken the contract thus made, being a verbal one, was within the statute of frauds, and therefore not binding, cannot be considered, for the reason that the question was not raised on the trial. In addition to the evidence furnished by their letters that the defendants understood that they had contracted to deliver 300 pieces, we have their subsequent conduct in attempting to obtain the goods in the market, and the fact that their agent, when examined upon the trial, did not in any wise contradict plaintiffs’ testimony as to the making of the contract. If there had been a dispute about whether this was an orde'r for the absolute sale of 800 or of 500 piece, then the appellants’ argument would be potent, because there was a question as to whether the minds of the parties met upon such a contract. As we have shown, however, the plaintiffs did not claim that a contract was made for the absolute sale of 500, but only of 300, pieces, and that the sale of the 200 pieces, about which all the dispute arose, was a conditional one, and subject to future confirmation by the parties.

Another error assigned was in permitting the plaintiff Samuel Eiseinan, against objection, to testify that he had visited certain establishments, and had ascertained the lowest price at which they could sell to him changeable Kaiki silks, and that the lowest price was forty-five cents a yard. This information was obtained while the witness was out trying to buy the goods in the market, and, though strictly speaking, not competent evidence of value, the question was proper as showing the effort made by plaintiffs to replace the goods; "and, as Mr. Rosenthal (one of the two from whom the witness obtained the information) himself testified to 'the market value, we do not think the testimony was harmful, particularly when we find that the jury did not adopt his figure, but seem to have taken the value as given by the defendants’ witnesses, of about thirty seven cents. The defendants not having been injured, therefore, we do not think that the error assigned affords ground for disturbing the verdict.

Another ruling on evidence claimed to be wrong was one permitting the plaintiff to ask the market value of perfect changeable Kaiki silk of that quality. It will be remembered that at the time the order was given a sample of the goods to be delivered was left with plaintiffs, and that upon this the negotiations were based. This sample was exhibited to witnesses on both sides, and a question was presented as to whether it was a sample of perfect or of imperfect goods. The plaintiff’s claimed the former, and the defendants as strenuously insisted on the latter. Contending, as the plaintiffs were, that it was a sample of perfect goods, it was proper to ask what the market value of goods of that quality was, just as the defendants’ witnesses were permitted to testify, as one of the latter did, that it was imperfect and full of streaks, and that goods of that character sold for a price even below the contract price. "VVe do not think that the plaintiffs were bound by the defendants’ view as to the character of the goods, and as the sample was produced, and a reference made to it in the question objected to, we think that the ruling was proper.

- Upon the measure of damages, it was conceded that the true rule was the difference between the contract price and the market value, and the court clearly presented this to the jury. At the close of the charge, however, not satisfied therewith, the defendants' counsel asked the court to charge “that in estimating damages the plaintiffs could not, in any view of the case, recover more than the difference between thirty-two and one-half cents per yard and the market value of the imperfect goods, such as the sample submitted to the witness.” This was denied, and, we think, properly, for the reason that the counsel had no right to characterize the goods as imperfect, and to insist that the court should adopt such characterization. If the word “imperfect” had been omitted, the court would undoubtedly have charged, as it had already done, that the plaintiffs could recover but the difference between thirty-two and one-half cents, which was the contract price, and the market price of the goods such as the sample submitted.

Our conclusion, therefore, is that no error was committed which would justify a reversal, and that the judgment should be affirmed, with costs.

All concur.


author: VAN BRUNT, P. J.

text:
    Marie L. Donohue, Resp’t, v. Theodore H. Hungerford et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb. 14, 1896.)

    1. Attorney and client—Unauthorized appearance.
    The only method, in which a party may seek relief from an unauthorized appearance, is by direct application in the action.
    3. Same.
    A litigant, who knows of an unauthorized action on]the part of an attorney claiming to act for him, is bound to see that he is relieved from the presumptions which necessarily arise from the bringing of an action by an attorney.
    3. Former adjudication—Pendency ot action.
    The pendency of an action in another court is a defense to the present action between the same parties and for the same cause of action, though such former action was commenced, not only without the authority of the plaintiff, but against her express command.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    D. P. Hall, for app’lt; Greo. M. Curtis, for resp’t.
   VAN BRUNT, P. J.

