author: Gilbert, J.;

text:
    THOMAS BIRKBECK, Respondent, v. EDMUND ACKROYD, Appellant.

      Ba/i'nings of wife — when they belong to her husband.

    Appeal by defendant from a judgment in favor of plaintiff entered on tbe report of a referee. Tbe action was brought to recover the value of services rendered by plaintiff as superintendent of defendant’s woolen factory, and for services rendered by plaintiff’s wife and minor children, and by plaintiff as assignee of similar claims for services rendered by two adult sons of the plaintiff and their wives. There were no allegations, in plaintiff’s complaint, of any assignment from the wife of the plaintiff or from the wives of the adult assignors.
    The court at General Term said: “We think that under the circumstances of this case, the plaintiff was entitled to recover for the services of his wife. She was not carrying on any separate business, nor does it appear that the services rendered by her, were performed on her sole or separate account, but quite the contrary. In such a case, the rule of the common law remains, and the statutes for the protection of married women do not apply. {Filer v. Ff. Y. O. B. B., 49 N. Y., 47; Beam v. Kiah, .4 Hun, 171.) The case of Brooks v. BoTmerm (54 N. Y., 344) was distinguished from the case in 49 New York, on the ground that there was no claim in the latter case that the married woman was engaged in service on her sole and separate account (p. 350), the inference -from which fact is that, where her earnings accrue from her services in other ways, such earnings belong to the husband. The case in 54 New York is not a decisive authority, one way or the other, on this point, the judgment having been affirmed by reason of an equal division of the members of the court. The same rule which we have applied to the wages of the plaintiffs wife, applies to the wives of his assignors respectively.”

      D. F. (& JO. Gedney, for the appellant. ' W. J. Welsh, for the respondent.
   Opinion by

Gilbert, J.;

Barnard, P. J., concurred; Dykman, J., dissented.

Judgment affirmed, with costs and disbursements.


source: Caselaw Access Project

author: Barnard, P. J.;

license: Public Domain

text:
    ALEXANDER WALDRON, Respondent, v. THE CITIZENS’ GAS-LIGHT COMPANY OF LONG ISLAND CITY and others, Appellants.

      Bonds payable at a pw'tivalw' place —failw'e of holder to present them thm'e — wai/ow'.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.
    The action was brought to foreclose a mortgage given by the defendant. The interest was payable at the office of the company in Long Island City, upon surrender of the interest coupons annexed to the bond of the company. On the 14th of April, 1876, the day before the interest was due, the plaintiff had an interview with the defendant’s president, E. B. Litchfield, at No. 46 Pine street, New York. Litchfield said he would be unable to pay the interest on the next day. On the 15th day of April, 1876, Litchfield asked plaintiff to wait a few days and he would bring him the money. Litchfield employed a Mr. Olney to borrow the money of plaintiff, with which to pay this interest. The plaintiff declined, and Litchfield told plaintiff that unless he could get the loan the interest could not be paid. The defendant insisted that the plaintiff could not recover, because he had failed to present the coupon for payment at the office of the company.
    The court at General Term said: “ If a demand at the office of the company was a condition precedent to an action, it was waived by the president’s request that plaintiff should wait for a few days, when the company could pay the interest. (Underwood v. The Fa/rmers’ Joint-Stook Ins. Oo., 57 N. Y., 500; Young v. Hunter, 6 id., 204.) When a bond is payable at a particular place, if the defendant means to avail himself of a failure to make such demand, he must answer that he was ready at the time and place to pay. {Wolcott v. Van Santvoord, 17 J. R., 248.) Judgment affirmed, with costs.”

      JD. P. Ba/ma/rd, for the appellants. Wm. P. Fiero, for the respondent.
   Opinion by

Barnard, P. J.;

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

Judgment affirmed, with costs.


text:
    ALFRED S. TALLMADGE, Appellant, v. HORACE WHITMAN, Respondent.

      Referee’s report — - appeal without ease or exceptions.

    Appeal from a judgment in favor of the defendant entered upon the report of a referee.
    No case or exceptions were prepared, the appeal being taken from the judgment.
    The court at General Term said: “ There can be no review of a judgment entered upon the report of a referee, unless an exception to his decision has been taken. (Code, §§ 268-272; 3 Wait’s Pr., 317, 318, 324-330.) Where exceptions have been taken a case or exceptions must be settled by the referee. (Rule 41; People v. Alb. and Sus. B. B. Oo., 57 Barb., 204 and note.) These indispensable proceedings have been omitted in this case.”

      Theo. Arnold, for the appellant. H. O. SoutJmorth, for the respondent.
   Opinion by

Gilbert, J.;

Barnard, P. J., and Dykman, J., concurred.

. Appeal dismissed and judgment affirmed, with costs.


author: Davis, P. J. :

text:
    THOMAS S. ROBINSON, Respondent, v. MATTHEW T. BRENNAN, Sheriff, etc., Appellant.

      Execution — power of the attorney ovw — Assignment of judgment — rights of slw'iff until notified, of.

    After executions had been issued upon two judgments, the latter were assigned to the plaintiff, who gave no notice thereof to the sheriff. Subsequently, the attorney of the plaintiff in the judgments instructed the sheriff to return the executions nulla tona, and apply money received from the sale of the judgment debtors property on which a levy had been made under the first execution upon a subsequent judgment.
    In an action by the assignee of the judgment against the sheriff for a false return, held, that the sheriff was protected in obeying the directions of the attorney for plaintiff in the judgment, until notified of the assignment, and that the plaintiff was not entitled to recover.
    Appeal from a judgment entered on a verdict in favor of tbe plaintiff, and from an order denying a motion for a new trial on tbe minutes of tbe justice before' whom tbe action was tried.

      Almon Goodwm and A. J. Ymiderpoel, for tbe appellant.

      Robert Sewell, for tbe respondent.
   Davis, P. J. :

■ This action, was brought for an alleged false return, made on two executions issued out of the Court of Common Pleas, upon a judgment recovered in the Marine Comt and duly docketed in the former court. These executions were not strictly regular in all respects, but were, nevertheless, not void. It was the duty of the sheriff, therefore, to execute them. He could not avail himself of any of the defects alleged upon the trial, if they existed.

These executions were both issued by the attorney of record, of the plaintiff, and he had full authority to issue the same. Subsequently, and while the executions were in the hands of the sheriff, the plaintiff therein assigned the judgments to the present plaintiff, by certain instruments of assignment, which were produced and read on the trial.

There was no evidence given to show that notice of these assignments was ever given to the sheriff or his deputy. The attorney who issued the executions continued to act in respect to them by giving directions; and it was testified to by three of the witnesses on the trial that he gave directions that these executions should be returned milla tona, and that the money which had been received at the sale of the defendant’s property, should be applied on a subsequent execution in favor of one Gallagher, against the same defendant, upon which the attorney receipted money as collected on that execution, and as attorney for Gallagher. The testimony given by the witnesses on that subject does not seem to have been contradicted.

The conduct of the attorney in the case appears to have been fraudulent as between himself and the present plaintiff, the assignee of the judgment; and while there is no clear evidence on the subject in this case, there are certainly some reasons to suspect collusion between the attorney and the auctioneer and deputy sheriff. There was not, however, sufficiently definite or explicit evidence on that subject to justify the court in submitting the question to the jury. The power of the attorney over an execution is well settled; he may give such directions with respect to the conduct of the sheriff or deputy as the plaintiff himself could; and his directions in regard to the return of the execution are binding upon the plaintiff.

No notice having been given to the sheriff of the rights of the assignee, be occupied tbe same relation in respect to tbe execution as tbe plaintiff of record would bave done. It seems to be extremely well settled by tbe authorities of tbis State, that no action will lie against a sheriff for any act done by bis deputies under or hi relation to tbe execution, in obedience to tbe directions of tbe attorney who issued it. (Mickels v. Hart, 1 Denio, 548 ; Sheldon v. Payne, 7 N. Y., 453; Acker v. Ledyard, 8 Barb., 514; Gorham v. Gale, 7 Cow., 739.)

In respect to tbe appeal from tbe order, we are of opinion that tbe motion should bave been granted, under tbe evidence in tbe case, on tbe ground of excessive damages; but it is not necessary to consider that question. It may well be that tbe plaintiff, on a new trial, will be able to show tbe alleged collusion between tbe attorney of record and tbe attorney who made tbe return, in such manner as to charge tbe sheriff with tbe whole amount now recovered ; but as tbe case-now stands we think there should bave been no recovery.

Tbe order and judgment should be reversed, and a new trial ordered, with costs to abide event.

Brady and Daniels, JJ., concurred.

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


author: Davis, P. J.: Beady and Daniels, JJ.:

text:
    ALICE CHAMBERLAIN, Appellant, v. THE AMERICAN NATIONAL LIFE AND TRUST COMPANY, Respondent.

      Removal of cause to United States courts — act of Man'ch 8, 1875 — notice of application.

      Where the court at Special Term, upon a petition setting' forth all the jurisdictional facts, after approving as sufficient the "bond required by the statute, makes an order directing the cause to he removed, the removal is, eo instamti, complete, and cannot he reviewed or vacated on the ground of improvidence or inadvertence. The only remedy of the party aggrieved is by application to the United States Court to remand the cause.

