text:
    Selser Brothers Company, App’lt, v. Potter Produce Company et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 13, 1894.)

    1. Attachment—Affidavit. .
    An affidavit for an attachment is defective, where the important allegations are all upon information and belief, the source of which is stated to , be contained in affidavits on file in the court.
    2. Same—Junior attachment.
    On application of a junior atttaching creditor to set aside the prior attachment, the validity of his attachment may be attacked.
    ' Appeal from an order vacating and setting aside an- attachment, judgment and execution on motion of á junior attaching creditor.

      Mon S. Hobbs, for app’lt; J. B. Leavitt, for resp’ts.
   Parker, J.

Plaintiff and defendant were foreign corporations when this action was commenced, and the affidavit upon which in part the granting of the attachment was based did not sec forth that the contract sued on was made, or that the cause of action arose within this state. The attachment therefore, was improperly granted. Smith v. Union Milk Co., 70 Hun, 348; 53 St. Rep. 891.

Nineteen.days afterwards, the defendant, in writing, offered to allow the plaintiff to take judgment against it for a,sum which was about twenty-five per cent, less than that for which a recovery was demanded in the complaint. The offer was accepted on that day, and judgment accordingly entered, on which execution was issued to the sheriff who levied the attachment. The motion which resulted in' the order appealed from was made by Charles H. Kuske, who based his right to make it upon the claim that he had acquired alien upon the property after plaintiff had issued its execution. The vacation of the attachment merely would not, of course, have accomplished his purpose; for, as we have already observed, subsequent to that event, judgment had been entered after a general appearance in the action, upon an offer of judgment by the defendant, and by virtue of the execution issued thereon, the sheriff was in a position to enforce collection of the amount for which the plaintiff had obtained judgment. So the moving party asked and obtained the further order of the court that the judgment and the execution issued thereon be vacated and set aside. This part of the relief asked was granted upon the authority of Robinson v. Oceanic Navigation Co., 112 N. Y. 315; 20 St. Rep. 741, in which it was held : First, that prior to the statutory enactment which, with some amendments, has become incorporated into § 1780 of the Code of Civil Procedure, the supreme court could entertain actions between foreign corporations or non-resident parties plaintiff and defendant, even though, the cause of action did not arise, or the contract sued upon was not made, within the state; second, that, while the court had jurisdiction in. such eases, it would not always take jurisdiction, and could of its own motion dismiss the action when the facts should come to its knowledge; third, that the effect of § 1780 of the Code of Civil Procedure is to so limit the jurisdiction of the court as to absolutely confine it to cases therein specified. The attention of the court does not seem to have been directed to the question whether it was within the power of the legislature to thus restrict and confine the jurisdiction of the supreme court. The constitution provides that “ that there shall be the existing supreme court with general jurisdiction in law and equity.” The fact is, as asserted in Robinson's Case, supra, that formerly the court had general jurisdiction in actions like the one now under consideration. Whether, under the constitution, creating the three departments of government, and prohibiting either from interfering with the powers and duties' committed to the other, the legislature has authority to cut down the jurisdiction of the supreme court in the manner attempted by § 1780, presents a question of such importance that it would have received careful consideration in the court of last resort had that court been invitee? to consider it. But that question need not be determined on this review, for, as we view it, the party had not acquired such a lien upon and interest in the property attached by this plaintiff as gave him a standing to make the motion. The affidavit upon which his attachment was granted is defective, in that the important allegations are all upon information and belief, the source of information being said to be contained in affidavits on file in this court. The affidavits referred to are not quoted from, nor are their contents, nor any portion of them, stated; so the court was not put in possession of the facts affirmed therein. The respondents cite, in support of this affidavit, Whitney v. Hirsch, 39 Hun, 325, and Bennett v. Edwards, 27 Hun, 352. In Whitney's Case the affidavits were copied in the moving affidavit, and a reason for copying the affidavit, and referring to the original, instead of producing the affidavit of him who made it; the reason given being that he was unable to procure an affidavit from the person making the one then constituting a part of the records of the court, and it was held sufficient In Bennett's Case, the affidavit on which the attachment was granted not only quoted from the affidavit on file in the clerk’s office, but gave the reason why the plaintiffs were unable to obtain the affidavit of the person having positive knowledge; and the court said that having given the names of the persons from whom the information was derived, and quoted their" affirmations, and, in addition, presented satisfactory excuses for failing to produce an affidavit of the person having positive knowledge, it was sufficient. Such is undoubtedly the general rule. Marine Nat. Bank v. Ward, 35 Hun, 395; James v. Richardson, 39 Hun, 400. But this affidavit is, as we have pointed out, quite different; and no case has been called to our attention, nor do we think can be, which upholds it. There are other defects, but they need not be referred to, for it is clear that the affidavit upori which ICuske obtained his attachment was so defective as would have led to its being vacated upon a motion by any party having a standing for such a purpose; but he insists here that, while he has a standing to attack the warrant of attachment issued on behalf of the plaintiff, the plaintiff cannot in turn challenge the validity of the one granted on his application. This position is not well taken. Section 682 of the Code of Civil Procedure authorizes a defendant, or a person who has acquired a lien upon the attached property, to apply to the court to vacate the warrant of attachment. It is apparent from the language of the section that it is necessary for the party making such an application to demonstrate that he has a lien upon the property covered by the attachment which he seeks to set aside; and, whether he has, the party whose attachment is assailed -may call in question on the motion, to the end ‘that it may be determined whether the- moving party has a standing to make the motion which the debtor either cannot or will not make. This section was so construed, and we think correctly, in Delmore v. Owen, 44 Hun, 296; 7 St. Rep. 584. Having reached the conclusion that the moving party had no standing to make the motion, it follows that the order should be reversed, with $10 costs and printing disbursements, and the motion denied, with $10 costs. All concur.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    Matilda A. Sloane, as Executrix, etc., Resp’t, v. William R. H. Martin, App'lt.

      (Supreme Court, General Term, First Department,

      Filed April 13, 1894.)

    Service oe process—Presumption.
    In an action to subject land to the payment of the deceased owner’s debts, the record presumptively establishes service of process on the infant heirs of decedent, where it shows an appearance by a solicitor for the widow and infant children, that the widow, as natural guardian of the children, filed a petition reciting their appearance in the action and asking the appointment of a guardian ad litem, and that such guardian was appointed and filed an answer.
    Appeal from a judgment in favor of plaintiff.

      William Q-. Ohoate, for app’lt; M. B. Maclay, for resp’t.
   Parker, J.

The judgment appealed from requires the defendant to perform a certain contract, by'which he had agreed to pay $650,000 for certain lands situated on Broadway and Thirty-Second street, in the city of Mew York. Defendant Martin’s objection to a completion of the contract of purchase was based on an alleged defect of title. The facts which persuaded him that his objection was well taken may be briefly' stated as follows: The death of Ezra R. Goodridge, in August, 1867, dissolved the firm of Ezra R. Goodridge & Co.; and immediately afterwards certain forein creditors commenced actions in the supreme court of this state, in which action warrants of attachment against the firm property were issued, and levied upon its real property, including the property in question, of which Ezra E. Goodridge, individually, was the apparent owner. In January, 1868, such creditors filed a bill in equity in the circuit court of the United States for the southern district of ¡New York, making the necessary persons parties, and including, among others, two children of Ezra ¡R, Goodridge, aged, respectively, two and three years. It was alleged in the bill that the premises in controversy were in fact partnership property, although the record title was in Ezra E. Goodridge, individually, at the time of his death. The bill was filed January 18, 1868, and on the same day a subpoena was issued; but there is no entry in the docket of the clerk (which contains all other proper and necessary entries) of a return of the subpoena, nor do the papers in the case on file in the clerk’s office contain the subpoena, or any return of its service. The record and entries in the docket show that on February 10, 1868, the appearance of F. A. Lane, as solicitor for Mary E Goodridge and the infant children of Ezra R. Goodridge, was filed and entered, and that on the day following the same infants, by their mother, as natural guardian, filed a petition, in which was recited, among other things, the filing of the bill against them ; their appearance; that they were under the age of II years ; and that they were advised that Richard E. Stilwell would be a proper person to be appointed their guardian to defend the suit, and praying his assignment for that purpose. The petition was verified by the mother and solicitor of the infants, and on the same day, by an order duly filed and entered, Stilwell was appointed the guardian of such infants. lie put in the usual guardian’s answer. A trial of the issues was had, resulting in an adjudication that the property had been purchased with partnership funds. The decree appointed a receiver; directed a conveyance of the property to him by the widow of Ezra R Goodridge and the guardian ad litem of the infants. The decree was complied with in such respects, and such proceedings were thereafter had, in pursuance thereof, and of the further order of the court, as resulted in a conveyance of the premises to J. Pierpont Morgan May 23, 1872.

The statement of facts which we have made, while very brief, is sufficient to call attention to the questions involved. The referee, in a very careful and learned opinion, discusses two propositions : First, whether the service of the subpoena was a jurisdistional fact; and, second, assuming it to be jurisdictional, whether the fact of service of the subpoena was presumptively established by the judgment record. The second question he answers—and, we think, rightly—in the affirmative; and his further conclusion that such presumption has not been overcome by anything appearing in the record, or by any competent extrinsic proof, seems to us well founded. The judgment should be affirmed upon the opinion of the referee, in so far as it discusses the second proposition to which we have referred.