— This action was brought to recover damages for an alleged libel. Among other defenses, the defendant set up that at the time of the commencement of this action, and at the time of the service of the answer, there was pending in the superior court of the city of New York an action between the same parties, and for the same cause as that set forth in the complaint herein. Upon the trial it appeared that the plaintiff had consulted one William H. Mundy, an attorney, in reference to her' rights in respect to such libel, and by her reply she admitted that she gave him authority to represent her in legal proceedings against the defendants. But she testified that, before the summons was served in the case at bar, she wrote to said attorney, revoking his authority, and that upon the next day he cálled upon her, and told her that she had no right to discharge him, and that after receiving her letter he had gone to his office and served the summons (referring to the summons in the action in the superior court.) 0 This was in July, 1892. She testified that at that interview the attorney asked her to sign a cqmplaint; that she refused to sign the complaint, and told him that, if he would give her his bill, she was through with him, and wanted to have nothing more to do ■ with him. She also testified that she never authorized him to bring an action or to serve a summons or complaint in her name against the defendants in the superior court, or in any other court. Subsequently the complaint in the superior court action was served, and the defendants answered in August, 1892. On the 6th of October, 1892, this action was commenced in the supreme court by the service of a summons. On the 15th of October, 1892, the issues joined in the superior court action were noticed -for trial. On the 18th of November, 1892, the complaint in this action was served. On the 31st of December, 1892, the answer was served; setting up, among other things, the pendency of the action in the superior court, and the reply of the plaintiff on the 17th of January, 1893.

It is urged that the pendency of the action in the superior court was no defense to this action, because such action was commenced, not only without the authority of the plaintiff, but against her express command, It has long been the settled rule in this state that the appearance of an attorney who is claimed to have acted without authority cannot be attacked in any collateral proceeding, and that such appearance is binding. The only method in which a party may seek relief from such unauthorized appearance is by direct application in the action. Brown v. Nichols, 42 N. Y. 26. This rule has been recognized in many other cases. Vilas v. Plattsburgh & M. Railroad Co., 123 N. Y. 440, 34 St. Rep. 67; Washbon v. Cope, 144 N. Y. 288; 63 St. Rep. 716. In the latter case the court says:

“ It has been settled by an unbroken line of decisions in this state, running many years back, that—unless under some peculiar and extraordinary circumstances, not existing in this action—the objection that a party was not served, and an appearance by an attorney in a court of record was unauthorized, and hence that the judgmemt was without jurisdiction, cannot be taken in a collateral proceeding or action, but the party is confined to a motion in the original action, in order to obtain reliefand citing cases.

So in the case at bar the defendants had a right to rely upon the pendency of the action in the superior court; and, if the plaintiff desired to relieve herself because of the alleged unauthorized commencement of that action, she was bound to move in the superior court, and there obtain relief. The plaintiff knew of the commencement of the action in the superior court upon the day after it had been begun, and that a complaint would be served, and she took no steps whatever to set aside this alleged unauthorized action of her attorney. The defendants were required to answer in that action, or a judgment would have been taken against them by default. It was not for them to challenge the authority of the attorney. The attorney is an officer of the court, and is presumed to act with authority; and a litigant who knows of unauthorized action on the part of an attorney claiming to act for him is bound to see that he is relieved from the presumptions which necessarily arise from the bringing of an action by an attorney.

