text:
    ALFRED J. DICKERSON, Respondent, v. BENJAMIN H. SPAULDING and WILLIAM H. LONG, Assignees in Bankruptcy of BENJAMIN H. SPAULDING, Appellants.

      Bankruptcy — attachment vacated by Stale court.

    An attachment against the property of the defendant, obtained less than four months before the filing of a petition in bankruptcy against him, is dissolved by the adjudication and assignment in bankruptcy, and the assignee in bankruptcy is entitled to have an order entered by the State court declaring the attachment dissolved, and directing the sheriff to deliver over the property attached by him to such assignee.
    The application being to compel the sheriff to do an act, he is entitled to notice.
    Appeal by the plaintiff from an order of the Special Term, denying a motion to have an attachment declared dissolved, and the sheriff directed to deliver over property in his hands to an assignee in bankruptcy.

      William, B. Hornblower, for the appellants.
    An order should have been granted declaring the attachment dissolved. (Kent v. Downing, 44 Geo., 116 ; Gibson v. Green, 45 Miss., 209; Johnson v. Bishop, 1 Wool., 324; Doe v. Childress, 21 Wall., 64Y ; Louden v. King, 50 Geo., 302; Corner v. Miller, 1 N. B., 403 ; affirmed, 31 Md., 468; Mixer v. Kxeelsior Oil and Guano Co., 65 N. 0., 552; Randall v. McLain, 40 Geo., 162.) The sheriff should have been directed to deliver over to the assignee the property attached, or so much of the proceeds thereof as remained in his hands. {In re Geo. 8. Ward, 9 N. B., 319 [U. S. Dist. Gt. E. D. of Mich.] ; In re Preston, 6 N. B., 545 [U. S. Dist. Ot. Wash. Ter.] ; In re Fortune, 2 N. B., 662 [U. S. Dist. Ot. Mass.] ; S. O., Lowell, 306.) If he has any claim whatever, he must apply to the bankrupt court to have it liquidated. {In re Fortune, Lowell, 306 ; In re Ward, 9 N. JB., 349; Zeiber v. Hill, 8 N. B., 239; S. C., 1 Sawyer, 268; Gardner v. Cook, 7 N. B., 346 [U. S. Dist. Ot. R. I.].) The filing of a petition in bankruptcy is notice to all the world. (Hiller v. 05Brien, 9 Blatchf., 270; In re Preston, 6 N. B., 545.)

      J. Sterling Smith, for the respondent.
   Brady, J.:

This action was commenced on the 20th of July, 1875, by attachment against the defendant Spaulding. On the twenty-third of July following an involuntary petition in bankruptcy was filed against him in Massachusetts. On the twenty-ninth July an oi’der to sell the property attached, as perishable, was granted. On the thirty-first of July the property was sold by the sheriff, under the order, and on the fifteenth of September, judgment having been entered herein and an execution issued, the sheriff, after deducting his costs, fees and disbursements, paid the balance of the proceeds of sale in his hands to the plaintiff’s attorney, which was not sufficient to satisfy the execution, and then returned the execution as unsatisfied in part. On the fourth of September an adjudication of bankruptcy was entered against Spaulding, and on the twenty-first of September an assignment in bankruptcy was duly executed. On the thirtieth September, on motion of the attorneys for the assignees in bankruptcy, the plaintiff was ordered to show cause why the attachment issued herein should not be declared dissolved and the sheriff of this county should not be directed to deliver over the property attached by him to the assignee in bankruptcy. This motion was denied, and, from the memorandum made by the learned justice who heard the motion, upon the ground that if the assignee was entitled to the relief he sought, he should proceed to obtain it in the court in bankruptcy. It does not appear from the papers that the order mentioned, to show cause, was served upon the sheriff, or that he appeared on the motion made in pursuance of it. This objection is now taken, and it disposes of this appeal, so far as the sheriff is concerned. The application being to compel him to do an act, he was entitled to notice, and the omission to give it is fatal to the proceeding against him.

In reference to the other part of the motion it must be said that it should have been granted, although, perhaps, it was unnecessary to make it. The act of Congress (14 U. S. Statutes at Large, 522, § 14) provides that the assignment shall relate back to the commencement of proceedings in bankruptcy, and shall dissolve any attachment made within four months next' preceding the commencement of the proceedings in bankruptcy. Such is its effect. (Miller v. Bowles, 58 N. Y., 253.) It follows that whatever property remains in the hands of the sheriff must be handed over to the assignee on his demand, and a proper authentication of his appointment as such. If an order dissolving the attachment be not made it will not appear upon the record in this court that it was so disposed of, and the assignee must depend upon the legal operation of the assignment to him, duly proved, to accomplish that end. It is, doubtless, the better practice to grant the order, and thus remove all question of the fact that the proceedings required by law have been taken to invest the assignee and divest the sheriff and others of any right to hold property of the debtor, not claimed by absolute ownership. The result of this consideration is that the order appealed from must be reversed, without costs to either party, and the motion to dissolve the attachment be granted.

Ordered accordingly.

Davis, P. J., and Daniels, J., concurred.

Order'reversed without costs; motion to dissolve attachment granted.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    THE SISTERS OF CHARITY OF ST. VINCENT De PAUL, Appellants, v. MARY KELLY, ANN MALLORY and MARGARET DOOLIN, Respondents.

      Witl — signature of testator — place of.

    The signature of the testator written in a will in the middle of the last clause appointing his executor, but after the clause disposing of his property, is a sufficient subscription to satisfy the requirements of the statute.
    Appeal from a decree of the surrogate, rejecting an instrument offered for probate as the last will and testament of John Kelly, deceased, and adjudging that the same was not executed and attested in the manner prescribed by law.
    The instrument'offered for probate was partly written and partly printed, apparently a short form of will such as is sold by stationers.
    After the disposing clauses is the following clause: “ Likewise I make, constitute and appoint Edward McCarthy to be executor, J. Kelly, of this, my last will and testament, hereby revoking all former wills by me made. In witness whereof I have hereunto subscribed my name and affixed my seal the 24th day of July, 1874, iu the year of our Lord one thousand eight hundred and sixty.

      “ Witnesses.
    “Edward McCarthy.
    “Daniel Yan Cliee.
    “ Subscribed by John Kelly, the testator named,” etc.
    When the deceased requested the witnesses to sign the instrument the name “J. Kelly” had already been written by him, where it first appears. The witnesses then signed it and after-wards the deceased, in their presence, wrote his name where it appears in the attestation clause.

      James A. Deering, for the appellants.
    The. execution of the will by the testator complied with the statute. (2 Rev. Stat., 63, part 2, chap. 6, art. 3, § 40; Mo Guire v. Kerr, 2 Bradf. Sur., 257; Redfield on Wills, 703; Gonboy v. Jennings, 1 S. C., 622; Cohen’s Estate, 1 Tucker, 286; Matter of Gilman, 38 Barb., 364; Tounele v. Hall, 4 N. Y., 140; Thompson v. Quinby, 2 Bradf., 449; In re Duane, 8 Jur. [N. S.], 752; In re Kempton, 3 Sw. & Tr., 427; 2 Parsons on Contracts, 515; 4 East, 130; 3 Sandf., 318; 17 N. Y., 194; 14 M. & W., 794.) The second signature of “ John Kelly ” in the attestation clause was wholly unnecessary, and a matter of supererogation. (1 Redfield on Wills, 208, 209; Winson v. Pratt, 5 J. B, Moore, 484; S. C., 2 Br. & B., 650; Dosser v, Eranldin, 6 Grattan, 1; Duoker v. Lambdon, 12 Sw. & M., 230; Seoherest v. Edwards, 4 Met. [Ky.], 163.) The subscription of the testator, “ J. Kelly ” when first made by him, was in conformity with the statute. (Harrison v. Harrison, 36 N. Y., 486; Baskin v. • Baskin, id., 416; Butler v. Benson, 1 Barb., 526; 1 Jarman [ed. 1861], 74; Ellis v. Smith, 1 Yes. Jr., 11: 1 Redfield on Wills, 209, 211 ; Armstrong v. Armstrong, 29 Ala., 538; Rosser v. Franklin,.6 Grattan, 1; Dudley v. Dudley, 3 Leigh, 436; Bone v. Spear, 1 Phillun., 345; Tone v. Castle, 1 Curt., 303; Dewey v. Dewey, 1 Met., 349; Nicherson v. ZNio/c, 12 Cush., 332; Tilden v. Tilden, 13 Gray, 110; Todd v. Thompson, 9 L. T. [N. S.], 177; Hall v. ¿ZoK, 17 Pick., 373.) The declaration of the testator, Kelly, at the time of acknowledging the signatures, that'the paper was his last will and testament was sufficient within the statute. {Hunn v. Oase, 5 N. Y. Sur., 307; Van Iloosier v. Van Hoosier, id., 365; Hunt v. Moóbrie, 3 Bradf. Sur., 322; Tunnision v. Tunnision, 4 id., 138; Whiter. Trustees, 6 Bing., 310; Rieben v. Hieles, 3 Bradf. Sur., 353; Nipper v. Groesbealc, 22 Barb., 670.) The absence of a seal is not fatal. {Matter of Diez, 50 N. Y., 88.)

      Otto Horwitz, for the respondents.
    The signature of the testa tor should be at the end of the will. ( Watts db Levy v. Public Administrator, ete., 4 Wend., 168; Leiois t. Lewis, 73 Barb., 17; 2 Bradf., 244.) The witnesses who are to attest the subscription and publication thereof, by the testator, should, sign the same after the subscription by 'him. {Jackson v. Jackson et al., 39 N.Y., 153.)
   Brady, J.:

The testator said to the witnesses, taking a paper from his pocket, I have drawn a will, or, I have made my will, and I want you to witness it. The will was partly in print and partly in ink. The name “ J. Kelly ” was written in the blank between the letters “ execut ” and the word “ of,” thus, “ exeent J. Kelly of,” and in the clause appointing the executor of his will thus made. This name appears,' therefore, subsequent to the testamentary disposition of his property, but not at the end of the clause appointing the executor, and yet prior to the attestation clause.

