author: Andrews. J.

text:
    Hiram A. Douglas, Resp't, v. The Phenix Insurance Co., of Brooklyn, N. Y., App'lt.

      (Court of Appeals,

      Filed April 25, 1893.)

    1. Insurance (Fire)—Attachment.
    The right of a plaintiff to prosecute his action in the courts of his own state cannot be defeated by the pendency of attachment proceedings in another jurisdiction by a creditor there, to reach the debt owing to the ■ plaintiff by the defendant, where, the only claim of jurisdiction by the foreign court rests upon statutory authority to seize the debt by and through process proceedings against the agent of a corporation of this state which owes the debt, but which has an agent in the state where the seizure is made; so held in action upon a policy of fire insurance where it was alleged that the claim had been attached by a creditor of plaintiff in an action in Massachusetts.)
    2. Same.
    A domestic corporation at all times has its exclusive residence and domicil in the jurisdiction of origin, and it cannot be garnisheed in another jurisdiction for debts owing by it to home creditors, so as to make the ■ attachment effectual against its creditor in the absence of jurisdiction acquired over the person of such creditor.
    Appeal from judgment of the supreme court, general term, third department, affirming j udgment sustaining dem urrer by plaintiff to defendant’s answer, and directing judgment for plaintiff.

      G. A. Seixas, for app'lt; William P. Cantwell, for resp't.

       Affirming 44 St. Rep., 237.

   Andrews. J.

The defense demurred to is in substance that the debt owing by the Phenix Insurance Company to the plaintiff had been, prior to the commencement of this action, attached in the state of Massachusetts in an action in the superior u court of that state, brought by John S. Alley and others, against the plaintiff in this action and the insurance company, to recover a debt owing by the plaintiffs to the attaching creditors, and that the Massachusetts action was still pending. This defense was pleaded in abatement of the present action.

The Phenix Insurance Company is a domestic corporation organized under the laws of this state. On the 5th day of February, 1891, at Malone, in Franklin county, it issued to the plaintiff, who then was, and ever since has been, a resident of Franklin county, a policy of insurance insuring him against loss or damage by fire, in the sum of $2,000, upon his stock of bark at his tannery in said county. The policy was delivered to the plaintiff and has ever since remained in his possession. The property insured was destroyed by fire May 10, 1891, and the plaintiff sustained a loss thereby exceeding the sum insured, for which under the policy the defendant became liable to pay the sum mentioned therein. This action was commenced in the supreme court of this state against the defendant in August, 1891, on the contract of insurance to recover the sum insured.

In determining the question whether the defense of foreign attachment set up by the defendant in its answer in abatement of this action is goodwill law, the facts hereinbefore stated are to be taken as admitted. They, are alleged in the complaint and are not denied by the defendant in its defense based upon the attachment proceedings. The answer does contain, in the part which precedes this defense, a denial of the allegation in the complaint as to the residence of the plaintiff and of the fact that from the 5th day of February, 1891, the date of the policy, he had at all times had possession thereof, and it expressly admits that the defendant is a domestic corporation.

The attachment proceedings are set up as an affirmative defense to the cause of action alleged in the complaint, and its sufficiency in law is upon demurrer to be determined from what appears therein. The allegations of the complaint not denied in the affirmative defense are for the purposes of the question now presented to be deemed admitted. The affirmative defense is to be treated as a separate plea, and the defendant is not entitled to have the benefit of denials made in another part of the answer, unless repeated or incorporated by reference and made a part of the affirmative defense.

The answer in question alleges the appointment by the defendant of an agent in Massachusetts, under the laws of that state, upon whom process may be served, which was required as a condition of its doing business therein, and that it was engaged in carrying on its business in that state ; that in May, 1891, and prior to the commencement of the present action, an action was commenced in the superior court of Massachusetts in favor of Alley and others against the present plaintiff to recover a debt on contract owing by the present plaintiff to Alley and others, in which action the defendant, the Phenix Ins. Go., was joined and made a party defendant as trustee of the plaintiffs in that action ; that “ the said action was commenced by trustee process or writ directed to and against this defendant as trustee severally of the plaintiff herein.” It alleges that the trustee process or attachment was served on the defendant by service on its attorney in Massachusetts, and that it was levied on the debt owing by the defendant to the plaintiff, and that by virtue of the statutes of Massachusetts and the proceedings referred to the debt owing to the plaintiff from the defendant passed into the custody of the law of Massachusetts and became subject to the control and disposition of the Massachusetts court, and that the attachment action and proceedings are pending and undetermined.

Tire answer further alleges that under the law of Massachusetts and the proceedings mentioned, the Massachusetts court acquired jurisdiction of the parties to the action and of the subject matter and control of the debt owing by the defendant^ to the plaintiff. In the fourteenth paragraph of the answer, it is alleged that the plaintiff had notice of all the proceedings in the attachment action, and full and ample opportunity to defend the same, “ and that said plaintiff was and is named as a party defendant in said action, and was duly served with process therein.” It is quite evident from reading the whole answer that the allegation that the plaintiff “was duly served with process” in the Massachusetts action was not intended as an averment that personal service of jitocess was made on the plaintiff within the state of Massachusetts. It at most can only mean that he was constructively served through service made on the garnishee or by publication. The answer in the prior clauses specifically points out how the action was commenced, viz., “by service of the trustee process” on the defendant, the garnishee. It was not claimed on the argument that plaintiff was in fact personally served with process, and it is not averred in the clause quoted that he was served within the state of Massachusetts. It must be assumed, therefore, on this appeal, that the attachment proceeding pleaded in abatement to this action was commenced by process served on the agent of the defendant corporation in Massachusetts, and that the plaintiff, although named as a defendant in the proceedings, was never served with process in that state, and never appeared in the action.

In the view we take of the case, it may be further admitted, as claimed by the defendant, that it sufficiently appears by the averments in the answer that by the law of Massachusetts the debt due to the plaintiff, a resident of this state, from the defendant, a corporation of this state, could be attached and held under trustee process served on the defendant’s agent in that state, in proceedings instituted by a creditor of the plaintiff in Massachusetts, and this, although the plaintiff was neither served with process in Massachusetts nor appeared in the action.

We are of opinion that the answer demurred to was insufficient in law to stay the further prosecution of this action. .The right of the plaintiff to prosecute his action in the courts of his owp state cannot be defeated by the pendency of attachment proceedings in another jurisdiction, by a creditor there, to reach the debt owing to the plaintiff by the defendant, where the only claim of jurisdiction by the foreign court rests upon statutory authority to seize the debt by and through process proceedings against the agent of a corporation of this state which owes the debt, but which has an agent in the state where the seizure is made. The pendency of a suit in personam in one state is not according to the general rule pleadable in abatement of a suit subsequently commenced in another state, between the same parties, on the same cause of action, although the courts of the state where the prior suit is pending had complete jurisdiction. The court on application may, in its discretion, grant a continuance by reason of the pendency of the first action, and a judgment once obtained in one of the actions would, on application of the court, be allowed to be set up in bar of the further prosecution of the other. But the pendency of an action in another state, between the same parties and for the same cause, does not, according to the general rule, abate the second suit. Bowne v. Joy, 9 Johns., 221; Walsh v. Durkin, 12 id., 99; Oneida County Bank v. Bonney, 101 N. Y., 173; Cook v. Litchfield, 5 Sandf., 330.

An exception to this general doctrine was made in this state in the early case of Embree v. Hanna, 5 Johns., 100, in respect to prior attachment proceedings instituted in the state of Maryland under the laws of that state against a debtor of a New York creditor, by a creditor of thelatteiv The New York creditor subsequently commenced an action in this state against his Maryland debtor to recover the debt, and the defendant pleaded in abatement the pend-ency of the attachment proceedings in Maryland, and the plea was held to be good, on the ground that the debtor might otherwise be compelled to pay the debt twice.

But attachment suits partake of the nature of suits in re?n, and are distinctly such when they proceed without jurisdiction having been acquired of the person of the debtor in the attachment. Real and personal property may be subjected to seizure and sale for the payment of debts of the owner, according to the laws of the state or sovereignty where the property is, having regard to the fundamental condition that due process of law shall precede the appropriation. It is undeniable that a state may authorize the seizure and sale by means of appropriate judicial proceedings of property of non-residents within the jurisdiction for the payment of their debts. There must be notice and an opportunity to be heard, either actual or constructive, in such way and form as the law may prescribe. But no state can subject either real or personal property out of the jurisdiction to its laws. It may, and often dpes, compel persons, through the process and judgment of its courts, to perform acts which affect their title and interest to property outside of the limits of fhe state. Having acquired jurisdiction of the person, the courts could compel observance of its decrees by proceedings in personam against the owner within the jurisdiction. But it is a fundamental rule that in attachment proceedings the res must be within the jurisdiction of the court issuing the process, in order to confer jurisdiction. Plimpton v. Bigelow, 93 N. Y., 593. In the case of movables, their seizure under the attachment shows that their actual situs is within the jurisdiction. But in respect to intangible interests, debts, choses inaction, bonds, notes, accounts, interests in corporate stocks and things of a similar nature, the question whether the res is within the jurisdiction of the sovereignty where the process is issued is not so readily determined. The general rule is well settled that the situs of debts and obligations is at the domicil of the owner. But the attachment laws of our own and of other states recognize the right of a creditor of a non-resident to attach a debt or credit owing or due to the non-resident debtor by a person within the jurisdiction where the attachment issues, and to this extent the principle has been sanctioned that the laws of a state, for the purposes of attachment proceedings, may fix the situs of a debt at the domicil of the debtor. Embree v. Hanna, supra; Williams v. Ingersoll, 89 N. Y., 508, 529.