Our attention is called by the respondent to the case of Allen v. Stone, 10 Barb. 547, which, instead of supporting the claim advanced by her, seems to be an authority in favor of the proposition above established. It it held in that case that where a process is served upon a party, and there is an appearance by an unauthorized attorney, the party will not be relieved, even if the attorney is responsible. The question, however, determined in that case, was that where a person had commenced a suit before a justice, in the name of another, pretending to be the assignee of a claim in favor of the latter against the defendant, and" had appeared as attorney for the nominal plaintiff on the trial, falsely swearing to his authority to do so, and, on appeal by the defendant, had retained an attorney to appear for the respondent, and afterwards to defend a writ of error, the nominal plaintiff was not bound by the-acts of the attorney until after he had notice of the suit. In the case at bar the plaintiff had notice of the suit the day after it was begun. The case of Pulver v. Harris, 62 Barb. 500, also cited by the respondent, held only that upon an application in the action an attorney had no right .to prosecute it against the wishes and without the authority of his client, on the ground of his being the assignee or equitable owner of the'cause of action. This case was affirmed by the court of appeals. 52 N. Y. 73. It would seem, therefore, that the proceedings of the attorney could not be attacked in this collateral manner. The plaintiff had prompt notice of the commencement of the suit, and the defendants were, required to answer, or a judgment would have been taken against them by default and, when the defense of the superior court action was set up by the answer of the defendant, the plaintiff took no proceedings whatever to get rid of that action. Consequently, at the time of the trial of this action the defense was a good one, and the, defendant’s motion’ for a dismissal of the complaint should have been granted. '

The judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellants, to abide the event.

All concur.


author: BISCHOFF, J.

text:
    James Laird, Resp’t, v. Charles D. McGeorge, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Febr’y 26, 1896.)

    Landlord and tenant—Repairs.
    In the absence of an agreement by the landlord to repair, he is not answerable to the tenant for damage resulting to the latter for a want of necessary repairs.
    Appeal from a judgment in favor of plaintiff.
    Charles 0. Suffren, for app’lt; Phillips & Avery, for resp’fc.
   BISCHOFF, J.

The action was for rent, and the defense went to the duties of the landlord to repair, involving a counterclaim for repairs made by the tenant, and for damages sustained by reason of the condition of the roof of the premises.

Whether or not there had been an agreement that the premises should be maintained by the landlord in a tenantable condition was primarily the issue, and, though a paper writing had been subscribed by the landlord to the effect that the premises should be tenantable, and kept so, it was also in evidenee, without objection, that this was not actually the agreement,-and that the parties had come to an understanding, that the premises should be accepted in their condition as found, except as to certain matters not now brought'into controversy. It was explained by the landlord that the paper alluded to had been signed hurriedly, by reason of the tenant’s haste, and that it was mutually apprehended to be merely a receipt for a payment"made by the tenant at the time. The justice below was satified with this explanation, and "with the parol evidence of the actual agreement; then, upon the record, we do not find reason to hold that the conclusion in favor of the landlord was unauthorized, since that conclusion could properly be reached upon evidence which, although not of the character required by law, was to be considered as properly in the case, through the failure of the opposing party to call for its exclusion. Crane v. Powell, 139 N. Y. 384; 54 St. Rep. 659. In the absence of the agreement by the landlord to repair, he is not answerable to the tenant for damage resulting to the latter from a want of necessary repairs. Doupe v. Grenin, 45 N. Y. 122.

Judgment affirmed, with costs.

All concur.


text:
    Max Kahn, App’lt, v. Philip Tobias, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed February 26, 1896.)

    1. Landlord and tenant—Deposit.
    Where money is deposited to secure the rent and the tenant is evicted, so much of the deposit as remains after paying the rent belongs to the tenant.

      2. Same—Eviction—Overpayment.
    Where, under a lease requiring the payment of rent monthly in advance, the tenant, after paying the larger portion of a montn’s rent, is evicted, he cannot recover any portion of such advance as an overpayment.
    Appeal from a judgment in favor of defendant.
    Samuel Schlesinger, for app’lt.
   BISCHOFF, J.