There is no evidence that the testator signed the name “ J. Kelly ” mentioned, except what was said by him when he produced the will, and what was done by him on the subject by a subsequent act of his, to which reference will be made, and the apparent fact that the written part of the will, including the signatures or name “ J. Kelly ” and “ John Kelly,” was written by him.

He produced, as already stated, the will, saying, “ I have drawn a will, or, I have made my will,” and it was signed as stated, and in the place shown. The witnesses, one of whom read the will, then signed it, and then the testator wrote his name in the printed clause containing the testamentary declaration that it was his last will and testament, and in a blank between the words “ subscribed by ” and the word “ the,” thus: subscribed by John Kelly, the,” etc.

It appears, from these circumstances, that the testator produced a will bearing his name or signature, preceded by a declaration that he had drawn or made his will, and followed by a further declaration, after the witnesses had signed it, that he had subscribed it, such declaration consisting of the act referred to, of his last signature in the second blank pointed out.

This insertion of his name by him after the witness had signed, was thus made after, and not before he had pronounced the will to be his, and after he had requested the persons present to witness it; and it was not made at the end of attestation clause, but in it, and on a blank in which it was important that his name should appear, though perhaps not necessary. The question presented is, whether the will was signed at the end within the meaning of the statute? If the name J. Kelly ” can be regarded as at the end, then the requisition of the statute is complied with.

The object to be accomplished by the statute was to prevent any interpolation or change of, or addition to, the testamentary part of it. Such a formality was not required at common law. (Tonnele v. Hall, 4 Coins., 145, per Jewett; 1 Jar. on Wills [Perkins’ ed.], 114, and notes.) It was sufficient if the name appeared in the body of the will written or adopted by the testator, and hence the statute.

The attestation clauses in the precise form provided by statute are not essential prerequisites (Conboy v. Jennings, 1 N. Y. S. C., 622); nor is the clause declaring the selection of the executor.

The law supplies the omission of the testator to name his executor by appointing one with the will annexed.

If the name of J. Kelly then be regarded as out of place, and therefore nugatory because of the clause in which it is written, then that clause may be rejected and the rest of the will sustained.

Tliis would not interfere with the intention of the testator as to his estate in its appropriation, but would cut off the executor named, unless he were appointed with the will annexed.

If a testator produce a paper which purports to be signed by him, and declares it to be his last will and testament, it is such to all intents and purposes, and needs no further ceremony in that regard to become operative as a testamentary instrument. The signature is his, whether made by himself or another with his authority, and thus ratified. (Baskin v. Baskin, 36 N. Y., 416; Willis v. Mott, 36 id., 486.) The second writing of the testator’s name was, in fact, a mere filling in of a blank, and that it was not designed as a subscription of the will is quite evident.

It was the unnecessary, but natural act, of one unlettered in the law, and not familiar, therefore, witli its solemnities. It must be so considered if proper significance be given to that which precedes it, and which contains the really important part of the instrument. The case of Jackson v. Jackson (39 N. Y., 153), is not in conflict with these views.

The testator did not sign the will under discussion in that case until after the witnesses had signed it. It was upon that ground alone that it was rejected. In this case the will, as a will, if signed at all by the testator, was executed before the witnesses signed it. It was complete when it was produced by the testator as his will, drawn by him, or made, as he himself expressed it. The signature of J. Kelly was intended to be that of the testator to his will, and his intention should not be frustrated by the accidental selection of a locality to sign it, which, though within the spirit, is not expressly, within the letter of the statute. In the case of In the goods of Woodley (3 Sw. & Tr., 429), it appeared that the signature was written in a manner closely resembling that of the testator in this case.

The last three lines of the will were as follows:

to and I hereby appoint my sister Elizabeth Blackburn of this Executrix my will.”

The signature of the testator was written in a direction slanting downward, commencing just under the beginning of the word « appoint ” in the last line but two, and extending downwards over the latter part of “ Elizabeth ” in the last line but one, the tail of the “ y ” at the end of his signature touching the last line. The question was, whether it was signed at the foot or end ” of the will, as required by the acts of Parliament relating to the subject. Sir J. P. Wilde said: “Looking at this paper, I think that the signature cannot be said to be otherwise than at the foot or end of the will, and that the last words should be included in the probate as forming a part of the will.” See, also, on the question of intent: In the goods of J. Walker (1 Sw. & Tr., 653); In goods of Cassmore (1 L. R., 653). The rule declared in the first of these eases should prevail here. It will carry out the intention of the testator.

The decree of the surrogate should, therefore, be reversed; the will admitted to probate, and letters testamentary issued to the executor named.

Davis, P. J., and Daniels, J., concurred.

Decree reversed; will directed to be admitted to probate, and letters testamentary issued to the executor named.


text:
    SAMUEL T. KNAPP and EDWARD J. KNAPP, Respondents, v. ORRIN B. ANDERSON and HIRAM ANDERSON, Appellants.

      Bankniptey — Appeal, sureties on undertaking upon— liability of aft&r discharge of

    The sureties in an undertaking upon an appeal are not released from their liability to the respondent, by the discharge of the appellant from Ms debts under the United States bankruptcy act.
    Appeal from an order of the Special Term sustaining the plaintiffs’ demurrer to the answer, with liberty to the defendants to answer over, in an action against the sureties upon an undertaking on appeal. The action was brought upon an undertaking, signed by the defendants as sureties, upon an appeal from a judgment in favor of the plaintiffs. Before the judgment was affirmed, the judgment debtor was discharged under the bankruptcy act, and the answer of the defendants in this action sets up such discharge. To this the plaintiffs demurred.

      Morris Goodhart, for the appellants.

      John A. Ma/pes, for the respondents.
   Brady, J.:

The defendants signed an undertaking upon an appeal from a judgment in favor of the plaintiffs against one Henry S. Leszynsky, and, before the affirmance of the judgment by the General Term, the debtor was duly discharged from all his debts under the provisions of the United States bankrupt act of 1867. His discharge included the judgment mentioned. The defendants insist that they are released from their obligations, assumed by the undertaking, by the force and effect of the debtor’s discharge, the benefit of which they claimed by the answer interposed herein. 'Whether they are or not, depends upon the effect of the provision of section 33 of the bankrupt act, which provides as follows : No discharge granted under this act shall release, discharge or affect any person liable for the same debt for or with the bankrupt, either as partner, contractor, indorser, surety or otherwise.” The defendants, by their counsel, contend that their liability was not ascertained until the judgment appealed from was affirmed — in other words, that they were not liable until such affirmance. This view is erroneous. To be liable is to be responsible for, answerable, bound or obliged in law or equity, exposed to, subject to ; and hence the defendants were subject to the payment of the sum named in the undertaking if the contingency on which it depended occurred. The obligation of an indorser depends upon proper steps to charge him, yet he is liable to be called upon to pay, and his indorsement is a liability which he cannot reject. It is a contract to pay a sum certain if called upon after the. observance of requisite ceremonies, and the maker fails to pay. So with the surety. He agrees to pay if the ■event happens which matures his obligation to pay. He assumes to pay, and incurs the obligation to do so, which may become absolute. The design of an undertaking and the effect of it are proper matters of consideration on the question. The undertaking stays all proceedings, .and the effect is to prevent the creditor from enforcing his judgment by execution, and in that mode obtaining his debt out of the property of his debtor. The sureties in the undertaking prevent him from availing himself of this right and opportunity to which he is entitled by the law of the land, and by his superior diligence. This right can be destroyed in all cases if the debtor, by appeal, and by subsequent proceedings in bankruptcy before a judgment of affirmance, can release himself and his sureties as well. It was doubtless to prevent such and kindred results, that the law declared the discharge should not release or affect any person liable for the same debt for or with the bankrupt, either as partner, contractor, indorser, surety or otherwise. It was a personal relief given to the applicant, or forced upon him, and not to those equally bound with him to answer his creditor. The discharge of the debt itself, would seem to involve and include the surety for its payment as a necessai’y sequence, but it was not so designed by the law-makers, as we learn from the provision in section 33, supra, limiting its effect, and excluding therefrom persons standing in certain relations to the debtor, and liable with him. A surety is rarely primarily liable. His obligation usually depends upon a contingency, which is either an event to occur, or the failure of the principal to pay or to do the act required. The consideration, therefore, of the question presented, which is new, leads to the conclusion that the discharge of the principal does not release the surety, and that the order appealed from must be affirmed.

Ordered accordingly, with ten dollars costs and disbursements of this appeal.

Davis, P. J., and Daniels, J., concurred.

Ordered accordingly.


text:
    ROBERT A. MILLS, Respondent, v. DAVID M. HILDRETH, Impleaded with HENRY STUBBEN, Appellant.

      Bail — surrender of principal — not allowed when tail is indemnified.

    When the bail has received an undertaking in his favor from the wife of the principal, he will not be released, on his application for leave to surrender his principal, unless it is shown affirmatively that the wife is irresponsible.
    Appeal from an order denying the application of the defendant, as' bail, for leave to surrender his principal. The bail was indemnified by the wife of Henry Rodewald, his principal, against any loss which might result from his becoming bail.

