author: Van Wyck, J.

text:
    Solomon May, Resp’t, v. The City of Brooklyn, App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 27, 1892.)

    Municipal coepoeations—Negligence—Highway.
    Lands formerly in the town of New Lots were sold to plaintiff and others with reference to a map on which they appeared bounded by a street, some of which were purchased by defendant, which for convenience closed said street and opened another fifty feet distant, which was used by the'public for over twenty years and by plaintiff for twelve years for ingress and egress through a gate. Held, that it was such a thoroughfare or highway, as between the parties, that the defendant was properly held chargeable with negligence in putting a large pipe in front of plaintiff’s gate in said street.
    Appeal from judgment in favor of plaintiff, rendered upon a trial by the court without a jury.

      Ira Leo Bamberger, for resp’t; Almet F. Jenks, for app’lt.
   Van Wyck, J.

This action was brought to recover damages for injuries claimed to have been caused solely through the negligence of defendant. By consent, the cause was tried before the court without a jury. The court gave plaintiff judgment for $338.50 damages and costs, and defendant appeals therefrom.

Dinsmore Place, the bens in quo the accident occurred, is in the Twenty-sixth Ward of this city, formerly the town of New Lots. About the year 1859 the city of Brooklyn purchased a strip of land in the then town of New Lots, situated on Atlantic avenue, Locust street and Chestnut street, and having a depth along Chestnut street of 280 feet, and erected on a portion thereof a pumping station for its water system. A strip of land about fifty feet in width, composing the rear of this property, so owned as aforesaid by Brooklyn, was left open and unoccupied, which is known as Dinsmore Place. In 1835, the farm which included the property occupied by plaintiff and that owned by the city was mapped, and the map filed in the office of the register of the county of Kings, and on said map “ Fourth street ” was laid down about fifty feet from Dinsmore Place. Lots were sold by this map, and reference made in the deeds to it and the streets ■ thereon, including “ Fourth street.” After the city bought the land, it closed Fourth street, which divided its land in two parcels, and opened Dinsmore Place in lieu thereof. From that time Dinsmore Place has been used as a thoroughfare, drive-way or road-way, by the general public with the consent or permission of the city, by wagons, carts, carriages and horses, and for about twelve years the premises now occupied by plaintiff, having a frontage on Dinsmore Place, have had a gate opening into Dinsmore Place, which has been used for the ingress and egress of teams of the occupants of such premises. This has been well known to the general public and to the city for many years.

On the afternoon of December 19, 1889, and after plaintiff had driven his team upon his premises through this gate, which was a daily occurrence, the city, without the knowledge of plaintiff or his driver, placed partly in front of this gate a large water pipe, four feet in diameter and twenty-two feet long, in such near propinquity to and in such relative position to the gate that when plaintiff’s driver, on the following morning at three o’clock, before daybreak, drove through this gate into Dinsmore Place, his wagon naturally struck against this pipe so placed, turning over and breaking the wagon and causing the injuries for which damages were given by this judgment.

The chief contention of appellant’s counsel in a learned brief is that Dinspiore Place was neither a public highway of the town of New Lots nor a public street of the city of Brooklyn, after annexation, and therefore no duty rested upon the city to keep the same in repair and in safe condition for those using it. We are willing to assume, for the purpose of this appeal, that he is correct in the facts and law, for if it was not a public street, the city cannot be held liable for the omission on its part to repair or remove from the roadway an object of danger placed there by some one other than the city. But Dinsmore Place with the consent, permission or knowledge of the city has been used for about thirty years by the general public as a driveway, or roadway, or thoroughfare for the use of all kinds of teams, and for about twelve years by the occupants of plaintiff’s premises for ingress and egress through his gate opening on Dinsmore Place. It seems to us that counsel does not appreciate that the decision of the trial court is not .based upon the omission by the defendant of any duty resting upon it to keep its public streets in repair and safe condition, but expressly upon the commission of an act which the court has held was negligence under the circumstances. The plaintiff and the general public were impliedly invited to use Dinsmore Place, and by the consent or permission of the city it was so used for thirty years, and it is manifest that the.city, even if it had the power to close it up, was bound to use reasonable care in doing so to prevent injury to those who, it was well known to the city, would continue to use it as usual until they were informed it was closed by actual notice from the city or by the character of obstructions placed on or across it. It may be that the court would not have been justified in finding the defendant chargeable with negligence of nonfeasance in relation to Dinsmore Place, but we think Dinsmore Place was such a thoroughfare, or highway, as between these parties, that the trial court was justified in finding that the defendant was chargeable with negligence of misfeasance in putting this large pipe in front of plaintiff’s gate under the circumstances. Brusso v. City of Buffalo, 90 N. Y., 681; Schade v. City of Albany, 16 N. Y., Supp., 262. We do not think plaintiff’s driver was negligent in driving out of this gate as usual, in the night time, without anticipating that the city had placed this obstruction in his pathway.