      S&rnble, that under the act of congress of March 8, 1875, providing for the removal of causes from the State Court to the United States Circuit Court,_ notice of the application for an order directing the removal should he given to the plaintiff, though not required by the terms of the act. (Per Brady and Daniels, JJ.)

      Appeal from order denying motion to vacate an ex paHe order, removing a cause to the Circuit Court of the United States.

      Field dk Deyo, for tbe appellant.

      Lewis dfc Beecher, for the respondent.
   Davis, P. J.:

Upon petition of tbe defendant in due form, setting forth all tbe requirements of tbe act of congress approved March 3,1875, entitled “An act to determine tbe jurisdiction of tbe Circuit Court of tbe United States, and to regulate tbe removal of causes from tbe State courts and for other purposes,” and upon a bond, in tbe penal sum of $200, executed by one surety and duly acknowledged, tbe Special Term of this court, on tbe 14th of April,1877, made an order which recited tbe material portions of the petition, and that tbe petitioner bad offered good and sufficient security pursuant to tbe directions of, and as required by tbe said statute, and which order declared “ that it is made to appear to tbe satisfaction of this court that tbe present suit is commenced in this court, by a citizen of tbe State of Massachusetts against a citizen of tbe State of Connecticut, and that tbe matter in dispute exceeds $500, exclusive of costs. And it is hereby further declared and ordered, that this court accept tbe surety offered by this petitioner, and that tbe said cause be removed for trial, into tbe said Circuit Court of tbe United States, to be held in tbe southern district of tbe State of New York, pursuant to tbe said statute, and that tbe said petitioner file tbe process, pleading and proceedings in tbe said cause in tbe office of tbe clerk of said Circuit Court, within twenty days from tbe date of filing of this petition, pursuant to tbe said statute, and that this court do proceed no further in tbe cause, and that all proceedings in this court therein be, and tbe same are hereby, stayed.”

This order was made on tbe ex parte application of tbe respondent without notice to tbe appellant. Afterwards, and on tbe sixteenth of April, tbe justice bolding Special Term, made an order that tbe respondent show cause on the nineteenth of April, following, why tbe order granted on April fourteenth, removing tbe cause from the Circuit Court of tbe United States, should not be vacated and set aside, as having been improvidently and inadvertently granted. On the hearing of that motion it was denied by the court below on tbe ground tbat a motion in tbe Circuit Court to remand tbe case was tbe only way in which tbe order could be discharged. This appeal is brought from such order of denial. It will be seen, by tbe order above recited, tbat tbe petition set forth all tbe material facts required by tbe act of congress ; tbat it was verified by one of tbe directors of tbe defendant; tbat it was accompanied by a bond, and tbat tbe court distinctly passed upon tbe question of tbe sufficiency of tbe surety and accepted tbe same as good and sufficient. This is a ease, therefore, in which tbe jurisdictional facts authorizing tbe removal were presented to tbe court at Special Term, and tbat court, upon an ex parte bearing, found tbat such facts existed, and passed upon, and approved of, tbe sufficiency of tbe bond or security offered.

There is no provision in tbe act of congress requiring notice to tbe appellants, and tbe question of notice is not, therefore, a jurisdictional one. Tbe appeal in this case is not taken from tbe order above recited, but from another order of tbe Special Term,' denying tbe motion to vacate tbat order, on tbe ground that it was “ improvidently and inadvertently granted.”

It could not have been improvidently and inadvertently granted, if tbe case was one within tbe provisions of tbe act of congress, under which tbe petition was presented, and tbe jurisdictional facts were shown, and tbe requisite security given, because in such a case, tbe court below would have no right to exercise any discretion. I think tbe only questions which we have any power upon this appeal to consider are, whether tbe petition did set forth tbe jurisdictional facts required by tbe act of congress, and whether tbe security offered was such as to call for its approval by tbe court below. For, in our opinion, if tbe court below bad jurisdiction to make tbe order upon tbe facts presented and found, and upon tbe bond or security given, its order was completely effective to transfer jurisdiction to tbe Circuit Court of tbe United States, and divest this court of all jurisdiction of tbe case; and such jurisdiction cannot be regained by this court, even if tbe appellate court differ with tbe court below upon tbe providence or regularity of tbe order.

It was held otherwise under a former act of congress, in Bristol v. Chapman, (34 How. Pr., 140), but that decision is put upon the absence of notice of tbe application, and however correct it may have been, under the judiciary act of 1789, such notice is clearly not required by the act of 1875.

In Cooke v. State National Bank of Boston (1 Lansing, 495 ; affirmed, 52 N. Y., 96), it was held by the General Term in substance that the order of removal might be reviewed on appeal, if the necessary acts to effect the removal have not been taken. In the Court of Appeals, the case passed off upon a jurisdictional or rather a constitutional question, the court holding that congress had no power to prevent suits being brought against national banks in our State courts.

In Taylor v. Shew (54 N. Y., 75), in which the question arose under the provisions of the act of 1789, the defendent presented a petition correct in form and substance, and properly entered his appearance. He also presented a bond as required by the act. The judge refused to accept the bond, and the Court of Common Pleas retained jurisdiction, and proceeded to the trial of the action, and overruled the plea of the defendant, that the action had been removed to the Circuit Court of the United States. The Commission of Appeals held that the defendants had strictly complied with the statute, and that the Court of Common Pleas had no further jurisdiction to proceed in the case, and all that was subsequently done was eoram non judiee, and in substance, that the refusal of the judge to accept the bond tendered had no effect to prevent the removal of the case.

In Stevens v. Phoenix Insurance Company (41 N. Y., 149), it was held that the act of congress is mandatory upon the State court, and that when the defendant complies strictly with the act, the State court has no further jurisdiction to proceed in the case. (Gordon v. Longest, 16 Peters, 97, 104; Kanouse v. Martin, 15 How., 198.)

If these cases be correct expositions of the law, it necessarily follows, that when the court at Special Term, makes its order upon a petition regular in form, setting forth all the jurisdictional facts, and upon the approval of the bond as sufficient, the removal is eo vnsta/nú complete, and cannot be overhauled on any ground of improvidence or inadvertence.

It was objected on the argument that the instrument called a bond in the papers, was not sealed; but that fact does not appear. It is described in the order and in the papers as a bond,” and in the copy of the instrument given in the appeal papers it is stated, to have been signed, sealed and delivered, by the obligor.

In the order to show cause why the order should not be vacated, no such defect is pointed out. If it had been, and in point of fact, the bond was not sealed, it would have been clearly in the power of the court below to have allowed its execution to be completed. But we must assume upon all that appears before us that the instrument approved by the court below, was duly executed and delivered.

We are of opinion that the order should be affirmed, on the ground that the appellant’s remedy is by motion in the United. States Circuit Court, that the cause be remanded, as suggested by the court below.

The order should be affirmed, with ten dollars costs and disbursements.

Beady and Daniels, JJ.:

We think the plaintiff was regularly entitled to notice of the application although not in terms required by the act of congress; but as she was in no way injured, because notice was not given, concur for an affirmance of the order.

Order affirmed with ten dollars costs and disbursements.


author: Davis, P. J.:

text:
    FARRELL DORRITY, Executor, etc., of SARAH M. DORRITY, Deceased, Respondent, v. AUGUSTUS L. RAPP, Appellant.

      MxtcmaUon made in the city of New York — liability for damages occasioned by — chapter 6 of 1855 —Notice.

    Under chapter 6 of 1855, providing that where an excavation is intended to be made in the city of New York to a depth of more than ten feet, and there shall be a wall standing on adjoining land near to the boundary line of such lot, “ the person causing such excavation to be made, if afforded the necessan-y license to entm' on the adjoining lamd, and ‘not oth&rwise, shall at all times ” preserve and support such wall at his own expense, the party making the excavation is not liable for any damage occasioned by the excavation, unless the license to enter upon the adjoining land be given, nor is his liability affected by the fact that he failed to notify the owner of the adjoining land or building of his intention to make the excavation.

      Appear from a judgment entered in favor of the plaintiff on a verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. In the year 1872, plaintiff’s testatrix, Mrs. Sarah M. Dorrity, and the defendant, were respectively owners of adjoining houses, situate on the southerly side of Thirty-second street, between Second and Third avenues, in the city of New York. These houses appear to have been similar in many respects, and had been erected with basements, but without cellars, and had independent walls. On or about March 21, 1872, the defendant entered into an agreement with one Sullivan, a mason, to excavate and construct a cellar beneath his house. Sullivan entered into the performance of his contract, employing workmen therefor, and completed the same on or about April 26, 1872. During this time, Mrs. Dorrity’s house was held under lease by a Mr.T Gibson, and occupied by him. It was claimed on the part of the plaintiff that injuries were occasioned to her house by the careless and negligent manner in which the work was done, and that defendant was liable, because he had not protected the property of plaintiff’s testatrix, nor had he asked permission to enter upon her premises for the purpose of shoring up the wall as might have been done under chapter 6, of the Laws of 1855.