      A. J. Yanderjpoel, for the appellant.

      Thomas Bracken, for- the respondent.
   Brady, J.:

The application of the defendant Hildreth to surrender his principal, Rodewald, and thus become exonerated from -liability as bail was denied upon two grounds, one of which was that he was indemnified against loss. It is not necessary to refer to the other in the view that must be taken of this appeal. Justice Lawrence says : “ In this case it appears that the bail has an undertaking from the wife of the principal, and while he states in his affidavit that he believes the same to be of no value or security whatever, the affidavit, on the part of the plaintiff, goes to show that the wife of the principal is of ample responsibility.” It may be said, in addition, that the attorney and counsel for the plaintiff deposed that the wife of the principal, as he was informed and believed, owned estate and mineral lands in the west worth $60,000. When the bail are indemnified and leave to surrender must be granted as a favor, if at all, it should be denied. (Bank of Geneva v. Reynolds, 12 Abb. Pr., 81; and cases cited 1 Wait’s Pr., 618.) In this case the rule should be applied, because the wife of the defendant, the principal, has indemnified the defendant, the bail, and the plaintiff has therefore the superior equities. It is true that it does not appear, affirmatively, that the wife is responsible, but it was the duty of the defendant, the bail, to have shown, with reasonable certainty, the pecuniary inability of the wife to meet the obligation assumed when the indemnity was given. His case, in that respect, was weak, and its weakness was increased when the plaintiff’s papers were nsed on the motion. It may be that if the fact suggested is presented on any future application in such a way as to justify the conclusion that the wife is irresponsible, the defendant, the bail, may be relieved, but it is clear that the disposition of the motion in the court below was correct, and the order made must therefore be affirmed, with ten dollars costs and the disbursements on this appeal.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    SAMUEL W. CORNELL, Respondent, v. CHARLES E. EVANS, Appellant.

      Place of trial- — change of— Gode, § 125, § 33, sub. 2,
    Section 125 of the Code, requiring actions to be tried in the county where the parties reside, applies to actions brought in the Common Pleas and Superior Court and removed, under section 33, subdivision 2 of the Code, into the Supreme Court, although this last section confers a discretionary power.
    Appeal from an order of the Special Term denying a motion to remove-an action from the Court of Common Pleas to the Supreme Court, and to change t-he venue to Kings county.
    Both parties resided in Kings county, and the defendant had a place of business in the city of New York.
    Before answering the defendant demanded that the place of trial be changed to Kings county.

      B. E. Valentine, for the appellant.

      O. M\ Marsh, for the respondent.
   Brady, J.:

Although the Code (§ 33, sub. 2), in reference to the change of the place of trial in actions removed into this court from the Common Pleas and Superior Court, confers a discretionary power, and this court may therefore remove and may change the place of trial, nevertheless we think that when the cause is removed the provisions of section 125 of the Code apply and require the action to be tried in the county in which the parties reside.

The order should therefore be reversed, but, we think, with ten dollars costs of this appeal, and disbursements to abide event.

Davis, P. J., and Daniels, J., concurred.

Order reversed, ten dollars costs of appeal and disbursements to abide event.


author: Daniels, J.:

text:
    BERNARD PEYSER, Respondent, v. JOSEPH E. McCORMACK, Appellant.

      Instrument for payment of money only — what is — Complaint—verification of— Code,% 157 — improperly made by attorney — unverified answer valid — •Reference and judgment disregarding answer irregular.

    In an action to foreclose a bond and mortgage, tie attorney verified tlie complaint, on the ground that the action was upon a written instrument for the payment of money only, which instrument was atthetimeinhispossession. Thedefendant served an unverified answer, denying all the allegations of the complaint, which answer was returned for that reason. The plaintiff, as on default of an answer, obtained an order of reference to compute the amount due, and entered judgment upon the report of the referee.
    Held, That the action was upon both the bond and mortgage; that the mortgage was the most important instrument of the two, as it was the foundation of the relief demanded and secured by the judgment. That therefore the action was not upon a written instrument for the payment of money only, but upon an instrument providing for a sale of defendant’s property, and could not be properly verified by the attorney, simply because the bond was in his possession.
    Held, also, that the service of an unverified answer to a complaint so verified was regular, and that though interposed for delay, there was but one lawful way of disposing of such an answer, and that was by a trial of the issues which it formed, and hence the order of reference and judgment were irregular.

      Appeal from an order of reference to compute the amount due on a bond and mortgage set out in the complaint, and from the judgment entered upon the report of the referee.

      Joseph Fettretch, for the appellant.

      Julius Lipman, for the respondent.
   Daniels, J.:

The action was prosecuted for the foreclosure of a mortgage given to secure the amount due upon a bond, and for a sale of the mortgaged premises. The complaint was verified by the attorney for the plaintiff, upon the sole ground that the action was upon a written instrument for the payment of money only, which was at the time in his possession.

By the complaint it was alleged that the defendant appealing was one of the owners of the equity of redemption in the mortgaged premises, and upon his behalf an unverified answer was served denying all the allegations contained in the complaint. That was returned for the reason that the verification had been omitted. And the plaintiff applied for judgment in the case by default. That was opposed because of the service of this answer, but the court held that it should have been verified to render it regular, and ordered a reference, and afterward judgment on the report of the referee.

Whether that decision was right is the substantial question presented by the appeal. For the second order was only an amplification of the one first made, for the purpose of showing that the reference was opposed upon the fact that an issue had been formed in the action by the service of the defendant’s answer.

The mortgage was given at the same time as the bond, to secure the same debt, and it was between the same parties. That rendered the bond and the mortgage substantially one instrument, tobe construed and enforced together in an action of foreclosure upon them. (Rawson v. Lampman, 1 Seld., 456; Rogers v. Smith, 47 N. Y., 324.) The foundation of the action was the mortgage, as much as it was the bond. It was upon both of them, and they were together essential to the right of the plaintiff to maintain it. In fact the mortgage was tlie most important instrument of the two, for without it there could be no sale of the premises mentioned for the plaintiff’s benefit. .That was the substantial foundation of the relief demanded, and it was secured by the judgment recovered. The action, therefore, was not upon a written instrument for the payment of money only, but upon an instrument for the payment of money and providing for a sale of the defendant’s property in case of default. And for that reason the complaint could not be properly verified by the attorney, simply because the bond was in his possession. (Code, § 157.) The instruments referred to in this provision .are of the same description as those mentioned in subdivision 1 of section 129 of the Code, authorizing a notice to be inserted in tlie summons, that in case of failure to answer the complaint, judgment will be taken for a specified sum of money. And upon which, by subdivision 1 of section 246, judgment may be recovered of course without application to the court. The suits upon them are denominated actions on contract for the recovery of money only, and as they by their terms determine the amount to be recovered, the formality of ap application to the court is not required for the purpose of procuring judgments upon them. It is in that class of cases the attorney may verify the complaint upon the possession of the written instrument containing the contract, and not in those where an application to the court must be made before judgment can be taken, which was required in this case.

The authorities particularly relied upon, in support of the plaintiff’s practice, were not cases of this description. But they involved demands upon which judgment could, be taken, without any previous application to the court. (Myers v. Gerrits, 13 Abb., 106; Smith v. Rosenthall, 11 How., 442.) No authority has been cited, and none found, sanctioning the verification made of the complaint by the plaintiff’s attorney under the circumstances appearing in this case. And the provisions of the Code are directly opposed to it. For that reason the reference was improperly ordered to compute the amount due upon the mortgage, and the service of an unverified answer was regular. (Williams v. Riel, 11 How., 374.) And even though it was served simply to delay the plaintiff, there was but one lawful mode of disposing of it, and that was by a trial of the issue which it formed; Upon the allegations of the complaint tlie defendant was a necessary party to the action for the foreclosure of the mortgage. He had a right to defend it, and appeal from the judgment.

The order of reference and the judgment recovered upon the report of the referee, should be'reversed, and the action should be tried upon the issue formed by the answer, but as it is probable that the answer was served for the mere purpose of'delay the costs and disbursements on the appeal should abide the event of the suit.

Davis, P. J., and Beady, J., concur.

Order of reference and' judgment reversed; action to be tried upon issue formed by answer, costs to abide event.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES P. SINNOTT v. GEORGE SHEA, Chief Justice, and other Justices of the Marine Court of the City of New York.

      Justice of Marine Court, M. T. — Appointment to fill vacancy by Governor alone, valid —Befusal by the justices to assign appointee to duty, proper subject of mandamus — their action ministerial only — chap. 137, Laws of 1828 — chap. 28, Laws of 1849 — chap. 389, Laws of 1852 — chap. 629, Laws c/1872, construed.

    A vacancy in the office of justice of the Marine Court of the city of New York having been created by the death of Alexander Spaulding, the relator was appointed by the governor to supply the vacancy. This appointment was made without the consent of the Senate, which was in session when it was made. On these grounds the chief justice and justices of the.Marine Court declined to recognize the applicant, or assign him to duty in that capacity, and the relator applied for a writ of peremptory mandamus, directing the respondents to assign him to duty as one of the justices of the Marine Court.

      Held, that the writ was not applied for to control the action of the court in the exercise of its discretion, or of the power possessed hy it for the disposition of legal controversies submitted to its consideration, but simply to require the performance of a ministerial duty, in its nature depending upon the positive provisions of a statute, declaring that “the court shall appoint general and trial terms, and also special terms, and prescribe the duration thereof, and assign the justices for presiding thereat; and a majority of the justices may from time to time alter such appointments.” (Vol. 2, Laws of 1872, 1496, § 4, chap. 639.) That the reasons presented for refusing so to do, presented no such judicial determination as the law forbids the examination of, by means of the writ of mandamus.

      Held, further, that the Constitution of 1846 abrogated the entire system for filling that office provided for by the act of 1828. That the act of 1849, providing that all vacancies in any of the offices of this State, where no provision was then made by law for filling the same, should be supplied by the appointment of the governor until the commencement of the next political year (Laws of 1849, chap. 28), included the office of justice of the Superior Court; and that the act of 1849 was clearly in force when the act (chapter 389) of 1852 was enacted, providing that vacancies in the office of justice of the Marine Court should be supplied in the manner prescribed for filling similar vacancies in the Superior Court. That it was intended by the act of 1852 that the office in question should be filled by the governor alone, without the consent of the senate.

      Held, further, that the act of 1852 was the adoption and application to the Marine Court of the manner then prescribed for filling vacancies in the Superior Court, and was not repealed or modified by succeeding changes having reference to the Superior Court alone; and was not affected by the constitutional changes which went into effect in 1870. (Art. 6, §§ 9 and 12 of the Const. ; vol. 7, General Statutes, 812, 813.)