Judgment affirmed, with costs.

Osborne, J, concurs.

       Affirming 44 St. Rep., 368.


source: Caselaw Access Project

author: Clement, Ch. J.

license: Public Domain

text:
    Michael Moran, Appl’t, v. Catharine Moran, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed June 27, 1892.)

    Deed—Cancellation—Weight oe evidence.
    In an action to set aside a deed alleged to have been procured by force, fraud and undue influence, the deed appeared to have been acknowledged on March 18 before a notary who has since died. A witness who drew the will and another witness testified that it was not executed on that day, but on the 30th, the day before the alleged grantor died; and that defendant took her hand, put the pen in it, and made her sign the deed by a mark. Held, that -the court was not bound to believe the testimony of these witnesses, although uncontradicted; but if he believed that the deed was executed on the 18th, could disregard their entire testimony.
    Appeal from judgment of special term, dismissing the complaint.

      Thomas E. Pearsall, for app’lt; J. W. & C. W. Ridgway (Henry B. Twombly, of counsel), for resp’t.
   Clement, Ch. J.

This action was brought by the plaintiff to cancel a deed of record, purporting to have been executed by Margaret Moran on March 18, 1891, to the defendant The said Margaret is a sister of plaintiff and defendant, and died intestate on March 21, 1891. The deed is dated March 18th, and appears to have been acknowledged on the same day before a notary public, one Odasz, who died before the trial of this action. The plaintiff produced a witness, Andrew A. Joyce, who drew the deed, and who testified that the same was not signed or acknowledged on March 18th, but two days later. Joyce also testified, substantially, that the deceased refused to put her mark to the deed, and describes the manner of signing as follows: “In the meantime Margaret wrapped herself up in the coverlet, got her arms down alongside of her, turned a little to the right, and Kate got hold of her, and pulled her right arm out, and had the pen in her mouth, took hold of her hand, put the pen into it, and took hold of it, laid the deed down, and made a mark to it. That was the end of it. Odasz acknowledged it.” Catherine Dahl, a witness for plaintiff, gave testimony tending to show that the deed was signed on March 20th. She says that “ Catherine had a paper in her hand, and a pen in her mouth, and a chair right by the deceased woman’s bedstead, and she took up my cousin Margaret’s hand to. sign the paper, and Margaret pulled back her hand,” “ and then Kate took it up again; then she took the pen from her mouth, and put it in Margaret’s hand to sign the paper.” The plaintiff’s case depended on the credit given to the testimony of the two witnesses, Joyce and Catherine Dahl. The defendant was not examined on the trial, and no testimony was given tending to contradict t^e testimony of the two witnesses. The trial judge found that the, deed was executed on March 18th, and rendered judgment for the defendant.

The counsel for plaintiff contends that the decision is erroneous because there is nothing in the case to contradict the testimony of Mr. Joyce and'Mrs. Dahl. If the defendant was competent as a witness, and had been examined at the trial, and denied the testimony given by the two witnesses tending to show that the deed was not the free act of the deceased, then it is conceded that the issues involved would have been purely of fact, and the appellant would not have complained of the result. While it is true that the defendant could have denied many of the statements of Joyce as to what took place outside of the bed room, Lewis v. Merritt, 98 N. Y., 206, yet she was not a competent witness to testify as to what took place when the deed was executed. Assuming that if the defendant had been called the plaintiff would not have objected to her testimony, we do not think it follows that the testimony of the two witnesses must be taken as true. If the plaintiff had brought an action of ejectment and introduced the testimony in this case, it would have been error for the court to charge-the jury that the defendant was bound to take the witness stand. Bleecker v. Johnston, 69 N. Y., 309. In this action, the deed appeared to have been acknowledged on March 18th, before a notary public who had died before the trial. This was testimony of weight tending to show that Joyce and Mrs. Dahl did not tell the truth when they said that the deed was not signed or acknowledged before March 20th. If the trial judge believed that the deed was signed on the 18th, then he was justified in disregarding the entire testimony of Joyce, for he describes what took place on the 18th, 19 th, and 20th, in relation to the deed. The defendant was not bound, as matter of law, to take the stand and give cumulative testimony as to the date of the execution of the deed, even though the counsel for the plaintiff stated in advance (which he did not) that he waived any objection. In the case of Crary v. Crary, 46 St. Rep., 307, if the jury had found for defendant, we would not have disturbed the verdict as against the weight of evidence.