It is at least doubtful whether this qualification of the general rule applies to negotiable instruments or other written obligations of a resident debtor, held by or in the possession of his non-resident creditor. See Osgood v. Maguire, 61 N. Y., 524. But we repeat, no court can acquire jurisdiction in attachment proceedings unless the res is either actually or constructively within the jurisdiction, and we are of opinion that the attempt to execute an attachment in Massachusetts upon the debt owing to the plaintiff by the insurance company, by serving upon the agent of the corporation there, and without having acquired jurisdiction of the plaintiff, must fail for the reason that the debtor, the insurance company, was in no just or legal sense a resident of Massachusetts, and liad no domicil there, and was not the agent of the plaintiff, and that in contemplation of law the company and the debt were at the time of the issuing of the attachment in the state of ¡New York, and not in the state of Massachusetts. This court has had occasion heretofore to consider the effect of the act of a foreign corporation constituting an agent in another state upon whom proceedings may be served, done in compliance with the laws of such state in pursuance of a condition imposed, and to enable the corporation to do business in such state. It has been held that by such act the corporation does not change its domicil of origin or its residence. It becomes bound by judgments rendered upon service on the designated agent, because it has consented so to be bound, but it remains as before a resident of the state -where it is incorporated. Gibbs v. Queen Ins. Co., 63 N. Y., 114; Plimpton v. Bigelow, supra. If in this case the insurance company could be regarded as residing or having its domicil in Massachusetts for the purpose of attachment proceed -, ings, it likewise has a domicil in every state where it may have appointed an agent under similar laws, and so constructively, upon the theory upon which the Massachusetts attachment is defended, the corporation is present as debtor to the plaintiff in every state where such agency exists, and the credit is also present at the same time in each of such jurisdictions. The admission of such a principle would give rise to most embarrassing conflicts of jurisdiction and subject creditors of domestic corporations to great prejudice. ’ We think the rule is that a domestic corporation at all times has its exclusive residence and domicil in the jurisdiction of origin, and that it cannot be garnisheed in another jurisdiction for debts owing by it to home creditors, so as to make the attachment effectual against its creditor in the absence of jurisdiction acquired over the person of such creditor.

The defendant calls attention to general averments of jurisdiction by the Massachusetts court, acquired under the laws of Massachusetts, contained in the answer. The laws of that state are not set out, and we cannot know how far they assume to authorize attachment proceedings under the circumstances existing in this case. But the question in this state cannot be controlled by the statutes of Massachusetts. The legal proceedings or judgments of another state are recognized here only where jurisdiction has been acquired in the foreign forum. But it is only jurisdiction in an international sense, or according to the course of common law, and judicial proceedings which conform to, or rather, which are not taken in disregard of, the principles and rules of general jurisprudence, which this state is bound to recognize, and if the laws of Massachusetts go to the extent claimed, and assume to authorize attachment proceedings to seize a credit owing to a resident of this state, when neither the debtor nor creditor are within the jurisdiction, this state is not, we think, bound to recognize them. The law of a state cannot make a debtor a resident of that state by so declaring, contrary to the fact and the rule of general law, at least so as to bind another jurisdiction by the declaration..

"We deem it unnecessary to consider the position of the defendant. If it may be subjected to embarrassment, or even to a double judgment, it will be in consequence of its own act in voluntarily subjecting itself to the laws of Massachusetts. The power of the court to grant a continuance in a proper case will generally afford a remedy to a party so situated. But the plaintiff ought not to be prejudiced or prevented from collecting his debt in this state. This court has disclaimed jurisdiction in the courts of this state to-attach debts owing by a foreign corporation, or interests in the stock of such corporations, belonging to non-residents, by notice or process served on the agents of such corporations in this state. Plimpton v. Bigelow, supra; Straus v. Chicago Glycerine Co., 46 Hun, 216; 11 St. Rep., 359; affid., 108 N. Y., 654; 13 St. Rep., 902. The court in these cases construed the attachment laws in view of the principles of general jurisprudence, although the language of the statutes embrace the cases in question.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Daly, Ch. J.

license: Public Domain

text:
    Nicholas Peters et al., Resp'ts, v. Stephen Peters, App'lt.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    1. Bailment.
    The children of defendant’s mother, with the exception of himself, deposited their earnings with her under an agreement by which she was to give each a marriage portion on their marriage, and pay the funeral expenses of any that died, and after giving herself and her husband a decent burial, the money was to belong to the depositors. The mother becoming insane, and the money being found on her, it was given by the commissioners to defendant to keep for the mother’s benefit. Held, that the depositors have no right to any part of the money, except the balance left after paying, at least, the funeral expenses of the father and mother, and that only on the death of both parents; that the mother has an interest in the fund, and defendant, as bailee, could avail of such interest as a defense to an action by them for the fund.

      2. Same—Evidence.
    . -As defendant derives his title to the money by or through his mother, an insane person, evidence as to personal transactions with her was inadmissible against him.
    3. Lunacy—Presumption op continuance.
    A derangement of mind, proved or admitted to exist at any particular period, is presumed to continue until disproved, unless the derangement was accidental, being caused by the violence of a disease.
    Appeal by the defendant from a judgment of this court, entered upon the verdict of a jury, for $483.99, with costs, and from the order denying the motion for a new trial.

      Thomas F. Byrne, for app'lt; August F. Wagener, for resp'ts.
   Daly, Ch. J.

The plaintiff Nicholas is the husband, and the plaintiffs, John and Peter, two of the children of Catharine Peters, who, on FTovember 13, 1887, being of unsound mind, was committed to the City Asylum for the Insane, on Blackwell’s Island. She had, at that time, in her possession the sum of $545.37, which the commissioners of charities and corrections took into their' custody upon receiving her into the asylum under their charge, and which they subsequently delivered to the defendant, another of her children, upon his agreement with them to keep the money for the benefit of his mother. He immediately expended for her previous expenses at Bloomingdale Asylum, and other necessary charges, $146.91.

This action was subsequently brought to recover the balance in his hands, upon the ground that it was the property of the plaintiffs, and the evidence to sustain their claim of title was substantially as follows: That some ten years before the trial all the children of Mrs. Peters, with the exception of the defendant, agreed to deposit their earnings with her, and that she was to pay out of the fund a marriage portion to each child upon marriage, and to pay the funeral expenses of any child who died, and after giving her and her husband a decent burial, the money was to belong to the depositors. This account of the agreement is given by John Peters, one of the plaintiffs, and is not contradicted or denied by the others, and stands unquestioned as the terms of the trust under which his mother received the fund.

It appears, therefore, from the plaintiffs' own case, that the children of Mrs. Peters, who deposited the money with her, are not entitled to it, and have no right to any part thereof except the balance left after paying, at least, the funeral expenses of their father and mother, and to which balance they will have no claim until after the death of their parents. It also appears that Mrs. Peters, the mother, has an interest in the fund, which this action seems to wholly overlook; for, if the judgment were permitted to stand, the provision for .the payment of her funeral expenses would be completely avoided.

It .is said, however, that the defendant, Stephen Peters, has no right to set up such a defense to this action, but this position is untenable. He received the fund from the bailees of his mother, and can defend in her right. As she was insane when committed to Blackwell’s Island she could not make a valid agreement of bailment, but the commissioners of charities and corrections, as public officers, coming into possession of the fund as custodians of her person and of the property found upon it, have all the obligations of bailees, and the defendant, Stephen, stands in a posi-sition somewhat resembling that of a receiptor and is entitled to the same defenses against claimants of the fund as are available to the public officers from whom he received it. Edwards on Bailments, title, Beceiptors.