      Held, further, that section 18 of article 6 of the Constitution of 1846, has no application to the present controversy; that it relates to supplying the incumbent of the term as distinguished from a mere vacancy iu office.
    Application for a writ of peremptory mandamus directing the respondents to assign the applicant to duty as one of the justices of the Marine Court.

      Chas. F. Machean and Wm. Fullerton, for the applicant.

      Chas. Goepp, justice, etc., in person.
   Daniels, J.:

It appears from the papers on which the application has been made, and the return voluntarily presented by the chief justice and justices of the Marine Court, and acting as a court, that a vacancy in the office of justice of that court had been created by the death of Alexander Spaulding, and that the applicant had been appointed by the governor to supply the vacancy. This appointment was not made with the consent of the senate, which was in session when the vacancy arose; and for that reason the chief justice and the justices of the court concluded it to be unauthorized, and declined to recognize the applicant as one of the justices of the court or assign him to duty in that capacity. "Whether the learned chief justice and justices were right in adopting this conclusion is the substantial point this court is here required to decide. For, if they were not, no objection is made by the learned court that the writ applied for in behalf of the applicant is not the appropriate method of redress. But its members desire the question of right to be considered and decided by this court.

The office has been claimed by no other person, and if the applicant shall be found not entitled to it the vacancy must still continue to exist. The writ has not been applied for to control the action of the court in the exercise of its discretion or of the power possessed by it for the disposition of legal controversies submitted to its consideration. But simply to require the performance of a duty ministerial in its nature, dependent upon the positive provisions of a statute declaring that the court shall appoint general and trial terms and also special terms,” “ and prescribe the duration thereof, and assign the justices for presiding thereat, and a majority of the justices may from time to time alter such appointments.” (Laws of 1872, vol. 2, 1496, § 4.) Though in terms required to be done by the court, the power is one which must be exercised by the chief justice and justices in the exercise of their official functions, and they are the persons who must be required to act if the appointment relied upon can be sustained. Indeed they, themselves, have practically acted upon that view of their duties, for they, personally, convened as justices, for the consideration of the claim made by the applicant, and in like manner disposed of it upon the conclusion that no title to the office had been shown in his favor, bécause the senate had neither been consulted upon nor consented to the appointment. And that pi'esented no such judicial determination as the law forbids the examination of by means of the writ of mandamus. The decision was not judicial in its nature, within the ordinary signification of that term, and was not designed to be so by the learned chief justice and justices by whom it was made. They were requested to assign the applicant to duty merely. That required the performance of an act strictly ministerial, and they declined to perform it solely because they did not consider that the governor could lawfully make the appointment without the consent of the senate. His authority to' make it was not a subject they were required to consider or decide as a court. But its consideration was simply incidentally involved in the act they were requested to perform; and the conclusion adopted was the reason assigned for declining to perform what, in behalf of the applicant, has been urged as a duty. The practical point now presented is, whether the refusal to assign the applicant to duty for this reason can be sustained. That the chief justice and justices acted under the highest, sense of public duty in making it is entirely evident, and the reasons assigned in support of it are certainly not without plausibility.

In making the appointment without the consent of the senate, the governor proceeded under an act passed in 1852, relating to the Marine Court, by which it was declared that any vacancy in the office of justice should be filled in the manner prescribed by law for filling vacancies in the offices of the justices of'the Superior Court of the city of New York. (Laws of 1852, 647, § 3.) And by chapter 28 of the Laws of 1849, vacancies in the latter office? are claimed to have been placed exclusively within the executive power of appointment. That act was very general in its terms, providing for appointments by the governor alone, for the purpose of supplying official vacancies where no provision had then been made by law for filling them, subject to certain enumerated exceptions, not including the office of justice of the Superior Court. The only express provision which had previously been made upon that subject was contained in the act creating the Superior Court, passed in 1828. By that it was declared that the justices of the court should be nominated and appointed by the governor with the consent of the senate, and that all vacancies in the office should be supplied in the same manner. (Laws of 1828, 141, § 2.) And if that provision continued in force when the acts of 1849 and 1852 were enacted, the applicant’s appointment was not lawfully made.

But, in 1846, an entire change was made in the mode by which judicial offices were to be filled. Instead of that being done, as it previously had been, by the nomination of the governor, with the consent of the senate, it was afterwards required to be done by popular election. (Art. 6, §§ 14, 18, Constitution of 1846.) And the legislature was required to provide for filling vacancies in offices, which, in those that were elective, could be supplied under its authority no longer than until the commencement of the next political year. (Constitution, art. 10, § 5.) These provisions of the Constitution, to a very great extent, certainly superseded those of the act of 1828. That was clearly and effectively accomplished, so far as the term of the office of the justice of the Superior Court was concerned. After that Constitution went into effect, the office could be no longer filled by the nomination and appointment of the governor, with the consent of the senate; for its authority was peremptory that it should only be done by election. The power of appointment, for supplying vacancies in the office, was an addition made to, or an extension of that authority, to provide an incumbent for its full term; and the abrogation of the principle might well be attended with a repeal of the incident which was annexed to it for the mere purpose of rendering it complete and effectual. And that., as a general proposition, seems to have been so considered in framing the Constitution of 1846. The provision made requiring that the legislature should provide for filling vacancies in office, which, in such as were made elective, could not extend beyond the commencement of the next political year, clearly appears to have proceeded upon that understanding. The system provided for was - a new one, and comprehensive legislation on this subject was considered to be necessary for harmonizing it and providing for its contingencies. And that was the view taken by the legislature on this precise point when it provided for filling the vacancy in the office of justice of the Superior Court created by the resignation of Justice Samuel Jones of that court. If so much of the act of 1828 as provided that vacancies in the office of justice of that court should be supplied by an appointment by the governor, with the consent of the senate, had then remained in force, there would have been no need of the enactment of chapter 291, of the Laws of 1847, which was passed for the sole purpose of providing the mode in which that particular vacancy should be filled. The passage of that act was equivalent to a legislative declaration that no authority existed without it, for supplying the vacancy which then existed in the court. And that could only have been true upon the understanding that the Constitution of 1846 had, by the changes made by it in the official tenure of judicial officers, practically abrogated the provision for supplying vacancies in the Superior Court made by the act of 1828. It is such cogent evidence of legislative intent, as to add very great, if not controlling, weight to the reasons already assigned in favor of the adoption of that conclusion. And it exhibited the necessity of a general act, such as was afterwards passed, providing that all vacancies in any of the offices of this State, where no provision was then made by law for filling the same, should be supplied by the appointment of the governor, until the commencement of the next political year. (Laws of 1849, 26.) And that included the office of justice of the ■Superior Court, if the conclusion is warranted, as it is believed to be, that the Constitution of 1846 abrogated the entire system for filling that office, provided for by the act of 1828. And as this act of 1849 was clearly in force when the act of 1.852 was enacted, providing that vacancies in the office of justice of the Marine Court should be supplied in the manner prescribed for filling similar vacancies in the Superior Court, it follows that it must have been intended that the appointment should be made by the governor alone, without the consent of the senate. That was the manner referred to by the act of 1852, and it was observed and followed in the applicant’s appointment.

The plain effect of the act of 1852 was that the vacancy should be filled, as it then could be if it existed in the Superior Court. The legislative intent contemplated the system solely as it then existed, and the provision made by it was not, in terms nor by implication, rendered contingent upon any changes which might afterwards be made for vacancies in the Superior Court. The enactment was in effect the adoption and application to the Marine Court of the manner then prescribed for filling vacancies in the Superior Court. And it was not repealed or modified by succeeding changes having reference to the Superior Court alone. That there was any express repeal has not been asserted; but it has been claimed that it should be implied .from the constitutional changes which went into effect on the 1st of January, 1870. That, however, cannot be done, for the reason that they, in terms, only included the Superior Court. They contained no reference whatever to the Marine Court. And the change they made certainly was not contemplated by any thing contained in the act of 1852. (Art. 6, §§ 9, 12 of the Const.; vol. 7, Geni. Stats., 812, 813.) The system has been permanent as to the Marine Court, the only change made having sole reference to the Superior Court. In creating it the legislature contemplated the existing laws, and applied them to vacancies in the Marine Court, and that application was in no way intended to be changed by providing a different manner for supplying vacancies in the Superior Court. It substantially and in effect provided .that vacancies in the office of justice of the Marine Court should be filled in the manner declared by the act of 1819, and that was by an appointment of the governor, without the action or consent of the senate.

Section 18 of article 6 of the Cpnstitution has no application to the present controversy. That relates to supplying the incumbeut of the term as distinguished from a mere vacancy in the office.

The case cannot be held to be free from doubt, but the decided weight of legislative authority is in iavor of the right of the applicant. And as he has become qualified to exercise the authority and discharge the duties of the office he should be assigned to their performance, as one of the justices of the Marine Court.

The motion made should therefore be granted, but it should be without costs.

Davis, P. J., and Beady, J., concurred.

Motion granted, without costs.


text:
    ALGERNON S. SULLIVAN, Public Administrator, etc., Appellant, v. CONCEPCION HERRERA and others, Respondents.

      Public administrator New York city — Interest upon deposits made by Mm — who entitled to.

    Whore funds are deposited by the public administrator to the credit of himself and the comptroller of the city of New York, as required by law, the interest allowed on such moneys by the bank in which they are deposited belongs tc the next of kin, on the distribution of the estate, and not to the city. But after the settlement of the administrator’s account, and the payment of the balance remaining in Ms hands into the city treasury, to be there preserved awaiting an application for it by its lawful but undiscovered owner, no interest on such balance is chargeable against the city.
    Appeal from the decree of the surrogate of the county of New York, made upon the final settlement of the accounts of the public administrator.

      Algernon S. Sullivan, in person.

      Charles H. Tweed,, for Herrera and others.