The learned counsel for the appellant has prepared an elaborate brief on the question of undue influence. We do not see that such question is involved in the case. The deed was not signed by the deceased, if Mr. Joyce is to be believed, but the defendant, by force, compelled the sick sister mechanically to make her mark. The question of fact was as to the execution or non-execution of the deed. We have not thought it necessary to discuss the alleged contradictions in the testimony of Mr. Joyce and Mrs. Dahl. It is sufficient to hold that the judge who heard their testimony was not bemud to believe them.

The issues were purely of fact, and the decision is clearly not against the weight of evidence.

The judgment must be affirmed, with costs.

Osborne, J., concurs.


text:
    Moses May, Resp’t, v. Henry Traphagen, App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 27, 1892.)

    Taxes—Assessmbnt—Appobtioiímeiít.
    A lot of land owned by defendant was assessed to. Mm in 1882. This lot was divided and defendant’s brother became the owner of a portion thereof. In 1888 both lots were assessed as one parcel at the same gross value as before. Subsequently the assessments and taxes were apportioned between the lots and the one owned by defendant sold for the tax to plaintiff. In an action of ejectment, the president of the board of assessors testified that they never apportioned except at the request of some one claiming to be interested. Held, that the assessment of the lots as one parcel was proper, and that the apportionment could not be held illegal, as the evidence failed to establish that it was not done at the request of defendant’s brother.
    Appeal from judgment in favor of plaintiff, entered upon the decision- of the court.
    Action of ejectment.

      Ira Leo Bamberger, for resp’t; Gratz Nathan, for app’lt.
   Van Wyck, J.

The plaintiff claims title to premises known on the assessment map of the city of Brooklyn as lot 21, block 222, ward 17, by virtue of a sale by the registrar of arrears, for taxes of 1882, 1883 and 1884. This lot, and lot No. 20, prior to the levying of the taxes of 1882, were owned by defendant and constituted one lot, known on same map as lot No. 19. For the taxes of 1882 lot 19 was assessed at the value of $4,500, and a tax levied thereon of $94.89. Thereafter the map was changed by dividing lot 19 into lots 20 and 21. For the taxes of 1883 these two lots were assessed at the gross value of $4,500, and a tax levied thereon of $107.60. It seems that defendant’s brother became the owner of the part of the original lot 19 designated on .the changed map as lot 20, after the levying of the tax of 1882. It also appears that, some time after the levying of the taxes of ■ 1882 and. 1883, respectively, the assessments and taxes were apportioned for these years between lots 20 and 21, and correction made in the names of parties taxed. These respective apportionments of the taxes of 1882 and 1883 the defendant insists were illegal, because it does not affirmatively appear that it was done .at the request of one of the owners, and that the gross assessment of $4,500 for 1883 on lots 20 and 21 was illegal, because these lots were not separately assessed. The answer to the objection to the apportionments is that the evidence fails to establish that these apportionments were not made at the request of defendant’s brother, who owned lot 20. Even if it was necessary to a legal .apportionment that either the owner of lot 20 or the. owner of lot .21 should have requested the same, the president of the board of assessors testified that they never apportioned except at the request of someone claiming to be interested. See consolidation act of Brooklyn, Laws 1888, chap. 583, tit, 10, § 11 and .§ 10, subd. 2.

The gross assessment of lots 20 and 21 for 1883 at $4,500 did not render the same void, for the assessors complied with the law in referring to the assessment map, and assessed these two lots as one “ parcel ” (Sec. 9). If defendant had objected thereto, the assessors would have changed it by making separate assessments on each lot. Section 11 provides for the apportionments of such gross assessments and taxes where more .than one person is interested in the piece so assessed and taxed.

Ko objection is made to the tax of 1884.

We do not think the trial court’s refusal to uphold the contentions of the defendant, hereinbefore referred to, was error. The jusgment must be affirmed, with costs.

Osborne, J., concurs.


text:
    In the Matter of the Application of Owen O’Keefe et al., App’lts, v. John P. Adams, Com’r, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed June 28, 1892.)