      Alexa/nder Thcom, for the appellant.
    It appearing that the work was not per se a nuisance, and might have been done without injury to the neigboring houses, and further, that it had been done by the employes of a competent person under contract, defendant was not liable. (Wharton on Negligence, § 818, and cases cited; McCafferi/y v. Bpuyten JDuyvil, etc., JR. JR. Co., 61 N. Y., 178; Blake v. Ferris, 5 N. Y., 48; Kelly v. The Mayor, 11 id., 432; King v. JLvoermore, 9 Hun, 298; Butler v. JEBmter, 10 W. R., 214.) Defendant was not, by the terms of chapter 6, of the Laws of 1855, bound to protect the wall of Mrs. Dorrity’s house,' unless “ afforded the necessary license to enter on the adjoining lands.” (Sherwood v. Beamcm, 2 Bosw., 127; 2 R. S. [5th ed.], p. 1002, § 34.) At common law adjoining owners had an easement by way of lateral support in the lands of each other, to the extent only of a right of support of the land itself, unincumbered by additional weight from building or other artificial superstructures. (2 Wash, on Real Prop., 75; Wash on Easements, 542-564; Pmáon v. Holland, 17 Johns, 92; Farrand v. Marshall, 21 Barb., 409; S. 0., 19 id., 380 ; Thvrston v. Hancock, 12 Mass. R., 221; BadeUff, Em., v. Ma/yor, etc., of Brooklyn, 4 N. Y., 201.)
    First Department, July Term, 1877.

      Joseph Fetbreteh, for respondent.
   Davis, P. J.:

This action was brought to recover damages for injuries to a building belonging to the respondent’s testatrix, alleged to have been caused by excavations made by the appellant on his adjoining lot, for the purpose of sinking a cellar and rebuilding the cellar wall. By chapter 6, of the Laws of 1855, it is provided that whenever excavations in the city and county of New York “ shall be intended to be earned to the depth of more than ten feet below the curb, and there shall be any party or other wall, wholly or partly on adjoining land, and standing upon or near the boundary lines of such lot, the person causing such excavations to be made, if afforded the necessary license to enter on the adjoining land, and not otherwise, shall at all times, from the commencement until the completion of such excavation, at his own expense, preserve such wall from injury, and so support the same by a proper foundation that it shall remain as stable as before such excavations were commenced.” (2 R. S. [5th ed.], 1002, § 34.)

This provision makes important changes in the common law, in the cases to which it is applicable. But a careful reading of it shows that it has no application to any case in which the necessary license to enter on the adjoining land was not afforded to the party making the excavation. Where the license is afforded” “ and not otherwise,” the statute imposes the duty created by it, and it has no application whatever to a case where the necessary license has not been afforded, no matter which party may be in fault for not having given or obtained it. In this case it appears that no license to enter upon the premises of the testatrix was afforded or given. Hence the statute has no application to the case ; it is governed altogether by the requirements of the common law independently of the statute.

But the case was tried upon the mistaken theory that if the appellant failed to give notice to the owner of tbe adjacent building of bis intention to make the excavation, she was relieved from the necessity of affordmg tbe license, -and he was subjected to all tbe duties and obligations of tbe act, as tbougb license bad affeady been given. Hence, on tbe trial, tbe plaintiff sought to sbow that neither tbe defendant nor bis contractor gave any notice to tbe owner, or tenants of tbe adjacent premises, of tbe intention to excavate tbe cellar; and tbe defendant sought to sbow that tbe contractor bad given such notice to an occupant of tbe premises.

Tbe plaintiff, Mrs. Dorrity, was herself tbe first witness. Sbe testified that tbe defendant did not ásk her permission to enter her premises for any purpose, and gave her no notice of bis intention to alter bis bouse. She was then asked whether Sullivan (tbe contractor who did tbe work for defendant), or any one on bis behalf called on her and asked for any permission to enter upon her premises. This was objected to as incompetent and immaterial. Tbe objection was overruled, and tbe defendant excepted, and tbe witness answered “No.” This evidence was given and received obviously for tbe purpose of establishing that tbe defendant by neglecting to give notice of bis intended excavation to tbe owner of tbe adjoining premises, or her tenant, bad subjected himself to tbe duties imposed by tbe statute, as tbougb license had been given, and tbe learned judge in bis charge, after reading tbe statute, said: “ It seems this cellar was dug, as tbe plaintiff claims, without any knowledge or notice to her, and therefore there was no opportunity on her part of granting any permission or license to tbe defendant, even if it had been sought for.” And when tbe plaintiff’s counsel asked him to charge that, under tbe law of 1855, tbe defendant was bound to ask license to enter tbe plaintiff’s premises for the purpose of protecting her walls, and that it was bis duty to make application for tbe license said, “ I will charge that tbe plaintiff was not obliged •to give a license unless one was required of her.” Tbe defendant’s counsel requested tbe court to charge on this subject that tbe defendant was not obliged to seek a license from tbe plaintiff to enter her premises, and that tbe plaintiff was bound to tender it. Tbe court said, “ I decline to charge in tbe form you put itand defendant’s counsel excepted. An examination of tbe case throughout, shows that it was tried upon tbe theory above suggested; and it is scarcely doubtful that tbe jury in disposing of tbe case acted upon the idea that if the defendant had not given notice so that the owner of the injured premises had an opportunity to give the license provided for by the act of 1855, the duty of the defendant became the same as though he had received such license. This fact gives point to the question put to Mrs. Dorrity; we therefore think the ruling of the court erroneous. If the evidence was admitted for any other purpose it certainly ought to have been disclosed, and the court should have instructed the jury that the statute of 1855 had nothing whatever to do with the case. It was a case in which no license had been afforded, and it is only in cases where the license has actually been given, that the statute applies at all. It was proved by the defendant that the work was done under a contract entered into between himself and one Sullivan, who undertook to perform it in a good and workmanlike manner for a specified sum, and to make perfect all walls or partitions disturbed or injured by the aforesaid alterations, and to make good all damages caused for the same. The court charged the juiy that if they believed the work could have been done so as not to produce injury to the plaintiff’s property, and that the injury of which the plaintiff complains was the result of negligence of Mr. Sullivan or his servants, there must be a verdict for the defendant. This charge tends strongly to confirm our impression that the case was disposed of by the jury upon supposed obligations or duties imposed upon the defendant by the act of 1855, for under that charge and the contract and the evidence in the case, it is hardly possible that the verdict could have been rendered upon any other ground.

We do not feel called upon to consider the other exceptions taken in the course of the trial, nor to pass distinctly upon the question whether or not the contract between the defendant and Sullivan was sufficient to exempt the former from all liability for injury done to the plaintiff’s premises in the performance of the contract.

There ought to be a new trial in the case.

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

Daniels, J., concurred. Brady, J., dissented.

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


text:
    THE MARINE BANK OF CHICAGO, Appellant, v. TUNIS VAN BRUNT, Respondent.

      Code, §§ 284, 376 — leame to issue execution aftm' death of debtor.

    Section 284 of the Code providing that after the lapse of five years from the entry of judgment, an execution shall not issue without leave of the court, unless an execution has been issued and returned unsatisfied, in whole or in part, within that time, does not apply to a case in which the judgment debtor is dead.
    The latter case is governed by section 376 of the Code.
    Appeal from an order made at Special Term, setting aside and vacating an execution issued upon the judgment in the above-entitled action, and a sale made thereunder by the sheriff of certain leasehold premises belonging to the estate of the judgment debtor.
    The judgment in question was recovered March 1, 1867, and on the 21th day of October, 1867, an execution was issued, which was returned unsatisfied on December 13, 1867. The judgment debtor died subsequently, and on the 29th day of December, 1867; and Edward Schell, of the city of New York, was thereafter, and on the 1st day of September, 1868, appointed, and now is, the special administrator of his estate.
    On the 3d of February, 1876, one "William H. Flandrow presented his petition to the surrogate of the county of New York for leave to issue execution on the judgment aforesaid, the petitioner claiming to have acquired the title to said judgment under and by virtue of a sale thereof made by the sheriff of the city and county of New York, under an execution on a judgment recovered by one Henry B. Hammond against the Marine Bank of Chicago, and an order of this court to the sheriff aforesaid.
    On the 9th day of September, 1876, leave was granted by the surrogate to issue the execution in question. No application was ever made to the court in which the judgment was recovered under section 376 of the Code, or otherwise, for leave to issue execution, and the only application of that character was the one made to the surrogate.
    On the 9th day of October, 1876, the special administrator appealed from the order of the surrogate. Notwithstanding this appeal, Mandrow proceeded, to issue execution, and the leasehold premises mentioned in the affidavit were sold under the execution by the sheriff on the 30th day of October, 1876, and Mandrow himself became the purchaser upon such sale.
    The appeal from the order of the surrogate was heard at the January General Term of this court, and the order of the surrogate allowing the execution to issue was reversed.

      Theodore E. Tomili/nson, for the appellant.

