text:
    CARRIE DAVIS, Respondent, v. WILLIAM R. STANDISH, Appellant.

      Civil damage, act — a wife may recover the damages sustained by the death of her Jmsband — when intoxication is the proximate cause of the death — one selling without a license liable for exemplary damages — Northampton tables — court will take judicial notice of them.

    This action was brought, under the civil damage act, to recover the damages occasioned to the plaintiff by the death of her husband, who was alleged to have been drowned in consequence of having been intoxicated by liquor sold to him by the defendant. It appeared that on October 17, 1877, Davis, the deceased, went to Canandaigua lake to fish; that he drank twice at the bar of the public house, kept there by the defendant, purchased a bottle of whisky and took it on the lake with him in a boat hired from the defendant; that on his return he drank at the bar at least ten times between four and six o’clock in the afternoon; that he then started down the lake with one Wood in a small boat which was overturned and Davis was drowned. Wood reached the shore though he was not as good a swimmer as Davis. The defendant claimed that at the time he sold the liquor to Davis it was arranged that the latter should go home in a stage kept by the defendant; that Davis was afterwards induced by Wood to go to his (Wood’s) house in the boat, and that this intervening act of Wood, and not the intoxication, was the immediate and proximate cause of the death and he requested the court to charge accordingly.
    The court charged, that “if the proof in any case under this law shows that the intoxication was to such an extent as to deprive the man of the normal use of his faculties, either physical or mental, so that he is rendered incapable of caring for himself and of protecting himself from the results of accidents or circumstances to which he was subjected, and by reason of such deprivation of his natural powers of body or mind his death is produced by his inability to protect or defend himself against circumstances which threaten his life, it may be said in those cases, in general terms, that such intoxication is the proximate and direct cause of death. It is not necessary that the death, or the circumstances which immediately led to or produced it, should have been within the contemplation of the person who sold the. liquor. The man who sells liquor to another, whether lawfully or unlawfully, is not protected against the provisions of the statute, because he does not, at the time he sells the liquor, contemplate it will lead the man into circumstances where he is liable to lose his life. * * * It is only necessary that the liquors sold or furnished should have produced either in whole or in part a state of intoxication, and that that state of intoxication should have been the direct and proximate cause of the death, whether the circumstances under which the death occurred were within the possible or impossible contemplation of the party who sold or furnished the liquor.”

      Held, that the charge was a correct statement of the law.
    That the jury were not confined to an inquiry as to whether intoxicating liquor was the immediate cause of the death; that if it was the proximate cause it justified a verdict for the plaintiff.
    Under the civil damage act a wife may recover the damages caused by the death of her husband.
    The court charged, that the fact that the defendant was selling liquor without a license might be considered as a basis for exemplary damages.

      Held, no error.
    The court charged, that the jury in estimating the damages might consider the expectancy of life of Davis and the plaintiff based upon the Northampton tables. The defendant excepted to this, and upon this appeal claimed that the attention of the jury was not called to the fact that the period during which the plaintiff would be entitled to support from the earnings of her husband was limited to their joint lives, and that the probable duration of their joint lives was less than the probable duration of either separately, and also that there was no proof given of the tables.

      Held, that the objections could not be raised on appeal as they were not suggested below.
    That although the tables were not put in evidence the court could take judicial notice of them as they were referred to and made a part of its rules. (Bule 71.)
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury rendered at the Ontario Circuit.
    The action was brought to recover the damages occasioned to the plaintiff by the death of her husband, who was alleged to have been drowned while intoxicated from liquor sold to him by the defendant.
    The judge charged among other things, as follows: “ There is another principle involved, and that is that there a certain expectation of life, which in case of every man is dependent upon his age. Mr. Davis’ age was twenty-nine years. By the law of this State, by the system of estimation adopted as part of the rules of the court for the guidance of the coui’t in cases of judicial investigation, it is ascertained that the expectation of life of a man of twenty-nine-years of age is eleven years and three quarters and a trifling fraction: above that. It was then to have -been expected under this rule,, which is ascertained by the combining of statistics through a long period of years, it is ascertained that the plaintiff being younger than the deceased, had a longer expectation of life. I state these rules, not as necessarily governing you, but they may reasonably be considered in estimating the amount of strict compensation which this plaintiff might recover in your judgment for the loss which she shows herself to have sustained, if she has sustained it.”
    The defendant’s counsel duly excepted to all that part of the 'charge where the court instructed the jury that they may take into consideration the expectancy of life based upon the Northampton tables.

      II. I. Oomstook, for the appellant.

      E. B. Pottle, for the respondent.
   Smith, P. J.:

The plaintiff brought this action under the statute known as the “Civil Damage Act,” alleging that her husband, Edwin Davis, came to his death by drowning in Canandaigua lake, in consequence of having been intoxicated by liquor sold to him by the defendant, and that she was injured thereby in her means of support. She recovered a verdict for the sum of $1,303.45.

The evidence tended to show that on the 17th of October, 1877, Davis went to the lake for the purpose of fishing, and went to the public house kept by the defendant on the shore of the lake; that Davis drank twice at defendant’s bar, and got a bottle of lyhisky of defendant, which he took on the lake with him in a boat hired of the defendant for the purpose of fishing, and on his return he drank at defendant’s bar at least ten times from about four to six o’clock in the afternoon, and then started down the lake with one "Wood in a small boat, which was overturned and Davis was drowned.

The only questions in the case which it is necessary to discuss are raised by exceptions taken to the refusal to nonsuit, and to the charge of the judge, and his refusal to charge as requested.

At the close of the plaintiff’s testimony, the defendant’s counsel moved for a nonsuit on two grounds. First, that under the statute the plaintiff has no right of action for injury resulting from the death of her husband. The contrary was held in the unreported case of Mead v. Stratton, decided in this department in Aprii, 1879, and recently affirmed in the Court of Appeals. .

The other ground of the motion for a nonsuit, was that the liquor sold by the defendant to Davis was not the proximate cause of his death, but was, at most, only a remote and uncertain cause of Euch death, while other and more immediate and proximate causes intervened and caused such death. That position is understood to be based upon the assumption that at the time when the defendant sold to Davis the liquor which he drank in the afternoon, the defendant could not have anticipated that Davis would go out on the lake again that night, the evidence being that he had arranged with the defendant for his passage home by the stage, of which defendant was proprietor, and after such arrangement was made he was induced by "Wood to change his mind and go to Wood’s house, he and Wood taking a skiff on the lake, part of the way. Shortly after they started^ the skiff upset, and Davis, although a good swimmer, was drowned, while Wood, who could not swim as well as Davis, succeeded in getting to the shore. The argument of the defendant’s counsel is understood to be that the active agency of Wood in persuading Davis to go hpme with him, and not to go in the stage as he had arranged, was the more immediate and proximate cause of the drowning, and as such change of purpose could not have been anticipated by the defendant when he furnished the liquor which produced the intoxication, he is not liable. Substantially the same question is involved in one of the exceptions taken to the refusal of the judge to charge as requested, and also to a part of his charge, and as we think the charge of the judge presents the true rule on the subject, those exceptions may as well be stated here, and considered with the last branch of the motion for a nonsuit.

The defendant’s counsel requested the court to charge that if the jury believed from the evidence that Davis had arranged with the defendant for his passage in the stage on his way home, and the defendant believed and had reason to believe that Davis intended to go by the stage, then he is not liable for any damages resulting to the plaintiff arising from the death of her husband by drowning, if such drowning was the result of Davis’ change of purpose in that respect, at the request of Wood, which was not known to the defendant when he furnished Davis with the intoxicating liquor. The court declined to so charge.

The judge instructed the jury that it is safe to say that if the proof in any case under this law shows that the intoxication was to such an extent as to deprive the man of the normal use of his faculties, either physical or mental, so that he is rendered incapable of caring for himself and of protecting himself from the results of accidents or circumstances to which he was subjected, and by reason of such deprivation of his natural powers of body or mind his death is produced by his inability to protect or defend himself against circumstances which threaten his life, it may be said in those cases, in general terms, that such intoxication is the proximate and direct cause of death. It is not necessary that the death, or the circumstances which immediately led to or produced it, should have been within the contemplation of the person who sold the liquor*. The man who sells liquor to another, whether lawfully or unlawfully, is not protected against the provisions of the statute, because he does not, at the time he sells the liquor, contemplate it will lead the man into circumstances where he is liable to lose his life. * * * It is only necessary that the liquor sold or furnished should have produced either in whole or in part, a state of intoxication, and that that state of intoxication should have been the direct and proximate cause of the death, whether the circumstances under which the death occurred were within the possible or impossible contemplation of the party who sold or furnished the liquor.” We have transcribed this part of the charge, because we think it a correct statement of the law, and that it fully meets the exceptions under consideration. The learned counsel for the defendant cites several cases from other States which he conceives lay down a different doctrine. They will be referred to briefly. In Shugart v. Egan (83 Ill., 56), it was held that the seller of intoxicating liquor to a husband who becomes intoxicated thereby, and in consequence of his abusive language is killed by a third party, is not liable in damages to the wife for the death. That decision was well put upon the ground that the intervening, independent act of the third person was the direct and immediate causé of the death. Upon the same principle, the unreported case of Wright v. Read was decided in this department in March, 1881. There, the husband of the plaintiff while intoxicated by liquor furnished him by the defendant, went into a livery stable at night, and laid down upon the hostler’s bed, and the hostler coming in late in the night and finding him asleep, killed him with an axe. The plaintiff was nonsuited at the circuit, and we affirmed the nonsuit, on the ground that the intoxication was not the proximate cause of the death. The same principle was applied in Schmidt v. Mitchell (84 Ill., 195), cited by the appellant’s counsel. There the defendant sold liquor to plaintiff’s husband, whereby he became intoxicated, got into an affray, and was wounded, and by reason of the husband’s reckless diregard of the surgeon’s directions, the wound became so dangerous as to lead the surgeon to amputate the leg, whereupon the husband died. In Krach v. Heilman (53 Ind., 526), the deceased, while intoxicated, and lying in a wagon, driven by another person, who also was intoxicated, was fatally injured by a barrel of salt falling over on him. If the injury was not the result of the inability of the deceased to protect or extricate himself by reason of his intoxication the case was well decided upon the principle referred to. That it was not so caused is to be inferred from the fact that the court, in its opinion, supposes by way of illustration the case of a man who by reason of intoxication lies down under a tree and a storm blows a limb down upon him and kills him, or lightning strikes the tree and kills him. In these several cases, the falling barrel, the 'falling limb and the stroke of lightning were intervening, independent causes, directly producing the death, and their fatal effect was not owing to the victim’s intoxication. But in the present case the evidence warranted the conclusion that the drowning was the result of Davis’ inability to use his normal powers by reason of intoxication; and if that was the case, the intoxication was the proximate cause of his death. We are of the opinion that the exceptions noticed thus far were not well taken.