      F. B. Coudert, for infant respondents.
   Daniels, J.:

Tlie public administrator received $32,288.48 belonging to the estate of the intestate. It was deposited, as the law required it to be, to the joint credit of himself and the comptroller of the city of New York; and while it remained on deposit interest was allowed upon it by the bank having the use of it to the amount of $2,774.23. That interest, the surrogate held, should be paid over to the next of kin on the distribution of the estate, and to that extent alone the public administrator denies the correctness of the decree. He does not claim the interest, or any part of it, as an emolument for his own services, but it is asserted that it is the property of the city designed to indemnify it for the trouble, responsibility and expenses incurred in the protection, care and management of the estate of the intestate. No express authority, either statutory or otherwise, has been cited in support of this position, but an effort has been made to derive it constructively from certain provisions contained in the statutes concerning the public administration of the estates of intestates in the city of New York. Before that position can be sustained, it ought to appear with reasonable clearness, that such was the probable intention of the legislature. "Without that the rule of the common law should control the case which adds to the principal the incidental increase produced by it. Under the operation of that principle all the earnings of property held intrust, or by one person for the benefit of another, becomes part of the estate of the beneficiary. It was formerly so strict and rigid that it denied to the person holding and managing the estate all compensation for his services not provided for by the instrument under which he acted, or some other express authority of a conventional nature entitling him to remuneration (Manning v. Manning, 1 Johns. Ch., 527), and at the same time charged him with all that he received by means of the property confided to his care and management (Osgood v. Franklin, 2 id., 127; 2 Story’s Eq. Jur. [9th ed.], §§ 126, 127; Docker v. Somes, 2 Milne & Keene, 655), even though it might be the gain produced by usurious premiums, received by virtue of unlawful loans of the fund belonging to the trust estate. (Barney v. Saunders, 16 How. [U. S.], 535, 543.)

The severity of this principle of the common law has been so far relieved that now, by statute, executors, administrators, guardians and trustees are allowed certain commissions upon their receipts and disbursements by way of compensating them for their services; and a provision of that nature has, for many years, existed in favor of the public administrator of the city of New York. (3 R. S. [5th ed.], 206, § 3.) By that he is allowed to retain certain commissions which are to be paid by him into the treasury of the city, and his services are remunerated by a fixed salary. But this provision has not conferred the power upon him to retain any thing beyond the commissions mentioned in the statute; and for that reason it-fails to sustain the claim now made by him, on behalf of the city, to the accrued interest.

The statute has also directed that the public administrator shall deposit all money received and collected by him, within two days after its receipt, in a bank designated by the common council, to the joint credit of himself and the comptroller, except that he may retain such as may be necessary to pay the current expenses of legal proceedings, and then only on the allowance of the surrogate, to an amount not exceeding twenty dollars; and the moneys so deposited can only be drawn out on the joint check of the administrator and the comptroller. (Id., 213, §§ 36, 37.)

This latter restriction is supposed to indicate the propriety of the position maintained in this case by the public administrator. But as to that he cannot be sustained, for the provision made for drawing out of the bank the moneys so deposited contains nothing which, upon any proper construction, would deprive the next of kin of their right to the accrued interest. It does not, by any col orable implication, declare that with the moneys so deposited the i-nterest shall not be drawn out; and that, at least, would be necessary for the purpose of sanctioning such a result. A provision of that nature would be an innovation upon the rights secured to the owners of the fund by the common law, and its enactment should appear to have been intended before it can reasonably be assumed.

TJpon the settlement of his accounts the public administrator is further required to pay any moneys in his hands into the treasury of the city of New York, and to transfer and deliver to the corporation of the city all public stocks, and all stock in any incorporated company, belonging to the estate of the deceased. (Id., 213, § 35, sub. 14.) And for that the corporation has been declared to be answerable, but not for interest on the moneys nor dividends on the stocks. (Id., 214, § 43.) If the other provisions had been designed to entitle the administrator or the city to the interest there would have been no need of this enactment. And the fact that it was considered necessary to relieve the city from the obligation to pay interest while the money remained in its treasury, indicates the existence of the legislative understanding that no preceding provision of the statute could be attended with that result. After such a receipt of it, the interest was intended to be the compensation for its care and preservation; and by providing that to that extent the owners of the fund should be deprived of the interest upon it, the legislature indicated it to be its intention, that before such payment no such sequestration of the interest should be made. This provision renders it evident that it was supposed that positive legislation was required to prevent the interest from being added to the principal and claimed by the owners of the fund, and to that extent alone it was deemed just for it to intervene. The expression of that purpose was a practical denial of it under all other circumstances.

The right of the next of kin to the interest earned and received by the fund does not depend upon the existence of a statute declaring it, and for that reason it is not important that the statute defining the liability, in that respect, of other administrators has not been applied to the public administrator of the city of New York. It is maintained by the principles of the common law and it can only he defeated by legislation having that object. Until that lias beeu enacted, the right to the interest accruing on the fund will accompany that to the principal producing it. No provision of that nature has been embodied in the statutes of this State, except that relating to the interest after the settlement of the public administrator’s accounts and the payment of the balance remaining in his hands into the city treasury ; while the fund is there preserved, awaiting the application for it of its lawful but undiscovered owner, the interest has been given to the city. But as no such disposition has been made of it previous to the time of such payment, the interest previously accruing will, therefore, follow the principal and form the proper subject of distribution to the next of kin. It becomes a part of the fund on deposit, and may be lawfully drawn and paid over in the mode mentioned in the statute.

The decree in this case was right and it should be affirmed ; but as the appeal has been taken in entire good faith to settle a point previously conceded in other cases in favor of the right claimed by the city, it should be without costs.

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

Decree affirmed, without costs.


text:
    ROSE VIADERO, Respondent, v. MANUEL VIADERO, Appellant.

      Ne exeat — practice in — irregularities in papers amendable under sections 173 and 174 of the Code.

    For the regular issue of a writ of ne exeat, there are required the special allowance and order of a justice of the Supreme Court, together wi!h an indorsement upon the writ by the clerk, showing the amount in which the defendant should be held to bail.
    Where this practice has not been formally pursued, but its important requisites are shown by the writ to have been observed, and the defendant has not been injured or prejudiced by the irregularity, the writ.should not be dismissed, but corrected by amendment under the powers conferred by sections 173 and 174 of the Code.

      Appeal from order denying a motion to set aside a writ of ne exeat.

      Geo. Bell, for the appellant.

      C. Burling, for the respondent.
   Daniels, J.:

The writ was allowed to issue upon the verified complaint in this action, which has been brought for a divorce because of the adultery of the defendant. The facts alleged are sufficient to constitute a good cause of action in the plaintiff’s favor. And as the defendant has neither answered it nor controverted any of the statements contained in it by affidavit, the facts may be .presumed to have been truly stated in it. The plaintiff, in her oath verifying the complaint, swore in positive terms that it was true. And by another person it was further verified by the usual form of oath on the day the writ of ne exeat was issued. And both oaths, in the absence of all contradiction, were sufficient to establish the existence of the facts mentioned in the complaint. These facts were that the defendant had told the plaintiff he intended to leave this city. That he was in the Havana trade, and had abandoned the plaintiff, and had no tie to bind him to this city or State. The facts do not present a strong case, and they were alleged in.an imperfect and inartistic manner. But as the plaintiff appears to have a meritorious cause of action, and she may be deprived of substantial redress by dismissing the writ, that should not be done if- it can be consistently sustained. And that it may be, will appear from the inference which is warranted by the facts alleged.

From the business the defendant was engaged in, his interests would appear naturally to take him to Havana in case of his leaving the city of New York.. And that he contemplated leaving is shown by his statement to that effect, made'to the plaintiff. If lie'should leave at all, as he had nothing to detain him hereafter the abandonment of his wife, it is probable he would go where his business would be best promoted or advanced by his presence, and that was the city of Havana. His trade may be presumed to have been carried on between that city and the city of New York, and his presence in one of those cities required for its prosperous transaction. If he left this city there was but one other place to which he might be expected to go, and that was the other terminal point of the trade in which he was engaged. It could very well be inferred from the facts set forth - that he did design to leave this city, and when he did so, that he would proceed to the city of Havana. And those facts, together with the others set forth in the complaint, showing that the plaintiff had a cause of action for a divorce; that she was dependent for the means of her support, and his ability to supply them, were sufficient to entitle her to the writ on which he was arrested.

The writ was pi’ovided by the preceding practice which, in that respect, has been allowed to remain unchanged by the Code of Procedure. .And by that practice, after the jurisdiction of the Court of Chancery was added to that of this court, it required the special allowance and order of a justice of this court, together with an indorsement upon the writ by the clerk showing the amount in which the defendant should be held to bail, for the purpose of regularly issuing it. In that respect the preceding practice has been continued, and is still required to be observed. (2 Barb. Ch. Pr. [2d ed.], 650, 651; Code, 469; see, also, the last rule of this court.)

This practice was not formally pursued as it should have been in issuing the writ in this case. But its important requisites, which were the adjudication of a justice of this court upon the facts that the writ should be issued, and determining the amount of bail to be required to entitle the defendant to be set at liberty after his arrest, were shown by the writ to have been observed. For it was subscribed by the justice to whom the application for it was made. And that, it is evident, would not have been done if he had not considered the case a proper one for a writ of ne exeat, and had not himself prescribed the bail which it allowed the defendant to give for the purpose of relieving himself from arrest. These were the substantial facts which the rights of the defendant required to be definitely determined before he could be lawfully arrested and detained. And the statements made in the writ, which was subscribed by the justice, show that to have been done. The writ was then tested and subscribed by the clerk, with the addition that it was by the court.