His title to the money is derived by or through or from his mother, an insane person, and the evidence of the plaintiffs as to personal transactions with her should not have been received against him. Code, § 829. For this error alone the judgment would have to be reversed. It is urged by the plaintiffs that there was no proof that the mother was insane at the time of the trial The complaint expressly alleged that she was committed to the city asylum for the insane, on Blackwell's Island, being of unsound mind and so far deprived of her reason and understanding as to be altogether unfit and unable to govern herself or to manage her affairs, and that at that time the money in question was found in her possession. A derangement of mind proved or admitted to exist at any particular period is presumed to continue until disproved, unless the derangement was accidental, being caused with the violence of a disease. 1 Greenl., 42. But there was no question of her insanity at the time of the trial. It seemed to be conceded on all sides, and the only apparent reason why the evidence of transactions with her was admitted against the defendant was that he did not have any right or title to the money and, therefore, could not derive his interest or title from or through her.

It would seem that the proper course for plaintiffs to pursue would be to have a new trustee of the fund appointed, in place of the mother, who has become incapacitated from acting; but, without discussing this question further, it is enough to say that upon the proofs, and for the errors appearing in the record, this judg merit cannot possibly be sustained.

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

Bischoff and Pryor, JJ., concur.


text:
    John D. Brassington, Resp't, v. Frederick Rohrs, Impl'd, App'lt.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    1. Pleading—Demurrer—Mat be served after notice of trial.
    A demurrer to an answer, or motion to strike out as sham, if otherwise in time, may he served after notice of trial.

      2. Same.
    In an action upon a promissory note the answer denied, upon informar tion and belief, that plaintiff was the holder for value, but averred that the payee was still the owner; and for a further defense alleged that it was made for the accommodation of the payee only, and that defendant never received any consideration therefor. Held, that the latter clause was wholly separate from the denial and was new matter set up as a defense, and was the subject of demurrer.
    3. Same—Sham answer.
    The payee made affidavit that the note was not made for his accommodation, but for an indebtedness due him, and that he had transferred it to plaintiff before maturity for value. Defendant did not reply thereto. Held, that the first defense was properly stricken out as sham.
    4. Same—Costs.
    The interlocutory judgment may include the costs allowed and taxed, and provide for execution for their collection.
    Appeal by defendant (1) from judgment of the general term of the city court affirming judgment sustaining the demurrer to a part of the answer; (2) from an order denying his motion to vacate said judgment, and (3) from an order affirming an order striking out the defendant’s answer as sham.
    The action was commenced in the city court on July 19, 1892, to recover upon a promissory note for $300, dated February 27, 1892, at three months, made by the defendant Rohrs to the order of the defendant Nylin, and indorsed and delivered by the latter to the plaintiff.
    Defendant Rohrs answered separately as follows :
    “ Defendant denies, upon information and belief, that the plaintiff is the holder of said note for value, but avers that defendant Nylin is still the owner thereof.
    “ For a further defense, this defendant alleges, that said note was given to said Nylin for accommodation only, and defendant never received any consideration for the saíne."
    The answer was served on August 3, 1892, and the plaintiff immediately noticed the issue of fact for trial for the first Monday of October following. The defendant thereupon served cross notice of trial for the same term. On August 15, 1892, the plaintiff served a demurrer -as follows:
    “ The plaintiff herein demurs to the second defense contained in the answer of the defendant, Frederick Rohrs, to wit: ‘For a further defense this defendant alleges that said note was given to said Nylin for accommodation only, and defendant never received any consideration for the same,’ on the ground that it is insufficient in law upon the face thereof.”
    The demurrer was brought on for argument, and sustained, notwithstanding defendant’ preliminary objection that the cause had been so noticed for trial as above. After the plaintiff obtained judgment upon his demurrer to the defendant’s second defense, he-moved to strike out the rest of the answer as sham. The defendant again interposed as an objection the original notice of trial, but this objection was overruled, and the order granted. The defendant subsequently moved to set aside the judgment on the demurrer as irregular. This was denied.

      Henry Wehle, for app'lt; Charles J. Hardy, for resp't.

       Affirming 48 St. Rep., 514, 936.

   Daly, Ch. J.

The defendant’s seems to be-that, after both parties had noticed the cause for trial upon the answer served, the plaintiff disregarded such notice on his own part as well as his adversary’s, and proceeded to demur to one portion of the answer, and after obtaining judgment in his favor as to that-, moved to strike out the rest of the answer as sham, and so disposed of the whole defense before the term for which the case was orig-, inally noticed. It seems to be clear under the authorities that the plaintiff might disregard his own. notice of trial, and his adversary’s, and demur to the latter’s answer, If such demurrer were served in time. It has been held that a plaintiff might serve an amended complaint within ■ the time allowed for amendment of course, notwithstanding that he and his adversary hád exchanged notices of trial upon a demurrer to the original complaint, Clifton v. Brown, 2 Civ. Pro., 44 Gen. T., 1st Dep't, and that a defendant might serve an amended answer within the time allowed by law, notwithstanding both parties had noticed for trial the issues raised by the first answer. Duyckinck v. N. Y. El. R. R. Co., 5 N. Y. Civ. Pro., 22; N. Y. Superior Ct., Gen. T. There is absolutely no difference in ¡principle between these cases and the one before us. Here the plaintiff demurred to the answer within the time allowed by law, and the notices of trial must be deemed to have been given and received in subjection to the exercise of such a right, as well as the right to amend.

The same reasoning upholds the practice of the plaintiff in moving to strike out the remaining portion of the answer as sham. The right to make such a motion must be deemed to be unaffected by a notice of trial given or received before the expiration of the time limited for the exercise of the right. The city court was, therefore, justified in disregarding the objections to proceedings upon the demurrer or upon the motion, such objections being founded solely upon the prior notice of trial.

The plaintiff's demurrer to the second defense contained in the answer was properly sustained. The defendant’s contention is that the matter demurred to did not constitute a separate defense, but the matter is described in the answer as “ a further defense,” and the fact that the defendant has not separately numbered it is not controlling upon his adversary. His failure to comply with the Code in that respect cannot be urged in his own favor. While the words “ for a further defense ” are not controlling where the matter it precedes is not in fact a separate defense, Thompson v. Kearney, 12 St. Rep., 682, yet here there can be no doubt on the subject. The first defense is a denial that the plaintiff is the holder of the note for value, and an averment that the defendant Nylin is still the owner thereof. The second defense is that the note was given to Nylin for accommodation only, without consideration. The latter is new matter set up as a ¿lefense and is wholly separate from the denial in the first paragraph. As the appellant does not attempt, in his brief on this appeal, to argue that the matter demurred to constitutes a defense, it is not necessary to discuss that question. He puts his sole objection to the judgment on the ground that the matter demurred to did not attempt to set up a separate defense, but m this we cannot agree with him.

After the judgment upon the demurrer had disposed of part of the answer, the remainder, which denied that the plaintiff is the holder of the note for value and averred that defendant Nylin was still the owner thereof, was struck out as sham upon an affidavit of defendant Nylin in which he deposes that he did, for value received by him before the maturity of the note, indorse and transfer it to the plaintiff; that the note was not made for accommodation, but given to him by defendant Rohrs in payment of an indebtedness incurred for work in stair building which he had done for defendant Rohrs in buildings on -Madison avenue; that deponent was indebted to plaintiff for material supplied him in doing the aforesaid work for Rohrs, and also received some cash at the time of indorsing and delivering the note. It, therefore, appears that the defendant’s answer set up matter which he did not and could not know to be true at the time that the answer was interposed, viz.: that the indorser Nylin was still the owner of the note. The denial that the plaintiff was the “ holder of the note for value ” does not deny that the plaintiff was the holder and owner of the note, and, therefore, does not put in issue any material allegation of the complaint. The affirmative allegation that Nylin is still the owner of the note is conclusively disproved by Nylin’s affidavit; to which the defendant Rohrs made no reply.

After the entry of the interlocutory judgment for costs upon the demurrer the defendant moved to set the same aside on the ground that it was unauthorized. No irregularity was stated in the order to show cause,- but the affidavit complained that a final judgment for costs had been entered, which was claimed to be irregular. The motion was denied. The judgment as entered expressly provides that it is an interlocutory judgment and not a final one. Had it been a final judgment it would have provided for the recovery of the demand in the complaint. The objection seems to be that costs were taxed and included in this interlocutory judgment; but this is exactly what the Code allows. Section 3232; Adams v. Ward. 60 How. Pr., 288. The interlocutory judgment provides for execution for the collection of the costs. This also is authorized. Code §§ 3233, 779.