The judge was asked to charge the jury that if they believed from the evidence that Davis’ death was caused by a blow inflicted upon him by Wood, which so far stunned and disabled Davis that he was thereby rendered incapable of swimming to the shore, when he would have otherwise been able to swim to the shore, the defendant is not liable. The judge did not in terms refuse to charge in accordance with such request; on the contrary, he gave an instruction to the jury which he said was suggested by the request. That instruction was, in substance, that notwithstanding Davis’ intoxication (if they should And he was intoxicated) if his death was solely, immediately and without reference to his intoxication caused by an assault upon him by persons in the boat the plaintiff could not recover. This, it seems to us, was equivalent to the request in substance. If, as the request assumed, Davis was able to swim to the shore but for the assault, and he was drowned in consequence of being disabled by the assault, then the assault was the sole and immediate cause of his death without reference to his intoxication, and in such a case the jury were told the plaintiff could not recover. The fact that the judge used his own language instead of that of the counsel in charging the jury is immaterial if the charge substantially met the request. The defendant’s counsel argues that the jury were left to infer that if Davis’ intoxication at all contributed to his death or to his being disabled from swimming, in connection with the blow or the assault upon him, the defendant was liable though Davis would not have been drowned if he had not been thus assaulted. We think that construction of the charge is hardly warranted. If Davis would not have been drowned but for the assault, then the assault was the sole cause of death, without reference to Davis’ intoxication, and in such case the jury were told they must find for the defendant.

But so far as the appeal book shows the request was not justified by the evidence. There is no proof that Davis received a blow from Wood or any other person. There was proof of marks of a bruise seen on Davis’ forehead after his body was recovered from the water, and the evidence would have justified the jury in finding that the bruise occurred before death. But there was no evidence as to whether it happened before or after Davis went into the boat with Wood. Some witnesses testified that Wood said soon after he reached the shore that Davis clung to him or his clothes, and he kicked him off; but those declarations were not evidence. Wood was called as a witness, but he did not testify that he struck or kicked Davis. In short, while the evidence shows that Davis was grossly intoxicated, there is no'evidence whatever, so far as wo have discovered, that he was disabled from any other cause.

An exception was taken in these words: To that part of the charge where the court discusses the difference between the immediate and proximate cause of death.” A considerable part of the charge was devoted to that subject.. The jury were told that there was a distinction between a “ proximate ” and an “ immediate ” cause, and between a “ proximate ” and a “ remote ” cause. That if the intoxication was a remote ” cause only of the death, the action could not be maintained, but if it was the “ proximate,” although not the immediate ” cause of death, the action was so far made out. And the judge illustrated thé difference between an “ immediate ” and proximate ” cause by supposing the case of an intoxicated man falling into the water and ^drowning ; in such case, said the judge, the drowning is the immediate cause, and the intoxication, if that is what caused him to fall into the water, is the proximate cause. And in this case, in order to find for the plaintiff, the jury must find the intoxication was the proximate cause -of death. We find no error in the charge on that subject; if any particular portion of it were objectionable it should have been specifically excepted to.

It follows from what has been said upon the last point that the chargé that the jury were not confined to an inquiry whether intoxicating liquor was the immediate cause of the death of Davis, was not erroneous.

The court charged that the fact that the defendant was selling liquor without a license might be considered as a basis for exemplary damages; and it was excepted to. It is true the statute in giving a right of action makes no distinction between the licensed and the unlawful selling of liquor. But it is also true that it authorizes the recovery of exemplary, as well as compensatory damages. The statute has not said in what cases punitive damages may be given, and we must therefore look to the common law. It is argued by the appellant’s counsel that it is illogical and unjust to allow the plaintiff in an action of this kind to recover damages by way of punishment to the defendant for' the violation of a public statute, for which he is liable to be proceeded against criminally. But in many cases of willful wrong the evil effect of the act upon the public has been treated as an element of punitive damages. Thus, in an action for libel, the public character of the plaintiff as an officer of the government, and the evil example of libels have been held to be proper subjects for the consideration of the jury respecting the amount of damages. (Tillotson v. Cheetham, 3 Johns. R., 56, 64.) And in vindictive actions it is every day practice to charge the jury that they are to inflict damages for example’s sake and by way of punishing the defendant. In view of these rules of the common law, we are inclined to the opinion that the legislature intended them to apply to actions brought under the statute, and that the circumstance that the defendant, in selling the liquor which produced the intoxication and the resultant injury, was acting in open violation and defiance of law, may be considered as a basis of exemplary damages. In Quain v. Russell (12 Hun, 316) it was held by the General Term in the third department, that in an action under the statute the defendant’s license to sell liquors was admissible in evidence, not as a bar to the action, but to mitigate damáges. If these views are correct they dispose of the objection taken to the admission of evidence of the fact that the defendant had no license, and to the refusal to charge that such fact was immaterial.

An exception was taken to the charge that the jury in estimating damages might consider the expectancy of life of Davis and the plaintiff based upon the Northampton tables. The objections urged in the brief of the appellant’s counsel are that there was no proof of the Northampton tables, and that the charge took no notice of the fact that the period during which the plaintiff would be entitled to support from the earnings of her husband was limited to their joint lives, and that the probable duration of their joint lives' was less than the probable duration of the life of either of them separately. It is a sufficient answer to each of these objections to say that neither of them was suggested at the trial, and if either had then been urged it might have been obviated. The exception taken, merely raised the question whether the expectancy of duration of life, as shown by the tables, was proper to be considered by the jury. Of that there can be no doubt. Again, as to the objection that the tables were not put in evidence, the court can take judicial notice of its own rules, and the Northampton tables are referred to in Hule 11, and made a part of it. In Wager v. Schuyler (1 Wend., 553), the tables were used by the court in banc, for the same purpose as in this case, a verdict having been taken for the plaintiff, subject to the opinion of the court, for a nominal sum, to be increased or diminished as the court should order.

These views dispose of all the exceptions requiring consideration and lead to the conclusion that the judgment should be affirmed.

Hardin, J., and Haight, J., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Smith, J.:

license: Public Domain

text:
    MARIA E. HADSALL and Others, Executors, etc., of MARIA E. SEAVER, Deceased, Appellants, v. ABEL SCOTT, JOHN LANSING and CHARLES A. SHERMAN, Respondents.

      Miidence — transaction with deceased person — what is — when a party cannot testify— Code of Civil Pt'oeedure, sec. 829.
    In an action brought to foreclose a mortgage the mortgagor defended on the ground that the mortgage was given as collateral security for the performance of an agreement made by him to convey certain real estate to the mortgagee, the plaintiff's testatrix, and that he had offered- to perform the agreement by tendering a sufficient deed. Upon the trial the defendant testified in his own behalf that he had seen a paper signed by the plaintiff’s testatrix and himself, • and produced evidence tending to show that it was lost. He was then allowed, against the plaintiff’s objection and exception, to testify that the paper had been read to him and to state its contents.

      Held, that the evidence was inadmissible under section 829 of the Code of Civil" Procedure.
    Another defendant, a subsequent mortgagee, was called by the mortgagor and allowed to testify in his behalf as to a conversation had with the deceased.

      Held, that the evidence was inadmissible.
    Appeal from a judgment in favor of the defendants, entered on tbe report of a referee.

      L. 1. Dorwin and Elon R. Brown, for the appellants.

      O'Brien c& Emerson, for the respondents.
   Smith, J.:

This action was brought to foreclose a mortgage- The defense set up by the respondent, Abel Scott, was that the mortgage was given as collateral security for the performance of an agreement made by him to convey to the mortgagee, Maria E. Biddlecom, the plaintiffs’ testatrix, certain real estate, which agreement he had offered to perform by the tender of a sufficient deed. The defense was sustained by the referee upon conflicting testimony.

Certain exceptions were taken by the plaintiffs’ counsel which we think present serious errors.

The defendant sought to prove a written agreement in pursuance of which he alleged that the mortgage was executed. To that end he testified in his own behalf that he. had seen a paper signed by the plaintiffs’ testatrix and himself, and he produced evidence tending to show that the paper was lost. He then testified that the paper had been read to him, and he was then permitted to state its contents against an objection that he was incompetent to testify to the same under section 829 of the Code. We cannot doubt that this was error. The alleged agreement was a transaction between the defendant and the deceased person, whose representatives the plaintiffs were. If the writing had been produced it would have spoken for itself. But the defendant, having been obliged by reason of its loss to resort to parol evidence of its contents, could not supply the needed proof by his own testimony. His mouth was closed upon that subject as completely as if he had undertaken to testify to a parol agreement made by him with the deceased. If she had been alive and permitted to testify, her version of the contents of the lost paper might have contradicted his.