The judgment should be affirmed, with costs.

All concur.


author: Yan Brunt, P. J.

text:
    Alfred H. Smith et al., App’lts, v. American Turquoise Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed April 13, 1894.)

    Pleading—Answer—Sufficiency.
    The sufficiency of the defense cannot be raised by a motion to strike out portions of the answer, but only by demurrer.
    Appeal from an order denying a motion to strike out portions of the answer.

      Franklin Bien, for app’lt; David McGlure, for resp’t.
   Yan Brunt, P. J.

It would seem, from an examination of the papers upon this appeal, that the plaintiffs seek upon this motion to test the sufficiency of a defense set up in the answer. It is true that the motion.is directed to a paragraph of the defense, but'it is evident that in this attack upon this paragraph it is sought to have it adjudged that the defense set up is bad. If we understand the theory of the Code, such an issue must be disposed of .upon demurrer, and cannot be determined by motion. If the defense set up is available, the paragraph objected to cannot be considered to be either irrelevant, redundant, or scandalous; and it is only upon the theory that the defense cannot prevail that the paragraph becomes irrelevant.

The order should be affirmed with $10 costs and disbursements.

All concur.


author: Haight, J.

text:
    Philip Becker, Resp’t, v. Town of Cherry Creek, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    Venue—Convenience of witnesses.
    A motion to change the venue for the convenience of witnesses will be denied, where it is not made until a year after the joining of issue.
    Appeal from an order denying a motion to change the place of trial for the convenience of witnesses.

      O. R. Lockwood, for app’lt; Adelbert Moot, for resp’t.
   Haight, J.

This action was brought August 12, 1892, and issue was joined November 12, 1892. The case was first noticed, for trial by the plaintiff, and put upon the calendar for the Erie November circuit. Thereupon, a motion was made by the defendant to change the venue to Chautauqua county, on the ground that that was the proper county for the trial of the action. This motion was denied. The "case was then again noticed for trial by the plaintiff, and placed upon the calendar for the February circuit. An appeal was then taken to the general term from the order denying the motion for a change of venue, and a stay of proceedings was obtained pending such appeal. At the June general term the order was affirmed, and the case was again noticed for trial by the plaintiff for the September term; but the notice was returned, and an appeal was taken from the order of the general term to the court of appeals. In October the order was affirmed in that court, and the case was again noticed by the plaintiff, and placed upon the calendar for the Erie November circuit. Thereupon, motion was made to change the place of trial, for the convenience of witnesses, and the same was denied by the Erie special term November 27, 1893.

We are of the opinion that the defendant is chargeable with laches, and that the motion was properly denied by the special term. It appears that over a year had elapsed since the joining of issue when this motion was noticed for hearing. Rule 47 provides that: “No order to stay proceedings for the purpose of moving to change the place of trial shall be granted unless it shall appear from the papers that the defendant has used due diligence in preparing the motion for the earliest practicable day after issue joined.”

In Moreland v. Sandford, 1 Denio, 660, the motion was to change the venue from Tompkins to Montgomery county for the convenience of witnesses. Beardsley, J., in delivering the opinion of the court, says: “ This motion is too late. It should have been made at the April or June special term. Had it been made at either of those terms, and denied, the plaintiff might have noticed the case for trial at the late August circuit in Tompkins, which he was precluded from doing by the order to stay proceedings for 'this motion made in June. The plaintiff has thus been delayed by the unexcused neglect of the defendants. * * * A party sued is bound, at his peril, to move for a change of venue at the earliest practicable day, if his delay to a later period may have the effect of carrying the plaintiff over a circuit in the county where the venue is laid.”

In Darragh v. McKim, 2 Hun, 337, Daniels, J., says: “ The issue in this action was joined on the 20th of September, 1873; and the order to show cause why the action should not be removed into this court, and the place of trial changed, was not made until the 8th day of August, 1874. During that interval it was noticed for trial, and placed upon the calendar of the superior court; and two circuits have been held in the county of Queens, to which the defendant applied to have the place of trial changed. This delay, together with the loss of these two circuits, at which this action could probably have been tried if the motion had been promptly noticed, and a change made, constitutes sufficient reason for its denial.”

See, also, Anon, 18 Wend. 514; Garlock v. Dunkle, 22 Wend. 615; Brittan v. Peabody, 4 Hill, 63 note.

The delay, in this case, in making the motion, is greater than that in any of the above-reported cases. In, the mean time three circuits have been held in Chautauqua county, at which the case might have been tried, had the motion been promptly noticed, and the order granted. The fact that a whole year has been consumed in a fruitless attempt to change the venue upon other grounds is no excuse for the delay in making this motion.

It is claimed, on behalf of the respondent, that the testimony of the witnesses for whose convenience the change is asked is immaterial, upon the authority of Franklin Co. v. German Sav. Bank, 142 U. S. 93; 12 Sup. Ct. 147, and Williamsburgh Sav. Bank v. Town of Solon, 136 N. Y. 465 ; 49 St. Rep. 840. Possibly, this is so, but we prefer not to determine the question at this time.

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

Lewis, J., not sitting.


author: Dwight, P. J.

text:
    Elizabeth Blazey, Resp't, v. Hector McLean, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894)
    Mortgage—'Re-conveyance.
    Where the debt, to secure which a deed absolute in form was given, no longer exists, a re-conveyance of the land will he decreed, though the creditor has transferred it to another party.
    Appeal from a judgment in favor of the plaintiff.

      C. G. Davy, for app’lt; M W. Gardner, for resp’t.
   Dwight, P. J.

The action was to compel a reconveyance to the plaintiff by the defendant of two city lots in the city of Rochester, which had once been conveyed to the defendant by the plaintiff by a deed absolute on its face, but which, by an instrument in writing, contemporaneously executed by the defendant, was declared to be collateral security for the payment of $2,000, part of the purchase price of a farm in Orleans county, which the defendant at the1 same time contracted to convey to John Blazey, the husband of the plaintiff, and one White. The complaint also asked for an accounting by the defendant for the rents and profits of the lot? in question during the time they had been occupied, by him. The $2,000 was to be paid prior to the execution of a deed of the farm by the defendant to Blazey and White. The action was first tried at an equity term in Monroe county, where it was found and held that the deed of the plaintiff was given only as collateral security, as above stated; that the contract under which the $2,000 was payable to the defendant had been canceled by agreement of the parties thereto, and that the farm had been subsequently conveyed by the defendant, under a new contract, and for a new consideration, to the wife of White; that the debt for the payment of which the collateral security was given by the plaintiff no longer existed; that such security was thereby discharged, and that the plaintiff was entitled to the relief demanded in her complaint. An interlocutory judgment was rendered accordingly, and a reference was ordered, to take the account and ascertain the amount of the rents and profits chargeable to the defendant. On the coming in of the referee’s report final judgment was entered, from which an appeal was taken to this court, where the judgment was affirmed, and the findings and conclusions of the special term were fully sustained. See opinion of the court by Macomber, J., 35 St. Rep. 409; 12 N. Y. Supp. 672. On appeal from the judgment of this court to the court of appeals the same view was taken of all questions arising upon the evidence as was taken at special term. It was held, in an opinion by Finch, J.“ that upon the case so made the deed was collateral security only; that the debt secured thereby had been discharged by the act and consent of the defendant, and that a reconveyance was the necessary consequence. But the judgment appealed from was reversed, and a new trial ordered, on the sole ground that evidence offered by the defendant for the purpose of showing that, notwitsfcanding the instrument in the nature of a defeasance, the plaintiff had delivered her deed to the defendant as an absolute transfer of the lots, and for which he agreed to allow §2,000 as a payment upon her husband’s contract. Blazey v. McLean, 129 N. Y. 44. On the new trial, which is now under review, the evidence was in all respects the same as on the previous trial—being read by consent from the stenographer’s minutes—except that the defendant was permitted to give such evidence as he could in pursuance of his offer made on the former trial. That evidence proved to be utterly inadequate to establish the fact indicated by the offer, and the proposition was negatived by the findings of the referee. In other respects his findings and conclusions were to the same effect as those of the court on the former trial, and the judgment directed by him was the same as the former judgment. There seems to us to he no question left for consideration on this appeal The case now made is the same as that which resulted in the former judgment ; and on that case, as held both by this court and the court of appeals, the plaintiff was entitled to the judgment appealed from. That judgment must therefore be affirmed. Judgment appealed from affirmed, with costs. All concur.


text:
    Thomas J. Buffum, Resp’t v. Joseph Forster et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    Injunction—¡Remedy at law.
    An action in equity will lie to restrain the collection of a judgment out of real estate purchased with pension money of the debtor, though he has an adequate remedy at law by motion.
    Appeal from an order denying a motion to vacate a temporary injunction.

      Be Wilt & Gutting, for app’lts; Charles K Forsyth, for resp’t.
   Haight, J.