The judgment and orders appealed from must be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author: Haight, J.

text:
    In the Matter of the Estate of Frederick Ledrich, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Estoppel—Conveyance by heir of his interest.
    Testator, by his will, gave all his estate to his executor with power to lease and sell the real estate and directions to divide the proceeds of sale between his children at specified times. Appellant’s wife, who was a. daughter, died leaving a will giving her estate to her husband. After a settlement of the personal estate, appellant conveyed all his interest in the estate to the executor for a consideration. Held, that he was an equitable owner and had an interest in the proceeds which he could convey or release, and that by rdason of his deed he was estopped from claiming any further interest in the estate.
    2. Same.
    On the death of the executor his executrix petitioned for a settlement, stating that appellant was the only person interested. He was served with citation, but nothing further was done. Heldthat her supposition, that he was interested did not change the effect of his deed.
    3. Trustee—Settlement by cestui que trust.
    Where the cestui que trust is of full age, and stands upon an even footing with the trustee, he may settle with the trustee for a consideration, and either release or convey his interest in the trust estate.
    Appeal by the petitioner, Charles Lang, from a decree of' the surrogate’s court of Erie county dismissing his proceedings instituted to compel Charlotte Schumacher, as executrix of the last will and testament of Conrad Schumacher, deceased, who was the executor of the last will and testament of Frederick Ledrich, deceased, to account for the proceedings of Conrad Schumacher as such executor, etc.
    On the 17th day of ¡November, 1857, the last will and testament of Frederick Ledrich, deceased, was proved and admitted to probate by the surrogate of the county of Erie, and letters testamentary thereon were issued to Conrad Schumacher. The will provides as follows :
    “ First. I order and direct that all my just debts and funeral expenses be paid by my executor hereinafter named as soon after my decease as conveniently may be.
    “ Second. I give and devise all my real and personal estate of what nature or kind soever to Conrad Schumacher, the executor of this my last will and testament, hereinafter nominated and appointed, in trust for the payment of my just debts and the legacies above specified, with power to sell and dispose of the same at public or private sale, at such time or times, and upon such terms, and in such manner, as to him shall seem meet. And until the sale of said real estate to rent the real estate for the best rents that can be procured. And the proceeds of such sale is to ube divided equally between my children, share and share alike, which said several legacies, or sums of money, I direct and order to be paid to my sons, Frederick and Louis, within ten years after my decease, and to my other children, Salomea, Henry, Sophia, Philip and Charlotte, when they have respectively arrived at the age of twenty-one years. On account of my two sons, Frederick and Louis, having forsaken me in my old age and sickness, I order and direct that the interest that may accrue on their shares be divided between the rest of my children in equal shares.

      “ Third. I give and devise to my wife one cow, one cupboard, one clock, one bed and such other furniture as the law directs, or as a widow is entitled to.

      “ Fourth, and lastly. I nominate and appoint Conrad Schumacher sole executor of this my last will and testament, hereby revoking all other wills by me made.”
    “ In witness whereof I have hereunto set my hand and seal this first day of July, A. D., 1857.”
    In 1860 Salomea Lang, who was the wife of the appellant, and one of the daughters of the testator, petitioned the surrogate for an accounting by Conrad Schumacher as such executor. But pending such proceedings she died, leaving a last will and testament, which was admitted to probate February 5, 1861, in and by which she devised and bequeathed her estate to the appellant, her husband. The proceedings upon such accounting were continued and terminated in a decree of the surrogate’s court, dated February 6, 1861, wherein Conrad Schumacher, as executor, was charged with the balance in his hand, $428.95, and was directed by such decree to apply the same towards the discharge of a mortgage upon the real estate left by the testator.
    On the 20th day of December, 1862, Charles Lang, the appellant, conveyed all his estate, title and interest in the real estate left by the testator to Conrad Schumacher, in consideration of the sum, as mentioned in the deed, of two hundred and fifty dollars.

      In the year 1865, the real estate of the testator was sold by his executor. And subsequently, and in the year 1874, the proceeds thereof were distributed among the testator’s children, with the exception of the share of Louis Ledrich.
    On the 24th day of September, 1887, Conrad Schumacher executed his last will and testament, and shortly thereafter died. His will was admitted to probate on the 10th day of January, 1888, and letters thereon were issued to Charlotte Schumacher. In tire month of April, 1890, Charlotte Schumacher, as executrix, petitioned the surrogate’s court for a settlement of the accounts of Conrad Schumacher, as executor of the last will and testament of Frederick Ledrich, and in such petition stated that the only person interested in the settlement was Charles Lang; on the 7th day of April, 1890, a citation was issued, directed to said Lang requiring him to appear upon the settlement of the accounts of Conrad Schumacher, as executor, and such citation was served upon the said Lang, but nothing further appears to have been done thereon.
    Subsequently, Willis C. Jacus, as administrator of Louis Led-rich, deceased, presented to the surrogate’s court a petition for the1 judicial settlement of the accounts of Conrad Schumacher. And such proceedings were had thereon that a decree was entered by that court on the 9th day of March, 1891, finally settling such accounts. But the appellant, Lang, was not cited to appear, and did not appear in such proceedings.
    The surrogate found, as conclusions of law:

      “First. That the said deed from Charles Lang of his interest in ' the farm belonging to the Ledrich estate to Conrad Schumacher is binding upon the said Lang, and operates as an absolute estoppel.
    “ Second. That more than six years having elapsed since the right to commence this proceeding accrued, the same is barred by the statute of limitations.”
    And concluded by ordering the proceedings dismissed.

      August Becker, for app’lt; Frederick Howard, for resp’t.
   Haight, J.

The decree of the surrogate of February 6, 1861, entered upon the acounting of the executor, finally settled and disposed of the personal estate of the testator. This was expressly conceded upon the argument, and such was doubtless the effect of the decree. That being so, there remained only the real estate and the rents, issues and proceeds thereof, to be accounted for.

The first transaction after the settlement of the personal estate disclosed by the record, is the deed of Charles Lang to Conrad Schumacher, dated December 20, 1862, in which Lang conveys all of his estate, title and interest in the real estate left by the testator. As the devisee and legatee of his deceased wife he bad become vested with all of the right, title and interest that she had in the estate of her deceased father. Under the will Ledrich had given the real estate to Schumacher, the executor, but in trust, with power to sell the same and divide the proceeds equally among his children. The legal title was thus vested in the trustee. But he held it for the benefit of the children, and the proceeds belonged to them. They were the equitable owners. Lang, being one of such equitable owners and entitled to a share of the proceeds, executed the deed in question. In it he undertook to convejr all his estate, title and interest. It is contended that he was not the owner, and, therefore, he conveyed nothing. True, he was not the legal owner, but, as we have shown, lie was the equitable owner, and had an interest in the proceeds which he could convey or release.

Again, it is said that the will, devising the real estate to the executor with directions for it to be sold, worked an equitable conversion of the realty into personal property. Suppose this to be so ? It is not, however, apparent how the rights of the parties would be changed. The children would still be the equitable owners entitled to the proceeds; and we know of no rule that prevents the transfer of personal property by deed.

We are aware of the doctrine that prohibits a trustee from dealing with trust property for his own benefit. lie will not be permitted to take advantage of bis cestui que trust; but where the cestui que trust is of full age, and stands upon an even footing with the trustee, we see no reason why he may not settle with the trustee for a consideration, and either release or convey his interest in the trust estate.

It appears to us that the appellant by the deed to Schumacher undertook to convey his interest in the estate to Schumacher for the consideration of $250, which sum he admitted was paid to him, and that by reason thereof he is now estopped from claiming any further interest in the estate.

Mrs. Schumacher petitioned the surrogate for ‘a settlement of the accounts of Conrad Schumacher in April, 1890, and in such petition stated that Lang had an interest in such settlement She, doubtless, then supposed him to be interested, but it is not apparent how her supposed interest of Lang in the estate can change or alter the effect of his deed.

These views render it unnecessary to consider the question raised under the statute of limitations.

The decree should be affirmed, with costs.

Dwight, P. J., Macomber and Lewis, JJ., concur. •


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    Judson H. Clark, App'lt, v. Rosanna Norman et al., Resp'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Principad and surety—Contribution between sureties—Evidence,
    Defendants’ testator and plaintiff were sureties on a bond given by a deputy sheriff, conditioned to pay to the sheriff half of the legal ices received by the deputy. It contained no provision that the sureties should be bound by any judgment or decree. After testator’s dentil an notion was brought on the bond against the deputy and the plaintiff and judgment recovered therein, which plaintiff paid; but no notice of the action was given to defendants. In an action for contribution, ITeld, that the judgment m said action, while evidence of the amount paid by plaintiff, was no evidence against the defendants that there was a breach in the condition of the bond.

      Appeal from a judgment entered in Allegany county upon the report of a referee dismissing the plaintiff’s complaint

      Charles H. Brown, for app'lt; Richardson & Robbins, for resp'ts Westfall et al; Armstrong & Todd, for resp’t, Rosanna Norman.
   Haight, J.