Charles A. Sherman, a witness called by the respondent, was permitted to testify to a conversation which he had with the plaintiffs’ testatrix, against an objection that he was incompetent under section 829. Sherman was a party defendant, and as a subsequent mortgagee was interested in the event. The objection was overruled erroneously. The fact that Sherman was offered as a witness for the defendant Scott alone did not obviate the objection. (Church v. Howard, 19 N. Y., 415; Hill v. Hotchkin, 23 Hun, 414; Allis v. Stafford, decided in this department in Jan., 1882, on second appeal and not reported.)

It is impossible to say that the testimony thus improperly admitted did not affect the result, and for the reasons above stated the judgment should be reversed.

Present — Taloott, P. J., Smith and Hardin, JJ.'

Judgment reversed and new trial ordered before another referee, costs to abide event.


text:
    JOHN LANSING and CHARLES A. SHERMAN, Respondents, v. MARIA E. HADSALL and Others, Executors, etc., of MARIA E. SEAVER, Deceased, Appellants, and ABEL SCOTT, Respondent, Impleaded with ROSALTHA A. SCOTT.

      Right of a defendant to home an independent issue, arising between himself and a co-defendant, tried— Gode of Oiml Procedure, sec. 1204.
    In this action, brought to foreclose a mortgage, the mortgagor and two other persons were made defendants, the complaint alleging that the two latter defendants held prior mortgages upon the premises, the amount due upon which was unknown to the plaintiff, and praying for the usual decree of foreclosure and sale, and that the mortgages of the plaintiffs and ,of the said defendants, respectively, he paid and satisfied out of the avails of the sale according to their respective priorities.

      Held, that the mortgagor could not in this action serve an answer raising an issue between himself and one of his co-defendants as to the validity of and amount due upon the prior mortgage alleged to be held by such co-defendant.
    Appeal from a judgment, entered on tbe report of a referee.

      L. I. JDorwm and Elon R. Brown, for the appellants.

      Henry Purcell, for the plaintiffs, respondents.

      O’Brien da Emerson, for Scott, respondent. ■
   Smith, J.:

The plaintiffs brought this action to foreclose a mortgage executed by the defendant Abel Scott, and they made Eosaltha Scott'and also Maria E. Seaver, the appellants’ testatrix, parties defendant, alleging in the complaint that each of them held a prior mortgage, the amount due upon which was unknown to the .plaintiffs. The complaint prayed for the usual decree of foreclosure and sale and that the mortgages of the plaintiffs and of the said defendants, respectively, be paid and satisfied out of the avails of the sale according to their respective priorities. The only defendants who appeared were Maria E. Seaver and Abel Scott. They procured copies of the complaint to be served on them but did not answer; and all the defendants having made default an order of rererence was entered to compute the amounts due on the respective mortgages above mentioned. On that reference a dispute arose between the counsel for Mrs. Seaver and Abel Scott as ,to the amount due on Mrs. Seaver’s mortgage and the reference was held open. The plaintiffs and the defendant Scott then stipulated to open the defaults and permit Scott and Mrs. Seaver to answer, but Mrs. Seaver declined to enter into the stipulation. The defendant Scott then served his answer, but there is no evidence that it was served on Mrs. Seaver or the appellants. ^Thereafter Mrs. Seaver died and the appellants were substituted in her place as defendants. By consent of all the parties appearing, an order was then entered referring “ the issues, if any,” to a referee for trial.' The answer of Scott did not put in issue any of the allegations in the complaint on which ■ the plaintiffs’ right of action depended, but it alleged that the Seaver mortgage was given as collateral security for the performance by Scott of an agreement made by him to convey to Mrs. Seaver certain land, and that he had offered to perform the agreement by tendering a sufficient deed which Mrs. Seaver had refused to accept. The executors of Mrs. Seaver appeared before the referee and objected to proof of the facts set up in Scott’s answer as against them. The referee overruled the objection and held that the service of the answer was regular and the executors were bound by it, and that the answer created an issue, between Scott and both the plaintiffs and the executors, to be tried. The referee, in substance, sustained'the averments in Scott’s answer and reported that the appellants were not entitled to any portion of the avails of the sale of the mortgaged premises.

The position is taken, that 'as the appellants suffered a default, they have no right to appeal. "What they complain of is that the judgment appealed from was not entered upon the default of themselves and the other defendants, but was'rendered upon the decision of an issue tendered, not by the complaint, but by the answer of their co-defendant Scott. As to that issue, according to the ruling of the referee, they were not in default.

It is a misconception to suppose that the answer of Scott tendered an issue to be tried in this action. It made no issue with the complaint, and it does not appear to have been served upon the appellants or their testatrix. If it had been so served, it would not have presented an issue to be tried in this action. It is true that section 1204 of the new Code, provides that the judgment in an action “ may determine the ultimate rights of the parties on the same side, as between themselves.” The same provision was in the old Code (§ 274), and Mr. Justice Earl said of that, in Kay v. Whittaker (44 N. Y., 576), “that defendants can have relief against each other only in a case in which they have appeared and answered, in reference to the claim made against them by the plaintiff, and as a part of the adjustment of that claim, and that it must be. based upon the facts involved in, and brought out by the litigation and investigation of that claim.” The provisions of the Code referred to are simply declaratory of the pre-existing practice in chancery. (Jones v. Grant, 10 Paige, 348.) In the present case, the complaint assumed the existence and validity of the Seaver mortgage, and simply denied knowledge of the amount due. Under the averments of the complaint nothing remained to be done but to compute the amount due. The answer of Scott, tendered an independent issue, not raised by the complaint, and' which could only be litigated in an action between Scott and his co-defendants.

On looking into the evidence we find that it is the same substantially as that given before the same referee in the case of Hadsall v. Scott, decided by us at the present term. The errors pointed out in the opinion in that ease exist in this.

The judgment must be set aside, and as no issue has been joined, the reference to hear and determine the issues, if any,” should be vacated, and the case should proceed under the order of reference to compute the amount due on the respective mortgages. The appellants to recover of the respondents their costs of this appeal, and their disbursements in the proceedings before the referee under the order of reference hereby vacated.

Hardin, J., concurred; Talcott, P. J., not voting.

So ordered.

       Reported, ante, p. 617.


author: Hardin, J.:

text:
    PEOPLE ex rel. DANIEL J. TOWNSEND and Others, as Commissioners, etc., Appellants, v. PETER A. PORTER, as President and Others, as Trustees, etc., Respondents.

      Constitution — the legislature cannot transfer to a new cvdl department the property of an eadsting municipality, without compensation and, wdthout the consent of the municipality.

    Chapter á¡5 of 1881 declares certain territory therein described, which includes the villages of Niagara Falls and Suspension Bridge, and small parcels of land lying between them, to be “a separate police district to be known as the Niagara Police District,” and provides for and establishes a police department therein. It then directs that “ all lock-ups, "station-houses or places for such detention in either of the villages of Niagara Falls or Suspension Bridge, in use at the time this act shall take effect, are hereby placed under the control and direction of the said board of police.” m

      Held., that as the act attempted to create an independent civil division not known to the Constitution, and to transfer to it the property of incorporated villages without their consent and without compensating them therefor, it was unconstitutional and void. (Smith, P, J., dissenting.)
    Appeal from an order made at the Erie Special Term denying a motion for a peremptory mandamus to compel the president and board of trustees of the village of Niagara Falls “ to deliver up to Daniel I. Townsend and others, as commissioners of police in the Niagara Police District, the possession or control and direction of all lock-ups, station-houses or places of detention in the said village of Niagara Falls in use on the 28th day of Play, 1881.”
    The police district was created and the board of police organized under chapter 415 of the Laws of 1881.

      Ellsworth (& Potter, for the appellants.

      Cyrus E. Doris, for the respondents.
   Hardin, J.:

Chapter 415 of the Laws of 1881 contains an act of the last legislature entitled “ An act to establish the Niagara Police District .and provide for the government thereof.”

The act declares certain territory described therein which includes the villasres of Niagara Falls and Suspension Bridge, and small parcels of land lying between, “a separate police district to be known as the Niagara Police District,” and it also declares a police department is hereby established therein, and a police justice and three police commissioners shall be appointed for the same with the powers and duties in this act provided.”

The sixteenth section of the act contains the following provision, viz.: “ And all lock-ups, station-houses or places for such detention in either of the villages of Niagara Falls or Suspension Bridge, in use at the time this act shall take effect, are hereby placed under the control and direction of the said board of police.” ,

Thus we have a clear attempt to create an independent civil-division not known to the Constitution, and to transfer to and deliver over to it by a legislative act the property of incorporated villages without the consent of said villages and without compensation to them.

The legislature has no such power conferred upon it, and its act is in excess of its discretion and power. The property of the municipality cannot thus be transferred to such a new organization. Such an act is in violation of the Constitution.

The principles laid down by the Court of Appeals in People ex rel. Bolton v. Albertson (55 N. Y., 50) condemn the act under consideration. It was therefore properly held, as stated in the opinion of the learned judge at Special Term, to be unconstitutional and void. The president and trustees of Niagara Falls were justified in refusing to surrender control of the lock-ups and property belonging to their corporation.

The mandamus was properly denied. And I therefore advise the affirmance of the order made at Special Term.

Order affirmed, with costs.

Dwight, J., concurred.

Smith, P. J., dissents, being of the opinipn that the case is distinguishable from The People ex rel. Bolton v. Albertson (55 N. Y., 50), and is controlled by The People ex rel. Wood v. Draper (15 N. Y., 532) and The People v. Shepard (36 N. Y., 285), the latter case being regarded as not having been overruled by the Albertson case.

Order appealed from affirmed, with costs.


text:
    ELIJAH P. TAYLOR, Jr., as Supervisor of the Town of Galen, Respondent, v. EMORY W. GURNEE, Appellant.
    Supervisor— how compelled to account for his acts as trustee of the gospel and school lot.

    When the supervisor of a town acting, under section 27 of chapter 179 of 1856, as “trustee of the gospel and school lot” improperly invests and thereby loses moneys belonging to such fund, an action to compel him to account and make good the loss thereby occasioned should be brought by his successor, who should describe himself in the' title of the action as the trustee of the gospel and school lot.
    Appeal from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried, after the rendering of a verdict in favor of the plaintiff.