This action was brought to' restrain the defendants from taking any proceedings to enforce the collection of a judgment entered in favor of the defendant Forster against the plaintiff out of his real estate. It appears that the plaintiff is a veteran of the war of the Rebellion, and receives a pension from the government of the United States ; that he is the owner of the real estate in question, and that all the money that has been paid thereon was paid from the pension money that he received from the government; that he is a married man, and has a family dependent upon .him for support; that he and his family occupy the premises as a home, and the same was purchased by Mm for that purpose. It further appears that the defendant Forster recovered

a' judgment against the plaintiff, in August, 1893, in the county court of Erie county; that he has caused execution to be issued thereon, and has. delivered the same to the defendant Beck, as sheriff of the county; that defendant Beck, as such sheriff,..has advertised for sale under the execution the real estate mentioned. Thereupon this action was brought, and a temporary injunction obtained, restraining the defendants from selling the premises under the execution until the further order of the court. It must now be regarded as settled that not only pension money, but also property purchased by the pensioner with such money, which is necessary or convenient for the support and maintenance of himself and family, is exempt. Code Civ. Proc., § 1393; Stockwell v. Nat. Bank, 36 Hun, 583; Yates Co. Nat. Bank v. Carpenter, 119 N. Y. 550; 30 St. Rep. 121. It is contended, however, that this action cannot be maintained, for the reason that the plaintiff had an adequate remedy at law; that he could have moved in the action in which the judgment was obtained to set aside the levy and so enjoin the judgment creditor from taking any proceedings to enforce the execution by the sale of the real estate. Possibly this could be done. It was the practice adopted in Yates Co. Nat. Bank v. Carpenter, supra, but in that case this, question was not raised or .considered. We shall, however, for the purposes of the argument, assume that the plaintiff could have obtained relief by a motion. We are, however, of the opinion that he was not bound to do so, and that he may resort to an action in equity for that purpose. The judgment recovered by the defendant Forster against the plaintiff herein is an apparent lien upon the real’estate in question. The right of the plaintiff to exemption is dependent upon facts extrinsic of the record in that action. In order to relieve his real estate from the lien of that judgment he must estab-

lish as facts that he was a pensioner, and that the real estate was purchased with his pension money. His claim in this regard may be controverted, and we think he has the right to have this question tried and determined upon common-law evidence, and that he is not bound to have it disposed of in a motion upon ex parte affidavits. In N. Y. & H. Railroad Co. v. Haws, 56 N. Y. 175, it was held that equity will restrain proceedings upon a verdict, or the collection of a judgment, where it is made to appear by facts of which the party could not avail himself as a defense that the enforcement thereof would be contrary to equity and good conscience ; and that the party is not bound to seek his relief by a motion in the original action, but may institute an action for that purpose. If the proceedings under the execution should result, in a sale of the plaintiff’s real estate, an apparent cloud would be placed upon the title of the property. Equity is often resorted to to remove clouds upon title, and, if this may be done, we see no reason why a court of equity may not also be resorted to for the purpose of preventing the creation of such cloud. Butler v. Johnson, 111 N. Y. 204, 218; 19 St. Rep. 85.

The order appealed from should be affirmed, with $10 costs and disbursements. ;

All concur.


text:
    Martin D. Chace, App’lt, v. Kerr Salt Works, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    Appeal—Finding.
    A finding of the referee will not be disturbed on appeal, where it is supported by the evidence.
    Appeal from a judgment dismissing the complaint.

      0. 1). Newton, for app’lt; Frank W. Brown (Norris Morey, of counsel), for resp’t.
   Dwight, P. J.

The action was for a perpetual injunction to restrain the defendant from maintaining a certain dam or obstruction to the waters of Allen’s creek, in the town of Gainesville, in Wyoming county, and from diverting the waters of said stream from their natural channel, and from doing any act, by which those waters shall be prevented from flowing in their natural channel to the plaintiff’s mill. The plaintiff is the owner of a small gristmill, situated on Allen’s creek, in the town of Warsaw. The defendant’s salt works are situated in the town of Gainesville, higher up on the same stream. There are, under the surface of the earth at that point, immense deposits of rock salt, in strata of from fifteen to fifty feet thick, and at the depth of more than 2,000 feet. These are the sources of the defendant’s supply of raw material, and the means employed in raising it to the surface is the forcing of fresh water down to the deposit through wells bored for the purpose, and pumping it out again when saturated with salt. The brine thus obtained is evaporated in pans heated by steam, and the motive power of the entire works is derived from steam, all of which is produced from the water of the creek. These are the several uses which are made of the water of Allen s creek as it passes through the premises of the defendant, of which the plaintiff complains; and it is contended on the part,of the plaintiff that by such uses the water of the creek has been sensibly and materially diminished in its flow to and upon the premises of the plaintiff, to the prejudice of his rights as á riparian proprietor, and to his loss and damage. If these facts were established, a question might possibly arise whether, under all the circumstances of the case, in view of the character and importance of the. enterprise in which the defendant is engaged, and of the fact that none of the water of the stream is diverted into other channels, or in any manner carried away for use elsewhere than upon the premises through which it naturally flows,—the use made of the water by the defendant is not a reasonable use, and whether the loss of water to the plaintiff is not damnum absque injuria. But the referee has refused to find that any such effect as that complained of results to the stream from the use made of the water by the defendant, and he has found as follows:

“ It is not proven that in and by such use the defendant has perceptibly or materially diminished the ndtural flow of the waters of said creek as the same were wont to flow through or past the plaintiff’s premises, or the motive power in use by him for the operation of his said mill, or that the defendant in such use has in any manner unlawfully diverted the waters of said stream, to the injury or prejudice of the plaintiff,” '

Of course, this finding is conclusive against the plaintiff’s case, and leaves no further question open for discussion, if it is to be sustained, and a careful review of the evidence satisfies us that it cannot be set aside. We think that the further finding of the referee to the effect that substantially all the water which is withdrawn from the stream on the premises of the defendant is returned to the stream on the same premises is well supported by the evidence. As the referee remarks in the brief memorandum of his views of the case, the direct evidence on the part of the plaintiff of a diminished flow of water to his mill, caused by the use of the water above by the defendant, is of a very indefinite and unsatisfactory character, and the plaintiff, is forced to rely mainly, in support of his allegation, upon the argument that there must be a considerable waste of water in the processes to which it is subjected on the defendant’s premises. But we think this inference is not necessarily to be drawn from the facts established. It is undisputed that all the water withdrawn from the stream by the defendant is either converted into steam in the boilers, or evaporated in the process of making- salt; and we think that the conclusion of the referee is well founded that substantially all the steam “and vapor of water thus produced is recondensed on the premises, and either directly conducted or, in obedience .to natural laws, finds its way back into the stream before the premises of the plaintiff are reached.

We think the judgment appealed from must be affirmed, with costs. So ordered.

All concur.


text:
    Joseph Crebarry, Resp’t, v. National Transit Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    Master and servant—Appliances.
    A servant cannot recover for an injury sustained from the giving away of a stay lath of a scaffold against which he was leaning, if it was intended merely to keep the posts upright, and there is no evidence that it was insufficient for that purpose.
    Appeal from a judgment entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial, •made on the minutes of the court.

      Charles /S. Cary, for app’lt; J. R. Jewell, for resp’t.
   Dwight, P. J.

The action was for a bodily injury sustained by the plaintiff, in falling from a scaffold on which he was at work for the defendant. He charges negligence to the defendant in the construction of the scaffold. The work in which the plaintiff was employed was in “cutting down” oil tanks. These structures, some of them 90 feet in diameter, are composed of sheets of boiler iron, from 4 to 5 feet wide, riveted together in rings or rows, one on top of another, to the height of fiom 25 to 30 feet. To cut them down, the rivet heads, on the inside of the tank, are cut off, or so reduced in size as to admit of the rivets being driven through, outward. This is done from the top of the tank downward, and necessitates the construction of a scaffold around the entire inner circumference of the tank, which may be lowered by stages as one after another ring is removed. The scaffold is composed of bents, of two posts or standards each, one against the inner face of the tank, the other four or five feet towards the centre, with crosspieces nailed on at the proper height to support the planks on which the workmen stand at the successive stages of the work. As each one of these bents is set up, it is connected to the last one by stay laths of inch boards, nailed on obliquely to the inside posts, which serve to hold the bent upright. When one row or ring of the iron sheets has been unriveted and removed, the workmen lower their platform of planks to the next tier of crosspieces below, and knock off the crosspieces from which the planks have just been lowered, which otherwise would be in the way of their passing from one part of the scaffold to another; and it is their habit, at the same time, as they lower their platform, to knock off the stay laths or “ braces,” as they are called by some of the witnesses. At the time of the accident to the plaintff, one ring or row of sheets had been removed, the platform had been lowered one stage, and the crosspieces knocked off; but the plaintiff testifies that the corresponding brace or stay lath, just at the point where he was at work, was left on, by order of the foreman, <l because the platform was weak.” In what respect it was weak is not mentioned, nor is the fact at all material—except, collaterally, to account for the presence of the stay lath a little later—because the fall of the plaintiff, as will appear, was not due to any weakness of the scaffold. Having lowered the platform, the men went down to grind their tools before resuming the work. This done, the plaintiff went up again, by the ladder, leaving his tools to be thrown up to him. Then, standing on the platform, and leaning over to catch the tools, he put one hand on the stay lath above him. It gave way, and he fell to the ground, receiving the injury, the responsibility for which he seeks to charge upon the defendant. 1