On the 27th day of December, 1876, one Leonard B. Bartholamew, a deputy sheriff, as principal, and William Norman and Judson H. Clark, as sureties, executed and delivered to William H. Withey, then sheriff of Allegany county, their bond in writing, conditioned that Bartholamew will pay to Withey, the said sheriff, one-half of the legal fees received by Bartholamew at any time as such deputy. Afterwards an action was brought in this court upon such bond by Withey against Bartholamew and Clark, and such proceedings were had thereon as resulted in a recovery of a judgment by Withey against them of the sum of $1,274.75 damages and costs, which judgment was subsequently paid by Clark. Norman died after the execution of the bond and before the action was commenced by Withey against Bartholamew and Clark. He left a last will and testament, which has been duly admitted to probate, in which he bequeathed all of his property to the defendants in this action, and the property and assets of the estate coming into their hands exceed in value the amount of the plaintiff’s claim herein. Bartholamew was insolvent, and the defendants in this action had no notice of the action against Bartholamew and Clark, or an opportunity to defend. This action was brought to compel them to make contribution to Clark of one-half of the amount that he had been compelled to pay as the co-surety of the defendants’ testator. Upon the trial the plaintiff offered in evidence the judgment roll in the action of Withey against Bartholamew and Clark. It was received in evidence for the purpose of showing the amount paid by Clark, etc., but was rejected as evidence of a failure of Bartholamew to perform the conditions of the bond. Exception was taken to this ruling, which presents the only question we are called upon to consider upon this review.

The right of contribution as between co-sureties of a common principal is unquestioned, and a cause of action may be maintained therefor by one who pays more than his proportionate part of the debt for which all are liable. Baylies on Sureties and Guarantors, 817.

Whether this right grows out of an equity which is deemed to spring up from the relation assumed by two or more co-sureties to each other, or by a contract in which each is deemed to have impliedly promised the other that he would perform his part of the contract and pay his proportion of the loss, is not necessary to now consider. In neither case do they become co-partners or agents for each other. They are not privies either by representation, estate or law. So that neither has the authority nor the power to represent the other, to bind him by any act or in any manner change or alter his relation or liability upon the instrument. Winchell v. Hicks, 18 N. Y., 558-560.

If the right to contribution is founded upon the principles of equity, it is that the co-surety should pay his proportionate part of that which his principal has neglected and failed to pay, and not that which his co-surety may have improperly paid, and the same is true if his liability is founded upon contract

In order to establish the cause of action it was necessary to prove that Bartholamew, as deputy sheriff, had collected fees and the amount thereof, and that he had neglected to pay over the one-half thereof to Withey, the sheriff, as he had undertaken to do, and that Clark, the plaintiff, as the co-surety of the defendants’ testator, had paid the same. Can these facts be shown by the judgment against Bartholamew and Clark ? It was evidence showing what had actually been done. That a suit was brought and a recovery had, the amount thereof, and that it had been paid by Clark. But is it evidence against these defendants showing that there was a breach in the condition of the bond by Bartholamew, that he had collected fees as deputy and had neglected to account therefor to the sheriff ? If so, they are bound by an adjudication in an action in which they were not parties, in which they had no notice of its prosecution, or of an opportunity to defend.

The rule we regard as elementary, that in the absence of a contract, or an agreement, a judgment in an action cannot be given in evidence on the trial of another action, unless the parties are the same, or there is a privity of blood representation, estate or law between one of the parties to it and the person against whom it is admitted. 1 Greenleaf on Evidence, § 522 ; Booth v. Powers, 56 N. Y., 22; Chapman v. Frank, 15 Daly, 282; 25 St. Rep., 740.

We have seen there was no copartnership, agency or privity existing between the plaintiff and the defendant’s testator. They may have been entire strangers. They were merely co-sureties upon Bartholamew’s bond to Withey.

The condition of the bond under which a liability is claimed to exist contains no agreement or provision that the sureties will be bound by any judgment or decree of a court, or that Bartholamew, their principal, shall obey any judgment or decree. It is that he shall pay over certain moneys collected by him to the sheriff. There are numerous cases in which judgments obtained against the principal are binding upon the sureties, but it is because they have agreed to be so bound. As for instance, where a bond or undertaking is given by which the sureties agree that in case judgment shall be recovered against their principal in a certain action, they will pay the amount thereof, or where the sureties have undertaken that the principal shall obey all the lawful decrees and orders of the court, or where, under the terms of the guaranty, a judgment is made necessary to fix the liability of the guarantors, etc. But none of these cases have any application to that under consideration.

No judgment against Clark was necessary in order to entitle him to contribution. Had he paid Withey upon demand without action, his equities would have been as strong and his right to contribution as good. He would be entitled to recover the defendants’ proportionate share of the amount that Bartholamew had retained from tire sheriff in violation of his undertaking.

Douglass v. Howland, 24 Wend., 35, is the leading case in this state upon the question under consideration. In that case the principal agreed to account and pay over such sums of money as should be found owing by him. The surety agreed that the principal would perform. It was held, in an elaborate opinion, that a decree against the principal was not evidence against the surety unless he had notice and an opportunity to defend.

Brandt on Suretyship and Guaranty, § 246, says: “ Where judgment is recovered against part of the sureties in a bond which is satisfied by them, it has been held in a suit by them against their co-sureties for contribution that such judgment is competent ■evidence to show the amount of payment made by the plaintiffs and the circumstances under which it was made, but not for the purpose of proving the liability.”

This question was also considered in the case of Fletcher v. Jackson, 23 Vt., 581-592, and the same conclusion reached.. This case is, in many respects, similar to the one on review. A judgment had been recovered against the surviving sureties, which they had paid. An action was then brought against the heirs-at-law of the deceased surety to compel contribution.

Redfield, J., in delivering the opinion of the court says: “ Where the suit may in the first instance be brought directly against the guarantor, the judgment against the principal, without notice to the guarantor, is not evidence, and so if the guarantor have notice of the suit against the principal he is not obliged to concern himself in its defense, hut may await a suit against him and then insist upon the right to contest the whole ground. * * * We think, therefore, that although the record was evidence like any other fact to show the amount of the payment made by the plaintiff, and the circumstances under which it was made, we can scarcely regard it as evidence beyond that.” And to the same effect is Thompson v. Young, 2 Ohio, 334; Love v. Gibson, 2 Florida, 598; Means v. Hicks, 65 Alabama, 241.

The judgment should be affirmed.

Dwight, P. J., Macomber and Lewis, JJ., concur.


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    The Auburn Button Co., App'lt, v. Philip L. Sylvester, Impl'd, Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Corporations—Sequestration does not prevent the company appealing FROM JUDGMENT AGAINST IT.
    A judgment of sequestration does not dissolve the corporation, and notwithstanding its rendition and the appointment of a receiver, the corporation may appeal from a judgment against it for costs in an action brought by it.
    Motion to dismiss the appeal.

      E. C. Aiken, for resp’t; W. E. Hughitt, for app'lt.
   Haight, J.

— The judgment herein against the plaintiff for $90.78 was entered, upon a decision of the Cayuga special term on the 23d day of December, 1892. On the 3d day of January, 1893, an appeal therefrom was taken to this court. On the 21st day of December, 1892, a judgment of sequestration was entered in another action against the plaintiff in this action, and Daniel L. Hurlburt was appointed permanent receiver, with the usual powers and duties and vested with all of the rights and powers of receivers in like cases.

It is now claimed that by the judgment of sequestration the plaintiff ceased to exist as a corporation, and consequently cannot bring this appeal.

It is true that by the judgment of sequestration the property, things in action and effects of the corporation are vested in the receiver, with power to sell and dispose of the same and pay the debts, but we do not understand that it absolutely dissolves the corporation. Mann v. Pentz, 3 N. Y., 415, 419.

The property and effects vest in the receiver, and he only can maintain actions to recover amounts owing the company. Creditors of the corporation may still prosecute their claims against it to judgment, and the corporation may defend itself against such claims.

In the case of Kincaid v. Dwinelle, 59 N. Y., 548, it was held that a corporation which has been enjoined from the exercise of its corporate franchises and deprived of its property, and has thus ceased to exist for all practical purposes, is not thereby actually dissolved. It cannot be dissolved save by the judgment of a court of competent jurisdiction. Until such judgment is rendered creditors may proceed by suit against it, unless restrained by injunction. .And to the same effect are the cases of Pringle v. Woolworth, 90 N. Y., 502, 510, and Parry v. American Opera Co., 12 Civ. Pro., 194.

It is claimed that the case of Hollingshead v. Woodward, 107 N. Y., 96; 11 St. Rep., 325, is in conflict. We are, however, satisfied, from a careful -reading of the opinion, that it was not the intention of the court to overrule or abandon the doctrine promulgated in the former cases. The case itself is clearly distinguishable. And so is that of Decker v. Gardner, 124 N. Y., 334; 36 St. Rep., 267.