      George Baker, for the appellant.

      Ya/nd&ribwrg <& Saxton, for the respondent.
   Hardin, J.:

Defendant was supervisor of the town of Galen in 1873, and until the town meeting in March, 1874. "While such supervisor he received $245, as such supervisor, belonging to the “gospel and school lot ” of the town of Galen.

Instead of investing such funds “ in loans, secured by bond and mortgage upon unincumbered real property of the value of double the amount loaned,” as required by section 3 of 1 Revised Statutes, 498, he loaneed the same upon a personal note of a borrower, who has never repaid them, and is now insolvent.

The plaintiff in his complaint alleged the “ defendant has never properly accounted for the said moneys belonging to said fund, and that said town of Galen by reason of the acts of defendant, as hereinbefore set forth, has sustained damages to the amount of $279.29, and interest from December 3, 1876.” '

Several times during the trial the defendant raised a question as to the right of the plaintiff to have and maintain this action, and insisted that the action should have been brought in the name of the town. The trial court ruled and decided adversely, each time-upon such questions, to the defendant, and exceptions were duly taken. Section 1 of 1 Revised Statutes, 497, provided for an election of “ trustees of the gospel and school lot,” and declared such trustees “ shall be a corporation for the purposes of their office.”

Chapter 186 of the Laws of 1846, declared “ the office of trus•tees of the gospel and school lots in the several towns in this State is hereby abolished; and' the powers and duties * * * shall hereafter be exercised by the town superintendent of common schools.”

Section 27 of chapter 179 of Laws of 1856, conferred and imposed all the powers and duties “upon the supervisors of towns,” and declared the same “ shall hereafter be exercised and performed by them.” (Chap. 179, Laws 1856.) In section 3 of 1 Revised Statutes, 498, is a provision requiring the trustees “to render a just and true account of the proceeds of the sales,” etc., “ on the last Tuesday next preceding the annual town meeting in each year, to the hoard of auditors, of the accounts of other town officers,” and “ to deliver over to their successors in office, all hooks, papers and securities relating to the same, at the expiration of their respective offices.”

1 Revised Statutes, 498, section 4, provides: “ The board of auditors in each town shall annually report the state of the accounts of the trustees of the gospel and school lots in that town, to the inhabitants thereof, at their annual town meeting.”

In section 6 it is declared “ the shares of such money to which the towns shall be respectively entitled, shall be paid to the trustees.” * * * And section 7 provides that in ease trustees shall not have been chosen, “ the share of such town shall he paid to the supervisor.” * * * These quotations from the Revised Statutes indicate that the property and funds belong to the towns, ■for the uses named, and they indicate that when the supervisor of the town obtained such moneys, they come to his hands “ by virtue of his office ” as trustee of the gospel fund.

When the supervisor converts such moneys to his own use he becomes liable to account for the same. We conclude, therefore, that the action before us was for money which came to the defendant’s hands “ by virtue of his office,” and was the money of the town, held as trustee of the gospel and school lot, and when recovered by the supervisor would pass to the custody of the supervisor of the town for its use, and like other moneys raised for the use of the town should be accounted for and paid over by its officer to his successor for the use of the town.

The several motions for a nonsuit were properly denied. The motion for a new trial on the minutes was properly denied and we must allow the order to stand. As trustee of the gospel and school lot the plaintiff was entitled to recover the moneys sought in this action. We may amend the complaint so that the proper title of trustee will' appear there. (Trustees of Baptist Society v. Robinson, 21 N. Y., 234.)

In virtue of his office he became by force of the statute such trustee. The verdict was right. The motion for a new trial was properly denied.

Order affirmed, with costs, and judgment ordered for plaintiff.

Smith, P. J., concurred; Dwight, J., not voting.

Order denying new trial affirmed.


text:
    In the Matter of the Petition of MARY BAKER and Others for the Appointment of a Trustee, etc.

      Administrator with the will, annexed — when he ma/y execute powers and trusts conferred upon the executor by the testator.

    The .will of a testator contained the following clause: “I give and bequeath to my granddaughters, Daisy Tucker and Lillian Tucker, children of my son James A. Tucker and his wife Mary Tucker, the sum of one thousand dollars, each to have one equal half, oí five hundred dollars, the said five hundred dollars to be delivered upon their severally arriving at the age of twenty-one years by my said executrix, or those administering my said estate, and the interest of said sum of one thousand dollars from such time after my decease as my executrix shall deem proper and necessary to be used and employed by my said executrix, herein mentioned and appointed, in the support, maintenance and education of my said two grandchildren, Daisy and Lillian Tucker, and for the support and maintenance of their mother, Mary Tucker, until my said grandchildren shall arrive to the age of twenty-one years.”

      Beld, that it was the intention of the testator that in case the executrix 'died before the grandchildren attained the age of twenty-one years the administrator, with the will annexed, should hold the thousand dollars and use and employ the interest thereof for the support of the grandchildren and their mother.
    That the executrix having died after entering upon the discharge of her duties, and administrators, with the will annexed, having been duly appointed by the surrogate, the court erred in appointing a trustee to receive the said sum and apply the interest as directed in the will.
    Appeal by the administrators, with the will annexed, of Horace B. Tucker, from an order made at the Onondaga Special Term.
    The order directed that Denio J. Dewey be appointed “ trustee of the trust estate of Daisy and Lillian Tucker, in the estate of Horace B. Tucker, deceased, and that he be vested with all the powers possessed by Harriet 0. Tucker, widow and executrix of the will of said Horace B. Tucker, deceased, at the time of her decease, in such trust estate, and that the administrators with the will annexed of the said Horace B. Tucker, deceased, be required to account to and pay over to the said Denio J. Dewey, as such trustee, all such sums of money as said Daisy and Lillian Tucker may he entitled to-receive for and on account of the said estate,” etc.
    The order was made on the petition of Mary Baker, nee Mary Tucker.
    Horace B. Tucker died August 8, 1877, leaving (a last will and testament, which was duly admitted to probate, and by which he appointed as his executrix Harriet C. Tucker, who duly qualified as such, and entered'upon the performance of her duties.
    In the will of Horace B. Tucker is found the following provision: “ Fourth. I give and bequeath to my granddaughters Daisy Tucker and Lillian Tucker, children of my son James A. Tucker, and his wife Mary Tucker, the sum of one thousand dollars, each to have one equal half, of five hundred dollars, the said five hundred dollars to be delivered upon their severally arriving at the age of twenty-one years, by my said executrix, or those administering my said estate, and the interest of said sum of one thousand dollars from such time after my decease as my executrix shall deem proper and necessary, to he used and employed by my said executrix, herein mentioned and appointed, in the support, maintenance and education of my said two grandchildren, Daisy and Lillian Tucker, and for the support and maintenance of their mother Mary Tucker, until my said grandchildren shall arrive to the age of twenty-one years.”
    Daisy Tucker of the age of seven years, and Lillian Tucker of the age of five years, children of James A. Tucker, are the surviving grandchildren named in the fourth provision of their grandfather’s will quoted above. Mary Baker, their mother, has married since the death of her former husband, James H. Tucker, and the children reside with her in the town of Sullivan, Madison county. After Harriet C. Tucker qualified as executrix of the estate of Horace B. Tucker, she entered upon the performance of her duties as such, and paid the interest on said $1,000 for one year, in accordance with the terms of the will. About the 7th day of March, 1879, she died. After her death, Parker L. Case and Alexander F. Plats and Rebecca Tucker were appointed administrators, with the will annexed, of the estate of Horace B. Tucker, deceased, by the surrogate of Madison county. They qualified and entered upon the performance of their duties as such in March, 1879. Since that time no payments have been made under the will of Horace B. Tucker.
    It is alleged in the petition that Horace B. Tucker, deceased, left at the time of his death sufficient property, real and personal, to pay and satisfy in full all of the legacies and devises contained in said last will and testament over and above all his debts and liabilities. It is also alleged that Mary Baker has been appointed general guardian of Daisy Tucker and Lillian Tucker, the grandchildren aforesaid.

      Brown <& Garfield, for the appellants.

      Lansing & Lyman, for the respondents.
   Hardin, J.:

Peculiar phraseology was used by the testator in giving a legacy of $1,000 to his grand children, Daisy and Lillian Tucker, and an interest in the income thereof, for the support and maintenance of their mother, Mary Tucker, until said grandchildren shall arrive to the age of twenty-one years.”

First. Nothing appeal’s in the clause before us expressly charging the legacy upon the real estate.

Presumably tbe legacy was not charged, and is not chargeable upon the real estate of the deceased. (Reynolds v. Reynolds, 16 N. Y., 257; Lupton v. Lupton, 2 Johns. Chan., 614; Herman Gerken's Estate, 1 Tucker, 49.)

It is averred that the testator “ left, at the time of his death, sufficient property, real and personal, to pay and satisfy in full all of the legacies and devises contained in his said last will and testament, over and above all of his debts and liabilities.”

This averment does not make it clear that there remains personal property sufficient to pay the legacy in question. However, if the views hereinafter expressed are correct, the absence of a positive averment that there is personal property sufficient with which to pay the said legacies is not important.

Second. It is observable that the testator gives and bequeaths “ the sum of one thousand dollars ” to be delivered to the grandchildren “ upon their severally arriving at the age of twenty-one years.”

From this it is apparent that the body of the legacy was not intended to pass to the beneficiaries until they should respectively attain their majority.

It is noticeable that the language providing that the legacy “ be delivered,” etc., seems to contemplate two exigencies. First, that in case the executrix named in the will survived, and was in execution of her trust until the children arrived at majority, that she should pay the legacy or deliver the same as the will directs.