It seems to us that the action was not properly maintainable, on the case as made by the record before us. The plaintiff seeks to maintain it on the ground that the defendant failed of its duty, as master, to provide a reasonably safe place for the plaintiff to do his work in. We do not think there was evidence upon which the jury was warranted in finding that there was any neglect of duty on the part of the defendant in this respect. There is no complaint—certainly no evidence—that the scaffold was not strong enough, in every way, for the work which the plaintiff and his fellow workmen had to do. The stay laths added nothing to the strength of the scaffold. They were not put there for men to hang upon, or to lean against. Their sole purpose was to keep the post upright, and there is nothing to show that they failed to accomplish that purpose completely. Besides, there is not sufficient evidence, we think, to show that the loose condition of the brace was the fault of the defendant. There was direct evidence on its part that the braces were all securely nailed on in tiie first place, and the only evidence to the contrary was the ffict that this one gave way under the presure of the plaintiff's hand, and that among the boards which lay at the foot of the scaffold was one—not very well identified with the brace which gave way —which showed only one nail hole in one end, a part of which was split off. But this still left the question open whether the loosening of the brace was due to a defect of original construction, or to something which had happened to it sincé; and, unless it was shown to be the former, the fault was not chargable to the defendant. Upon the evidence it seems to be much more probable that the brace had been loosened in knocking off the crosspieces which the evidence shows were nailed close to the braces, or, unintentionally, perhaps, in pursuance of the constant habit theretofore of knocking off the braces themselves as fast as the platform was lowered, than that it was originally nailed on so slightly that it would give way under the pressure of a hand lightly laid upon it. On the whole, we think the evidence fails to make out a case of negligence against the defendant in the construction of the scaffold, and that for that reason, even if the defendant’s motion for a nonsuit was denied, its motion for a new trial should have been granted. Adsit v. Wilson, 7 How. Pr. 64, 66; Smith v. Ætna L. Ins. Co., 49 N. Y. 211. The judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the eilent.

All concur. So ordered.


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    Eugene C. Denton, App’lt, v. Ontario County National Bank, Impleaded, etc., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    Mortgages—Marshalling assets.
    The' rule as to the sale of parcels of land held by successive alienees, subject to a lien on the whole, applies also to successive mortgages of parcels of a tract subject to a lien.
    Appeal from a judgment in favor of the defendant.

      II. M. Field, for app’lt; L. G. Hall, for resp’t.
   Dwight, P. J.

The action was to foreclose a mortgage of $1,000 on a parcel of 33 acres of a farm of 208 acres, title to which was in-the defendant bank, as purchaser at the sales in foreclosure on two previous mortgages. No other defendant appeared in this action. The plaintiff’s alleged standing to assert the lien of his mortgage notwithstanding such previous foreclosures is based upon the facts that the first" of the mortgages foreclosed covered only the other parcel, of 175 acres, of the farm, and that in the action to foreclose the other mortgage, which covered both parcels, the plaintiff was not made a party. The .narrative of the case- is, briefly, as follows: Previous to 1878 the farm was conveyed to one Laman M. Durand in the two parcels mentioned; and in that year he and his wife, Letitia, executed to one Grillett a mortgage of $5,000 on the 175 acres, which was afterwards assigned to the defendant bank, the respondent here. In-1886 Durand and wife executed to one Lansing two mortgages,—one for $6,000, and one for $2,000, each of them covering both parcels, of the same date, and simultaneous lien ; and at the same time the holder of the above-mentioned $5,000 mortgage executed an instrument which postponed the lien of that mortgage to those then executed. In 1887-88 the respondent foreclosed the $5,000 mortgage, and on the sale became the purchaser of the 175 acres covered thereby, subject to the lien of the two Lansing mortgages, and entered judgment against Durand, the maker of the bond, for a deficiency of some $1,500. While that foreclosure was in progress, Durand conveyed the 33 acres to his wife; and she executed to the plaintiff (appellant) the mortgage thereon, which is the subject of this action. This mortgage was dated and acknowledged April 12, 1888, but was not recorded until the 6th day of June of that year. On the 14th day of that month, Lansing commenced an action to foreclose bis mortgage of $2,000, and in that action he failed to make the appellant a party,—for what reason, is not shown; but the appellant's mortgagor, Mrs. Durand, was made a party, and appeared by the same attorney who represents the plaintiff in this action, and who, as appears by his verification of the complaint herein, drew the mortgage to the plaintiff, and had it in his possession or under his control during all the progress of that action. Bv stipulation of the parties to that action, the whole farm was sold as one parcel, and subject to the lien of the $6,000 mortgage. During the progress of that action, no notice was given to the plaintiff therein of the existence of the mortgage in suit, nor was any claim made in behalf of the plaintiff herein for the surplus arising upon the sale in that action ; but Mrs. Durand, by the attorney before mentioned, claimed, and contested with the respondent, the right to that surplus. The value of the 175 acres is $50 per acre, and of the 33 acres, $30 per acre, and the fair rental value of the whole farm is $2.25 per acre. The respondent has been in the occupation of the 175 acres since the foreclosure of the $5,000 mortgage, March 8,1888, and of the whole farm since the sale on the foreclosure of the $2,000 mortgage, March 2,1889. Idle respondent has paid the interest on the $6,000 mortgage since it went into possession of the farm, and interest has accrued on the $2,000 mortgage since Hovember 1, 1887.

This case has been twice tried, and is now' for the second time in this court, On the former appeal it was held—affirming, so far, the decision of the court at special term—that upon the facts then appearing, which are included in those above stated, the plaintiff’s action could not he maintained for a foreclosure of his mortgage, but that, all the parties interested being before the court, it might be treated as an action to redeem, upon such terms, to be fixed, as should conserve the equities of all parties. See Denton v. Ontario Co. Nat. Bank, 44 St. Rep. 33 ; 18 N. Y. Supp. 38 (opinion by Macomber, J.). It was also held— still at special term—that the plaintiff, while he should not be a '' loser, neither could he be a gainer, by the omission to-mate him a party to the previous actions of foreclosure, but that he must be permitted to redeem on such terms as would have been available to him, had he been made a party to the previous action; and the case was sent back to the special term for further proofs and findings bearing upon the terms of redemption to be allowed to the plaintiff. There was also, in the opinion cited, a strong intimation that the final disposition of the case must probably be-controlled by the principle of equity that parcels of land held by successive alienees subject to a lien on the whole, when resorted to for satisfaction of such lien, shall be sold in the inverse order of their alienation. That principle has been fully, and we believe correctly, applied to this case on the trial now' under review. The court has found that by virtue of the $5,000 mortgage on the 175 acres, executed to Gillett, postponed to the lien of the two Lansing mortgages, and assigned to the respondent, his foreclosure thereof, and purchase of the mortgaged premises on the sale, the respondent became entitled to be regarded as the alienee of the 175 acres, as of the date of the postponement of the lien of that mortgage and pro tanto its amount. There seems to be no question of the applicability of the principle above stated to the case of successive-mortgages of parcels, equally as to that of successive conveyances of the fee. Hart v. Wandle, 50 N. Y. 386; Stuyvesant v. Hall, 2 Barb. Ch. 155. Applying the principle to this case, the court held that the 33 acres, being last aliened, was the first to be applied to the satisfaction of the lien of the two Lansing mortgages, after first applying the equity of redemption of Durand in the 175 acres, which was of the value of $3,750,—or $8,750, the total value of the 175 acres, less $5,000, the amount of the respondent’s mortgage., Thereupon,1 the court computes the total amount of liens chargeable upon the 33 acres, as between the plaintiff and defendant, as follows:

Principal of the two Lansing mortgages............ $8,000-
Interest paid by defendant on $6,000 mortgage...... 1,670-
Interest accrued on $2,000 mortgage............... 660
$10,280
Deduct rental value of premises.................... 1,872
Net aggregate of liens............................ $ 8,408
From which should be deducted value of equity of
redemption................................... 3,750
Which leaves the sum of...................... $ 4,658

—To be paid by the plaintiff in order to redeem the 33-acre-parcel. The method here adopted, and its result, are, we believe, correct, and they are plainly in-accordance with the doctrine of the previous adjudication of this court. It is true, no doubt, that, unless there has been, or shall be, a sudden and surprising advance in the value of the 33 acres, the terms imposed render the redemption of the property ont of the question ; but that only demonstrates that the plaintiff has no interest in the premises after satisfying the liens prior to his mortgage,—in other words, that this action was unwisely brought. This complaint was therefore properly dismissed, with costs unless, indeed, he is prepared to accept the alternative of redeeming on the terms prescribed. We have examined the numerous exceptions taken by the plaintiff on the trial, and to the findings of the court, and find none which seem to vitiate the disposition made of the case. The judgment appealed from should be affirmed, with costs. All concur. So ordered.


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    Matthew G. Elliott, Resp’t, v. Elijah S. Smith, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    Injunction—J udgment.
    In an actiqn to foreclose a mortgage, .defendant will not be enjoined from enforcing or disposing of a judgment recovered before plaintiff acquired the mortgage, where he obtained it with full knowledge of its value, and it does not appear,how much he paid, or that he paid anything, for it. '
    Appeal from an order continuing an injunction restraining defendant from collecting or disposing of a judgment which he had recovered against the plaintiff.