    Municipal coiipobations—Brooklyn—Okdihances.
    The common council of the city of Brooklyn in 1891 amended an ordinance which prohibited any person from driving, backing or leading any horse or carriage on the sidewalk of any street, by adding thereto a provision allowing the granting of a permit to cross sidewalks for the purpose of filling vacant lots or making excavations on condition that the parties asking for the same deposit fifty dollars, which was to be returned if the dirt dropped during the work was removed to the satisfaction of the street superintendent; or if the dirt is not removed, to be applied to that purpose, and the balance returned. Held, that the original ordinance ■did not prohibit the carting of dirt from excavations across the sidewalks; that the common council had no power, under the charter, to pass the .amendment and the same was nugatory, because it provides no penalty for its violation, and because the city cannot require a party to deposit a sum of money as security that he wdl not do an act which can only be ■prevented by an ordinance in which is contained a penalty for its violation.

      Appeal from, order of the special term denying a motion for a writ of mandamus.

    The relators were employed by the Atlantic Avenue Railroad Company to dig foundations and cellars on a plot of land in the city of Brooklyn, to enable the company to build thereon. In order to do this work said relators applied to John P. Adams as-commissioner of city works of said city for a permit. Such permit was not granted because relators refused to deposit with the said commissioner the sum of fifty dollars. The demand for this deposit was made in pursuance of an ordinance of the city of Brooklyn which, so far as is material, appears in the opinion.

      W. J. Gaynor, for app’lts; Almet F. Jenks, for resp’t.
   Clement, Ch. J.

The appellants contracted with an owner to-excavate a cellar and to cart away the dirt. The respondent contends that by reason of § 12 of article 6, chapter 3 of the ordinonces of this city, they must obtain from him a permit to cross the sidewalk, and deposit the sum of fifty dollars. The ordinance reads as follows: (The original ordinance before amendment is in italics, and was passed in 1857.) “Section 12. No person shall drive, hack or had any horse or cart or wheel carriage on the foot path or sidewalk of any street or avenue. The commissioner of city works may, however, grant permits to cross sidewalks for the purpose of filling in vacant lots, or for the purpose of making excavations below the street level, provided that no such permit shall be granted until the party or parties asking for the same shall have deposited in the department of city works the sum of fifty dollars on each permit so issued; said money not to be used if the party or parties to whom the permit is granted shall have gathered up and removed from the streets over which the vehicles have passed all dirt dropped therefrom, to the satisfaction of the superintendent of streets, but shall be returned to the depositor. If the dirt should not be removed within a reasonable time after notice has been given to the holder of the permit to that effect, the commissioner of city works may cause such streets and avenues to be cleaned up at the expense of the holder of the permit, and the balance of said deposit, if any, over and above the expense so incurred shall be paid back to the person, or persons, to whom the permit was granted.” The appellants applied for a permit but refused to make the deposit, and the commissioner declined to give the same. An application was made at special term for a mandamus, and the same was denied.

We do not agree with the learned counsel for the corporation that the ordinance, before the amendment of March 30,1891, prohibited the carting of dirt from excavations across the sidewalks. If so construed, it would prevent a party from building upon his lot, and would deny the right to an abutting owner of driving his-carriage from a stable. An ordinance must be given a reasonable-interpretation. Duryee v. Mayor. 96 N. Y., 477, 495.

The ordinance does not contain any penalty for its violation,, and the different charters have all provided that “ in every by-law;, ordinance or regulation which the said common council may pass,. it shall impose a penalty for the violation or non-performance thereof.” Section 14 of title 2 of chap. 583, Laws of 1888; § 15 of title 2, chap. 863, Laws of 1873; § 16 of title 2, chap. 384, Laws of 1854.

It would seem clear that the penalty must be included in the •ordinance by referring to §§ 15 and 16 of title 2 of the revised -charter. Cnap. 583, Laws of 1888. That an ordinance may not .be inoperative, it is necessary that there be a penalty for its violation. Dillon on Municipal Corporations, § 270. The charter provides that ordinances may be enforced by penalties, and when “ a corporation is authorized ‘to enforce its ordinances by fine or in any other prescribed manner, it is by implication precluded from adopting any other method of punishing disobedience to them.” Hart v. Mayor, 9 Wend., 571, 588; Kirk v. Nowill, 1 T. R., 124; Dillon, §§ 273, 274; City of Utica v. Blakeslee, 46 How. Pr., 165; 17 American and English Encyc. of Law, p. 260; Miles v. Chamberlain, 17 Wis., 446.