And it is equally clear that it was the intent of the testator that the executrix, so long as she should survive, should apply “the interest of said sum of one thousand dollars” as she should deem proper and necessary, “ to be used and employed in the support and maintenance and education ” of the said two grandchildren, “ and for the support and maintenance of their mother, Mary.” So long as the executrix survived, it was clearly her duty to pay over the interest for the purposes named in the language of the testator; and for the purpose of paying over the interest it was apparent that it was the idea of the testator that the body of the legacy should be retained by the executrix in order that it might yield the “ interest ” to be disposed of as already stated.

The discretion given to the executrix respects the application of the interest or income of the legacy only. The body of the legacy is “ to be delivered ” upon the children’s severally arriving at the age of twenty-one years. We, therefore;, find a clear intent that the executrix retain the body of the legacy, if her life should continue until the maturity of the legacy, and that she should exercise the discretion confided to her in respect to the application of the interest accruing upon it. It is insisted, in behalf of the respondent, that when the executrix died there was no trustee to apply the interest which should accumulate upon the legacy, and our attention is called to the power of a court of chancery to appoint a trustee where there is a trust fund and no trustee to administer upon it or execute the trust.

Undoubtedly a court of chancery had general jurisdiction of all cases of trust, and had power by its general authority, independent of any statute, to displace a trustee, on cause shown, and to substitute another in his stead, and to appoint a trustee when none remained to execute the trust. (People v. Norton, 9 N. Y., 178; Holden v. N. Y. and Erie Bank, 72 id., 297.)

If there was no trustee surviving named by the testator, or as in this case if the death of the executrix could be said to have created a vacancy, then we think it would be no answer to an application to appoint a trustee to administer the trust, that the Revised Statutes (2 R. S., 72, § 22) has provided that administrators, with the will annexed, shall have the rights and powers and be subjected tO' the same duties as if they had been made executors in such will..

But it seems to us that the testator in using the language before us clearly contemplated the condition of things which has occurred in respect to his estate, and that he provided for the administration of the fund or control of the legacy and payments of the interest thereon in the language he used in the will. For, in addition to-apt words which indicate the duty of the executrix in respect to the legacy and the interest thereon, and following the power conferred upon her in respect to the legacy and the interest thereon, are these words: Or those administering my said estate.”

What effect shall be given to' these words ? Why were they inserted except to provide for the very event which has happened, to wit, the death of the executrix 3

It must be supposed the testator understood that in the event of the death of the executrix named by him the administration of his estate would pass to the administrators appointed, with the will annexed.

The words “ or those administering my estate ” seem to be apt words to describe persons coming legally to the administration of the estate. A reasonable construction of them seems to require me to hold that it was the intent of the testator that the payment of the legacy, in the case of the death of the executrix, should be made by those administering the estate, upon the children “severally arriving at the age of twenty-one,” and that they, therefore, are the persons intended by him to receive the interest on that legacy and apply the same from time to time for “ the support, maintenance and education of (his) said two grandchildren, Daisy and Lillian Tucker, and for the support and maintenance of their mother, Mary Tucker, until (his) said grandchildren shall arrive to age of twenty-one.”

It was said by Comstock, Oh. J., in Beekman v. Bonsor (23 N. Y., 303): “ The plaintiff is the administrator, with the will annexed, but he cannot in that character execute powers and trusts which were personal to the executors who have renounced. The statute, it is true, provides that ‘ in all cases where letters of administration with the will annexed shall be granted, the will of the deceased shall be observed and performed; and the administj'ators with such wills shall have the same rights and powers, and be subject to the same duties, as if they had been named executors in such will.’ ”

If the will before us was silent upon the subject of who should control and apply the body of the legacy, or the income thereof, it might be necessary that a trustee should be appointed. It has been settled by numerous adjudications that a testator may provide for a successor to an executor, and may provide that an executor may name his successor.

We think that within that principle it may be said to be competent for a testator to clothe persons administering his estate after the death of a designated executor with the rights and powers of an executor. It is a sufficient description when the designation is sufficiently certain that the person intended “ can be ascertained and known when the right to receive it accrues.” (Holmes v. Mead, 52 N. Y., 343.)

In this case the administrators with the will annexed are the persons referred to by the testator in the clause in the will directing the control of the body, as well as the interest of the legacy by his executrix, “ or those administering (his) said estate.”

It follows, therefore, if these views be correct that there was no vacancy to be filled. When the executrix died, and the administrators with the will annexed were appointed, they were charged with the continuation of the rights and duties which had theretofore devolved upon the executrix, and it is their duty to deliver over the body of the legacy and to apply the interest accumulated or accruing thereon to the beneficiaries named by the will.

If they failed to discharge their duty an application may be made to the surrogate having jurisdiction of them to compel their observance of the provisions of the will, as now, by statute the surrogate has jurisdiction over administrators as such, and over testamentary trustees. (Code of Civil Pro., §§ 2815, 2819, etc.)

The order appealed from should be reversed, with ten dollars costs and disbursements.

Talcott, P. J., and Smith, J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: HaRdin, J.:

text:
    JACOB L. HAAS and Others, Plaintiffs, v. EDWIN ROAT, DEFENDANT, IMPLEADED, ETC.

      Partnere — When an interest in the profits renders one liable as such, to third persons.

    The defendant Roat advanced $100 to the defendant Mear, a traveling showman, upon the agreement that after the payment of all expenses Roat was to receive hack the $700'and have one-half of the net profits.

      Held, that the defendants were partners as to third persons irrespective of any agreement to the contrary between themselves.

      Haas v. Boat (16 Hun, 526) followed.
    Motion by the defendant for a new trial on a case and exceptions, ordered to be heard in the first instance at the General Term, after a verdict directed for the plaintiffs at the Erie Circuit.

      Thomas Oorlett, for the defendant.

      George Wadsworth, for tbe plaintiff.
   HaRdin, J.:

Formerly (16 Hun, 526) when this case was here, it was held that defendant Boat advanced $700 to defendant Mear, a traveling showman, upon the agreement that after payment of all expenses Boat was to receive back the $700 and one-half of the net profits, and that “ the defendants were partners as to third persons irrespective of any agreement to the contrary between themselves.”

And it was said in the opinion of Taloott, J., that such is the “ law already established in this State,” for which he cited Manhattan Brass Company v. Sears (45 N. Y., 797); Ontario Bank v. Hennessey (48 id., 555) ; Leggett v. Hyde (58 id., 272); Greenwood v. Brink, (1 Hun, 227).

Upon the trial now brought here for review the evidence of the defendant Boat as given in the first trial was brought in and was read, and he was also examined as a witness. He said that the testimony given in the former trial was true, and that he had “nothing more to say concerning that arrangement but what I have said now and said before.”

The evidence was held on the former appeal to indicate that Boat was to have a proprietary interest in the profits of the business.

He says on this trial that Mear was “ to pay me back my money and one-half the net profits.” “ That was the arrangement between us.”

The prior decision is applicable to the case as now here presented, and requires us to adhere to the opinion then expressed. Since that decision several decisions have been made by the Court of Appeals, which the learned counsel for the defendant insists call for a different result here now. We do not so understand the cases.

In Richardson v. Hughitt (76 N. Y., 58) it was distinctly stated that the money was in the nature of a loan, and “ it did not constitute a portion of the capital of the firm, and was not to go into its general business.” The amount of profits which were to be received by Hughitt was a compensation for loaning the money, and not as the profits of a partner. In the case of Burnett v. Snyder (76 N. Y., 351) it was said: “If the firm earned profits Snyder could not compel a division, for in the general profits of the firm he has no interest.” That case is distinguishable from the one in hand.

So, too, is the case of Burnett v. Snyder (81 N. Y., 555), in which ANDeews, J., says:But the participation in the profits of a trade which makes a person a partner as to third persons is a participation in the profits as such, under circumstances which give him a proprietary interest in the profits before division as principal trader.”

In the course of this opinion he approves and states the rule as laid down in Leggett v. Hyde (58 N. Y., 272).

In Curry v. Fowler (13 Weekly Dig., 287) the doctrine of the case of Richardson v. Hughitt (76 N. Y., 58) is approved and reapplied -in an opinion by the same judge who wrote in the case in 76 New York, and it is again stated that “a person who has no interest in the business of a firm or in the capital invested, save that he is to receive a share of the profits as a compensation for services, or for money loaned for the benefit of the business, is not a partner and cannot be held liable as such by a creditor of a firm.”

In the case in hand the defendant was to advance and furnish money to aid in getting ready for the business, and a joint venture was agreed upon, and out of which was to come back to the defendant Boat the money put in by him as part of the capital, and one-half of the net profits as such, which, as they accrued, were to be his property — his share of the venture. (Rosenfield v. Haight, 25 Alb. Law Jour., 158.)

It was proper to allow evidence tending to show why the account was entered upon the books of the plaintiff by their book-keeper.

Though the manner in which the account was entered in the plaintiff’s books was not very material, the explanation made wras harmless. In the view we have taken of the main question in the case, it becomes unimportant to consider the ruling as to Boat’s knowledge of what became of the assets of the traveling show. Nor was there any error prejudicial to the defendant in the trial judge’s ruling admitting the whole of a statement made upon a former trial, which had been proven in part by the defendant. (Roberts v. Roberts, 25 Alb. Law Jour., 96, and cases cited.)

As the agreement as stated by the defendant Boat, as a witness, is the one upon which the verdict rests, there was no question of fact upon wbicb we can say tbe jury would have been justified in finding for the defendant. There was therefore no error in directing a verdict.

Motion for a new trial denied find judgment ordered for plaintiffs upon the verdict. (Bank v. Dana, 79 N. Y., 116.)

Smith, P. J., concurred ; Haight, J., not voting.'

Motion for new trial denied and judgment ordered for plaintiffs upon verdict.


text:
    JOHN BELDEN, Respondent, v. WILLIAM H. SLADE, as Assignee, etc., and Others, Appellants.

      Irregular foreclosure of mortgage — right of a judgment creditor, not a party to the foreclosure, to redeem from the'-sale — costs of the action.