      O. Z. Lincoln,for app’lt; A. D. Scott, for resp’fc. ,
   Dwight, P. J.

The action is for the foreclosure of a mortgage of real estate made by the defendant, and the injunction which is prayed for in the complaint, and was granted temporarily on the ex parte application of the plaintiff, restrains the defendant from collecting or disposing of a judgment which he has recovered and now holds against the plaintiff, and upon which execution has been issued, until the determination of this action and the sale of the mortgaged premises, and the entry of judgment therein for a deficiency,—if a deficiency shall arise on such sale,'—to the end that the amount of such deficiency may be applied on the defendant’s judgment above mentioned, in payment thereof. We believe that the granting of the'relief here prayed for, aside from the foreclosure of the mortgage, would be entirely unprecedented. So far as we are advised, the doctrine of equitable set-off has never been applied to restrain the collection of a judgment actually obtained, pending the prosecution of an action only just commenced, in anticipation of a possible judgment in the latter action which might be applied in payment of the former judgment But if, in any conceivable case, equity might possibly grant such relief, it seems very clear that the present, on the undisputed facts, is such a case. The facts, in addition to those already stated, are, concisely, as follows: The claim on which the defendant obtained judgment was one of several years’ standing against the plaintiff, as surviving partner of an insolvent banking firm. From the time of the failure of that firm, in 1882, the plaintiff remained insolvent, until, under the will of a deceased, uncle, which was admitted to probate in the state of Connecticut in May. 1892, he became entitled to personal property of the value of about $18,-000. Soon after that time he made an effort to compromise the claims against him, including that of the defendant, at 20 cents on the dollarrepresenting that he was insolvent, hut that his wife would raise the money to pay the compromise, if it could be effected at a small figure. The defendant refused to enter into a compromise agreement, and, having ascertained the facts in regard to the legacy in Connecticut, he commenced his action against the plaintiff in November, 1892, and obtained the judgment in question, for $1,093.62, which was perfected and docketed in Cattaraugus county on the 2d day of June, 1893. On the 28tli day of the same month the plaintiff procured the assignment to himself of the mortgage in suit, and in October commenced this action, and procured the preliminary injunction, with an order-to show cause,-upon the return of which the order was made from which this appeal was taken. In his complaint the plaintiff alleges that the defendant is insolvent; fthat the mortgaged premises, which consists of a farm of 100 acres, are worth not to exceed the sum of $2,500, and are encumbered by six several mortgages, all prior in lien to that in suit, aggregating in amount about the sum of $4,500, besides interest; and that the amount of mortgages in suit, including interest, was $718.67, it having been reduced to that sum after it came into the plaintiff’s hands by a payment to him of $450 insurance money, under an insurance clause contained in it. The allegation in the complaint in respect to the value of the farm was supported only by an affidavit of two near relatives of the plaintiff, one of whom is an attorney at law, and the other a miller, while the proofs on the part of the defendant contain the affidavits of a very large number of farmers, all of them residents, and several of them officials, of the town in which the premises are situated, who put the value of the farm at not less than $3,800, while the proofs conclusively show that all of the incumbrances mentioned in the complaint, prior to the mortgage in suit, have been fully paid and discharged, except two, which aggregate the sum of $2,200 only. The allegation of the insolvency of the defendant is not denied" by him, except that his affidavit states that no judgment has ever been recovered against him; but,'of course, the fact of the defendant’s insolvency is. of no effect to establish an equity in favor of the plaintiff’s case, if it be true that his specific lien is itself ample security for the payment of his claim.

Upon all the facts thus disclosed, we think the plaintiff fails to establish any equities which entitle him to the extraordinary remedy of an -injunction. He took the assignment of the mortgage after the defendant recovered his judgment against him, and evidently for the purpose of preventing or impeding the collection of that judgment It does not appear how much he paid, or that he paid anything, for the mortgage; and if thesecurity was, or was understood to be, as inadequate as his allegations' would make it appear, it is not to be supposed that he took it except at a very considerable discount. In any case, his venture was largely speculative, and he should be content to await its issue in the ordinary course of litigation. In no aspect of the case, based upon the proofs before us, does the plaintiff seem, to be entitled to the relief in question. On general principles, add aside from special considerations which arise in this case, the claims involved are not such as are subject to equitable set-off. Hatch v. Mayor, etc., 82 N. Y. 442; Pond v. Harwood, 139 N. Y. 111; 54 St. Rep. 640. In both of these cases the rule is stated, in substantially the same language, that:

“Something more .than the mere existence of reciprocal and independent demands is required, to authorize a set-off in equity, when not allowable under the statute of set-offs. Circumstances must be shown from which it can be inferred that one debt was contracted on the faith of the other, or that there was an agreement between the parties that the one should be deducted from the other, or some other intervening equity which renders the interposition of that court necessary for the creditor’s protection.”

And in the latter of the two cases the court quotes from Hacked v. Conned, 2 Edw. Ch. 73, the statement that:

“Equity decrees a set-off, independent of the statute, only where mntual debts exist, or where there was either an express or implied agreement of stoppage pro tanto, or mutual credits.”

The case at bar is the furthest possible from meeting the requirements of the rule, as last stated; and, if it is to he brought within the rule at all, it must be by virtue of a particular intervening equity which demands the extraordinary interposition of the court in the plaintiff’s behalf. But it is very apparent, we think, that all the particular circumstances of this case make against the application of the rule, and not in its favor. The fact chiefly urged as raising an equity in favor of the plaintiff is that of the insolvency of the' .defendant. But. as we have already said, that fact has no consequence, if the claim of the plaintiff is sufficiently secured by his specific lien; and the proof largely preponderates in favor of the latter conclusion. But, even if it were otherwise, the plaintiff can assert no equity based upon the fact of insolvency. He topk bis assignment of the mortgage with full knowledge of that fact, and, if the allegations of his complaint are true, in the belief that the security was largely inadequate, if not wholly worthless as such, He does not make it appear that he paid anything for the mortgage, and he has already realized upon it more thari he had any reason to expect, and is likely to realize a good deal more, if not the full face of the security. He has no claim to the equitable interposition of the court in his behalf. Pond v. Harwood, supra. The order continuing the injunction must be reversed, with $10 costs, and the disbursements of this appeal, and the motion denied with $10 costs.

All concur. So ordered.


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    Elizabeth Lyon, Resp’t, v. Mina Whittaker, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    1, Witness—Incompetency—Section 839.
    Section 839 of the Code does not exclude evidence of any personal transactions between a witness, who is a party to the action, and the person since deceased, from whom he claims title.
    3. Same—Exception to § 839.
    Where a party testifies in his own behalf as to a transaction or communication with a deceased person, the adverse party may, under the exception in this section, testify concerning the same transaction or communication.-
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions. ' •

      W. 3. Thrasher, for app’lt; W. II. Henderson, for resp’t.
   Dwight, P. J.

The action was trover for the alleged conversion of- four promissory notes. The answer was a general denial only. All questions relating to two of the notes are eliminated from the case for the purpose of this review, .since the verdict of the jury sustained the defense as to those two notes, and was rendered in favor of the plaintiff only for the amount of the other two. The two notes last mentioned were made by W. and 0. Thirl&an, and ran to the defendant, Mina Whittaker, or bearer. The theory of the plaintiff’s case was that these notes were taken by one Jonathan Milks, the brother of the two parties, in the name of his sister, the defendant, for reasons of his' own ; and that they remained his property until, on his deathbed, he delivered them, with other securities, to his sister, the plaintiff, as a gift; that, after such gift and delivery, the defendant, who was present as the nurse or attendant of her brother, took the notes to lay them away for her sister; and that, after the brother’s death, which occurred within a day or two, she refused to give them up to the plaintiff, and claimed them as her own. This theory was supported by the evidence on the part of the plaintiff, and was controverted by the evidence on the part of the defendant. The question of fact thus presented was properly submitted to the jury, and the verdict will not be disturbed for lack of evidence to support it.

.The only question in the case calling for particular consideration is that which was raised by numerous exceptions taken by the defendant to rulings of the court in the admission of the testimony of the plaintiff relating to personal transactions and communications between her brother and herself. The objections were based, as stated by counsel, on § 829 of the Code of Civil Procedure; but, upon examination, we think none of them were well taken. There are two classes of these objections, one of which includes all those which were taken to the testimony of the plaintiff when she first had the case, and was on the stand as a witness for the first time. The defendant’s objection was then uniformly to the effect that the evidence was inadmissible, under § 829, because it involved a personal transaction between the witness, plaintiff, and her deceased brother, from whom she claimed title to the notes in -question. This objection, it was apparent, was entirely without force. The statute referred to does not exclude evidence of any personal transactions between the witness — being a party to the action — and the person sinee deceased, from whom the witness claims title, but only between the witness and the person from whom the other party to the action—against whom the testimony is given—claims title. In other words, the fact that the plaintiff herself claimed title to the notes under her brother did not disqualify her to testi Ey to all the transactions and communications between herself and him by means of whieh the title was transferred to her. It was only when, if ever, it should be made to appear that the defendant claimed title to the notes from the deceased brother that the objection to the plaintiff’s testimony would apply. The language of the statute is:

“ Upon the trial of an action * * a party * * * shall not be examined as a witness, in his own behalf, against a person deriving his title 4 from a deceased person """ * * concerning a personal transaction or communication between the witness and the deceased person.

At the time that the evidence so far mentioned was objected to there was not only no evidence that the defendant had derived title to the notes from her brother, but there was no intimation or suggestion, by the pleadings, or otherwise, that she claimed to have done so. Her answer was a general denial merely, and it did not yet appear that she claimed title to the notes from any source.