We are of opinion that the common council had no power, under the charter, to pass the amendment to the ordinance in ■question. The city cannot énforce ordinances except by a penalty, and cannot require a party to deposit a sum of money as security that he will not do an act which can only be prevented by an ordinance in which is contained a penalty for its violation. The common council could pass an ordinance under which a contractor might be compelled to clean up any dirt in the streets which has dropped from his carts, and could provide a fixed and definite penalty for failure on his part so to do. It would be necessary for the common council to have special authority from the legislature to pass the ordinance -now under consideration. If it had such right under its general powers, then § 18 of title 15 of the revised charter would not be necessary. That section provides that the commissioner of city works may prescribe a license fee to be paid by plumbers for permits for water connections, and require security from them against damage. The ordinance is nugatory, because it provides no penalty for its violation, and because it compels contractors to deposit money as security which may be forfeited unless the streets are cleaned to the satisfaction of the superintendent. In view of this conclusion, we hold that no permit was necessary, and, therefore, that the order appealed from must be affirmed, but without costs.

Osborne, J., concurs.


text:
    Benjamin Croner, App’lt, v. Samuel F. Cowdrey, Impl’d, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed July 1, 1892.)

    1. Taxes—State lands.
    ■ A sale for taxes of lands owned by the state is void.

      ‘S. Same—Statutes.
    The terms of chap. 191, Laws of 1878, are not inconsistent with the terms of subd. 3 of § 4, tit. 1, chap. 13 of the first part of the Revised Statutes, and did not supersede them so that the repeal of the act of 1878 would have the effect to repeal the provisions of that subdivision.

      Appeal from judgment dismissing the complaint.
    Action of ejectment. The facts are similar to those in the case of Johnson v. Cowdrey, ante, 546.

      W. J. Gaynor and Ira Leo Bamberger, for app’lt; S. F. F. H. & H. Cowdrey, for resp’t.
   Van Wyck, J.

This is an action of ejectment. The title in fee simple of the premises in question became vested in the state of Mew York on June 6, 1878, by the death of Mannette Johnson Harrison, without heirs or unrevoked last will and testament. The admission of the marriage record of the deceased preacher, Legare, as evidence of the marriage of Mannette Johnson to Harrison on March 18, 1873, was proper, and this has been so held by this court in Johnson v. Bates, ante 546. This brings us down to the consideration of the only other question raised by appellant, whether or not the plaintiff acquired title to these premises by virtue of the sale and conveyance by the registrar of arrears of the city of Brooklyn for the unpaid taxes for the years 1885 and 1886. The case fails to show what where the details of these tax levies, except that each included state, county and city taxes, and it is not a violent assumption that the latter included the moneys raised for a variety of city purposes, such as the - payments of salaries of city officials and employees, the purchase of supplies for police, fire and other city departments, expenses incident to repairs of streets, etc. At the times of the assessments and levies respectively of the taxes for these two years, these premises were state lands, and at the time of the assessment and levy of the tax of 1886, the act of 1886 (chap. 435) was in full force. If any portion of these taxes levied for city purposes for the year 1886 was covered by the provisions of this act of 1886, then the sale for the same was void, because the act absolutely prohibited the sale therefor. If, on the other hand, this was a general tax for state purposes, then these premises were expressly exempted from such taxes by the Revised Statutes, part 1, chap. 13, tit. 1, § 4r subd. 2, unless it has been repealed. Sec. 4: “ The following property shall be exempt from taxation: ” Subd. 2, “ All lands belonging to this state or the United States.” The law of 1878, chap. 191, amended this subdivision so as to read as follows: “2. All lands belonging to this state or to the United States, and all vessels engaged in the coasting trade.” This did not repeal the then existing provisions of subdivision 2, but extended the exemption to another kind of property, viz., coasting trade vessels. This intention of the law making power would not have been made plainer even if the act had declared that subdivision 2 was amended by adding thereto the words underscored. Chap. 140 of the Laws of 1879 repeals this amendatory act of 1878. It is manifest, from the context of these several acts, and the subject matter dealt with, that the intent of the legislature was only to repeal the provision extending the exemption to coasting trade vessels. Otherwise, subdivision 2 would have been repealed expressly, and besides it will not be presumed that the state intended that its lands should be taxed simply to enable the tax collector to collect the same from the state out of taxes already received by the state, and then to turn the same over to the state less his fees, to be used by the state in defraying public expenses. Such an exercise of the taxing power could have no other object than an absurd generosity to the tax collector, and such intent of the law making power of the state will not be assumed. The case of the People, etc. v. Board of Supervisors, etc., 67 N. Y., 109, is not in conflict with our already expressed views, for the terms of the amendatory act in that case were inconsistent with the terms of the act amended, and therefore superseded them, and so merged them in the amendatory act that the repeal of the latter showed an intention to repeal the whole scheme of its provisions. The terms of the amendatory act of 1878 are not inconsistent with the terms of this subdivision 2 of the Revised Statutes. It had no greater or less effect than if the amendatory acts had expressly provided that this subdivision 2 should be amended by adding thereto the "words “ All vessels * * engaged in the coasting trade.” The intent of the legislature in making the amendment and in repealing the amendatory act is plain. The former was to extend the exemption to such vessels and the latter was to-exclude such vessels from the exemption. Then, again, no presumption will be indulged in that the supreme sovereignty of the state, while engaged in raising funds to be used by it for public purposes by the exercise of the power of taxation, intended, without expressly and plainly saying so, to make its own lands liable-to such taxes, to be collected from it by the tax collectors and then turned over to it by them, less charges and commissions. People v. Assessors, 111 N. Y., 505; 19 St. Rep., 638. We understand that the assessors in this state for the purpose of general taxation have treated this subdivision 2, so far as it exempts state lands from taxation, as in full force, notwithstanding the act of 1879, chap. 140.