The failure to comply with what the practice required, in other respects, to render the proceeding a regular one, was not so vital as to deprive the defendant of any substantial right in the case. And under the liberal powers conferred by the Code, which are applicable even to this proceeding, it should not be dismissed, but corrected as it can be by amendment. That has provided that the court, in furtherance of justice, and on such terms as may be proper, may amend any pleading, process or proceeding by correcting a mistake in the name of a party, or a mistake in any other respect, and may supply an omissiou in any proceeding. (Code, §§ 173, 171.) These provisions are very broad; more comprehensive language could hardly have been selected. And as the substantial requirements of the practice were observed in issuing the writ, and the defendant has not been either injured or prejudiced by the failure to procure and enter a formal order, and to have the writ properly marked by the clerk with the amount of bail to be exacted upon it, that may still, under these sections of the Code, be done for the purpose of rendering the process entirely regular. And it ought to be done for the purpose of preserving the regularity of the proceeding. An order should therefore be made reversing the order appealed from and setting aside the writ, unless, within ten days after notice of the decision of the appeal in this case, the plaintiff shall procure and cause to be entered, nunc pro tunc, a formal order and allowance of the writ, and have the indorsement upon it of the amount of bail required by it from the defendant. And in case of a compliance with that direction,.then the order appealed from should be affirmed, without costs.

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

Order reversed, unless, within ten days, a nunc pro time order and allowance of the writ, with indorsement, as in opinion, be entered, in which case order affirmed, without costs.


author: Davis, P. J.:

text:
    AUGUST B. PALM, Respondent, v. JOHN WATT and others, Appellants.

      Bank check —forged indorsement— Estoppel.

    R., while living in Texas, assumed the name of G., a former acquaintance, and under that name received a letter addressed to G., containing a check drawn by the defendants to the order of G.; R. forged the indorsement of G., and received the amount of the check from W., who indorsed it to the plaintiff. Before the presentation of the check the fraud was discovered, and the defendants stopped payment of the check. Both W. and the plaintiff had received the check in good faith, and for value.
    Held, that the defendants were not liable upon the check; first, because the plaintiff acquired no title through the forgery; second, because the defendants remained liable upon the check to the real payee.
    Held, also, that .the fact that- R. had a short time before obtained by the same criminal process a check of fifty dollars upon which he had forged the indorsement and obtained the money therefor from W., and that such check on reaching New York had been paid, did not alter the case because no knowledge of the fraud or forgery in the first check and its negotiation, had been brought home to the defendants or the relatives of G. before sending the check in suit, and because the act of payment by the drawees of the first check, upon a forged indorsement, which may have influenced W. in relying upon the subsequent indorsement, was not the act of the defendants, and did not estop them or G. from asserting the forgery, upon which the money on that check had been obtained from the drawers.
    Appeal by defendant from a judgment entered in favor of the plaintiff, upon the report of a referee in an action against the drawer of a check.

      Ten Broedlc ds Van Orden, for the appellants.

      J. T. Williams, for the respondent.
   Davis, P. J.:

In 1867, one James Raleigh was temporarily staying at San Saba, Texas, under the assumed name of John M. Gillespie. By that assumed name he wrote letters to the relatives of John M. Gillespie, at Carbondale, Pa., representing himself to be the person of that name who liad been absent from home and unheard of for several years, and asking for assistance to enable him tc return home. Raleigh had known the real Gillespie in New Mexico, and had learned from him such particulars respecting his family as enabled him to deceive them into the belief that he was the absent John M. Gillespie. Induced by the fraudulent statements in Raleigh’s letter, the mother of John M. Gillespie purchased of the defendants a check of 8200, drawn by them on Howes & Macy, bankers in the city of New York, payable to the order of John M. Gillespie, and caused the same to .be sent by mail, addressed to John M. Gillespie, San Saba, Texas. The letter thus addressed inclosing the check, was taken from the post-office by R., who indorsed the check by the name of John M. Gillespie, and delivered it to one Thomas W. Ward, who paid R. the full amount of the check. Ward indorsed it to the plaintiff who paid him the full amount thereof, and forwarded it to New York for payment. In the mean time, and before the presentation of the check, the real John M. Gillespie was heard from by letter from Council Grove, Kansas, where he resided, and the defendants stopped payment of the check. On its presentation payment was refused. Ward received the check from R. in good faith, believing his name to be John M.. Gillespie. By the same fraudulent means R. had previously obtained a check for fifty dollars on a like fraudulent letter, which was forwarded to him in the same way, and upon which he had forged the name of John M. Gillespie, and which was sent forward to New York, presented and paid by Howes & Macy. This occurred, however, before the defendants or relatives of Gillespie at Carbondale had any reason to suspect that a fraud was being practiced upon them, and before they had heard from John M. Gillespie, then in Kansas. Upon this state of facts the learned referee held that the defendants were estopped from asserting the fraud and forgery practiced by R., as a defense to the check in the hands of a bona fide purchaser for value. We think the learned referee improperly applied the doctrine of estoppel. The criminal fraud of R. induced the defendants to send their check, not to him, but to John M. Gillespie, to whom it was made payable. There was no delivery nor intention to deliver the check to R., and no authority conferred upon him to take the letter inclosing it from the post-office, or to make any disposition of the check. His act in receiving opening the letter was a had, by the crime of false personation, obtained possession of check, he acquired no authority to dispose of or indorse it. act in indorsing it. was a palpable forgery, for which upon the disclosed he could, without doubt, have been convicted of crime. The defendants were guilty of no negligence which to R.’s possession of the property. They did not deliver, nor intend to deliver it to him. They are not found to have been guilty of any negligence in forwarding the check to him under the circumstances disclosed in the case, nor does the case show any want of prudence, under the circumstances, either on the part of defendants or the relatives of John M. Gillespie. It is simply case where, by a criminal fraud, committed by a stranger', the defendants were induced to send by letter to John M. Gillespie, addressed to him, a check payable to his order; and the guilty per-who thus induced them to do that act got possession of the check by another crime, and then committed forgery by indorsing That person committed a fraud also upon Ward, to whom he indorsed the paper, but the defendants are not chargeable -with the consequences of that fraud. It is urged that the possession of the letter which inclosed the check, and which was addressed and written to John M. Gillespie, enabled R. the more easily to personate Gillespie, and thus deceive Ward. This is no more true than it would be in the case of any thief who had stolen a lett: r addressed to a third party, inclosing a check to the order of such party, and who brought the check to a bank with such stolen letter as the evidence of his identity. In such a case, very clearly, the bank paying the check to the forger would be responsible for the genuineness of the indorsement, and any intermediate buyer occupies the same position. The fact that R. had a short time before obtained by the same criminal process a check of fifty dollars, npon which he had forged the indorsement and obtained the money therefor from Ward, and that the check on reaching New York had been paid, does not seem to us to alter the case, because no knowledge of the fraud or forgery in the first check and its negotiation is brought home to the defendants or to the relatives of Gillespie before sending the cheek, and because the act of payment by the drawers of the first check upon a forged indorsement, which may have influenced Ward in relying upon tbe subsequent indorsement, was not tbe act of tbe defendants, and was not even an estoppel upon them or upon Gillespie in asserting tbe forgery upon which the money on that check had been obtained from the drawers.

We think the defendants were at liberty to assert the defense, for two reasons: first, because, the plaintiff acquired no title to the check through the forgery; and second, because the defendants remained responsible upon the check to the payee, the real John M. Gillespie, who had lost no title to it by the fraud or forgery of R.

' We think the judgment was erroneous, and should be reversed and new trial granted, costs to abide the event.

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

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


text:
    AMOS R. ENO, Appellant, v. THE MAYOR, ALDERMEN, AND COMMONALTY OF THE CITY OF NEW YORK, Respondents.

      Constitution — power of legislature under, to prescribe form of remedies — Mssessments— practice — Demurrer.

    The legislature lias power to prescribe tlie form in which remedies shall be prosecuted, hence an act restricting suitors to a particular form of proceeding to obtain remedies, which were before given by suit or action in the nature of a bill in equity, is not unconstitutional.
    The collection of an assessment cannot be arrested, upon the ground that the work for which the assessment was levied had been formerly contracted for at a lower price than that actually paid, and that the city had failed to proceed against the original contractor to recover .damages for the loss sustained by his failure to perform his contract.
    When the statute declares that the form of proceedings adopted shall not be maintained upon the grounds set forth in the complaint, a demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action, is proper.
    Appeal by the plaintiff from an order of the Special Term, sustaining a demurrer to the complaint.

      The action was brought by the plaintiff to remove a cloud upon his title to certain real estate, occasioned by an assessment for grading Seventy-ninth street, New York, and also to restrain the collection of said assessment, and to obtain other equitable relief.

      Irving Ward, for the appellant.
    The act of 1874 cannot be taken into consideration on a demurrer to the complaint. The act is a local one, and must be specially pleaded ‘by answer. (Cook v.. Chase, 3 Duer, 634; Nones v. Hope Ins. Co., 5 How., 96; Hotchkiss v. Elting, 36 Barb., 39; Wilson v. The Mayor, etc., 6 Abb.,, 198; 15 How., 500; Vibert v. Frost, 3 Abb., 120; Hobart v.. Frost, 5 Duer, 672; Fulton Ins. Co. v. Baldwin, 37 N. Y., 648 ;. Malone v. Stilwell, 15 Abb., 421; Nellis v. He Forrest, 16 Barb.,. 65 ; Loomis v. Tift, id., 541.) 'The legislature does not possess' the power of abridging the jurisdiction of the Supreme Court. {Alexander v. Bennett, Ct. of App. MSS.; Be Hart v. Hatch, 6 N. Y. S. C. [T. & 0.], 186; Landers v. Staten Island R. R. Co., 53 N. Y., 457 ; Cook v. Whipple, 55 id., 160; McCartney v. Bostwick, 32 id., 57 ; Reubens v. Joel, 13 id., 488 ; Sherman v. Felt, % id., 186 ; Grade v. Freeland, 1 id., 232 ; Parsons v. Bedford, 3-Pet., 433 ; Blackman v. Van Inwager, 5 How. Pr., 367; Newell v. Wheeler, 48 N. Y., 486.) The omission to advertise the proceedings of the common council was a failure to comply with a necessary condition precedent, (Jewell v. Steinbugh, 58 N. Y., 86, and eases there cited; Horwin v. Strickland, 57 id., 492; Adams v. Sara-toga, etc., R. R. Co., 10 id., 328 ; Van Rensselaer v. Witbeclc, 7 id., 517; Mayor, etc., of Baltimore v. Horn, 26 Md., 194; Benny v. Mattoon, 84 Mass., 383.) The plaintiff seeks to obtain two separate and distinct kinds of relief, and, as the complaint can be sustained upon one of these grounds, the demurrer, which is to the whole complaint, must be overruled. (The People v. The Mayor, etc., 8 Abb., 7; Sinclair v. Fitch, 3 E. D. Smith, 677; Richards v. Edick, 17 Barb., 260; Graham v. Cammann, 5 Duer, 697; Hammond v. Hudson R., etc., Co., 20 Barb., 386; Bank of Louisville v. Edwards, 11 How., 218 ; Hillman v. Hillman, 14 id., 456.)