The other class of objections, mentioned above, includes those taken to similar testimony of the plaintiff when on the stand the second time, and giving testimony in rebuttal. In the mean time the defendant had been on the stand, and testified in her own behalf. Even then, on her direct examination, she did not testify that she had derived title to or obtained possession of the notes in question from her brother, nor from what source she had done either. It was only on her cross-examination, and by an answer not quite responsive to the question addressed to her, that she mentioned her brother in any connection with her claim to these notes. The question was:

“ Q. Where had the two Thirlman notes been before they came to you, if you know. A. After I bought them from my brother I kept them. Q. Had they been in the house there? A. They had been in Jonathan’s papers.’’

Tills was certainly not evidence of the fact that the defendant ever did purchase the notes of her brother, and it is very doubtful if it is entitled to be regarded as sufficient intimation of her claim to have derived title from him to furnish ground for the objection taken by the defendant, under § 829, to the subsequent testimony of the plaintiff; nor is it very clear that the objection which was taken to such subsequent testimony was sufficiently explicit to place itself on that ground, if it in fact existed. The objection several times repeated, was in this form:

“Defendant objects that it calls for a personal transaction between the deceased and the witness, and that the witness is incompetent, under § 829 of the Code of .Civil Procedure; that Jonathan Milks could not, by anything he said or did. impair the defendant’s title in the notes in suit, or transfer title to the plaintiff.”

However, if it were conceded that the objection was sufficiently explicit, and was well founded upon facts which brought the plantiff’s testimony within the general -rule of the statute referred to, yet it was of no avail to the defendant, because the testimony was within the exception to, that rule which is provided by the words immediately following those already quoted from the statute. Those words, omitting those which are immaterial here, are as follows:

“ Except where the * * * person so deriving title * * * .is examined in his oum behalf * * '* concerning the same transaction or communication.”

The plaintiff’s testimony in rebuttal was unmistakably brought within this exception by the fact that the defendant, when on the stand, had testified in her own behalf concerning the same transaction or communication to which the testimony of the plaintiff related. This she did explicitly, by giving her own version of what occurred at that time, and by testifying that the notes in question were not produced or shown to anybody on that occasion. For the reasons stated, we are clearly of the opinion that none of the defendant’s- objections to the testimony of the plaintiff were well taken; and, aside from- the exceptions to these rulings, we find none which seem to require discussion.

The judgment and order appealed from must be affirmed.

All concur.

So ordered.


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    Sophia McGucken, as Administratrix, etc., Resp’t, v. Western New York and Pennsylvania Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    1. Negligence—Railboads—Employe.
    An employe who, on being ordered, travels to a certain point on the road on an employe’s pass, is during such trip a passenger*
    3. Same.
    If, in such case, he leaves the passenger, car without orders, and enters the cab of the engine, where he is killed by a collision, the company is not liable in case no one in the passenger cars was injured. .

      & /S. Rogers, for app’lt; B. Van Voorhis) for reap’t.
   Dwight, P. J.

The action was to recover damages for the death of the plaintiff's intestate, William Hi McGucken, due as alleged, to the negligence of the defendant. The deceased was, and had been for about a year and a half, in the employ of the defendant as a “ wiper ” in the engine house at Rochester. The men so employed are sometimes called “ hostlers,” and their duty, as the name imports, is to take care of the locomotive engines when housed between trips, to wipe the machinery, bank the fires, and keep up the necessary supply of water in the boilers, so that the engines may be ready for immediate service when required. On the day of his death, McGucken was directed by his foreman to go to Portage, to take care that night of engine So. 91, in place of a wiper at the engine bouse at that station, who had been taken sick. For that purpose he was furnished with an employee’s pass, which entitled him to ride free on the passenger train which was to be drawn to Portage by the same engine, Ho. 91. In pursuance of his orders, he took his seat in one of the passenger cars of the train, and rode to Hunda, the last station on the road before reaching Portage. There he left the passenger car, and, without orders, or invitation from the engineer, took a seat in the cab of the engine, on the fireman’s side of the boiler. The engineer, discovering his •presence after the train was on its way to Portage, asked him what he was there for, and told him it was no place for him; but, learning that he was going to take care of the engine that night, told the fireman that, since he was there, he had better show him how the injector worked, which he did. Shortly before the train beached Portage it collided with a freight train going in the other direction. The engine of the passenger train was overturned, and the plaintiff’s intestate was crushed beneath it, and killed. Ho other car of the train was overturned or thrown from the track, and no one in either of the passenger cars was injured. A rule of the company, which had been in force for several years, and was duly promulgated, forbade any person to ride on the engine without an order from the superintendent, except the engineman, fireman, assistant engineer and supervisors on their respective divisions, and conductors in the discharge of their duty. The collision was due to a mistake in the transmission of orders for the movement of the trains, and it may be conceded, for the purposes of this review, that the fault was attributable to the defendant, and that the fact of negligence on its part was established; but it is still impossible that the plaintiff’s recovery should be sustained, for the reason that the undisputed evidence shows a disobedience of orders and violation of duty on the part of the deceased, without which the injury complained of could not have been sustained. He had no right to be on the engine. To be so was in direct violation of a rule of the company, with which he must be supposed to have been familiar. He was a passenger,—though a free passenger,—■ and his place was in the passenger car. Had he remained there, he could not have been crashed under the engine, and, as the evidence tends to show, he would have been safé from injury of any character. He betook himself to the engine at his own risk, and there is nothing in what occurred after the engineer discovered him there which at all affects the situation. The engineer was not bound to stop his engine to put him off, and there was no stopping place until Portage was reached. Sncli being the case, it was proper enough to utilize the opportunity to point out to the deceased the peculiarity in the injector pipe, which otherwise would have been explained to him after reaching Portage; but this in no manner excused liis violation of the rule which forbade his riding on the engine, nor rendered the risk which he assumed in doing so any the less his own. The question here considered was raised by the defendant’s motion for the direction of a verdict on the ground that the deceased was guilty of contributory negligence in riding on the engine, and by several exceptions to the charge, and to refusals .to charge as requested, on the same point. For the error thus indicated, the judgment and order appealed from must be reversed, and a new trial granted.

So ordered, with costs to abide the event.

All concur.


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    Haskell H. Marks, an Infant, by his Guardian ad litem, etc., App’lt, v. The Rochester Railway Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    Master and servant—Assistant.
    A street-car driver has authority, when it becomes necessary, to employ an assistant, and the company is liable to such assistant for injuries resulting from the driver’s negligence.
    Appeal from an order granting defendant’s motion for a new" trial on the minutes of the court.

      E. Van Voorhis, for app’lt; G. J. Bissell, for resp’t.
   Dwight, P. J.

The action was to recover damages for a bodily injury sustained by the plaintiff when engaged in' assisting one of the defendant’s drivers, at his request, in the management of his car.' It was one of the small cars, drawn by one horse, and operated by one man. Such a car has the driver’s platform and ■a brake on one end only, and 'a small platform at the other end, with steps, for the entrance and exit of passengers. It is intended to be drawn only in one directionj and, when the direction is reversed, the car must be turned, end for end, by means of a turntable. On the day of the accident in question, two of these cars, running in opposite directions, on a single track, met, by the mistake of one or both of the drivers, at a point where there was no turn-out, and it became necessary that one of the cars should be drawn backward to some point where the other might pass it. But when one of these cars is drawn backward, the driver of the horse is separated from the brake by the length of the car, and is powerless to control its motion. The situation requires an assistant either to manage the brake or to drive the horse. In this case the driver called upon the plaintiff, a boy of 11 years of age, who was near by, cleaning snow from his father’s sidewalk, to drive for him, and, having hitched his horse to the hind end of the car, gave the reins to the plaintiff, and himself took the brake at the other end. The standing place of the plaintiff, as he drove, was the small platform before mentioned, not intended for anybody to stand upon, but merely a landing for the steps on either side. It was three feet four inches long, crosswise the car, and one foot ten inches wide from the end of the car outward. It was protected, on its outer side, only by a sheet iron “dash,” in front of the door of the car, about twenty inches wide, and thirty inches high, curved on the top, and surrounded by an iron rod separated two or three inches from its edge. This rod added a few inches to the width of the guard, and served as a hand rod by which passengers might aid themselves in mounting the steps. There was nothing interposed between the boy and the steps on either' side, and, his hands being employed with the reins, he could hold onto the car only by the weight of his body against the dash. The body of the car projected nearly two feet, on each side, beyond the ends of the little platform on which lie stood, and the steps were within the lines of the rails of the track. While the car was proceeding in this manner, a party of boys of the neighborhood, attracted, no doubt, by the novel apparition of a car drawn wrong end foremost, and driven by a boy of their acquaintance, j umped onto the platform where the plaintiff stood, and began to make the car rock by jumping up and down, while some of them went inside. The driver, from his platform at the other end, hallooed to them to get off, and made a feint of rushing at them through the car to drive them off. At this, those of them who were within the car scurried out through the door, in front of which the plaintiff stood, and all jumped off. In their haste they jostled the plaintiff off the narrow platform onto the ground.. His leg was caught under the wheel, and so crushed, at the knee, Las to render an amputation necessary.