    The plaintiff recovered a judgment against one Witty, which was docketed after five mortgages, given by Witty upon the premises described in the complaint in this action, had been duly recorded. Thereafter Witty failed and one Slade was appointed his assignee in bankruptcy. Subsequently the owner of the first mortgage brought an action to foreclose it, to which neither the assignee nor the plaintiff was made a party. At the sale under the judgment in that action the assignee, in pursuance of an agreement with the mortgagee, and under the belief that the plaintiff’s judgment was paid, purchased the premises and thereafter conveyed them by a warranty deed to the defendant Banks for the sum of $3,800. In this action brought to redeem the premises the plaintiff procured a judgment directing that upon the payment to the defendant Banks-of the amount of two of the mortgages and of the dividends received by the other two mortgagees (who satisfied their mortgages in consideration thereof) the plaintiff should be entitled to all the estate of the defendant Banks, and ordering her to make a conveyance of the premises to the plaintiff.

      Held, that the conveyance from the assignee to the defendant Banks transferred to her not only the equitable rights of the mortgagees but also the unforeclosed equity of redemption vested in such assignee, and that the plaintiff having only an unenforced lien upon the premises was not entitled to the judgment directed below.
    Although a subsequent incumbrancer seeking to redeem the premises from a sale, in a foreclosure action ineffectual as to him, will not be required to pay the costs of such ineffectual action, yet he will be required to pay the costs of the action to redeem brought by him unless it is improperly resisted by the defendant.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      The action was brought by a judgment creditor to redeem certain premises in the town of Alden, in the county of Erie, from a sale had upon the foreclosure of a mortgage.
    The judgment was against William Witty for $392.76, and was docketed in Erie county January 16, 1873. The mortgage was made by Witty to Truman Tremain, April 10, 1869, and recorded May 29, 1869, and was for $1,000. April 9, 1873, a petition in bankruptcy was filed against Witty, and on the 22d of May, 1873, he was adjudged a bankrupt, and soon thereafter William H. Slade was appointed his assignee. The action for foreclosure was commenced August 28,1873, judgment was entered therein October 23, 1873, and on the 9th of December, 1873, the premises were sold under the judgment for $870.21, that being the amount due thereon.
    Neither Slade, the assignee, nor Belden were made parties to that action, it having been erroneously supposed that Belden’s judgment had been paid.
    Micajah Maxon, Harriet Witty, Laura Blennerhassett and Elizabeth York were made parties defendant because each had a mortgage on the same premises made by William Witty, and executed and recorded after that to Tremain, but before the recovery of the judgment by Belden. There was due on these mortgages at the time of the foreclosure sale as follows: To Maxon, $350 and interest from January 22, 1872; to Harriet W. Witty, $1,017 and interest from January 4, 1873; to Elizabeth York, $500 and interest from January 4, 1873, and to Laura Blennerhassett, $930 and interest from the same date. Witty’s bond in each instance accompanied his mortgage. The mortgages to Witty, York and Blennerhassett were severally given within four months of the filing of the petition in bankruptcy, to secure debts which were in part precedent, and Slade, as assignee, claimed, at the time he made the agreement hereinafter recited, that they were void under the bankrupt act.
    This being the situation, pending the action of foreclosure and before the sale Tremain, the plaintiff, Slade, as assignee, and these mortgage creditors (all supposing that the Belden judgment had been paid) made an agreement by which it was arranged that Slade, as assignee, should purchase the premises at the foreclosure sale and execute to Tremain a mortgage for the amount due on his judgment, and that be sbonld also execute to Maxon a mortgage on the same premises to secure the payment of $396.06, the amount due on his mortgage; to Laura Blennerhassett a like mortgage to secure the payment of $671.03, a part of her debt, and allow her to prove her debt against the bankrupt’s estate for the balance; and that Elizabeth York and Harriet W. Witty should also be permitted to prove their debts to the full amount against said estate and share in the dividends from such estáte, and that they should discharge all their mortgages of record and accept in lieu thereof the new mortgages and the dividends.
    This agreement was carried out by a sale of the premises and the execution of the mortgages and the subsequent payment of dividends from the estate July 22, 1875, as follows, viz.: To York, sixty-three dollars and sixty-six cents; to Blennerhassett, thirty-six dollars and twenty-one cents, and to Harriet W. Witty, $127.66 ;■ and the junior mortgagees on the day of the foreclosure sale discharged their mortgages in fact and of record.
    On the 8th of May, 1874, Slade, as assignee, conveyed the premises by warranty deed to the defendant Almira E. Banks for $3,300, which she paid down and thereupon she took possession and received the rents, etc., of the land, which, at the date of the referee’s report, amounted to $1,035. On the eleventh of May he paid out of the consideration moneys received from Mrs. Banks the new mortgages to Tremain, Maxon and Blennerhassett and took discharges thereof. There are no more moneys applicable to the payment of claims against Witty’s estate, and there was no proof whether there were or were not other assets.
    The referee decided that the piain-tiff might redeem from the sale upon paying to Mrs. Banks the amount of the new mortgages to Tremain, Maxon and Blennerhassett, and of the dividends received by them and Harriet Witty and York, with interest, amounting in all to $2,802, less $1,035, the rents, etc., received by her, and that thereupon the plaintiff would be entitled to all the estate which Mrs. Banks had acquired from Slade free and clear from all the mortgages and liens aforesaid.
    He also decided that the old mortgages could not be revived to any greater extent than the amount paid by Slade, as assignee as aforesaid, to procure their discharge, and that the plaintiff was not bound to pay the costs of the foreclosure and sale in the action by Tremain.

      Thomas Co?'lett, for the respondent.

      Sherman (J. Rogers, for the appellants.
   Hardin, J.:

Plaintiff, a judgment creditor of William Witty, is entitled to redeem of Mrs. Banks, so far as she is the assignee of the five mortgages executed by Witty upon the lands described in the complaint. (Brainard v. Cooper, 10 N. Y., 356, opinion of Gardiner, J.; Gage v. Brewster, 31 id., 218; Peabody v. Roberts, 47 Barb., 91; Benedict v. Gilman, 4 Paige, 58; Reynolds v. Park, 53 id., 36; Ross v. Boardman, 22 Hun, 527.)

Not having been made a party to the Tremain foreclosure the plaintiff’s rights as a judgment creditor were not cut off by that foreclosure, and Slade, as assignee, was the purchaser at that foreclosure sale, and as such purchaser, acquired in equity the rights of an assignee of the Tremain mortgage to the extent of the debt then due upon that mortgage and the decree of foreclosure.

After payment of the moneys called dividends, Slade, as assignee, became in equity an assignee of the mortgages'upon which he paid them pro ta/nto the payments, and by his conveyance to Mrs. Banks, in equity such mortgages were assigned to her, and she is entitled to receive the amount paid therefor by Slade, with interest, less -the rents and profits received by her out of the mortgaged premises which she possessed as mortgagee under the covenants and assignments so passing to her.

A mortgagor cannot redeem without paying what is really due, •and when a mortgagee buys in an incumbrance, he shall be allowed •as against the mortgagor all that is due upon it, though he bought it for less. But it is otherwise if the heir or trustee of a mortgagor buys in an incumbrance, as against subsequent incumbrancers and creditors, in which case he can only be allowed what he has paid for an incumbrance. (2 Barb. Oh. Pr. [Rev. ed.], 199, and two cases cited in note jo.)

But she acquired more than the rights of an assignee of such mortgages, when she took the title from Slade as assignee, and paid him $3,300 for the premises.

Slade, as assignee, held the equity of redemption in the premises •before and at the time of the sale upon the Tremain decree of foreclosure, which he took from Witty the debtor, subject, it is ti'ue, to the lien of the five mortgages and the plaintiffs judgment. (Winslow v. Clark, 47 N. Y., 261.) To the Tremain foreclosure, Slade, as assignee, was not made a party, and such title was not thereby cut off, and in equity, it may be said he held such legal title independent of the rights acquired at the foreclosure sale. The equitable rights were not merged in the legal title. (Franklin v. Hayward,, 61 How., 45; Payne v. Wilson, 74 N. Y., 354.)

While he cannot question the validity of the Tremain mortgage, and while he doubtless would be estopped from setting up a title in the premises as against his grantee, he is not as to the plaintiff here, estopped.

Nor is his grantee, Mrs. Banks, left to stand as against the plaintiff upon the equitable interests which she takes as assignee of the mortgages which come to her through the Tremain foreclosure and the conveyance of Slade. Plaintiff has never sold the equity of redemption. He is not entitled to a conveyance thereof from the defendant Mrs. Banks, no more than he would have been while it remained in Slade, as assignee, the plaintiff’s judgment debtor.

It may be assumed that so much of the money paid by Mrs. Banks to Slade, as assignee, as was required to pay for the equitable rights held by him in virtue of the mortgages acquired by him, was paid therefor, and that the balance was paid to Slade to acquire the equity of redemption held by him, which he acquired directly from Witty, the bankrupt, through the proceedings in bankruptcy.

To obtain such balance it may be assumed Slade gave such title, and his covenants of warranty to Mrs. Banks. Thus she has acquired the legal title from Slade, and the equitable rights which he acquired as purchaser at the Tremain sale, and by means of the several payments which he made to acquire the mortgages.

So far as the report and judgment in this case require Mrs. Banks to convey to the plaintiff the title which she thus acquired, independent of the equitable interests in the mortgages, they do injustice to Mrs. Banks. They leave her only a right of action against Slade upon Ms covenant of warranty to recover so much of the purchase money paid by her as remains unrestored by realizing what was paid by Slade for the mortgages, and paid to her as in liquidation of her rights as assignee of the mortgages.

Besides, if she is required to part with such title to the plaintiff ■and he be allowed to acquire it as “ the owner thereof,” as stated in the sixth finding of law, the defendant is required to part with it without any adequate compensation, and the plaintiff is allowed to acquire it without any judicial sale thereof or equivalent compensation.