It appears to us that these views are in harmony with the provisions of the Code of Civil Procedure. Section 1784 provides for the cases in which an action to procure a judgment of sequestration may be brought. Section 1785 specifies the cases in which an action to dissolve a corporation may be maintained. Section 1787 provides that in an action brought as prescribed in the article, which is either that of sequestration or for a dissolution, the court may grant an injunction restraining the corporation and its trustees, directors, managers and officers from collecting or receiving any debt or demand, and from paying out, or in any way transferring or delivering to any person any money, or property, or effects of the corporation during the pendency of the action, except by express permission of the court. And “ where the action is brought to procure a dissolution of the corporation, the injunction may also restrain the corporation and its trustees, directors, managers and other officers from exercising any of its corporate rights, privileges or franchises,” etc.

It will thus be observed that a distinction is made between the two actions, and that it is only in the action to dissolve a corporation that the officers will be absolutely restrained from exercising their corporate rights and privileges.

It would consequently follow that whilst a corporation after a judgment of sequestration may defend itself, it cannot prosecute, for the reason that its rights of action are vested in the receiver.

In the case under consideration a judgment has been entered against the corporation. By the appeal it is seeking to get rid of the judgment. And this we think it still has the power to do. It may be that the receiver only will be entitled to prosecute the action in case a new trial should be granted, but that fact cannot affect the right of the corporation to defend itself against the judgment.

The motion to dismiss the appeal should, therefore, be denied, with ten dollars costs.

_ Lewis, J., concurs; Dwight, P. J., and Macombeb, J., not sitting..


author: Lewis, J.

text:
    Dudley H. Beadle, Resp't, v. Henry A. Monroe, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Lease—Construction.
    A lease of land having a frontage on Lake Brie provided that the tenant should pay a certain sum if he was able to secure ice for public patronage, and in addition a certain sum "for every boat on said premises engaged in the net fishing business.” Held, that this obligated the tenant to pay for all the boats engaged in that business which occupied the lot with his consent, no matter who the owner was.
    2. Summary proceedings—Evidence.
    In summary proceedings the tenant was permitted to testify that he did not owe the rent claimed. Held, error; that such evidence was incompetent and improper.
    Appeal from a judgment of the county court of Chautauqua county, reversing a judgment rendered in a justice’s court.

      S. W. Mason, for app’lt; H. C. Kingsbury, for resp’t
   Lewis, J.

The plaintiff by a written agreement leased to the defendant a lot of land in Chautauqua county having a frontage of sixty feet upon Lake Brie, and extending back a sufficient distance to accommodate the tenant’s business of storing and selling ice and the business of net fishing, including accommodation for fishing boats. The tenant agreed to pay for the use of the premises twenty-five dollars a year in case he was able to secure ice for public patronage, and in addition thereto ten dollars annually “ for every boat on said premises engaged in the net fishing business.” The controversy between the parties was over the clause of the lease relating to the use of the premises by boats. The tenant failed to obtain ice, and, therefore, did not use the premises for that purpose. The evidence tended to show that he occupied the lot with but one boat belonging to himself; the owners of three other boats engaged in net fishing, however, occupied the lot from time to time with their boats and for drying their fishing nets, with the knowledge and consent of the defendant The defendant purchased the fish which the owners of these three boats caught that season. The defendant paid ten dollars for the use of the lot for his own boat, but refused to pay for the use of the lot by the three boats belonging to the other fishermen, and the plaintiff instituted summary proceedings to recover the possession of the lot and the thirty dollars rent.

The defendant was called as a witness, and offered to testify to a conversation he had with the plaintiff at the time the lease was executed, with a view of showing what the parties intended by the clause in the lease relating to the use of the premises by the boats. The plaintiff objected, the objection was overruled and the witness testified that when the plaintiff read the lease to him, before it was executed, he objected to this boat clause and informed the plaintiff that, he had but one boat, and that he did not like the clause in reference to paying for the use of the lot by boats engaged in fishing; but notwithstanding his objections, signed the lease. He testified that he used the lot for but one boat that he owned or had any interest in.

This evidence in no manner tended to alter or explain the lease. The lease stated in plain and unambiguous language that the defendant was to pay ten dollars rent for every boat on the premises engaged in the net fishing business. This obligated him to pay for all the boats which occupied the lot with his consent, no matter who the owner was.

The defendant was permitted, over the objection of the plaintiff, to testify that he did not owe the rent claimed by the plaintiff. This evidence was incompetent and improper and quite likely influenced the jury in finding a verdict for the defendant; the evidence quite clearly established the plaintiff’s claim, and we agree with the county court that errors were committed upon the trial before the justice requiring a reversal of the justice’s judgment.

The judgment of the county court appealed from should be affirmed, with costs.

Dwight, P. J., Macombes and Haight, JJ., concur.


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    Harriet M. Talman, Resp't, v. John F. Dorthy et al., App'lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Bill op particulars—Money had.
    In an action for money had and received for plaintiff’s benefit, the answer admitted receiving the money, but alleged that before commencement of the action defendant disposed of and paid to arid for the benefit of plaintiff said moneys pursuant to her request. Held, that such answer was not equivalent to a general denial, and upon affidavit by plaintiff denying knowledge of the payments, a hill of particulars of the names of the parties to whom it was paid and the dates and amounts of the payments was properly ordered.

      Appeal from an order of the Monroe county court, entered December 2, 1891, directing the defendant,- Dorthy, to furnish to plaintiff a bill of particulars.

      John F. Dorthy, app'lt in person; Turk & Barnum, for resp't.
   Lewis, J.

The complaint alleged that the defendant,. Dorthy, as the agent of the plaintiff, received of the defendant Hevin $2,000-for the purpose of paying the same over to the plaintiff, that he neglected and refused to pay the same or any part thereof to her,, except the sum of $1,200, and that the balance of said money, viz., $800, the defendant Dorthy refused, and still refuses to pay over, and has converted the same to his own use.

The defendant by his answer admitted receiving the money, but alleges that before the commencement of the action he disposed of and paid to and for the benefit of the plaintiff the $2,000 pursuant to her request.

The plaintiff upon her affidavit, which stated that she did not know in what way the defendant disposed of and paid for her benefit the $2,000, moved the court for a bill of particulars, and, the order appealed from was made directing the defendant to deliver to the plaintiff a bill of particulars of the names of the parties to whom the money was paid, and the amount and date of each payment.

The defendant contends that his answer is in effect a general denial simply, and refers to authorities holding that when such an answer is interposed a bill of particulars will not be ordered. The difficulty with the appellant’s contention is, that he mistakes the character of his answer ; his answer admits the receipt of the money under the circumstances as stated in the complaint, and it then alleges payment thereof as heretofore stated.

It is proper that the plaintiff should be advised of the particulars of the alleged payments.

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

Dwight, P. J., Macombee and Haight, JJ., concur.


author: Dwight, P. J.

text:
    Marie H. Weld, Resp't, v. The New York, Lake Erie & Western Railroad Co., App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Negligence—Married women—Parties.
    In t.he interval between the passage of the repealing act of 1880 and that of chapter 248, Laws 1890, a married woman could maintain, an action for injuries to her person without joining her husband as a plaintiff.
    2. Same—Railroads.
    By reason of a wreck at a crossing it became necessary for defendant to transfer its passengers, and in doing so it furnished a single brakeman with a lantern to guide the entire party. Plaintiff, who was traveling alone, and was not in good health, became nervous, fell behind the party, became unable to distinguish the lantern from other lights, fell, and was injured. Reid, that whether defendant exercised reasonable care under the circumstances, and whether plaintiff was guilty of any omission of reasonable care for her safety, were questions for the jury.

      Appeal by the defendant from a judgment entered on the verdict of a jury at the Niagara circuit, and from an order denying the defendant’s motion for a new trial on the minutes of the court.

      A. D. Scott, for app'lt; S. E. Filkins, for resp't.
   Dwight, P. J.

The action, begun in December, 1888, was brought by a married woman for a bodily injury sustained by her in October of the same year, by reason, as alleged, of the negligence or breach of duty of the defendant as a common carrier of passengers. The point chiefly discussed "presents the question whether, after the passage of the repealing act of 1880, Laws of 1880, chap. 245, § 1, subds. 86-38, and before the act of 1890, chap. 248, which amended § 450 of the Code of Civil Procedure, a married woman might maintain an action in her own name for an injury personal to herself, without joining her husband with her as a plaintiff. The question has been a good deal mooted, and the subject of conflicting decisions at special term. But there have been two general term decisions, in the third and fourth departments, which agree in holding in favor of the right of the married woman, during the interval of time mentioned, as before and since, to maintain the action in her own name without joinder of her husband. Those cases are Campbell v. Perry, 29 St. Rep., 670, and Haden v. Clarke, 32 id., 478.