      Gha/rles A. Dcwison, for the respondent.
   Davis, P. J.:

Section 284 of the Code, which provides that after the lapse of live years from the entry of judgment, the execution can be issued only by leave of the court upon motion, with personal notice to the adverse party, or of publication if he be absent or non-resident, but that such leave shall not be necessary when the execution has been'7 issued upon the judgment within the five years and returned unsatisfied in whole or in part, only applies to cases where the judgment debtor is living. Where the judgment debtor is deceased, the right to issue execution is controlled and regulated by section 376 of the Code, under which personal representatives of a deceased judgment debtor may be summoned, as provided by that section, at any time within one year after the appointment, to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands. In the ease provided for by the latter section, it is of no importance whether the execution has been issued and returned unsatisfied in the lifetime of the deceased, and within five years of the rendition of the judgment, or not. The proceeding required by section 376 of the Code is necessary.before execution can issue in any judgment against the representative of a deceased person, and is in lieu of the old process of scire facias.

In the Marine Bank of Chicago v. Van Brunt (49 N. Y., 160), it was held by the Court of Appeals that an order under this section was necessary in addition to the order of the surrogate required by chapter 295 of the Laws of 1850. No application had been made before the issuing of the execution in this case to the court under section 376. The order appealed from was therefore correct, although the reason assigned for it was not the correct one. Besides, it now appears to this court that since the order of the court below, the order made by the surrogate has been reversed by this court, and a new hearing ordered before him, upon the application for leave to issue the execution. The right to issue the execution therefor, under that order, has fallen to the ground, and the sale under such execution cannot be upheld.

It will only be an additional embarrassment to the appellant if this court were to reverse the order of the Special Term, after having reversed the order of the surrogate. We base our decision, however, upon the ground first above suggested.

The order of the court below must be affirmed, with ten dollars costs and disbursement's.

Beady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbiirsements.


author: Davis, P. <T.:

text:
    In the Matter of the Petition of the RECTOR, Etc., OF ST. MARK’S CHURCH to Vacate, Modify of Reduce an Assessment, etc.

      Local assessment in New Yorlc, — § 7 of chcvp. 326 of 1840 — OTiap 302 of 1859.
    Section, 7 of chapter 326 of 1840, directing that in no case shall an assessment for any improvement imposed upon a house or lot exceed “one-half the value of such land, as valued hy the assessors of the ward in which the same shall he situated,” as amended hy chapter 302 of 1859, does not require that such valuation should he made for the purposes of general taxation, and it is sufficient if such valuation he made for the express purpose of furnishing a basis hy which the limit of an amount for improvements may he determined.
    Appeal from an order of the Special Term vacating an assessment. The petition in this matter states that the petitioners are the owners of certain real estate in New York city used for purposes of public • worship; that an ■ assessment for building receiving basins, etc., has been laid thereon; that said assessment 'is more than, one-half the value of said lot as valued by the assessors and commissioners of taxes, and has been imposed contrary to the provisions of section 7, chapter 326 of the Laws of 1840.

      Hugh L. Odie, for the city of New York, appellant.

      JSTatha/niel A. Prentice, for the petitioner, respondent.
   Davis, P. <T.:

The property of the petitioner was not exempt by law from assessment for local improvements. On the contrary, it was chargeable therewith like all other property benefited in proportion to the benefits received. The petitioner seeks, however, to escape all assessment under the provisions of section 7 of chapter 326 of the Laws of 1840, which reads as follows:

§ 7. Commissioners or assessors for making estimates and assessments for any improvements authorized by law to be assessed upon the owners or occupants of houses and lots, or improved or unimproved lands, shall in no case assess any house, lot, improved or unimproved lands, more than one-half the value of such land, as valued by the assessors of the ward in which the same shall be situate.” (Ohap. 326, Laws of 1840.)

In this case the assessment imposed was $151.95, while the value of the property is about $150,000. It is very clear that the assessment does not exceed one-half the value of petitioner’s property. But it is claimed that there having been no valuation for the purposes of general taxation by the assessors of the ward, it cannot be made to appear that the assessment imposed is not more than one-half the value of such lots. This argument rests altogether upon an interpolation sought to be made in the section above cited of the act of 1840. The petitioner asks to have the subdivision of the section construed as though it read shall in no case assess any house, etc., more than one-half the value of such house, etc., as valued by the assessors of the ward in which the same shall be situate for the purposes of general tmation.” But the words in italics are no part of the section; and there is, we think, no reason whatever why, under this section, valuation of- exempted property by the assessors of the ward may not lawfully be made for the purpose of assessment for local improvements. It is very clear that the legislatme did not intend by the act of 1840 to exempt any property from all liability for assessments for local purposes, but merely to impose a limitation beyond which no assessment should go, and when the section has accomplished that purpose it has done all that was intended. By sections 2 and 3 of chapter 302 of the Laws of 1859, ward assessors were abolished, and the board of commissioners of taxes and assessments created by that act were directed to appoint deputy tax commissioners “ who shall perform, under their direction and supervision, the duties heretofore performed by the assessors of the several wards of said city, or such other duties as they shall prescribe.” The seventh section of the act declares it to be the duty of the deputy tax commissioners, under the direction of the commissioners of taxes and assessments, to assess all the taxable property in the several districts that may be assigned to them for that purpose by such commissioners. It was not designed by this section to mate these deputy tax commissioners sole judges of what real estate in their districts is or is not exempt from taxation, and they may, as it seems to us, under the power conferred, proceed to value all real estate in their respective districts, and give such other information in relation thereto as would tend to show its exemption, or they may mark the same as exempt as a reason for not assessing it. The act, in section 3, expressly declares that they shall perform, under the direction and supervision of the commissioners, the duties heretofore performed by the ward assessors, or such other cbuties as the commissioners shall prescribe,” and so, under section 7, they are to report in addition to the particulars mentioned, such other information as the commissioners may from time to time require. "We see no reason why, under these very general powers possessed by the commissioners, the deputies may not be required to make valuations of any or all the exempt property of the city for the express purpose of furnishing a basis for assessments for local improvements.

Coupling the authority given by the act of 1859 with the implied authority contained in the seventh section of the act of 1840, we think there is no difficulty in so construing the sections as to uphold valuations made of such exempt property for the purpose of local improvements.

It was suggested by CjaxrRon, C. J., in The Matter of St. Joseph’s

AsyVum, lately decided, that the ward assessors or their successors might have power under the act of 1840 to assess the value of exempt property for the purpose of assessment for local improvements, and we are satisfied that that suggestion is well founded. It was shown in this case that the deputy tax commissioner, having the district where the property is situate in charge, had valued or assessed the same under the express direction of the board of commissioners of taxes "and assessments, and that that value is the basis for the assessment made in this case. It shows that the assessment imposed does not exceed one-half of the value of the land as valued by the deputy tax commissioner, and is, therefore, not obnoxious to the provisions contained in the act of 1840.

It is insisted, however, that that assessment was not properly made in point of form, because it was not under a special oath, although, of course, under the general oath of the deputy tax commissioners, and was not subscribed by him.

It is enough, in answer to this suggestion, to say that these were formal matters, which could be the subject of review on certiorari, but do not invalidate the assessment when attacked collaterally. "We think the order was erroneous and should be reversed, and the proceedings remitted for further hearing, with ten dollars costs besides disbursements.

Brady, J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

Order reversed and proceedings remitted, with ten dollars costs and disbursements.


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    CORNELIUS POILLON, Surviving Partner of ALEXANDER C. POILLON, Deceased, Respondent, v. HENRY VOLKENNING, Impleaded, etc., Appellant.

      Undertaking on injunction — reference to compute damages — rights of swety as to notice — Damages in excess of the amount claimed — when allowed.

    Where a reference is ordered to compute the amount of damages sustained by a defendant, in consequence of a temporary injunction procured by the plaintiff, the report of the referee is conclusive upon the sureties to the undertaking given by the plaintiff, unless it be shown that the assessment of damages was fraudulent, even though no notice of the motion for the reference, or of the motion to confirm the report of the referee, has been given to them.
    The plaintiff, in his complaint, demanded judgment for $3,500, the amount of the undertaking, with costs. Upon the trial, the judge charged the jury that the plaintiff might recover the $3,500, with interest from a specified date. The counsel for the appellant did not object to the recovery of interest, but insisted that it should commence at a period later than that designated by the judge. Upon appeal, the appellant claimed the court could not, after judgment, amend the clause in the complaint by increasing the amount of damages demanded therein.

      Held, that, the counsel not having suggested that interest could not be allowed, the court, upon appeal, would, under section 173 of the Code, consider the complaint as properly amended.