On the trial now under review, the defendant, at the close of the plaintiff’s case, moved for a dismissal of the complaint, on the following grounds:

(1) That there was no evidence that the defendant was guilty of any negligence which occasioned the injury to the plaintiff. (2) That, upon the plaintiff’s own evidence, he was neither a passenger nor an employee, but a mere volunteer, and the defendant owed no duty to the plaintiff, either as a passenger or as employee. (3) That there was no evidence that the defendant’s driver had any authority, express or implied, to employ the plaintiff to do anything in or about the management of the car or of the horse attached thereto. (4) That, assuming that the platform of the car upon which the plaintiff stood was an imperfect and unsafe place for him to stand, the defect, if .any, was open and visible, and the plaintiff assumed any risk there might be in standing there to drive voluntarily. (5) Assuming that there was evidence from which the jury might find that such an emergency existed as gave the driver authority to employ the boy, and that the driver was guilty of negligence in calling to the boys to get off from the car while it was in motion, then the negligence from which the plaintiff suffered was the negligence of a coservant, and the plaintiff could not recover.

The court denied the motion, and the defendant’s counsel duly excepted. The defendant introduced no evidence, and the court submitted the case to the jury as presenting the two questions : First. Was the emergency in which the driver found himself such as to render it proper for him to call for outside aid ? And, if so, second, was he negligent in placing so young a boy on the platform above described, to perform the service which was required of him ? The court also instructed the jury that, if the emergency did call for the employment of temporary help, the driver, in employing such help, took the place of the master, and his negligence was that of the defendant. Under this instruction, the plaintiff was entitled to a verdict, if the two questions submitted were answered in the affirmative ; and such was the verdict of the jury. Thereupon the defendant moved for a new trial on the minutes, and the court granted the motion, on the ground that it was error to deny the motion for a nonsuit. Y7hile we do not find the question altogether free from difficulty, we are of the opinion that the learned court was right at first; that the motion for a nonsuit was properly denied; that the case was properly submitted to the jury ; and that the motion for a .new trial ought not to have been granted. It is very clear that the plaintiff was not a volunteer, but a temporary servant of the defendant, employed as such by one who had undoubted authority to employ assistance when the emergency required. Whether such was the emergency in this case was a question properly submitted to the jury, but, if the answer to it had been in the negative, the verdict might properly have been set aside, as contrary to the evidence. It is matter of demonstration that this car could not have been drawn backward, with safety to the passengers and property of the defendant, with only one man to manage both the horse at one end and the brake at the other end of the car. Having such authority from the necessity of the case, the driver, in exercising it; stood in the place of the master, and charged the latter with the consequences to others of any abuse of discretion or neglect of duty in its exercise. Beach, Cont. Neg. § 342; Thomp. Reg. 1040; Bradley v. N. Y. C. Railroad Co., 62 N. Y. 99.

Such being the effect of the emergency mentioned, and its existence in this case being established by the verdict, the second question submitted to the jury became pertinent, and the answer to it decisive of the action. We think the question was properly submitted to the jury, and that the verdict, in that respect, was well supported by the evidence. The little platform on which the boy was placed was, to some extent, a dangerous place for anybody to stand upon while the car was in motion backward, for the reason that the whole structure, including the steps, was within the line of the rails, so that if he slipped or stumbled, or by any jar or shock was thrown from the platform, some portion of his body or limbs was likely to come in front of the wheels. The other boys, who seem to have escaped without injury, must have leaped clear from the end of the car. It was the duty of the driver, who, acting in the place of the master, employed the plaintiff, to give him a reasonably safe place in which to render the service required of him ; and we think it was a question for the jury whether the place in which he was put was a reasonably safe place for a boy of his youth and inexperience.

But there is another aspect of the case in which, as we think, the negligence of the driver was still more apparent. He drove the other boys off the car, while it was in motion, past the place where the plaintiff stood, at the imminent hazard of jostling him from his footing oil the narrow platform; and this is precisely what did happen. It might have been avoided by stopping the car when the boys were ordered off. If what he did in this respect was negligence on the part of the driver, its effect. to charge the defendant can be avoided only on the ground which is contended for by the defendant, viz. that the driver no longer stood in the place of the master, and that his negligence was that of a fellow servant with the plaintiff. But this ground we do not regard as tenable. We think that, acting in the place of the master when he employed the plaintiff for the temporary service, the driver continued to hold that relation to the master during the continuance of that temporary employment, and that the defendant is chargeable with the driver’s negligence while that relation continued to exist. It is undoubtedly true that the plaintiff was sui juris, and therefore chargeable with any negligence on his own part which contributed to occasion the accident in question ; but it is equally true that, in judging the acts of such a boy, the law does not hold him to the same standard of prudence and good judgment as if he were a man of mature years and experience. But the doctrine of contributory negligence has no application in this case, except to charge the plaintiff, to an extent limited by his youth and inexperience, with an assumption of whatever risks of the employment were apparent to him when he entered upon it; and clearly those risks did not include the danger of being jostled from the platform by a crowd of boys, driven from the car while it was in motion,,

On the whole case, we are of the opinion that the motion for a nonsuit was properly denied; that is was proper to submit the case to the jury; that the verdict should not have been set aside; and that the order granting a new trial should be reversed. Order granting a new trial reversed,.with costs, and judgment directed for the plaintiff on the verdict All concur.


text:
    In the Matter of the Judicial Settlement of the Accounts of Philo D. Beard et al., as Executors, etc.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    1. Executors, etc. — Commissions.
    Where the duties of the executors as such are distinct from those as trustees, they are entitled to commissions in both capacities.
    3. Same — Test.
    The tests, to ascertain whether the duties of executor and trustee are distinct or blended, given.
    Appeal from so much of the decree settling the executors’ accounts as adjudges them entitled to commissions as executors only, and not to commissions, also, as trustees.

      J. M. Provorst, for app’lts; P. G. Reyburn, for resp’t,
   Dwight, P. J.

The sole question in this case is whether, under the provisions of the will of Mrs. Mo Oredie, the functions and duties of the appellants—on the one hand as executors, and on the other hand as trustees—are so far severable and severed as that they are entitled to be allowed compensation in both capacities, or, more specifically, whether, as executors, they are entitled to commissions for “paying out” the trust fund to themselves, as trustees. A 'careful examination of the will of Mrs. Me Credie in the light of the authorities bearing upon the present question, leads us to the conclusion that the question must, in this case, be answered in the affirmative. The will in question contains six provisions, numbered from 1 to 6. The first provides for the payment of debts and funeral expenses; the second provides a pecuniary legacy to the sister of the testatrix ; the third, a specific legacy to her adopted son; the fourth, a specific legacy to her daughter. These four provisions create no trust, involve no exercise of discretion, vest no estate in the executors, but simply dispose of a particular sum of money and particular articles of personal property by direct gift to the persons named therein. So much of the will may and should have been completely executed, and the estate so far closed up, immediately on the expiration of the year limited by the statute. The fifth piro vision of the will introduces a new order of things. It assumes that the previous provisions of the will have been fully executed, and it deals with the residue of the estate alone. It gives all the rest, residue, and remainder of the property of the testatrix, real and personal, as trust, to her executors and testamentary trustees thereafter appointed. It defines the trust thus created, which is to continue during the lifetime of the daughter of the testatrix, who is the sole beneficiary of the trust, and prescribes the final and absolute disposition of the property when the trust shall have been fully discharged. Throughout this provision of the will the persons charged with its execution are denominated “the said trustees.” The sixth and last provision of the will nominates the appellants as “executors of, and testamentary trustees under,” the will, and gives to them, as such executors and testamentary trustees, power to sell, lease, etc., any of the property, real and personal, and invest the same as they may see fit for the purpose of carrying out its provisions. By a codicil to the will the testatrix provided two additional pecuniary legacies, and also a bequest to the executors and testamentary trustees of her will, of the sum of $2,500, in trust, to be expended in the construction of a' monument in memory of her late husband.

It is apparent that the first two provisions of the codicil fall into the classification of, the first four provisions of the will, and, like them, are to be executed before the trust in the residue of the estate can take effect. The same is equally true of the provision for a monument, so far as the laying aside and appropriation of the money are concerned. That sum of money, together with the sums named in the several pecuniary bequests, and the articles of personal property specifically bequeathed, must all be withdrawn from the body of the estate before the residue of the estate can go to constitute the trust fund, or can go into the hands of the trustees, as such, under the fifth provision of the will. Wo have, then, as it seems to us, in this will, a scheme for the care and distribution of an estate which not merely permits, but practically accomplislies, a separation between the functions of the executors and those of the trustees; in which the two functions cannot be said to be blended for any purpose, or to coexist for any period of time; in which, on the contrary, the duties of the executors are to be ended before those of the trustees are begun. The case before us seems, therefore, to respond in favor of the contention of the appellants to all the tests which our courts have applied in several recent cases for the purpose of determining whether the functions of executors and trustees in the same will were to be regarded as separate and distinct, and whether, accordingly, the persons exercising those functions were entitled to compensation in both capacities. The cases referred to are Johnson v. Lawrence, 95 N. Y. 154; Laytin v. Davidson, 29 Hun, 622; 95 N. Y. 263; Phœnex v. Livington, 101 N. Y. 454; In re McAlpine, 15 St. Rep. 532; Id., 126 N. Y. 285 ; 37 St. Rep. 6; In re Crawford, 113 N. Y. 560; 23 St. Rep. 722. The doctrine of all these cases was the same, though the results reached differed from each other. In the first of the cases,cited the two functions were found to coexist throughout the administration of the estate, and to be inseparable, and double commissions were denied. As was said by Finch, J., in writing the opinion:

“ It is apparent that, from tne very beginning, the duties of the executors were inseparably blended with the trust duties, and were so intended to remain, * * * There was no point of time at which it could be said that one function ended, and the other began. * * * The trust duty sprang into life at the same instant with the executorship, and was inextricably blended with it.”