We think the sale of the premises for the tax of 1886 was void, either by virtue of the provisions of the act of 1886, chap. 435, or by those of this “subdivision 2,” of the Revised Statutes, if not by both.

Judgment must be affirmed, with costs.

Osborne, J., concurs.


author: Osborne, J.

text:
    S. Fleet Speir, Resp’t, v. The City of Brooklyn, App’lt.

      (City Court of Brooklyn, General Term,

      Filed July 6, 1892.)

    1. Municipal corporations—Nuisance—Fireworks.
    The discharge of fireworks on a public street in a city is a nuisance per se. ,
    3. Same.
    Where the mayor grants a permit for a display of fireworks on one of' the streets of the city, the city becomes a partner in the maintenance and. committing of such nuisance, and is liable for injuries resulting therefrom..

      Appeal from judgment in favor of plaintiff, entered upon the decision of the court. Action for injuries to plaintiff’s property caused by a rocket fired at an exhibition of fireworks on Montague street, which was authorized by the mayor.

      Wm. C. De Witt, for resp't; Almet F. Jenks, for app’lt

       Affirming 45 St Rep., 361.

   Osborne, J.

On and prior to the first day of November, 1887, plaintiff owned and occupied a dwelling house on the southerly side of Montague street, three doors west of Clinton street On the evening of that day there was a political mass-meeting held at the Academy of Music, near by, and a pyrotechnic display was .given at the corner of Clinton and. Montague streets. During such display a rocket was discharged in such a manner that, while burning, it entered an attic window of plaintiff’s house, setting fire to it and doing considerable damage. It appeared in evidence that this pyrotechnic display was given under a permit or license issued from the mayor's office under chap. 3, art. 4, § 2 of the city ordinances. On the trial plaintiff obtained judgment against the ■defendant for the damages sustained by him, and this case comes before us on appeal from said judgment.

We think this judgment should be affirmed, and, in stating our reasons for arriving at this conclusion, there is very little left for us to add to the opinion handed down by the learned trial judge, which seems to us to be amply fortified by the authorities cited by him. It seems to us to be well settled that the discharge of fireworks on a public street in a city is a nuisance per se. When the mayor, as the chief executive officer of the city, by virtue of the power conferred upon him by the ordinance above referred to, undertook to grant permission for, and to authorize this pyrotechnic display in the public streets, it seems to us clear that the city became a partner in the maintenance and committing of the nuisance. In the absence of this permit, it would have been the duty of the police authorities, under the charter, to have stopped this display of fireworks, but for a failure to perform their duty in this regard the city would not have been liable. But when the city undertook to authorize and permit this display, which, as before stated, constituted a nuisance per se,- and which it is fair to assume would not have taken place in the absence of the license from the mayor, then we think the city made itself liable for the results of the nuisance which it assisted in creating. It seems to us that the case of Cohn v. The Mayor, etc., of New York, 113 N. Y., 532; 23 St. Rep., 509, is ample support for the conclusions on which this judgment is based. I-t is true that, in that case, there was no authority on the part of the city to permit an incumbrance in the street, and in addition, the city received a fee for licensing such incumbrance. We are of the opinion that, even with those two points not existing in this case, the propositions of law laid down in the Cohen case are equally applicable here. We have given very careful attention to the numerous authorities cited by the learned counsel for the appellant, but without analyzing them separately, it is sufficient for us to say that there is such a distinction between each of them and the case at bar as to make the law laid down in those cases not applicable to the one now before us. Under the charter, an active duty was impressed upon the city authorities to keep the streets free from obstructions, let alone nuisances. One of the very purposes for which a citizen pays taxes is to promote the preservation of his property. True the city does not warrant that, but it ought not, by its affirmative act, to suffer or permit, or connive at the performance of an act the effect of which is not alone to put in peril the taxpayer’s property, but also, as in this instance, to occasion serious damage thereto. The performance of no municipal duty, or anything approaching it, was involved in the discharge of these fireworks on the night in question. Plaintiff has suffered this serious damage through no fault of his own, but only through the co-operation of the municipal authorities, to whom he had a right to look for protection, and we can see no reason why the city should escape the consequences of its permitting these fireworks to be discharged, causing the damage of which the plaintiff complains.