      Corning v. Corning (6 FT. Y., 971) distinguished.
    Interest upon the amount of an undertaking given upon procuring an injunction does not commence to run until the confirmation of the report of the referee fixing the amount of damages occasioned by the injunction.
    Appeal from a judgment in favor of tbe plaintiff entered on a verdict, and also from an order denying a motion for new trial made on tbe minutes of tbe justice before whom tbe action was tried.
    This action was brought against tbe defendant Volkenning, as one of the sureties in an undertaking given to procure an injunction.
    Tbe complaint alleged that on tbe 12th day of July, 1869, an injunction was issued out of this court at tbe suit of one Joseph W. Bray against tbe plaintiffs in this action, by which they were enjoined from prosecuting an action to eject Bray from tbe premises owned by tbe plaintiffs located on Broadway; that upon tbe issuing of said injrmction tbe defendant Volkenning gave an undertaking required by tbe judge in tbe sum of $2,500 for tbe payment to tbe plaintiffs so enjoined such damages, not exceeding said sum, as they might sustain by reason of tbe injunction if tbe court should finally decide that said Bray was not entitled thereto, such damages to be ascertained by a reference or otherwise, as the court should direct; that the defendant Yolkenning duly verified and acknowledged the said undertaking; that the said action against the plaintiffs by said Bray was finally decided by the court to the effect that said Bray was not entitled to said injunction; that the damages to the plaintiffs by reason of the injunction amounted to $3,805.55 and interest from February 7, 1871, which the court on that day awarded to the plaintiffs. A demand for judgment was made against the defendant for $2,500, besides the costs of the action.

      Nelson Smith, for the appellant.

      George R. Forster, for the respondent.
   Davis, P. J.:

This action is upon an undertaking alleged to have been executed by the appellant as surety with one Bray, in an action brought by the latter against the present respondent, and one L. C. Poillon, deceased. Final judgment had been rendered in the latter action dismissing the complaint, and an order of reference was made to compute the damages sustained by the defendants by reason of the injunction. The amount of damages reported by the referee was $3,805.56, and the referee’s report was afterwards confirmed at Special Term. The surety had no notice of the reference nor of the application for the confirmation of the report. In The Methodist Church v. Barker (18 N. Y., 163) such a report was held to be conclusive upon the sureties, where the undertaking provided for the damages being ascertained by reference, although the' sureties were not parties to, nor notified of, the proceeding to ascertain the same. (See, also, Leavitt v. Dabney, 40 How., 277; Hotchkiss v. Platt, 7 Hun, 57.) It was not necessary for the respondent to put in evidence on the trial the proceedings at Special and General Term on the motion of the appellant to open the order of reference, but we do not think their reception was a fatal error. If they had any effect it was simply a confirmation of the conclusiveness of the report against the appellant, and that, under the authorities cited, was not an open question. It was alleged by the appellant that the report of the referee to ascertain the damages was obtained by fraud and collusion, but no evidence was offered to sustain that allegation. A large portion of the damages allowed by the referee was for the use and occupation of the premises affected by the injunction. It was offered on the trial to show what was the value of such use and occupation during the period covered by the referee’s report. This was objected to by the plaintiff’s counsel, on the ground that the report was conclusive, and that the question of damages could not be gone into. The court sustained this objection. The appellant’s counsel excepted to that ruling, and then stated that he offered the evidence on the question of fraud in the assessment of damages. To which the court said : I will allow you to prove fraud, but I will not allow you, in the first instance, to show that the assessment of damages was too high,” to which the appellant’s counsel excepted.

The court was right in its ruling upon the objection made, and when the evidence was offered on the question of fraud, the substance of the ruling of the learned judge was, that he would not allow evidence to show that the damages were too high, until some evidence tending to show the alleged fraud had been given. It was substantially a mere ruling as to the order of evidence. No evidence appears to have been given to establish the alleged fraud or collusion in the assessment. On the contrary it appears that that proceeding was had upon notice of every step to the attorney for the plaintiff in that action, and that the referee summoned, in due form, the plaintiff and his attorneys and counsel, and that service was duly admitted by both the plaintiff’s counsel and his attorneys, and that notice of the confirmation of the report was also given.

There was no error in the exclusion of evidence upon the question of the value of the use of the property, until some evidence should be given tending to establish the alleged fraud. We do not think that the exception to the exclusion of this evidence was well taken.

All the requests to charge presented on the part of the appellant’s counsel were charged precisely as requested; and the questions, whether or not the undertaking was executed by the appellant as surety, and whether it was obtained from him, and used by means of any fraud practiced upon him by the attorney of the plaintiff in the action in which the undertaking was given, were submitted' very fairly and fully to the jury. The jury found, as we think they had a light to find upon this conflicting evidence, that the undertaking was executed and delivered by defendant as surety, and that there was no fraud that affected its validity.

The' question is now made, that the plaintiffs having demanded in then.’ complaint in this action judgment for the sum of $2,500 (which was the amount expressed in the undertaking) and costs, cannot now recover any greater sum than that amount. They were allowed to recover the amount expressed, with interest, and no suggestion was made at the trial that the verdict must be limited to the exact sum of $2,500 demanded in the complaint. The court said to the jury that if they found for the plaintiff they were entitled to give a verdict for the sum of $2,500, with interest to the amount of $990.20, making a total of $3,490.20. No objection was made to the allowance of interest, but the counsel for the defendant asked the court to charge that, in any event, “interest should not be recovered except from the time of the order confirming the assessment of damages.” The court refused so to charge, to which the counsel for the defendants duly excepted. We are referred to Corning v. Corning (6 N. Y., 97), in which the court (at page 105) say:

“Before the adoption of the Code it is well settled that the Supreme Court had no power to allow an amendment of a declaration after verdict, by increasing the amount of damages claimed to correspond with the amount of the verdict, except upon condition that the plaintiff relinquished the verdict, paid the defendant’s costs of the trial and consented to a new trial. The Code has not changed this rule.”

That was an action of assault and battery, in which the complaint demanded judgment for $2,000 damages. The jury, by their verdict, assessed the damages at $3,000. The Circuit judge amended the complaint so as to enlarge the claim of damages to the amount of $3,000. On appeal from the order the General Term reversed the judgment for $3,000, but restored the plaintiff to the right to remit the excess of the verdict and to enter judgment under the complaint for $2,000, and refused a new trial in the event of such remission. The Court of Appeals affirmed the judgment upon such permission to remit. In this case, however, the amount demanded by the complaint is $2,500,which is the sum fixed by the undertaking. The plaintiff, if entitled to recover that sum, was entitled bylaw to interest thereon from the time when the appellant’s liability became fixed. And we think, under the circumstances of this case, it is not a fatal error to allow the recovery of such interest. The present Code, in its provisions for amendment of pleadings after verdict, is far more liberal than the provisions existing in 1851, when Corning v. Corning was decided; and we think, in the case of an action on contract where the contract being established, interest is given as- matter of law, and the attention of counsel is distinctly called to the question of the allowance of interest, and no suggestion is made that interest cannot be recovered because not demanded in the complaint (at which time, undoubtedly, the proper amendment might be made), the court should, on appeal, under the liberal powers given by section 173 of the Code, regard the complaint as properly amended. But it appears, in this case, that interest was allowed on the sum of $2,500 from the 26th of April, 1870, amounting to $990.20. That was the date of the entry of the judgment dismissing the complaint in the action in which the undertaking was given.

"We think the court erred in holding that the respondent was entitled to recover interest from that date. The liability of the surety did not become fixed, until the ascertainment of the damages by the report of the referee and its confirmation by the court.

The order of confirmation was made on the 7th of February, 1871, and on that day the appellant could have discharged his liability as surety by the payment of the sum of $2,500 without interest.

Interest should have been computed from that date. The difference between that interest and the amount recovered is $137.08, as stated by the appellant’s counsel. If that be a correct computation the verdict is too large by that sum. There is no difficulty, however, in making the proper deduction, if the plaintiff elects to do so.

•For this error the judgment must be reversed, and a new trial granted, with costs to abide the event, unless the plaintiff stipulate, within twenty days, to deduct from the verdict the excess of interest accruing between the 20th of April, 1870, and the 7th of February, 1871. If such stipulation be given the judgment should be affirmed as so reduced, and the motion for new trial denied, without costs to either party on the appeal.

Brady and Daniels, JJ., concurred.

Judgment reversed, new trial ordered, costs to abide event, unless plaintiff stipulate, within twenty days, to deduct from the verdict all interest accruing between the 26th of April, 1870, and the 7th of February, 1871. If such stipulation be given, judgment, as so reduced, affirmed, and the motion for new trial denied, without costs to either party on the appeal.


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    MOSES B. POLINSKY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Indictment — plea of guilty of all the counts — judgment thereon.

    Upon, a plea of guilty of all the counts of an indictment, the court may give a general judgment, which will he upheld as valid, if applicable to any count thereof, even though several offenses of the same character, hut varying in degree and in the punishment to he inflicted, are included therein.

      People v. Lisaomb (60 N. Y., 559) distinguished.
    Where a department of a city government is authorized hy the legislature to pass ordinances relating to some particular subject, such ordinances are not rendered void or inoperative by the fact that the acts forbidden by the ordinances are also forbidden by some general law applicable to the whole State.
    Writ of error to the Court of General Sessions of the city of New York, to review the conviction and sentence of the relator for bringing into the city of New York and offering there for sale impure and unwholesome milk.
    The plaintiff in error pleaded guilty to the offenses charged in the indictment, which contained three counts, and was sentenced to the penitentiary for thirty days and to pay a fine of $200, and to stand committed until the fine was paid, not exceeding a day for each dollai’.

      Hugh Oolemcm, for the plaintiff in error.