If she be compelled to execute “ all such conveyances and acquitances as may be necessary properly to carry out and enforce the decree ” which declares, viz., “ that the plaintiff shall he vested with all the title conveyed to the said Almira E. Banks by said defendant Slade, free and clear from all liens and incumbrances,” then the plaintiff would acqmre the legal title without any sale by judicial proceedings either upon his execution against the debtor or by virtue of any foreclosure having validity against the former or present owner.

He has come into a court of equity, asking equity and he should be required to do equity. (2 Fonbl. Eq., B. 2, chap. 3, § 9, and note 3 to Story’s Eq., § 1023.)

Such a result ought not to be accomplished in the name of equity. The mortgage foreclosure was no more effectual upon the equity of redemption than upon the rights of plaintiff as judgment creditor. (Van Slyke v. Shelden, 9 Barb., 278; 22 Hun, 527; Winslow v. Clark, supra.)

The legal title of the mortgagor passed to his assignee Slade, and as Slade was not a party to the foreclosure as assignee, he had the legal title and it was competent for him to pass that legal title, together with the equitable interests he acquired in the lands in virtue of becoming an assignee of the Tremain mortgage by means of the purchase at the sale as against the plaintiff here, and he transferred such equitable interests, as well as the legal title to Mrs. Banks. (Trimm v. Marsh, 54 N. Y., 599.) That the plaintiff could sell upon his judgment and execution, and Mrs. Banks might become a purchaser thereof. (Trimm v. Marsh, supra.) Hntil a sale it remains in Mrs. Banks, and in virtue of it she would be entitled to redeem from any sale which the plaintiff can make upon his judgment. It is a valuable title which ought not to be divested in a summary mode. (Farrell v. Parler, 50 Ill., 274.)

It was said in Bolles v. Duff (43 N. Y., 474) that in general strict foreclosures are regarded as a severe remedy, as they transfer the title without any sale; and Judge Peokham added in that case, “ they are now rarely pursued or allowed in this State, except in cases where a foreclosure has once been had and the premises sold, but some judgment creditor or person similarly situated not having been made a party, lias a right to redeem. As to him, a strict foreclosure is proper.”

In the case in hand we have attempted to show that the legal title has not been sold, and the defendant Banks holds it unforeclosed and she is entitled to hold it until divested in the mode prescribed by statute for enforcing judgments and mortgages by foreclosure or sale upon execution, especially as no reason is given for asking the intervention of a court of equity to interpose and compel her to convey it to a lienor.

In Brainard v. Cooper (10 N. Y., 349) it is stated that the plaintiff there held a lien which would expire before a sale by execution could be made effectual. “ His sole remedy was by redemption.” Not so here.

It was held in Pardee v. Van Anken (3 Barb., 534) that every person who has any right to, or interest, or lien upon the lands embraced in a mortgage which is liable to be foreclosed, is entitled to ■ a redemption, and that the owner of the fee of the equity of redemption redeems the land itself; and the decree in such cases directs the mortgagee to convey all his right and title to the premises to the redeeming party. “The owner of a junior indumbrance redeems not the premises, strictly speaking, but the senior incumbrance, and he is entitled not to a conveyance of the premises, but to an assignment of the security.”

In that case it was held further, that a satisfaction would not afford adequate relief, and that an assignment should he made of the prior mortgage.

The learned judge who delivered the opinion in that case said the right to an assignment “ springs directly from the general right of redemption.” (Dauchy v. Bennett, 7 How., 375.) Johnson, J., in alluding to Pardee v. Van Anken (supra), says the right to an assignment- does not spring from the right to redemption, but “rather from the necessity of the assignment to the protection of some right in the person redeeming;” and then he adds that to entitle a party to an assignment he should show that such an assignment is necessary to protect such title or funds in his hands. And Johnson, J., adds: That before a sale upon judgment the creditor had a mere lien, and had they then come to redeem would have redeemed the prior incumbrance, and not the premises. (7 How., 378.)

The rule laid down in these two cases is applicable here,,and shows that the report and decree are erroneous in requiring a conveyance by Mrs. Banks of the premises to the plaintiff, who has only a judgment lien upon them. (Salmon v. Allen, 11 Hun, 32.)

It is well settled that a party having a subsequent incumbrance when he redeems need not pay costs of a foreclosure ineffectual as to the party redeeming. (Vroom v. Ditmas, 4 Paige, 526; Benedict v. Gilman, Id., 58; Vanderkemp v. Shelton, 11 id., 28; Peabody v. Roberts, 47 Barb., 91; 81 N. Y., 218.) It is equally well settled that a party thus redeeming should pay costs of the suit to redeem, unless the defendant improperly resists the right to redeem. (Vroom v. Ditmas, supra; Raynor v. Selmes et al., 52 N. Y., 582.) We find no evidence in the case of any improper resistance by the defendants, Mrs. Banks and Slade, and we therefore see no ground upon which the referee, within settled rules, should have charged upon them the costs of the redemption suit. (Benedict v. Gilman, supra; Willard’s Eq. Jur., 449.)

Judgment reversed, and a new trial ordered before another referee, with costs to abide the event.

Smith, P. J., and Haight, J., concurred.

So ordered.


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    THE ROCHESTER SAVINGS BANK, Respondent, v. JAMES G. AVERELL and Others, Appellant’s.

      Manufacturing corporation — execution of a mortgage by it — failure to file the stockholders’ consent in the proper county — when a subsequent mortgagee with knowledge of the fact cannot attack it.

    The plaintiff loaned to a manufacturing corporation, created under the general manufacturing act, $10,000, and received from it á bond executed not only by the company but also by certain other persons as sureties, and also a mortgage upon the real estate of the company as collateral thereto. The requisite consent of the stockholders to the execution of the mortgage was not given at the time, but the same was subsequently given and thereupon the mortgage was reacknowledged and again recorded. By mistake the consent was not 'filed in the office of the clerk of the county where the land was situated, but it was filed in another county clerk’s office. Subsequently another mortgage was duly given by the company upon the same property, which was at the request of the trustees of the company foreclosed and the premises covered by the plaintiff’s mortgage were purchased by the defendants Averell, who were stockholders and creditors of the company. Both the second mortgagee and the defendants Averell had full knowledge of the existence of the plaintiff's mortgage.

      Held, that the defendants Averell could not dispute the validity of the plaintiff’s mortgage on the ground that the consent of the stockholders to the execution thereof had not been filed in the proper county.
    Appeal from a judgment of foreclosure, entered upon the decision of a Special Term, directing the sale of the premises described in the plaintiff’s mortgage, for the purpose of realizing $10,000 and interest thereon due to the plaintiff. The mortgage was given by the Ontario Iron Company, a manufacturing corporation organized under the Law of 1848.
    The defendants set up that the mortgage was void, because no consent, in writing, of the stockholders of the Ontario Iron Company, to the making of the plaintiff’s mortgage, was ever filed in the clerk’s office of Wayne county, that being the county where the real estate mortgaged was situated.
    The plaintiff’s mortgage was made January 2,1874, and recorded January 21, 1874. No consent of the stockholders had then been obtained, but in November, 1874, a consent of more than two-thirds of the stockholders was obtained and the mortgage was then reacknowledge*! and again recorded. By the inadvertence or mistake of the attorney for the bank, the consent was not filed with the clerk of Wayne county, but with the clerk of Monroe county. Subsequently, May 9, 1877, the Ontario Iron Company being indebted to Clark, Dodge & Co., of New York, for amount of $59,000, made its bond and mortgage upon the same real estate to James S., Bean, who advanced the money for the purpose of taking up the debt to Clark, Dodge & Co. In 1878, Bean, at the request of the trustees of the iron company, foreclosed the said mortgage and caused the premises covered by the plaintiff’s mortgage and by his own, to be sold on the 9th day of August, 1878, and the referee’s deed to be given to James G. and William Averell for $31,500. The Averells thereupon went into possession of the premises.
    The Averells became stockholders in the iron company in July, 1874, and held 570 shares of stock of the par value of $57,000, and they have ever since continued to be stockholders. In January, 1875, they became trustees in the said company and resigned in April, 1877. In May, 1878, the company was insolvent and obliged to stop business.
    Several stockholders’ meetings were held in 1878, for the purpose of arranging the affairs of the company, and the defendants, Averells, were present at two of the meetings, viz., William at one held August 20, 1878, and James G. Averell at the one held on October 18, 1878. A statement of the affairs of the iron company was prepared in January, 1877, which was signed by both of the Averells, and it stated that the debts then existing against said corporation were $191,404.28. In that statement the plaintiff’s debt of $10,000 was included, and a debt of about $58,000 to Averells and their firms.
    The assent of the stockholders to the $59,000 mortgage to Bean bears date April 6, 1877, and-was executed, among others, by the Averells.

      Louis HasbrooJc, for the appellants.

      Edward Harris, for the respondent.
   Hardin, J.:

The Ontario Iron Company was indebted to sundry persons, and for the purpose of paying those debts it applied to the plaintiff, in 1874, to borrow, and did borrow $10,000, with which it paid off the indebtedness of the company.

The object of the loan was within the provision of the act of 1848 (chap. 40, as amended by sec. 2, chap. 517 of 1864), authorizing a mortgage upon its property to pay debts. (Carpenter v. Black Hawk G. M. Co., 65 N. Y., 44.)

Had the assent of two-thirds of its stockholders been obtained and filed the mortgage would have been valid. But the mortgage was put upon record without obtaining such assent and was, therefore, invalid. (Vail v. Hamilton, 20 Hun, 355; S. C. affirmed, 12 Weekly Dig., 417; Greenpoint Sugar Company v. Whitin, 69 N. Y., 334.)

In November, 1874, the assent of two-thirds of the stockholders approving of such mortgage was obtained, and by inadvertence or mistake it was not filed in the clerk’s office of Wayne county where the property mortgaged was situated, but was filed in the clerk’s office of Monroe county.