Those cases also agree in holding, the former in an opinion by Learned, P. J., and the latter by Martin, J., that the case of Bennett v. Bennett, in the second division of the court of appeals, 116 N. Y., 584; 27 St. Rep., 697, is controlling authority for the conclusion reached by them. We think there may be some question whether, in view of the manner in which the court divided in making its judgment in the last mentioned case, it can be fairly said that the decision is altogether authoritative on the particular question here proposed. But we believe that the three cases taken together have been generally received, by the bench as well as the bar of the state, as finally settling the question, and we are not disposed to disturb the conclusion thus reached.

The facts of the case out of which the only remaining questions arose were briefly these. The plaintiff, an elderly woman, not in good health, was near the end of a continuous journey from St. Louis, Mo., to her home in Medina, in this state. At Buffalo she purchased a ticket from that city to Lockport by the defendant’s road, and became a passenger by one of its trains which left Buffalo between 8 and 9 o’clock in the evening of October 6th. On reaching Tonawanda it was discovered that a wreck of cars on the New York Central railroad had occurred at the crossing of the defendant’s road by that of the former company, which so blocked the defendant’s track as to render it necessary to transfer passengers to a train on the other side of the wreck. In doing this, a single brakeman was detailed to proceed with a hand lantern and guide the company of twenty-five or thirty passengers around the wreck. The plaintiff was’traveling alone, except for chance companions of the journey; was somewhat impeded by her hand luggage; she was timid and soon became nervous and agitated from the unexpected demand upon her strength; after passing the wreck she naturally fell behind the other passengers and became unable to distinguish the lantern of the guide among the scattered lights, which confused and misled her, and before reaching the train she stumbled and fell, receiving the somewhat serious injury of which she complains.

The two questions which were, with great fairness, submitted to the jury, were, first, whether the defendant’s servants and agents, engaged in making the transfer, exercised all reasonable care to furnish to its passengers, the aged and weak as well as the young and vigorous, such light and guidance over an unknown and difficult way as reasonably to secure to them a safe and comfortable passage on foot from one train to the other; and, second, whether the plaintiff herself was guilty of any omission of reasonable care for her own safety, which contributed to occasion the accident to herself.

These were manifestly questions which could not properly be withheld from the jury, and they were answered in her favor, upon evidence which can hardly be said to have been conflicting in any material respect. The verdict, which was for a recovery in a very moderate amount, cannot be disturbed on general principles, and there was no particular exception in the case by which it is vitiated.

The judgment and order appealed from must be affirmed.

Macomber and Haight, JJ., concur; Lewis, J., not sitting.


text:
    In the Matter of the Application of The Lima & Honeoye Falls Railway Co., App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Bailroad—Application for authority to construct road on street —Costs.
    An application by a railroad for authority to construct a railroad on a street is a proceeding for the enforcement of a right, and hence a special proceeding, and costs as in an action may be allowed in the discretion of the court.
    Appeal by the petitioner from that portion of an order of Steuben special term, denying its application herein, which awards costs as of an action to the respondents, the trustees of the village of Honeoye Falls.

      E. A. Nash, for app'lt; C. H. Shuart, for resp'ts.
   Dwight, P. J.

The application was for authority to construct and operate the petitioner's road upon and along Main street in the village of Honeoye Falls. It was made under § 11 of article 1 of the railroad law, Laws of 1890, chapter 565. Notice as required by the section cited was given to the board of trustees of the village and they appeared and opposed the application. It was heard on the petition of the applicant supported by numerous affidavits, on the one hand, and on the remonstrance of residents and property holders on the street, and affidavits, on the other hand. The court denied the application and awarded to the trustees of the village costs of the proceeding as of an action, to be paid by the petitioner. The appeal is from the last mentioned provision of the order.

It is plain that the question involved is one of definition. If the application and its prosecution was a special proceeding, then the costs as of an action were properly awarded, in the discretion of the court, Code of Civ. Pro., § 8240, and that it was such we have no doubt. It was not an action. It must, therefore, have been a special proceeding or a motion. What is a motion is defined by §§ 767, 768 of the Code of Civil Procedure. By that definition an order is a direction of court or judge made in an action or special proceeding, and the application for such an order is a motion. This, we think, indicates the characteristic which distinguishes a motion from a special proceeding, viz.: that a motion is an application in a proceeding, by action or otherwise, already pending or about to be commenced, upon which it depends for jurisdiction ; whereas a special proceeding is an independent prosecution of a remedy, in which jurisdiction is obtained by original process. This is in harmony with the definition, or partial definition, of a special proceeding contained in §§ 3333, 3334 of the same Code.

By those sections it is declared that every prosecution, other than an action, for the protection or enforcement of a right or the redress or prevention of a wrong, is a special proceeding. This does not purport to be an exhaustive definition of a special proceeding, but it is probably sufficient for the purposes of this discussion. It indicates that a special proceeding is the prosecution of a remedy by original process, and independently of any other proceeding, which is opposed to the definition of a motion!

Counsel for the appellant argue that the application in this case is not within the last definition, because it is not for the enforcement of a right, but for the procurement of a favor. But we think the criticism is not just. The general railroad law, under which this application was made, gives to every railroad corporation, subject to the limitations and requirements of the same statute, “ power to construct its road across, along or upon any * * * high way * * * which the route of its road shall intersect or touch,” art. 1, § 4, sub. 4, but, by § 11, already cited, makes it a condition precedent of the exercise of that power in respect to a street in any incorporated village that it shall procure the order of the supreme court at special term, on notice to the board of trustees of such village. Undoubtedly the word “ power,” as used in the provision of statute above quoted, is synonymous with “ right,” and the effect of the provision is to give to the railroad, subject to certain conditions, the right to build its road along the highway ; and it was to bring itself within the conditions necessary for the exercise of that right that this application was made. The fact that the court has the power to refuse the order asked for does not change the nature of the application. It was, in a very proper sense, a proceeding for the enforcement of a right, claimed by the petitioner, though not granted by the court.

But, as already said, the definition of § 3834 does not purport to be exhaustive; it declares that certain prosecutions are special proceedings, but it does not exclude all other proceedings from the same category. This application was certainly not an action. It was not a motion in any action or other proceeding. It must have been, we suppose, a special proceeding.

This precise question seems not to have been adjudicated in any reported case, but the decisions in the following cases are in accord with the principles above stated. Rens. & Sar. R. R. Co. v. Davis, 55 N. Y., 145; Matterr of Jetter, 78 id., 601; Matter of Long, 39 St. Rep., 892; Matter of Holden, 126 N. Y., 589; 38 St. Rep., 504.

We can have no doubt that the proceeding on this application was a special proceeding within the provision of § 3240 of the Code of Civil Procedure, and that costs as of an action were properly awarded to the respondents, in the discretion of the court.

The order appealed from must be affirmed, with costs.

Lewis, Macomber and Haight, JJ., concur.


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    James Danihie, App'lt, v. John Hyatt, Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Ejectment—Dismissal of complaint.
    The complaint alleged a leasehold estate in plaintiff and an unlawful withholding of possession hy defendant. The answer was a general denial. It appeared that defendant tore dowp a fence erected by plaintiff on the strip in question, saying he would have none on that line, that he threw off wood placed thereon, and chained a wagon on it. On the trial he testified that he did so hy direction of his wife, who owned adjoining land. The complaint was dismissed on the sole ground that possession was not withheld by defendant. Held, error; that on the record plaintiff’s complaint could not he properly dismissed without a finding and decision on the issue of title.
    Appeal by the plaintiff from a judgment entered in Cattaraugus county, on the report of a referee:

      William H. Henderson, for appl't; G. W. Cole, for resp't.
   Dwight, P. J.

The action was ejectment-for a small triangle of land adjacent to the boundary line between two village lots in the village of Great Valley. The allegations of the complaint were in the simplest form, a leasehold estate in the plaintiff, and .an unlawful withholding of possession by the defendant; issue was joined by a general denial, only, and the sole finding of the referee was, in effect, that possession was not withheld by the defendant The issue of title was not passed upon, and very properly not, if, as the finding was, possession was not withheld from the plaintiff by the defendant.

The undisputed facts of the case were that, of two adjoining lots carved out of a larger tract by a common grantor, the plaintiff had title to the one and the wife of the defendant to the other. The plaintiff claimed that the three-cornered piece in question was included within the true boundaries of his lot, and he built a fence on what he claimed to be the boundary line. The defendant came on, in person, and tore down the fence and threw it off from the triangular piece. In doing so he made no disclosure of any agency for his wife, nor claimed title in her behalf, but declared, in substance, that he would have no fence on that lina Again, the plaintiff was unloading some wood on the triangular piece, when the defendant came on and threw off the wood as fast as it was unloaded, and his own testimony on the subject is “ I told him I did not want any wood put there. * * I told them I would throw it off if they put it there. I told them I would not let them put wood there and there was no mention of any claim on the part of his wife. Again, the defendant drew a wagon onto the three-cornered piece, and chained it fast to a gatepost, and left it there with the evident purpose of asserting and holding possession of the land on which it stood; and there, so far as appears, the wagon stood at the time of the commencement of the action.