      B. J. Bean, for the respondents,
    cites Lennon v. Mayor (55 N. Y., 361); Matter of Mayor (50 id., 504); Bolán v. Mayor (Ct. of App. [1876]).
   Davis, P. J.:

By chapter 312 of the Laws of 1874 (p. 366), it is enacted “ that hereafter no suit or action in the nature of a bill in equity or otherwise shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title, but the owners of property shall be confined to their remedy in such cases by proceedings under the act hereby amended.”

This action is brought to vacate an assessment, and to remove the samé as a cloud upon the title of the plaintiff upon the various grounds set forth in the complaint. It is very plainly a suit or action in the nature of a bill in equity,” and is prohibited by the act above cited, if that act be valid. The complaint claims, however, that the act is unconstitutional, on the ground that it seeks to deprive the Supreme Court, which is a court of general jurisdiction, of a portion of the jurisdiction which it before possessed for the relief of suitors. It is a mistake, however, to suppose that the .act deprives the court of aqy jurisdiction. It simply restricts ■suitors to a particular form of proceeding in the court to obtain remedies which before may have been given by suit or action in the nature of a bill in equity.” There is no provision of the Con■stitution that prevents the legislature from prescribing the form in •which remedies shall be prosecuted in this or in any other court.

The Court of Appeals, in Lennon v. Mayor (55 N. Y., 361), and in Dolan v. The Mayor (not yet reported), have substantially settled the law in accordance with these views.

It is urged that those cases arose in the Superior Court or Court of Common Pleas, and that those courts being of limited and special jurisdiction, are subject to restrictions to be imposed by the legislature, which cannot be applied to this court; but there seems to us to be no reason for such distinction. When the legislature seeks simply to regulate the mode of procedure in obtaining a remedy, its powers are the same over all the courts of the State. But it is claimed that the demurrer was improperly sustained, because the action sought the additional remedy of restraining the collection of the assessment until the city should institute an action to collect the bond of a former contractor, and apply the moneys recovered in such action to reduce the assessment as might be just and equitable. Upon the facts stated in the complaint bearing upon that redress, we think no right of action is shown. It is alleged, in substance, that a former contractor had undertaken to perform the work for which the assessment is made, at prices much less than those paid by the city upon the second contract; that the first contractor, after partial performance, failed to carry out his contract; that thereupon the commissioner of public works relet the work at larger prices; and that the first contractor, by reason of his default, became liable to an action upon his bond for the difference between his prices and those subsequently paid, and it is averred that no such action has been brought. The collection of an assessment cannot, in our opinion, be arrested or suspended upon any such ground; nor can the defendant be compelled to prosecute suits of such a character, before the enforcement of assessments for the construction of public works. To allow actions of that character to be maintained would subject public improvements to delays and embarrassments greatly prejudicial to the interests of the public.

It is insisted, also, that the question as to the form of remedy is not raised by the demurrer-in this case. The demurrer is in the general form, that the complaint does not state facts sufficient to constitute a cause of action. Ye regard this as sufficient. The statute declares that the form of proceedings herein adopted shall not be maintained upon the grounds set forth in the complaint; and the ground of demurrer, that the complaint does not set forth sufficient facts to constitute a cause of action, must be sufficient where, upon the facts alleged, a remedy cannot be had in the form in which the suit is brought. In substance, the demurrer is, that, admitting all the facts stated to be true, the action brought cannot be maintained, and when that is true the general form of demurrer adopted in this case is sufficient.

We think the order of the court below was correct, and should be affirmed with costs.

Bradt and Daniels, JJ"., concurred.

Order affirmed with costs.


text:
    LEVI GOLDENBURG and others, Respondents, v. JACOB HOFFMAN, JULIUS WEINBERG and HENRY WEINBERG and WILLIAM WEINBERG, Appellants.

      Purchase of claims against a failing debtor — compromise with creditors —payment to some creditors in excess cf compromise price — effect of.

    If a person who purchases from the creditors of a failing debtor his debts at a stipulated per centum, and takes an assignment to himself, is acting purely as the agent of the debtor, the assignment may be considered as in substance a compromise made by the debtor himself; but, if he takes the title of the debt to himself for a valuable consideration, paid by himself, so that he is at liberty to enforce it himself against the original debtor, the transaction is one of purchase and sale, wherein the liability of the debtor passes from the original creditor to the purchaser, and the debt is not compromised in such manner that the original creditor can enforce any balance of the indebtedness, by proving simply that other creditors received more than himself.
    Appeal by defendants from a judgment entered in favor of tbe plaintiff, upon tbe report of a referee, in an action to recover a balance of indebtedness due from defendants Jacob Hoffman and Julius Weinberg, tbe assignors of tbe other parties defendant.

      Cornelius A. ítu/nkle, for tbe appellants.

      WilUam Sfrauss, for the respondents.
   Davis, P. J.:

Jacob Hoffman and Julius Weinberg, two of the defendants, were copartners in trade and carried on business in Providence, Rhode Island, under tbe firm name of Hoffman & Weinberg! They were indebted to .the plaintiffs, in June, 1873, in the sum of $2.373, and to other creditors in from $18,000 to $20,000.

The defendants Henry Weinberg and William Weinberg were copartners in trade, carrying on business in Worcester, Massachusetts, under the firm name of Weinberg & Brother. Hoffman & Weinberg being in embarrassed circumstances, made an arrangement with Weinberg & Brother, who undertook with them to purchase from their various creditors their respective claims against them, in consideration of the transfer to them by Hoffman hi Weinberg of their stock of goods at Providence. Weinberg & Brother entered into an agreement with the various creditors of Hoffman & Weinberg, including the plaintiffs, which is set forth in the case in the following words: “We the undersigned, creditors of Hoffman & Weinberg, of Providence, Rhode Island, for valuable consideration, hereby agree with Messrs. Weinberg & Brother, of Worcester, Massachusetts, and with each other, to sell, assign and transfer unto them all our claims against the said Hoffman & Weinberg, on their paying to us twenty-five percent thereof in cash, and their notes for twenty-five per cent, indorsed by the said Hoffman & Weinberg-at four and eight months, in equal installments, bearing date the 1st of July, 1873. Witness our hands and seals, this 12th day of June, 1873.”

This agreement was subscribed by a large number, but not by all of the creditors.

Weinberg & Brother paid the twenty-five per cent in cash and gave their notes for the remaining twenty-five per cent, in accordance with the agreement, indorsed by said Hoffman & Weinberg; and Hoffman & Weinberg, afterwards, by an instrument set forth in the case, sold and transferred to Weinberg Brothers all their stock of goods, of every kind, nature and description, in their store at Providence, Rhode Island, in consideration of their services in effecting a settlement of the copartnership debts of Hoffman & Weinberg, and of obtaining the release from the creditors of said firm of their partnership debts.

The plaintiffs were paid by Weinberg & Brother the amount of the indebtedness of Hoffman & Weinberg stipulated for in the agreement first mentioned. It was proved on the trial that some of the creditors of Hoffman & Weinberg — amongst whom were two who had signed the agreement first above mentioned — were paid more than fifty per cent; and the referee, upon this proof, has' found that all the defendants in this action were liable for the full amount of the indebtedness of Hoffman- & Weinberg to the plaintiffs.

There does not seem to be any ground or principle of law upon which the defendants Henry and William Weinberg, composing the firm of Weinberg & Brother, can be held liable for the balance of the indebtedness of Hoffman & Weinberg, upon the facts proved or found in this case. The plaintiffs sold and assigned that indebtedness to them for the consideration expressed in the agreement of sale above referred to. It is not shown that they practiced any fraud upon the plaintiffs, by reason of which they are entitled to rescind the sale, or to recover for any damages sustained by reason of such fraud; and there is no evidence that Weinberg & Brother undertook and promised to pay any greater amount than they are shown to have paid for the transfer of the debt to them. They were not liable upon the original indebtedness, and they were not shown on the trial to have received any amount, either of money or property, under their agreement with Hoffman & Weinberg, for which they are in law or in equity bound to account to the plaintiffs. Whatever, therefore, may be the liability of Hoffman & Weinberg for the balance of their own indebtedness to plaintiff, it seems to us very clear that the judgment against the defendants Henry and William Weinberg cannot be sustained.

The case is- not the ordinary one of a compromise between debtor and creditor; and, perhaps, it cannot be justly-said that the arrangement was made by the creditors upon the implied or expressed agreement on the part of Hoffman & Weinberg that none of their creditors should receive more than the sum for which those who signed the agreement of sale transferred their demands to Weinberg & Brother. They saw fit to make a sale and transfer of their claims against Hoffman & Weinberg to Weinberg & Brother by which unless some fraud be shown which will operate to vacate the sale, the latter became the owners of the several demands and entitled so far as the instrument shows, to enforce them against Hoffman & Weinberg. It was shown that, subsequently, Hoffman & Weinberg transferred to Weinberg & Brother all their stock of goods in Providence; but the value of the stock was not shown, nor does it appear what was realized from the transaction by Weinberg & Brother. The transaction is one where a third person steps in and purchases from the creditors of a failing debtor his debts at a stipulated per centum, and takes an assignment to himself. If he is acting purely as the agent of the debtor, and takes the assignment for the benefit of the debtor, and that fact clearly appears, the assignment may doubtless be considered as in substance a compromise made by the debtor himself; but if he takes the title of the debt to himself for a valuable consideration paid by himself, so that he is at liberty to enforce it himself against the original debtor, the transaction is one of purchase and sale, wherein the liability of the debtor passes from the original creditor to the purchaser, and the debt is not compromised in such manner that the original creditor can enforce any balance of the indebtedness by proving simply that some other creditors received more than himself upon the sale of his claim.