The mortgage was not thereby rendered valid ; it still remained inoperative under the acts of 1848 (chap. 40) and the amendment, of 1864 (chap. 517), if the filing of such assent is to be regarded as a condition precedent. It seems, as against an incumbrancer in good faith or a purchaser in good faith, having no notice that such assent had been obtained, the mortgage must be deemed inoperative.

But in this case the assent was obtained, and therefore as to the stockholders and the company the object of the statute was answered. Filing of the assent must be assumed to be required to apprise subsequent incumbrancers of the amount in which the stockholders have authorized their property to be’ incumbered.

It is found as a fact that Bean as well as said Averills had full knowledge of the existence of the plaintiff’s mortgage at the time he took his bond and mortgage from said company. We cannot say the finding is unsupported by the evidence offered and received at the trial. The defendants Averells are not purchasers in good faith. They had notice of facts sufficient to put them upon inquiry, and it must be assumed that before they purchased the premises at the referee’s sale they ascertained that two-thirds of the stockholders had actually assented to the mortgage held by the plaintiffs. ( Williamson v. Brown, 15 N. Y., 356; Brumfield v. Boutall, 24 Hun, 456.) Besides, in equity the lands had become the primary fund for the payment of the plaintiff’s debt.

A bond had been executed by the iron company for the money borrowed of the plaintiffs, and the plaintiff’s mortgage was held as collateral to that bond, which was not only the bond of the iron company but of Howard, Kellogg, Rogers & Howe, as sureties. When the bond and mortgage are read together in the light of the facts, and the situation of the parties at the time they were executed, it is apparent that the iron company was the principal debtor and the other persons executing the bond were sureties. They had the right, therefore, to have the property of the principal debtor considered in equity as the primary fund for the payment of the plaintiff’s debt; and it must be assumed that Bean and the Averills being put upon inquiry knew of the relation occupied by the sureties upon the bond to the plaintiff, and that when the Aver-ells purchased from the referee they were aware that in equity, as to the company as well as to the stockholders, the lands had been appropriated to pay the plaintiff’s debt. (Carpenter v. B. H. G. M. Co., supra)

The object of the statute may be answered if we assume the defendants are not in a situation to invoke the statute to invalidate the plaintiff’s mortgage, and thereby vest them with an interest in the lands, which in equity they ought not to have; and if good faith is observed by them, they ought not to attempt to assert.

The defendants ought not to be heard in objecting to the validity of the mortgage held by the plaintiff.

The purpose of the statute was to protect stockholders of the company and bona fide creditors of the company. (Beecher v. Marquette and Pacific Rolling Mill Co., opinion of Cooley, J., and cases cited, 23 Albany L. J., 316; Post v. Dart 8 Paige, 639, and note).

In equity the plaintiff ’ s mortgage was a lien, valid against the company and its stockholders, and ought to be maintained as a lien upon the premises as against the defendants, Averills, who acquired the legal estate with full knowledge that the lands, as the primary fund, ought to pay the debt held by the plaintiff. (Lanning v. Tompkins, 45 Barb., 316; Payne v. Wilson, 74 N. Y., 352.)

If we test the position of the defendants by an inquiry as to what the intent of the company was in giving the second mortgage, after its stockholders had (two-thirds of them) assented to the prior mortgage, we must come to the conclusion that it did not intend to transfer any greater interest in the equity of redemption than remained after the prior mortgage had been taken therefrom.

That being so, the defendants are in no better position than Hyde and Everett were when they sought to invalidate a prior mortgage, which was, by the terms of their mortgage, made- a prior lien upon the property of their mortgagor. (Hardin v. Hyde and Everitt, 40 Barb., 435.)

Hpon the mortgage given by the company to the plaintiff, and the bond, together with the assent of two-thirds of the stockholders the plaintiff relied, and, therefore, the company ought to be estopped from questioning the security of the plaintiff; being estopped, those claiming under it, with notice of facts sufficient to put them on inquiry, equitably ought to be held equally estopped.

Of course, in the views already expressed, it is borne'in mind that this ease differs from Vail v. Hamilton (supra), where there was not the requisite assent given by the stockholders, while here the assent was given but not filed.

And this case differs from that long line of cases holding that in the case of a party succeeding to the legal title by execution and judgment sale, or by purchase made irrespective of the prior incumbrance; that a defense of usury may be made to the prior incumbrance. As the statute as to usury differs from the one now before us, and the cases arising where such a defense has been interposed successfully, rest upon the statute. (Dix v. Van Wyck, 2 Hill, 522; Williams v. Tilt, 36 N. Y., 325; Mason v. Lord, 40 N. Y., 476; Merchants’ Ex. Bank v. Com. Warehouse Co., 49 N. Y., 635; Knickerbocker Life Ins. Co. v. Hill, 16 Abbott [N. S.], 327.)

The defense interposed by the Averells is not predicated upon their right as stockholders to question the first mortgage, but it is interposed rather upon their position of purchasers of the legal title.

We see no force in the suggestion that the iron company or its receiver was a necessary party. The defendants Averells had acquired the legal title, and they represented .the fee to be affected by a sale upon the plaintiff’s mortgage.

Judgment should be affirmed, with costs.

Haight, J., concurred; Smith, P. J., not voting.

Judgment affirmed, with costs.


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    In the Matter of JAMES KILLORAN, Jr., Respondent, v. JOSEPH BARTON, Appellant.

      Gomplaint of an apprentice against Ms master — the decision of the magistrate is not renewable on appeal— Gode of Criminal Procedure, secs. 931, 932.
    Where an apprentice or servant makes a complaint to a magistrate under section 931 of the Code of Criminal Procedure, accusing his master of cruelty or any other violation of duty, the decision of the magistrate thereon is not reviewable on appeal.
    Appeal from an order of the Court of Sessions of Onondaga county, dismissing an appeal from the decision of F. A. Marsh, a justice of the peace in the city of Syracuse, in a proceeding instituted by Killoran, an apprentice, against Barton, the master, under section 931 of the Code of Criminal Procedure. The Court of Sessions dismissed the appeal upon the return of an order to show cause and Barton appeals from such order to this court.

      T. K. Fuller, for the appellant.

      Thomas TIoga/n, for the respondent.
   Hardin, J.:

Title 9 of the Code of Criminal Procedure is entitled “ Of Proceedings respecting Masters, Apprentices and Servants.”

Two classes of proceedings are provided for by that title; one to be taken by the master, the other by apprentices and servants.

The latter proceedings are authorized in section 931 and subsequent sections. If the master be guilty of cruelty, misusage, etc., the section (931) declares, the apprentice or servant “ may make complaint on oath to any of the magistrates mentioned in the section (927).” The magistrates there named are a justice of the peace, or police justice in the county, or the mayor, recorder or city judge of the city where he resides. (See also secs. 146 and 147, Code of Criminal Procedure.)

By section 931, it is provided the magistrate “must summon the defendant before him at a specified time and place.”

By section 932 the magistrate must immediately * * * proceed to hear the allegations and proofs of the parties, and if the complaint be well founded must, by a certificate under his hands with his name of office, discharge the apprentice or servant from the service of his master; or, if not, he must, by a similar certificate, dismiss the complaint.

It is observable that there is no provision made foi a warrant of arrest, as in cases of crime, as in sections 150 and 151, in eases where the crime complained of has been committed,” etc. Nor is there any provision for a conviction, or for a judgment as such, in terms, in sections 931 and 932. Nor is there any provision for an arrest “ to answer for a crime,” as defined by section 167, upon taking a person into custody under a warrant. (Sec. 168, et seg.) In section 934 another case is provided for than those named and included in sections 931 and 932, and in section 935 it is provided “ the magistrate must take a written undertaking from the master, for his appearance at the next Court of Sessions of the county.” Thus we see that in the case when the legislature intended a review in the Court of Sessions, a special provision for it was prescribed.

Such special provision suggests, forcibly, the idea that there was no intent to provide for a review by a Court of Sessions of the other cases enumerated in sections 931 and 932.

Another indication that the legislature did not intend to provide for an appeal in cases arising under sections 931 and 932 is found in the language of section 749, where the right of appeal is given in words that do not include cases where only a certificate is to be made by a magistrate. Section 749 is, viz.: “A judgment upon conviction, rendered by a Court of Special Sessions, .may be reviewed by the Court of Sessions of the county, upon an appeal, as prescribed by this title and not otherwise.” Section 515 provides, viz.: “ Writs of error and of certiorari, in criminal actions, as they have heretofore existed, are abolished; and hereafter the only mode of reviewing a judgment or order, in a criminal action, is by appeal.”

If we are right in our conclusion that sections 931 and 932 provide for special proceedings, and that cases brought within them are “special proceedings,” then, as section 515 applies only to criminal actions, no right of appeal is given by it in the cases under sections 931 and 932. We find further evidence that the proceedings under sections 931 and 932 are to be classified as special proceedings, if we apply the definition given in section 950. That declares that “the party prosecuting a special proceeding of a criminal nature, is designated in this Code as the complainant and the adverse party as the defendant.” In sections 931 and 932, we find that the “complaint” is to be made by the apprentice or servant, and that the person complained of is called the defendant. (Sec. 931; see, also, §§ 3333 to 3337 of the Code of Civil Procedure.)

The omission of determinations made in special proceedings, of proceedings before magistrates as such, not acting or required to act as courts in respect to such special proceedings, from the provisions of section 749, leaves such determinations unreviewable by appeal, as no other statute in terms gives the right of appeal to the Court of Sessions. (See 77 111., 531; 12 Minn., 388; 26 N. J., 425; Hilliard on New Trials, chap. 21, § 1, etc.)

The Court of Sessions was right in holding that “ said proceedings were not appealable,” and in dismissing “ the said appeal.”

Smith, P. J., and Haight, J., concurred.

The order of the Court of Sesssions of Onondaga county should be affirmed.

So ordered.