      W. P. Prentice, for the defendant in error.
   Davis, P. J.:

The writ of error brings up simply the record of judgment. The plaintiff in error, on being arraigned, pleaded guilty to the several offenses charged in the indictment. The only question presented for review is whether the judgment pronounced by the court below is a legal one. The indictment contains three counts; the first two are framed upon section 1 of chapter 544 of the Laws of 1864. That section is as follows: § 1. “ Section 1 of chapter 467 of the act entitled ‘ An act to prevent the adulteration of milk, and prevent the traffic in impure and unwholesome milk/ passed April 23, 1862, is hereby amended so as to read as follows:

“ Any person or persons who shall knowingly sell or exchange, or expose for sale or exchange, any impure, adulterated or unwholesome milk, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine of not less than fifty dollars for each and every offense, and if the fine is not paid shall be imprisoned for not less'than thirty days in the penitentiary, or county jail, or until said fine shall be paid.”

It is clear that the sentence cannot be upheld under the provisions of the statute, for the only punishment provided by the statute is a fine of not less than fifty dollars for each and every offense, and if the fine is not paid, imprisonment for not less than thirty days in the penitentiary or the county jail, or until such fine shall be paid. It follows, therefore, that the judgment of the court below must be reversed, unless it can be upheld under some other provisions of law. The third count is based upon an ordinance of the Sanitary-Code, duly enacted and published by the board of health.

The ordinance is as follows:

“Section 186. No milk which has been watered, adulterated, reduced or changed in any respect, by the addition of water or other substance, or by the removal of cream, shall be brought into, held, kept or offered for sale at any place in the city of New York, nor shall any one keep, have or offer for sale in the said city any such milk.”

By section 82 of chapter 335 of the Laws of 1873, the legislature conferred upon the board of health the power to enact ordinances for the city, and by section 12 of chapter 757 of the Laws of 1873, that power was confirmed and re-enacted. In The People ex rel. Cox v. Justices of the Court of Special Sessions (7 Hun, 214), this court, in a very careful opinion prepared by Mr. Justice Daniels, held that the legislature has power to confer upon the board of health the authority to enact and enforce ordinances of this character. So far, therefore, as this court is concerned, the constitutionality of the law authorizing the board of health to enact the ordinance set forth in the third count of the indictment, and the validity of such ordinance, are not open questions.

The statute (see. 82 of chap. 335 of the Laws of 1873) declares that any violation of said act shall be treated and punished as a misdemeanor, and the offender shall also be liable to pay a penalty, of fifty dollars, to be recovered in a civil action in the name of the mayor, aldermen and commonalty of the city of New York.”

By a general statute of the State, it is enacted, that every person who shall be convicted of any misdemeanor, the punishment of which is not prescribed in this or some other statute, shall be punished by imprisonment in the county jail not exceeding one year, or by a fine not exceeding $250, or by both such fine and imprisonment.” (2 R. S., 697 § 40.)

It was under this statute that the judgment of the court below was pronounced. It is well settled that upon a general verdict of guilty or upon a plea of guilty of all the counts of an indictment, the court may give a general judgment, which will be upheld as valid, if applicable to any good count of the indictment, and that it is no objection, that several offenses of the same character, although they vary in degree and in the punishment to be inflicted, are included in the same indictment. (People v. Rynders, 12 Wend., 425; Kane v. People, 8 Wend., 203; People v. Baker, 3 Hill, 159 ; Lanergan, v. People, 39 N. Y., 39; People v. Costello, 1 Denio, 83.) And although it was held by the Court of Appeals in The People v. Liscomb, (60 N. Y., 559, overruling the unbroken common law of England of more than two centuries, and the established law of most of the States of this country \pide Bishop’s Review of People v. Liscomb ; Southern Law Review, March and April, 1877]) to be the law of this State, that upon separate convictions of such misdemeanors, but one sentence can be pronounced, yet that decision does not conflict with the rule stated above. There was but a single judgment, and if there can be any count in the indictment, upon which that judgment was legal, it ought to be sustained.

But it is insisted that the ordinance is void because the acts prohibited by it are made offenses, and may be punished under a general statute. It is hardly necessary to discuss that question, because it is apparent upon the face of the statute and the ordinances that the offenses are not the same. The statute forbids any person to knowingly sell or exchange, or expose for sale or exchange, any impure, adulterated or unwholesome milk. The ordinance provides that no milk which has been watered, adulterated, reduced or changed in any respect, by the addition of water or other substance, or by the removal of cream, shall be brought into, kept, or offered for sale at any place in the city of New York.

The ordinance is much broader than the statute. It prohibits any person from bringing into the city for sale, milk which has been watered or otherwise tampered with, as mentioned in the ordinance ; and that offense is distinctly charged in the third count of the indictment. It is one not covered by the statute, and in that respect there is certainly no conflict between the statute and the ordinance.

The plaintiff in error has pleaded guilty of that offense, and though the indictment contains allegations of other acts which might perhaps be covered also by the general statute, that fact does not affect the validity of the sentence for the offense charged in the count which is not within the statute. The misjoinder, if there were any, of two offenses in the same count of the indictment, would, not avail the plaintiff in error, at this stage of the case.

We do not understand it to be the law that an ordinance substantially authorized by the legislature to be adopted by a department of the city is void or inoperative, becatise the act forbidden by the ordinance is also forbidden by some general law applicable to the whole State. Bishop, the ablest of our writers on criminal law, states the rule in these words: “ The true doctrine appears to stand thus: If the statute so authorizes, it is not apparent why a city corporation may not impose a special penalty for an act done against it, while the State- imposes also a penalty for the same act done against the State. It is so where an act is in violation of the laws, both of the United States and of a State.” (Bishop on Statutory Crimes, §§ 20, 23; Roger v. Jones, 1 Wend., 231.) But in this case the penalties are not imposed by the ordinance. The ordinance, simply by virtue of power conferred by the legislature, prohibits the act. It is the statute that declares the violation of the ordinance to be a misdemeanor; and it is a statute that imposes tbe penalty for such misdemeanor. And when it is ascertained that a misdemeanor charged in an indictment based upon the violation of the ordinance is not one for which punishment has been specially provided by some other statute, it falls within the provision of the Revised Statutes above cited. (2 R. S., 697, § 40.) This is clearly true in respect of the offense of bringing milt which has been watered, adulterated, changed or reduced in any respect by the addition of water or other substance, or the removal of cream, into the city for sale; and hence, as to that particular misdemeanor, there is no difficulty in seeing that no punishment is provided for it by chapter 5ái of the Laws of 1866, because it is not an act prohibited in that statute.

The judgment and conviction should be affirmed.

Brady and Daniels, JJ., concurred.

Judgment affirmed.


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    GEORGE M. OLCOTT, Assignee, Respondent, v. JOHN G. MACLEAN and others, Appellants.

      Assignee in barilcrwptcy — costs aga/inst — General Term order — cammot be modified at Special Term.

    In this action, brought by an assignee in bankruptcy, in good faith, to recover property alleged to have been transferred in violation of the bankrupt act, a judgment was recovered by the plaintiff at the Circuit, which was set aside at General Term, on the ground that after the commencement of the action, and before the hearing of the appeal, the State court was deprived of jurisdiction of the action by section 2 of chapter 390 of the acts of congress of 1874. The General Term directed that the complaint be dismissed, without costs. Upon an appeal from an order of the Special Term affirming a decision of the clerk refusing to tax costs in favor of the defendant, held,

    That the order of the General Term was binding upon the clerk and Special Term, and that if defendant was dissatisfied therewith, he should have moved the General Term for a modification thereof.
    That, in any event, the plaintiff was not personally liable for the costs, as he was the trustee of an express trust, under section 317 of the Code, and had brought and maintained the action in good faith.

      Appeal from an order of the Special Term, refusing to direct the clerk to tax a bill of costs presented in this action.
    This action was brought by the plaintiff, as assignee in bankruptcy of one Aspinwall, to recover certain goods in the hands of the defendants, alleged to have been transferred to them in violation of the provision of the bankrupt act. A judgment in favor of the plaintiff was set aside at the General Term, on the ground that, the court had no jurisdiction of the action (10 Hun, 211), and it was directed that the complaint be dismissed, without costs.
    The defendant applied to have his costs taxed, on the ground that the General Term had no right to deprive him of them.

      George H. Black, for the appellants.
    The action was for money, ' and as, by the order of the General Term, the judgment in favor of the plaintiff was reversed and the complaint dismissed, the right of the defendant to costs was absolute. (Sturgis v. .Spofford, 58 N. Y., 105; I/umba/rd v. Syracuse, etc., R. R. Qo.. 62 id., 298; Howell v. Vcm Sicken, 8 Hun, 524; Ayers v. West. R. R. Cdrjp., 49 N. Y., 660.) The court had jurisdiction to determine whether the cause was one it could entertain. (Ogdensbu/rgh, etc., R. R. v. Vermont, etc., R. R., 63 N. Y., 116.)