Judgment must be affirmed, with costs.

Van Wyck, J., concurs.


author: Fitzsimons, J.

text:
    Oscar Compton, Resp’t, v. Norman T. M. Mellis, App’lt.

      (City Court of New York, General Term,

      Filed July 1, 1892.)

    1. Assignment for creditors—Corporation cannot make.
    A corporation has no right to and cannot make a general assignment of its property for the benefit of its creditors. Ij¡ can only terminate its life by the usual dissolution proceedings, in which a receiver will be appointed.
    2. Contract—Statute of frauds.
    Plaintiff sold a cargo of coal to a corporation, which the day after delivery made a general assignment to defendant. On plaintiff threatening to replevin the coal, defendant agreed orally to personally purchase the coal. Held, that defendant had the right, with the consent of the corporation, to purchase the coal from plaintiff, and the contract was an original one and not within the statute of frauds because not in writing.
    Appeal from judgment in favor of plaintiff.

      Hyland & Zabriskie, for resp’t; Guy Richards, for app’lt.
   Fitzsimons, J.

It appears that in October or November, 1884, the plaintiff sold to the Carr & Hobson Co., a corporation, a cargo of coal, consisting of 231 tons, which were delivered on November 14, 1884.

On November 15,1884, said corporation made a general assignment for the benefit of creditors and appointed the defendant assignee.

On November 17, 1884, the plaintiff claims that he had a conversation with the defendant in the presence of Mr. Carr, the president of said corporation; said that he was about to bring a replevin action to recover said cargo of coal.

That defendant requested him to wait, and subsequently had several conversations of like tenure with defendant, and that finally in December, 1884, said that he would personally purchase-said coal for $4.35 per ton, and fixed the quantity at 226 tons.

The jury rendered a verdict for plaintiff for $1,402.23.

1st. The defendant contends upon this appeal that the goods having been sold to the Carr & Hobson Co., the defendant’s promise to pay for the same was void because it was not in writing.

2d. He also contends that even if the goods were sold to him "that this action must fail because not brought, against him in his ■ capacity as assignee.

The questions which we deem unimportant are presented for consideration. '

The Carr & Hobson Co., being a corporation, had no right to .and it could not make a general assignment of its property for the ■benefit of its creditors.

It could only terminate its life by the usual dissolution proceedings, in which a receiver would have been appointed, and until such proceedings were taken the said corporation had a legal ■existence.

Therefore, on the 17th day of November, when plaintiff had the conversation, the defendant had the right, with the consent of the Carr & Hobson Co., to purchase from the plaintiff the coal in ■question, and having done so in December, the contract between plaintiff and defendant was an original act and the usual contract .for the sale and delivery of chattels.

This being so, the action was properly brought against the defendant personally.

This ruling we think disposes of all the. material questions raised by the appellant.

Finding no errors, the judgment must be affirmed, with costs.

McGown, J., concurs.


text:
    Sarah Aaronson, Resp’t, v. James McCauley et al., App’lts.

      (City Court of New York, General Term,

      Filed July 1, 1892.)