The examination already given to the will in the case at bar has shown, we think, that it presents the reverse of the propositions above stated, and that, on the other hand, it corresponds to the propositions contained in the statement, further on in the same opinion, of the rule “ that, to entitle the same person to commissions as executors and1 trustees, the will must provide, either by express words or by fair intendment, for the separation of the two functions and duties,—one duty to precede the other, and to be performed before the latter is begun, or substantially so performed.” In the case of McAlpine, the same rule was applied, with the same result; it being considered “ that the will,” in that case, “ does not provide for separate and successive duties, but that the trust duties and those of the executors have coexisted from the issue of letters testamentary to the present time, and will so coexist down to the final execution of all the powers and duties created •and prescribed in the will.” In Laytin v. Davidson, the application of the same test afforded the contrary result. In the opinion in the court of appeals, Andrews, J., said:

“The will clearly contemplated a period of time when the duties of executors, as such, should end, and they should assume the character, exclusively,-'of trustees for the widow and children of the testator. The duty to pay debts and the legacies presently payable, and to construct a burial vault, was strictly executorial, and upon the accomplishment of these purposes the property was given ‘upon the further trust’ to divide the residue, etc. The duty .of division into shares, and to receive and apply the income of the several shares to the use of the beneficiaries, respectively, could not beperformeduutiltheresiduewas ascertained by an accounting.”

In Phœnix v. Livingston the persons charged with the administration of the estate were, as in this case, denominated “ executors of, and testamentary trustees under,” the will; and, in the opinion in that case, Finch, J., says of them:

‘‘ They were first to act as executors of the will, and then as trustees under it. * * * The accounts of the executors, as such, were settled, and there was nothing left but the trust estates to be managed for the beneficiaries. * * * We think it was a proper case for the allowance of commissions to the same persons,—first, in the character of executors, and then of trustees.”

In the Case of Crawford (the last of those cited) the residuary estate was given to the executors, in trust, with authority to sell the real estate, and to divide the whole into specified parts, which were to be kept invested, and the income paid to the beneficiaries named. The provision was in all respects material to this inquiry, the same as in this case; and in that case the court, by Peckham, J., said:

“ Lastly, we think that the court at general term was right in awarding double commissions. As executors, it was their duty to pay the debts of the deceased ; and then all the residue of the property which was not devised or bequeathed to others was, by the third clause of the testator's will, given to the executors, in trust for the purposes therein mentioned. * * * We think that, after the sale of the land and the payment of debts, the duties of the executors ended by the payment to the trustees (themselves) of the thirty-two parts into which the estate directed to be paid over to them was to be divided. From that time the duties of the trustees commenced, and they were to invest in their names, as trustees, the I five, eight, and nineteen parts, respectively, in accordance with the directions of the will; and at the death of the testator’s daughters the trust estate is to be paid by them as trustees, and not as executors. This gives them the right to double commissions.” ,

It seems to us that the case in hand is quite as clearly one in which the duties and functions of executors are distinct and separate from those of trustees, as either of the cases cited, in which the rule of separation was applied, and double commissions allowed, The decree of the surrogate should be modified so as to provide for the discharge of the executors, as such, upon the settlement and allowance of their account, the transfer to themselves; as trustees, of the entire residue of the estate appearing upon the account as settled, and the allowance to them of the usual commissions for receiving and paying out as executors, and for receiving as trustees.

So ordered, and the case remitted to the surrogate’s court of Erie county, with directions to enter, a decree modified as here, indicated.

All concur.


text:
    The People. Resp’t, v James Burns, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    I. Pardon—Conditional—Yaudity-
    Under § 5, art. 4 of the State Constitution, a condition that the person pardoned shall totally abstain from the use of intoxicating liquors for five years, is valid.
    .2. Same—Procedure.

       The procedure, in such case, defined.
    Appeal from an order re-committing defendant on his original SGütGtlC©.

      J. H. Eeef, for app’lt; G. W. Nellis, Dist. A tty., for the People.

       The practice, in such cases, is definitely prescribed by §§ 696, 697 and 698 of the Code of Criminal Procedure, which were added by chap. 392 of 1894.

   Dwight, P. J.

The order appealed from remanded the defendant to the custody of the warden of the state prison at Auburn, on the ground that he had violated the condition of the pardon by virtue of which he had previously been released from such custody. On the 18th day of May, 1889, the defendant was convicted in the Herkimer sessions of the crime of robbery in the first degree, and sentenced to imprisonment at hard labor in the Auburn state prison for the term of 13 years. On the 10th of January, 1893, the governor granted a commutation of the punishment thus imposed to a like imprisonment for the term of 3 years, 7 months, and 22 days from May 20, 1889, to terminate January II, 1893, on which day the defendant was accordingly released from his imprisonment. The commutation thus granted was upon the express condition, among others, “ that the said Burns ■shall totally abstain from the use of intoxicating liquors for five years,from the date hereof, and if he violate such condition he shall be compelled to serve in the state prison at Auburn the portion of said term now remaining unserved, without commutation for good behavior." On the 6th day of June, 1893, the defendant was arrested in Rochester, on a charge of robbery, in a saloon, where, according to his own account of himself to the police magistrate, and other evidence, he had been drinking for some time with a party whom he had invited there for that purpose, one of whom complained of being robbed of his watch by the defendant. Upon these facts being made known to the district attorney at Rochester, he reported the case to the warden of the state prison at Auburn, and the latter dispatched an officer to Rochester, who, under his instructions, brought the defendant back to Auburn, and delivered him to the custody of the warden, who received and consigned him to imprisonment under his original sentence, as having forfeited his commutation by violating the condition upon which it was gran ted. On the 30th day of October the defendant sued out a writ of habeas corpus, which was allowed by Justice Rumsey, and made returnable,before him the next day, at an adjourned term of the court of oyer and terminer for Cayuga county. The defendant was produced, accordingly, by the warden of the state prison, who made return of, substantially, the facts above stated. The defendant traversed the return only in respect to the alleged violation of the condition of his commutation, but objected to it for insufficiency, on many grounds. The court, in effect, sustained the objection that it was not competent for the warden to seize and recommit the defendant without a hearing on the question of his violation of the condition of his commutation, and accordingly discharged the defendant from the present custody of the warden, but made an order requiring him to show cause,, forthwith, before the same court, why he should not be remanded to the state prison under his original sentence, for violation of his'conditional pardon, and that in the meantime he be delivered to the sheriff of Cayúga county, and be held by him until so remanded to prison, or discharged according to law. The inquiry under the order to show cause was postponed until the 2nd day of November. On that day the” defendant appeared in person and by counsel; a jury was duly impaneled ; evidence was duly taken on the part of the people and of the defendant; the question of fact was tried, and, after argument of counsel, was specifically submitted to the jury by the court. The jury returned a verdict to the effect that the defendant had violated the above-mentioned condition of his conditional pardon or commutation, and the court thereupon made an order recommitting the defendant to the custody of the warden of the state prison under the sentence originally imposed upon him. We find no error in the mode of procedure adopted in this case, nor in the final order here appealed from. The constitution of the state contains the following provision : “ The governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think projoer.” Article 4, § 5.

The discretion here given to the executive is very wide in respect to the conditions which may be attached to pardons and commutations of sentence,—no distinction being made between the two forms of executive clemency, —and we cannot doubt that the condition imposed in this case was within that discretion. Such being the case, the violation of that condition deprived the commutation of all force and effect, and restored to the original sentence the same force and effect as if the commutation had not been granted. The statutes of the state provide, specifically, no mode of procedure for enforcing the liability to recommitment incurred by a violation of the condition of a pardon or commutation; but the mode adopted in this case had the authority of preceder)t, People v. James, 2 Caines, 57; People v. Potter, 1 Parker Crim. R. 47, and it seems to have been one of which the defendant could not complain. He was before the court on a writ of habeas corpus granted on his own application, and he thereby submitted to the court the whole question of his right to a discharge, or his liability to a recommitment. The fact of his original sentence and commitment, and the condition attaciied to the commutation of that sentence, were duly proved and not denied. Ho question of identity was raised. The only question of fact was of the violation of the condition mentioned. In determining that question the court, though possibly not required to do so, might," at least, with great propriety, take the verdict of a jury drawn, as was done, from the panel of jurors summoned and in attendance at the term; and his commitment pending such trial to the custody of the sheriff of the county was strictly in accordance with the statute which prescribes the proceedings on habeas corpus. Code Civ. Proc., § 2037.

The question whether it was competent for the governor to prescribe, by the defendant’s commutation, that his imprisonment under a recommitment for a violation of the condition in question should be without commutation for good behavior, was not in any manner prejudged in this proceeding, but remains to be determined whenever it shall appear that he is otherwise entitled to such commutation. The order appealed from should be affirmed.

So ordered, without costs of this appeal to either party.

All concur.