The plaintiff leased certain premises from the defendant for a term of eight months, under a verbal agreement whereby he was to pay $45 rent monthly. He entered into possession the 1st day of September, 1895, and paid $45, which sum, according to the testimony, was for security for rent during the remainder of the term. On October 1st he failed to pay his rent for that month, but, upon the 8th, made payment of $30, and received an extension of time until the 14th within which to pay the balance. Failing to do this, however, he was evicted upon the 15th of that month, and has brought this action to recover hack the $45 deposited as security and also the sum of $7.50, representing the per diem overpayment for the actual period of occupation during October. ■

According to the testimony, the deposit was made as security for payment of rent only, and to insure performance of no other covenant. But, with the rescission of the contract of lease by the <3ofendant, there was nothing which could thereafter accrue in the way of rent, and bis damages arising from nonpayment of rent alone called for an application of the sum deposited. To the excess the plaintiff was entitled. Scott v. Montells, 109 N. Y. 1; 14 St. Rep. 21. Upon the 15th day of October the lease ceased to exist, the defendant having elected to terminate it for the plaintiff’s failure to pay the balance of the October rent; and, while the evidence supports the inference that this rent was payable upon the 1st day of the month, yet, at the time of the termination of the contract, there was due to the defendant but $15, to which the security was to be applied, and, therefore, the plaintiff'was entitled to the balance of $30.-

The claim for the per diem overpayment was, however, properly disallowed, since the tenant’s possession for the first fifteen days of October was eonditional"upon his payment of the whole month’s rent. His contract was entire, and with his nonperformance any claim to the $30 paid naturally failed. Since the evidence does not support, the judgment in favor of the defendant, a new trial must be had.

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


author: KELLOGG, J.

text:
    People ex rel. Eugene A. Andrus, Pl’ff, v. Board of Auditors of the Town of Champlain, Def’t.

      (Supreme Court, Saratoga Special Term,

      Filed January 27, 1896.)

    1. Sheiuffs and constables—Compensation—Transportation of pkisonbus:
    Chapter 254 of 1859 has not been repealed and governs, so far as the transportation of juvenile delinquents to the house of refuge is concerned, and such charges for transportation, fixed by the supervisors of the county, may be a charge against the county itself or against the town where the offense was committed.
    8. Same.
    The provisions of section 3, chapter 497 of 1847, though not repealed, apply only to convicts adjudged to be such in a court of record and do not apply to juvenile delinquents sentenced by a magistrate or justice of the peace. .
    8. Same—Deputy—Residence.
    The sheriff of a county has no authority to appoint a deputy who resides and continues to reside, in any other county than the county in which the sheriff resides.
    Application for' a writ of mandamus to compel the board of auditors of the town of Champlain, Clinton county, to audit a claim presented by relator for services rendered in making an arrest as a deputy sheriff.
    Chas. B. Andrus, for relator ; Wilmer H. Dunn, for resp’t.
   KELLOGG, J.

This is an application for a writ of mandamus against the board of audit of the town of Champlain, requiring it to reconvene and audit the claim presented by the relator to the said board at its last meeting in 1895. Several questions are raised by this application. It is not disputed that it was the duty of tiie board of audit to audit and allow all proper claims made against the said town, as provided by section 165 of chapter 458 of the Laws of 1893. That section makes the fees of magistrates and other officers, for services in criminal proceedings tried before a magistrate of the town where the offense is charged to have been committed, a charge against said town. All fees, however, of officers and magistrates, in the trial of offenses committed in other towns, are not chargeable against the town where the action is tried. It does not appear, in the claim presented by this relator, where the crime was committed, or what, in fact, the crime was ; and it cannot be presumed to have been committed in the town of Champlain, so as to form a basis of a claim for services against that town. Chapter 254 of the Laws of 1859 does not appear to have been repealed, and must be taken to govern, so far as the transportation of juvenile delinquents to the house of refuge is concerned; and such charges for transportation, fixed by the supervisors of the county, may be a charge against the county itself, or against the town where the offense was committed. The provisions of section 3 o'f chapter 497 of the Laws of 1847, while not repealed, apply, I think only to convicts adjudged to be such in a court of record, and do not apply to juvenile delinquents sentenced by a magistrate or justice of the peace.