      Chambers, Pomeroy <& Boutwell, for the respondent.
    Defendants are not entitled to costs where the complaint is dismissed on the ground that the court had no jurisdiction of the action, as was the case in this action. (Malone v. Cla/rk, 2 Hill, 658 ; Gormley v. McIntosh, 22 Barb., 212, and cases therein cited; Harriott v. W. J. R. R. cmd T. Co., 1 Daly, 318; see opinion by his honor Judge Brady.)
   Davis, P. J.:

The clerk refused to tax the defendant’s costs, because the order of the General Term expressly directed that the action be dismissed without costs. Nothing was presented to the clerk to show that this order was coram non juctice. It was the duty of the clerk, we think, to respect the order of the General Term, and of the defendant to have moved to correct the same by application to the General Term; and the Special Term did right in so holding. The order of dismissal was one which the General Term was not bound to make in disposing of the appeal. It, however, did so, conditionally; that is to say, without costs. If the .defendant did not choose to accept the order with the condition that the dismissal should' be without costs, he should have moved the General Term for a modification of the order, or for some other disposition of the case. By accepting the order, he should be held to consent to the condition.

If this be not so, however, the case is one within section 317 of the Code. The plaintiff was trustee of an express trust within the meaning of that section ; and the attempt on this taxation, was to charge him personally with costs, where the court had not ordered that to be done. If the defendant is entitled to costs at all, they are chargeable only upon, or out of, the estate or fund represented. This ought to be so in this case, because, as shown in the opinion of the court (Olcott v. McLean 10 Hun, 277), the plaintiff was entitled to maintain his action and to recover when the action was brought, but by an act of congress passed while the action was pending, this court lost jurisdiction of the case, and for that reason made the order of dismissal. The power of the court, as was said in the opinion at General Term, to hear and determine the case had been withdrawn. The court for that reason reversed the judgment and dismissed the complaint, but it was distinctly stated, that as such dismissal had become necessary because of the legislation which took effect during the pendency of the action, it should be without costs. There was certainly no bad faith on the part of the plaintiff, which should charge him personally with any costs, and the defendant was not justified in attempting to do so, without first applying for an order of the court under section 317 of the Code, which application would undoubtedly have been denied.

The order appealed from should be affirmed, with ten dollars costs besides disbursements.

Brady, J\, concurred.

Order affirmed, with ten dollars costs and disbursements.


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    JAMES COLLES, Jr., Appellant, v. THE TROW CITY DIRECTORY COMPANY and others, Respondent.

      Corporation — what acts void as ultra vires — using its funds to destroy competition.

    The defendant corporation was organized for the purpose of printing and selling books, principally a New York directory. In 1875 one Goulding published a city directory, and sold it for a less price than defendant; the defendant’s trustees alleged that he was able to undersell them, and that an unfair competition was created because he did not intend to pay for printing it. To prevent its future publication, defendant entered into an agreement with Goulding’s'printer, by which it purchased of the latter one-half of Goulding’s over-due notes for $3,000, and paid to the printer $1,000 in addition, in consideration of which the printer agreed to publish no more directories for Goulding, and to sue upon and get into judgment the indebtedness due from him, in order to ruin his credit. Held, that the agreement was ultra vires and void, and that plaintiff, a trustee and stockholder of the defendant, was entitled to an injunction to restrain his co-trustees from using the funds of the corporation to carry it into effect.
    Appeal, from an order of the Special Term denying plaintiff’s motion for an injunction to prevent his co-trustees from using the funds of the defendant, The Trow City Directory Company, for the purpose of buying up claims against and destroying tbe credit of a rival publisher of a New York city directory.

      George W. Van Sk/eJc, for tbe appellant.

      John E. Parsons, for tbe respondent.
   Davis, P. J.:

Tbe Trow City Directory Company is a corporation organized under tbe laws of this State; its business, as declared by its charter, is tbe compiling, manufacturing, printing and ptiblishing of books and selling tbe same; and its principal business has been tbe publication and sale of a directory of tbe city of New York. Tbe plaintiff is a stockholder and one of tbe trustees of said corporation, and tbe defendants, Beach and Trow, are tbe other trustees; and one of them is president, and tbe other secretary and treasurer of tbe company

In the year 1875, one Gonlding published another directory of the city which was inferior to that of defendants, and was sold at a less price. It is alleged, in substance, by defendants, that Goulding was able to undersell them and create an unfair competition, because he did not pay for the printing of his books.

In order to prevent the further publication of Goulding’s Directory and stop his competition, the defendant trustees, who are a majority of the board, passed a resolution authorizing the trustees to enter into an agreement with the printers of Goulding’s Directory (to whom Goulding was indebted in the sum of $7,000 of dishonored notes), to the effect that the corporation should buy $3,000 of such indebtedness and pay that sum therefor, and $1,000 in addition, and that such printei; should refuse to print any more directories for Goulding, and should sue him upon the whole of said $7,000 indebtedness and get judgment as speedily as possible, and thereby, in substance, prevent Goulding, by destroying his credit, from publishing and selling directories in competition with defendants. The plaintiff, as one of the trustees, voted and protested against the resolution and the proposed action of the board, and he commenced this suit to prevent his co-trustees from using the funds of the corporation to cany out the contemplated arrangement.

As Goulding’s notes were supposed to be of no value, the substance of the arrangement is, that defendants should pay his printer $1,000, as a bonus, to prevent the future printing of Goulding’s Directory by them, and for taking such steps as would probably prevent any other printer from doing the work for Goulding.

It is not necessary to discuss the moral aspects of this arrangement or the question of public policy involved in allowing a corporation to rid itself of competition by such means. It is enough to inquire whether the corporation has any right to use its funds for such a purpose. We think the scheme was altogether ultra vvres. The corporation was not created for the purpose of destroying competition and establishing a monopoly, in any way other than such as might be incidental to the superiority of its manufactures and their cheapness and excellence. That way was legitimately open to them at all times. But to pervert the funds of the corporation to the purchase of the worthless notes of a competitor, for the purpose of embarrassing his business, and injuring his credit by a law suit, and to the payment of a bonus to induce his printers to refuse to do his printing, is something altogether outside of the legitimate corporate business. It was no part of the corporate business to buy bad debts and dishonored notes, and still less to pay premiums to prevent the creditors of competitors from giving further credit, or doing work which they might otherwise be willing to undertake.

It is no answer to say that Goulding’s competition was unfair: that he was selling what he did not pay for, and therefore could injure defendant’s business by underselling. To fight the devil with fire ” is sometimes said to be fair in theology and politics; but corporations are not created for such purposes, and their trustees have no power to use their funds for objects of that nature. The trustees who do so become personally liable for a misuse of the corporate funds.

The order, in so far as it denies the motion, should be reversed and the motion granted, with ten dollars costs of this appeal besides disbursements.

Brady and Daniels, JJ., concurred.

Order reversed, motion granted, with ten dollars costs of appeal besides disbursements.


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    SIEGFRIED LOWENSTEIN and others, Appellants, v. AUGUST FLAURAUD and others, Respondents.

      General assignment — power of one pcvrtner to make — Acknowledgment by attorney under chap. 348 of 1860.
    Although one partner cannot, by virtue of his authority as such, make a general assignment of the effects of the firm for the benefit of creditors, yet he may make such assignment when authorized so to do by the other partner, and such authority may be implied from circumstances, or from the acts of the other partner.
    Where a general assignment is executed by an agent, by virtue of a power of attorney, his acknowledgment thereof is a sufficient compliance with chapter 348 of 1860, requiring every assignment to be in writing, and duly acknowledged.
    Appeal from an order of the Special Term denying a motion to continue an injunction and for the appointment of a receiver.

      The plaintiffs brought this action, as judgment creditors of the firm of Elauraud & Son, to set aside an assignment made by it to the defendant Salmon, on the ground that the same is an impediment to the collection of the execution issued on the judgment.

      Bastus 8. Ba/nsom, for the appellant.
    The assignment was not executed and acknowledged as required by section 1 of chapter 348 of 1860. (Oook v. Kelley, 14 Abb., 466 ; Admns v. JETcmghton, 3 id. [N. S.], 46; Treadwell v. 8ackett et al.; 50 Barb., 440 ; FcwrcsMld v. Gwyrme, 16 Abb., 23; Hm-dmcm v. Brown, 39 N. Y., 196 ; Britton v. Lorenta, 45 id., 51.) The assignment is void, because it is of partnership property, and although executed by one partner, under the facts disclosed, he had no power in law to execute a valid assignment. (30 N. Y., 344; 19 Abb., 32; 28 Barb., 593; 3 Sand., 284; 8 Bos., 495 ;1E.D. S., 341; 4 Sand., 707; 2 Hill, 531; 15 How., 243; 18 Abb., 442.)

      Albt. Oa/rdoBo, for the respondent.
   Davis, P. J.:

It is well settled in this State that one copartner cannot, by virtue of his power as such partner, make an assignment of the copartnership effects to a trustee for the benefit of the creditors of the firm (Welles v. March, 30 N. Y., 344; Robinson v. Gregory, cited in opinion of Wright, J., in Welles v. March), but one copartner can make such an assignment with the authority of the other partner or partners; and such authority may be implied from circumstances or acts of the partner, or partners, not joining in the execution of the assignment. In Welles v. Ma/reh, one of the partners left the city of New York, leaving a letter to his partner in which he said: “ I hereby assign you my interest in the business of Welles & Co., and Nace & Reigniers ; take charge of every thing in our business; close it up speedily.” This was held by the Court of Appeals sufficient to confer upon the remaining partner authority to execute an assignment on behalf of the firm, and the assignment was upheld. In National Bank v. Sackett (2 Daly, 397), one of several partners had absconded, and the court held that the act of absconding and leaving the business in the possession of his copartners, was one clearly implying Ms consent to the disposition which his partners subsequently made of the remaining effects. In Palmer v. Myers (43 Barb., 509), it was held that the absconding of a partner implies the power to remaining partners to make a general assignment. In Baldwin v. Tynes (19 Abb. Pr., 32), where one partner had left the city and telegraphed to his copartner to make an assignment, the court held the assignment made by his copartner good.