The findings of the referee and the proof in this case do not go far enough to show that the transaction between Weinberg & Brother and the creditors of Hoffman & Weinberg was, in its legal effect, a compromise for the benefit of the debtors; and such evidence did not therefore uphold the demand as against the defendants Hoffman and Julius Weinberg.

We do not see any grounds upon which a recovery could be had in this action against Henry and William Weinberg; but perhaps facts may be shown, upon a new trial, sufficient to uphold the recovery against the other defendants.

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

Brady and Daniels, JJ., concurred.

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


text:
    ANNA VAN WAGENEN, Respondent, v. GEORGE KEMP, Impleaded with THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Pleadings — demurr&r—misjoinder of causes of action.

    A complaint alleging “ that the said municipal corporation and the said Kemp (the owner of the adjoining lot) carelessly and negligently allowed and permitted the construction of the said insecure and unsafe bridge,” whereby injury resulted to the plaintiff, held, sufficient, upon a demurrer thereto setting up that two causes of action had been improperly united.
    Appeal from an order of the Special Term overruling a demurrer.
    The complaint set out as a'cause of action, that the defendant Kemp was the owner of a lot of land on Fifth avenue, a public street in the city of New York, and unlawfully made an excavation several months prior to May 27,1873, in the sidewalk opposite his premises, and constructed an insecure bridge for foot passengers over the excavation, and that it was the duty of the defendant the municipal corporation to keep said avenue in good order and to protect any. excavation made in the public streets; that the said municipal corporation and said Kemp carelessly and negligently allowed and permitted the construction of said insecure and unsafe bridge and platform, on the said public avenue or highway, over the excavation aforesaid, and the plaintiff, while lawfully passing over said street and said bridge, on the day aforesaid, fell through and was injured and claims damages therefor. To this the defendant, the Mayor, etc., answered, and the defendant Kemp demurred, upon the ground that two causes of action had been improperly united, and this appeal is from the order overruling such demurrer.

      Prescott Pall Butler, for the appellant, Kemp.

      George O. Blcmke, for the respondent.
   Davis, P. J.:

The authorities cited by the court below show that a joint action will lie in such cases as this, upon the averment and proof of sufficient facts. (Colegrove v. The New Haven Railroad Company and another, 20 N. Y., 492; Phelps v. Wait, 30 id., 78; Davenport v. Ruckman and The Mayor, etc., 37 id., 568; Code, § 167.)

The complaint in this ease contains this allegation: “ That the said municipal corporation and said Kemp carelessly and negligently allowed and permitted the construction of the said insecure and unsafe bridge and platform, in the said public avenue and highway, over the excavation aforesaid.” This is an averment of joint misfeasance. The demurrer admits the truth of the allegation, and it admits also the allegations that plaintiff suffered injury by reason of such joint negligence and wrong. It may be that on the trial the plaintiff will fail to satisfactorily establish the joint liability, but with the above quoted allegation of the complaint interwoven into the woof and warp of its texture, we cannot hold that the demurrer was improperly overruled.

Order affirmed, with the usual leave to answer over on terms.

Brady and Daniels, JJ., concurred.

Order affirmed, with the usual leave to answer over on terms.


author: Daniels, J.

text:
      W. J. MILLER, Respondent, v. BETTY BRENHAM, Executrix, etc., Appellant.

      Action on judgment of another State — Statute of limitations — Foreign statutes relating to remedies — a/re local in thei/r effect— do not determine time of hinging-action in this State, on judgment of foreign State.

    Appeal from a judgment entered on the verdict of a jury.
    This action was brought upon a judgment recovered by the plaintiff against Charles J. Brenham and Beverly C. Sanders, in the Superior Court in the city of San Francisco, November 21, 1855, and this action upon it was not commenced until the early part of the year 1873. That was objected to as being too late, for the reason that by a statute of the State of California, an action upon the judgment of any court of the United States, or of any State or territory was required to be commenced within five years. If not brought within that time the judgment was neither discharged nor extinguished, but the party was deprived of the remedy. The court at General Term say : “ The statute did no.t affect the demand in any other respect. And it cannot consequently be allowed to control the proceedings in the courts of this State brought for the collection of the judgment. The effect of statutes relating alone to the remedy is necessarily local, and this was a provision of that description. In this State an action upon the judgment could only be barred by showing that the defendant had resided here the length of time required for that purpose by the terms of our statute, where no presumption of payment arose in the case. {Hubbell v. Coudrey, 5 Johns., 132; Bisscll v. Hall, 11 id., 168; Buggies v. Keeler, 3 id., 264; McElmoyle v. Cohen, 13 Pet., 312; Carpenter v. Wells, 21 Barb., 593; Power v. Hathaway, 43 id., 214; 'Soulandou v. Lachen

      meyer, 37 How., 145.) And that was not shown to be the fact in this case; on the contrary, his residence was in the State of California. The defendant’s liability .was clearly established,.and the judgment appealed from should be affirmed.”

      Starr <& Buggies, for the appellant. Charles M. Da Costa, for the respondent.
   Opinion by

Daniels, J.

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

Judgment affirmed.


text:
    WILLIAM A. SEAVER, Collector, etc., Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellants.

      Municipal Corporation — lenity in allowing a/mendment of its pleading — death of . witnesses — not ground for refusal.

    Appeal by the defendants from an order denying a motion for leave to serve an amended answer.
    The action was to recover an alleged balance of $90,337.50, claimed to be due to plaintiff’s decedent for regulating, grading, etc., Tenth avenue, alleging among other things, the giving of a certifica;e under chapter 580 of the Laws of 1872.
    The defendants’ answer contained: (1), a denial that the alleged contract was ever actually made ; (2), a statement that the alleged contract was not founded either on sealed bids and proposals or on a precedent resolution of the common council; (3), a denial as to the amount of woi'k, labor and materials furnished by plaintiff, and as to the conforniity thereof to the provisions of the alleged contract; (4), an averment that the plaintiff furnished and used inferior materials, and failed to complete his work, * * * and (5), a denial as to the validity of an alleged certificate given by the commissioners under chapter 580, Laws of 1872.
    The plaintiff was nonsuited at Circuit on the ground that the statute prescribing the manner in which public work in the city should be contracted for had not been complied with. The judgment was affirmed at General Term. (Brown v. The Mayor, 1 Hun, 30.)

      This decision was overruled by the Court of Appeals, which held that these inherent defects were cured by' the provisions of chapter 5 of the Laws of 1871, but declared that the commissioners’ certificate was of no importance, as they had never had jurisdiction, and that defendants might still give evidence of fraud, and.ordered a new trial.
    Thereupon the defendant made a motion for leave to amend the answer by .inserting allegations which should present the issue of fraud indicated by the decision of Court of Appeals.
    The plaintiffs counsel opposed this application, alleging the death of the original contractor and the late engineer of the department of public works, both of whom, it is claimed, were material witnesses, whose loss could not be replaced.
    This motion was thereafter denied.
    The court at General Term say: “ The denial of the motion seems to have arisen out of the circumstances that the contractor, who was the original plaintiff in the action, and the engineer of the Croton Aqueduct department, who had the charge and supervision of the work, are both deceased; but, if the contract was fraudulently obtained, or the work fraudulently performed, the public should not for that reason be compelled to bear the burthens of the fraud. It may be unfortunate for the plaintiff’s case to some extent, but injustice on that account should not be allowed to be done to the defendant. Public interests, unfortunately, are not as sedulously guarded or as thoroughly protected as those affecting individuals, and the most stringent rutes of practice cannot for that reason be applied to the litigation involving them; more lenity is required concerning them, for the purpose of avoiding the improper enhancement of public burthens by the allowance of demands having no just foundation.”

      Fromeis Lynde Stetson, for the appellants. John, E. Devlin, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Beady, J., concurred.

Order reversed, without costs of appeal, allowing the defendant to amend its answer in the manner proposed, upon paying the costs since the present answer was served.


author: Davis, F. J.

text:
    In the Matter of HEBRA HASED VA EMET.

      Mandamus — society—rules of — where they do not declare election of an unqualified person to he void — Eemedy— Quo wmranto — officer defacto — Plenariy.
    Appeal from an order denying an application for a mandamus to compel the president of the Hebra Hased Ya Emet (Society of Mercy and Truth) to call a special meeting of the society so that a secretary of such society might be elected.
    In January, 1876, at au election of officers, Isaac Hendricks was elected secretary.
    By the by-laws of the society it is provided that “any member marrying contrary to our laws, or discontinuing his or her seat in the. Synagogue ‘ Shearith Israel,’ shall forfeit his or her membership.” It was claimed that Mr. Hendricks, a few days before his election, ceased to be a seat-holder in that synagogue, and for that reason ceased to be a member of the society, and was therefore ineligible to the office. The president was called upon to convene a meeting of the society for the election of another secretary, which he declined to do.
    The court at General Term say: “ The writ of mandamus in this case was properly denied. * * * It is a case of plenarty and the only mode of proceeding is by quo warranto. (34 Eng. L. and E., 59; 7 Ad. & Ell., 215.) The charter does not, in terms, declare the election of an unqualified person to be void, and that is the test. (1 M. & S., 76; 2 B.urr., 1016.) Plence, Mr. Hendricks fills the office de facto, until ousted by judgment at the suit of the people. (6 Cow., 23.) ”

      Grata Nathan, for the appellant. AdoVph L. Sanger, for the respondent.
   Opinion by

Davis, F. J.

Brady and Daniels, JJ., concurred.

Order affirmed with costs and disbursements.