The more serious objection to the claim of plaintiff arises from the fact that he does not appear to have been, at the time these services were rendered, either a town officer, or a county officer of the county of Clinton. The only information to be obtained upon that point is the affidavit of the relator attached to the said claim, verified on the 22nd day of October, 1895, in which the relator and claimant says that he is a resident of the town of Sara-toga Springs, in the county of Saratoga,'and that he is a deputy sheriff of the county of Clinton. That the sheriff of the county of Clinton has no authority to appoint a deputy residing in any other county, and continuing to reside in any other county, than the county in which the sheriff resides, seems to me too plain to admit of argument. A bare reading of the ■•tatutes ought to suffice to carry conviction upon this proposition. Section 15, c. 5, tit. 1, of the Revised Statutes, relating to public officers of the state, provides:

“ The following officers, namely: sheriffs, clerks of counties, coroners, district attorneys, marshals of cities, the clerk of the court of oyer and terminer and general sessions in New York, the registrar and clerk of that city, the police justices and assistant justices in that city and their clerks, are so far local as to require the residence of every person holding office within the county or city in which the duties of his office are required by law to be executed.”

Section 73, of article 5, c. 12, of the Revised Statutes, relating to sheriffs, etc., reads:

“ Sec. 73. Every sheriff may appoint such and so many deputies as he may think proper, and persons may also be deputed by any sheriff or any deputy sheriff by an instrument in writing to do particular acts.”

Section 7 of chapter 5, pt. 1, tit. 6, of the Revised Statutes, being general provisions applicable to all civil officers of the state, provides:

“ Sec. 7. In all other cases not otherwise provided for each deputy shall possess the power and perform the duties attached by law to the office of his principal during a vacancy in such office and during the absence of his principal.”

Subdivision 4 of section 34 of article 4, c. 5, of the Revised Statutes, relating to resignations, vacancies, removals, etc., provides as follows:

“Sec. 34. Every office shall become vacant on the happening of either of the following events before the expiration of the term of such office. * * * (4) His ceasing to be an inhabitant of the state, or, if the office be local, of the district, county, town or city for which he shall have been chosen or appointed, or within which the_duties of his office are required to be discharged.”

That the office of sheriff and that of deputy -sheriff are local seems to be fixed by statute. If it needed any statutory determination to convey the meaning of a “ local office,” such has already been determined by section 15, hereinbefore referred to. Section 119 of chapter 272 of the Laws of 1892 seems to prohibit the appointment by a sheriff of any person not a citizen and resident of the state of New York, and a resident of the same county as the sheriff or other officer making such appointment, and prohibits all persons from assuming to exercise the functions of such sheriff who are not so resident of the county in which the sheriff resides. It can hardly be argued, I think, with any degree of force, since a sheriff must, of necessity, under the law, be a resident of the county in which he is sheriff, that he may appoint deputies residing in other counties throughout the state, who may exercise all the functions of the sheriff himsvelf, both civil and criminal. This idea is so repugnant to our understanding of the intention of the law to make local officers residents of the locality in which they officiate, that without a special statute giving authority to the sheriff to establish deputies, to discharge his duties, residents all outside of the limits of his county, I think the court must hold that there is no ground, in reason or analogy, upon which to base the suggestions of such absolute and unreasonable power. I find no provision of the statute authorizing or creating any such power in the sheriff, and every statute on the subject is opposed to the idea that any such power exists in the sheriff. I must, therefore, hold that the appointment by the sheriff of'the county of Clinton of the rélator in this case —being then, and still continuing to be, a resident of the county of Saratoga—was wholly unauthorized, and that he was not at the time of making the arrest set forth in his claim an officer authorized to make such an arrest, or to make any charge against the town of Champlain, or receive any fees, for services in any criminal proceeding in said town.