In Darrow v. Bruff (36 How. Pr., 479), it was held that an assignment executed by a resident partner in person, and the attorney in fact for a non-resident partner was valid. It necessarily follows, that if the assignment be valid when made by one partner under an implied authority, it certainly must be so when made by express authority. In this case the partnership was composed of Auguste Flauraud and Eugene Flauraud, under the name of Flauraud & Son, carrying on business in the city of New York. Eugene Flauraud left New York for Paris, before the making of the assignment. The firm was then under some embarassment, and before his departure, Eugene who, was the son of the other partner, in substance authorized his father to make any disposition of the assets and property of the firm, for the benefit of its creditors, that he might deem proper, and he also left a power of attorney bearing date the third of October, and duly executed and acknowledged, by which he constituted and appointed Waltham Metz his attorney in fact, with power to sign and execute all papers and instruments in connection with the business of Flauraud & Son, and especially to sign, seal, execute and acknowledge and join with his copartner in signing, sealing, executing and acknowledging any transfer, assignment or general assignment for the benefit of the creditors, of his interests in the property and assets of the said firm of A. Flauraud & Son. This instrument was very broad in its language and scope, and gave, so far as it could lawfully be done, every power requisite to the execution of a general assignment. On the eighth of November following, the assignment in question was made. It was executed by Auguste Flauraud and duly acknowledged; it was also duly executed in the name of Eugene Flauraud by Waltham Metz, his attorney in fact. It appears that Auguste Flauraud immediately telegraphed to his son in Paris that the assignment had been made, and received in reply a letter recognizing the assignment, We think there can be no doubt that the assignment is made under these circumstances a valid one; both upon the ground that it was made by one partner with the consent of the other, and also that it was duly executed by the absent partner through and by an attorney in fact. The question is made that the acknowledgment of the assignment was not in conformity to the requirements of the act of 1860 (Laws of 1860 chap. 848). That act requires that such an assignment shall be in writing, and shall be duly acknowledged by an officer entitled to take acknowledgments of deeds, and that the certificate of the acknowledgment shall be duly indorsed upon the instruments, before the delivery thereof to the assignee or assignees therein named. It was held in Hardman v. Bowen (39 N. Y., 196), that the acknowledgment required by the statute must be made before the title to the assigned property will become vested in the assignees, and it is therefore claimed that the acknowledgment in this case, so far as it relates to .Eugene Elauraud, was invalid, because made by his attorney in fact, who executed the assignment in his name. We think there are two answers to this objection: First, that the instrument having been executed and acknowledged in due form by Auguste Flauraud, with the assent and authority of his copartner, was a valid assignment of the partnership effects, for the benefit of the creditors, independently of the execution thereof by the other partner; and, second, we are of opinion that the assignment having been executed by Eugene Flauraud by his attorney in fact, acting under a power of attorney which had been duly executed and acknowledged by him, the acknowledgment made by the attorney in fact was sufficient under the requirements of the statute. The statute does not say, in express terms, that the assignment shall in all cases be acknowledged by the assignor himself, but simply that it be duly acknowledged before an officer authorized to take acknowledgments of deeds; and it is an established principle of law that where power to execute a deed or other instrument is conferred upon an attorney in fact, by an instrument duly acknowledged, such an attorney may perform every act requisite to make the instrument valid and effective for the purpose for which it is made. We fail to see any good reason for saying that the instrument in this case was not duly acknowledged within the meaning of the act of 1860. But' it is insisted that tbe assignment is invabd, because by force of tbe general bankruptcy laws of tbe United States all State insolvent laws are suspended, and any assignment under sucb State law is absolutely void. Tbis position is answered by Thrasher v. Bentley (59 N. Y., 649), where it was beld directly to tbe contrary.

In tbis case, it does not appear that any proceedings in bankruptcy bave been taken for tbe purpose of avoiding tbe assignment, and, therefore, we regard tbe case as one entirely unaffected by tbe general bankruptcy law of tbe United States.

Tbe order appealed from should be affirmed, with ten dollars costs and disbursements.

Present — Davis, P. J., Beady and Daniels, JJ.

Order affirmed, with ten dollars costs and disbursements.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. BERNARD CONNOLLY v. THE BOARD OF POLICE COMMISSIONERS.

      Board of police commissioners of New York — power of, to it'y policemen for offenses committed by them when off duty.

    It is the duty of the board of police commissioners of New York to take notice of the conduct of the members of the police force, as well when off, as when on duty, and to dismiss an officer who is guilty of criminal or immoral conduct when off duty as an unfit person to be a member of the force.
    The relator, while off duty and in citizen’s clothes, seeing a girl standing on the stoop of the house of the Sisters of Mercy in New York, enticed her to go with him to a house of assignation for an improper purpose, the girl knowing the purpose with which she was taken there and assenting thereto. Beld, that the conduct of the relator was such as to justify the board in dismissing him from the force.
    Certiorari to review tbe proceedings on tbe trial of tbe relator, and bis dismissal from tbe police force.
    Fro. F. Howe, for tbe relator.

      Chas. F. MoLecm, for tbe respondents. •
   Davis, P. J.:

The relator was a patrolman of the municipal police. On the 13th of April, 1876, charges and specifications were made and filed against him, and on that day he was served with a copy of the charge and specifications, and notice of the place and time appointed for trial thereunder, which was the seventeenth day of April, at two p. m., and he admitted service of the paper. The charge and specification were as follows :

“April 13, 1876.
To the Board of Police of the Police Department of the Qity of New York: /
“ I hereby charge patrolman Bernard Connelly, of the ninth precinct, with improper conduct March 17, 1875. Specifications :
“ In this, to wit: -Said Bernard Connelly enticed Mabel Avery from the stoop of the Sisters of Mercy, No. 33 East Houston street, to a house of assignation at No. 10 Bleecker street, under the pretense of procuring for her a situation, and was arrested on the above complaint, and taken to the First District Police Court before Justice Flammer, at’three p. m., April 8, 1876.”

This was followed by a list of witnesses, six in number.

The relator appeared at the time and place therein specified, and it was proved, in substance, that on the eighth day of April, the relator saw and accosted the girl named Mabel Avery on the stoop of the house of the Sisters of Charity mentioned in the specifications, and asked her if she was a Catholic. On her telling him she was not, he told her she could not go in there as she was not a Catholic, and said he would take her to a place, and she could be there for two or three days. The girl testified that she did not understand that he was taking her to a place where she'could work for an honest living, but that she understood precisely where she was to go, and that she was going for no good. He took her to a house No. 10 Bleecker street, where they both entered. This was an assignation-house, or house of ill-fame. Another officer, who was informed of what had been done, followed the relator and the girl into the house. It appeared they had gone up stairs, and, according to the relator’s own statement, were going into a room, when they were called down at the request of the officer who followed them in; and as soon as the relator saw the officer, he turned and fled up two pair of stairs, and locked himself in a room. The officer arrested him and the girl and took them before a magistrate, but he was discharged.

At the time of doing this the relator was off duty, and was in citizen’s clothes. The evidence was quite sufficient to justify the conclusion of the board, that the relator took the girl from the stoop of the house of the Sisters of Charity to the assignation-house named for improper purposes ; and the only question in the case seems to be whether the board were justified in his conviction and dismissal upon such a state of facts. It is urged that his not being at that time in uniform and on actual duty, his conduct could not be made a ground for removal. Ye cannot assent to any such proposition. We think it is within the power and is the duty of the board of police to take notice of the conduct of the members of the police force as well when off as when on duty, and to dismiss an officer who is guilty of criminal or immoral conduct' when off duty as an unfit person to be a member of the force. Their jurisdiction is not limited to acts committed by policemen while on actual duty; and we think it is no answer or defense that the offense charged was committed out of uniform, and while the accused was not in the actual discharge of official duty. Under such a rule, the force might be made up of drunkards who were careful to keep sober in uniform; or criminals or public brawlers with sufficient caution to avoid committing thefts or acts of violence while on actual duty.

The relator’s conduct, if he were guilty, as the evidence tended . to show, in persuading a girl, who was about entering the house of the Sisters of Charity, to go with him, under promise of finding her a place, to a house of assignation for immoral purposes, was such as required the condemnation of the court; and even if the girl were entirely willing to accompany him, and understood perfectly well the character of the house, and the purpose for which they were going, the board were equally justified in dismissing him from the force.

The action of the board should be affirmed and the writ quashed, with costs.

Beady and Daniels, JJ., concurred.

Proceedings affirmed; writ quashed, with costs.