On the trial the defendant was permitted to testify that he did all of these things by direction of his wife. But that fact, if it was such, was never communicated to the plaintiff, and, as affecting his right, cannot serve to qualify the acts and accompanying declarations of the defendant himself.

Counsel for the defendant are disposed to argue that, because Mrs. Hyatt, and not the defendant, had title to and was in occupation of the adjoining lot, therefore she, and not her husband, must be presumed to be the person claiming to occupy the triangle in dispute. But this is to beg the question of the effect of the deed of the defendant’s wife. If that deed should be held, on its face, to include the triangle, then it would he fair to assume that she claimed to occupy it with the body of the lot; but if the contrary should be held to be the effect of her deed, then no such presumption could arise; and Mrs. Hyatt herself testified that she claimed no land except such as was covered by her deed, which was in evidence.

But even if it should be conceded that Mrs. Hyatt was claiming the right to occupy the piece in dispute, that fact would not be inconsistent with her husband’s unlawfully seizing the possession and withholding it from the plaintiff. That is the fact which is charged in the complaint as the ground of the plaintiff’s action, and which we think is clearly established by the undisputed evidence from which the facts above recited are drawn. That evidence discloses repeated acts of dominion exercised by him to •the exclusion of all rights of the plaintiff; and finally the taking |ui actual and ostensible possession of the land, which was maintained down to the time of the commencement of this action. All this was done by the defendant in person, and apparently, and to some extent avowedly, on Ins own responsibility. The character in which lie assumed to act in forcibly dispossessing the plaintiff and taking possession of the premises in dispute was to be judged from his acts and accompanying declarations, and not from any secret understanding between himself and his wife. The plaintiff had no ground for charging the responsibility for those acts upon the wife of the defendant; and if he had done so in an action against her, his remedy would easily have been defeated by a disclaimer on her part of such responsibility.

The case of Martin v. Rector, 101 N. Y., 77, which is cited by the learned referee, was one in which the husband and wife resided, together, on the premises in dispute, and the question was whether the husband, as the head of the family, was in law presumed to be the occupant of the premises, notwithstanding that the title claimed was in the wife; and the question of occupancy was held to be a question of fact. We find nothing in the doctrine of that case which is necessarily decisive of this.

Upon the case made by the record in this action we are unable to see how the plaintiff’s complaint could be properly dismissed without a finding and decision adverse to' him upon the issue of title made by the pleadings.

The judgment should be reversed and a new trial granted.

Judgment appealed from reversed and a new trial granted, with costs to abide the event

Macomber, Lewis and Haight, JJ., concur.


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    The People ex rel. The Buffalo, Rochester & Pittsburg Railway Co., App'lt, v. Manford Duguid et al., Assessors, Resp'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Taxes—Certiorari.
    Appearance before the assessors is not a jurisdictional fact in relation to the proceeding by certiorari, but the question is one of laches merely, and may be excused in a proper case.
    2. Same—Non-appearance before assessors, when excused.
    The agent of relator saw one of the assessors and complained of its assessment, stating that he could not appear on grievance day, and thereupon the assessor undertook to communicate his complaint to the board, and promised that if they could not agree upon a reduction the board would adjourn to a day named to enable the agent to meet them. Relying upon this no person represented the relator on grievance day. The board did not make any reduction nor adjourn. Held, that the agent had a right to rely on the assurance of a further day, at least so far that in doing so he was not guilty of such laches as to deprive relator of the remedy by certion'ari.

    Appeal by the relator from an order of the Erie special term, dismissing a writ of certiorari.

      J. S. Rockwell, for app'lt; M. H. Peck, Jr., for resp'ts.
   Dwight, P. J.

The writ of certiorari under chapter 269 of the Laws of 1880 was procured to be issued on the petition of the relator, to bring up for review the assessment, for the year 1892, of its property situate in the town of Pavilion in Grenesee county. The petition alleged that such assessment was illegal and erroneous on several grounds, among others that it was in excess of the just and true value of the property of the relator in said town, and that it was unequal, in that it was made at a higher rate or valuation than the other property borne on the same assessment-roll.

The court at special term declined to consider any of the grounds of error or illegality alleged in the petition and dismissed the writ on the sole ground that the petitioner was not entitled to maintain the proceeding because it did not appear before the assessors on the review day, and make its objections to the assessment.

The remedy by certiorari is given by chapter 269 of the Laws of 1880. Beview and correction by the assessors is provided for by chapter 536 of the Laws of 1857. The two remedies are, no doubt, concurrent, and, so far as appears by the terms of the later statute, are independent of each other. Application to the assessors on grievance day is not declared to be a condition precedent to the prosecution of the writ; nor is the last-mentioned proceeding in the nature of an appeal from the determination in the former, since the latter is heard on new and independent proofs. It is true the decisions of our courts have gone far to establish a rule that the proceeding by certiorari will not be entertained unless relief has been first sought at the hands of the assessors in the mode pointed out by the provisions of the act of 1857, supra. People ex rel. M. U. Tel. v. Comm'rs, 99 N. Y., 254; People ex rel. W. S. R. R. Co. v. Adams, 125 id., 471; 36 St. Rep., 166; People ex rel. W. U. Tel. v. Dolan, 126 N. Y., 166; 37 St. Rep., 28; same case in supreme court, 32 id., 603; People ex rel. Hoffman v. Assessors, 24 W. Dig., 101; People ex rel. Corwin v. Assessors, 64 Hun, 167; 46 St. Rep., 148.

But in none of these cases was it held that appearance before the assessors was a jurisdictional fact in relation to the proceeding by certiorari, or that its omission might not be excused in a proper case. On the contrary, we think that the force of these decisions is to the effect that the question is one of laches merely, and that, in this respect, each must stand on its own facts.

The facts of this .case bearing upon the question of laches, as shown by the uncontradicted allegations of the petition, are substantially as follows : The property of the relator in the town of Pavilion, being about eighty acres of land, upon which was laid five miles of single track, was assessed at the sum of $64,250 ; the tax agent and attorney of the relator, shortly after the completion of the assessment roll, called upon the defendant Duguid, one of the assessors, and complained that the assessment in question was excessive and unequal; Mr. Duguid said he thought that if the agent would name a day the assessors would meet him, before review day, to consider his complaint; the agent thereupon named the 3d of August, and wrote each of the other assessors asking them to meet him at the house of Mr. Duguid on that day; on that day he went to the place appointed and there met only the defendant, Campbell, one of the assessors ; he made known to him the grievance of the petitioner and named a sum to which he suggested the assessment should be reduced, at the same time stating that it would be impossible for him to be present with the assessors on the appointed grievance day, whereupon Campbell undertook to communicate his complaint and proposition to the board of assessors when met on grievance day, and promised that if they could not then agree to make the reduction asked for, the board would adjourn to a subsequent day, which was named, to enable the agent to meet them and present his complaint; the agent of the petitioner relied upon the promise of the assessor Campbell and, by reason of such reliance, no person was present to represent the petitioner on grievance day. Whereas, neither was any change made in the assessment complained of, nor did the assessors adjourn to any subsequent day to review the same, but it was in all respects finally confirmed so far as the action of the assessors was concerned.

We are unwilling to consent to the proposition that the omission of the relator, under the circumstances thus disclosed, to appear before the assessors on grievance day, constituted such laches as to deprive it of another and concurrent remedy, clearly provided by statute. The assurance given by one of the assessors to the agent of the petitioner can hardly be said to be unofficial, as in the case of People ex rel. West Shore R. R., supra. It was an assurance which the assessor may well have felt authorized to give, not of what would be the decision of the board of assessors, nor even his own, upon the application of the petitioner, but only that if such application were not granted another day should be given on which the agent might be heard in its behalf. The assurance was in entire accord .with the letter and spirit of the statute under which the assessors were to act, and which not only empowers the assessors, but makes it their duty “ to adjourn from day to day, as may be necessary, to hear and determine * * * such -complaints.”

Under the circumstances of this case we think the agent of the petitioner had a right to rely upon the assurance of a further day, at least so far as that in so doing he was not guilty of such laches as to deprive the petitioner of the concurrent'remedy of a writ of certiorari.

The order appealed from should be reversed and the'case remitted to the special term, with directions to proceed upon the writ.

So ordered, with costs to the petitioner to abide the final award of costs.

Macomber and Haight, JJ., concur; Lewis, J., not sitting.