    1. Husband and wife—Moneys saved from allowances remains property of husband.
    In the management of a household the wife is the agent for her husband, and any surplus arising out of the economy of the wife in her conduct and management of such household remains and is the propeity of her husband, unless bestowed as a gift upon the wife.
    '3. Same—Business conducted with such savings subject to husband’s DEBTS.
    Plaintiff, with savings from her allowance for family expenses, pur-. chased a business which she conducted in her own name. Held, that such savings were the property of her husband; that in purchasing such business and conducting it she acted as his agent or trustee, and the same was subject to attachment for the husband’s debts.
    Appeal from judgment in favor of plaintiff.

      A. & L. Levy, for app’lts ; A. H. Berrick, for resp’t.
   Fitzsimons, J.

The plaintiff is the wife of one Nathan Aaronson. Out of the moneys allowed her by her husband for the support of his household, she saved the sum of $140, which she invested in a grocery business, purchasing and conducting the same in her own name.

The defendant Sigel obtained a warrant of attachment against the plaintiff’s husband and levied upon the grocery business mentioned and sold the same.

This action is .brought for the conversion of said property. Judgment was rendered for the plaintiff for eighty dollars.

In the management of a household the wife is the agent for her husband, and any surplus arising out of the economy of the wife, in her conduct and management of such household, remains and is the property of the husband, unless bestowed as a gift upon the wife, which is not the case here.

The plaintiff even concealed from her husband the fact that she had saved the $140 which enabled her to purchase the store in -question.

We are, therefore, of the opinion that the $140 saved by plaintiff was the property of her husband, and when she purohased the business mentioned she did so as the agent or trustee of the husband, the purchasing funds being his property, and that in the continuance of said business, even in her name, as a matter of law, she acted as such agent or trastee for her husband, and, therefore, the levy under the writ of attachment was lawful, and no right of the plaintiff was thereby violated.

The verdict rendered was, therefore, against the law, and must be reversed and a new trial ordered, with costs to appellant to abide event of action.

McGown, J., concurs.


text:
    Margaret Hannon, Adm’rx, of Julia Barrett, Resp’t, v. Jeremiah Sheehan, Adm’r of Hannah Sheehan, App’lt.

      (City Court of New York, General Term,

      Filed July 1, 1892.)

    Banks—Ownership op deposit.
    Defendant’s intestate deposited moneys in a savings bank in the name of herself for her daughter. She subequently had the account changed to name of herself or her sister, plaintiff’s intestate. After the death of both the bank book was found among the property of another sister,with whom plaintiff’s intestate resided at the time of her decease. Held, that a judgment in favor of plaintiff for said moneys was justified by the circumstances; that it was reasonable to suppose that defendant’s intestate gave the book to her sister with the intention of vesting ownership in her, and that this carried the legal title to the funds deposited.
    Appeal from judgment in favor of plaintiff.

      R. A. Springs, for app’lt; Michael F. McGoldrick, for resp’t.
   Fitzsimons, J.

One Hannah Sheehan on July 29,1882, opened an account with the Emigrants’ Savings Bank as follows: “Hannah Sheehan for her daughter Kate;” subsequently and on February 11, 1887, she changed said account as follows: “Hannah Sheehan, or sister Julia Barrett,” so that Julia might draw the money on deposit.

The account so stood at the time of Hannah Sheehan’s death, which occurred January 22, 1890. Julia Barrett died about February 1, 1890, and the bank book in which was kept the account in question was found among the property of a third sister, Ellen Barrett, who died about February 7, 1890, and with whom Julia resided at the time of her death.

The learned trial justice held that the account in question was the property of Julia Barrett.

Although the testimony upon which this conclusion is based is rather meagre, yet we are inclined to believe that it is justified by the testimony and surrounding circumstances.

Julia Barrett at the time of her death resided with her sister Ellen, in whose possession the book containing said account was-found at her death. It is therefore, we think, reasonable to assume that the book was handed to Julia by her sister Hannah with the intention of vesting ownership of the same in Julia.

The transfer under such circumstances vested in Julia the legal title to the funds deposited. Walsh v. Bowery Savings Bank, 2 City Ct., 276; Penfield, v. Thayer, 2 E. D. Smith, 305.

The theory of the intent of Hannah to invest Julia with the ownership of said funds is supported by the act of Hannah in having the account changed so as to include Julia’s name.

It is only necessary to constitute a legal gift of personal property that there must be on the part of the donor an intent to give and a delivery of the thing in pursuance of such intent to the donee. Beaver v. Beaver, 117 N. Y., 421; 27 St. Rep., 405.

We think that there was enough testimony in this case to justify the trial justice in finding that Hannah Sheehan intended to give to her sister Julia Barrett the funds in suit, and in pursuance of that intent delivered the account book of the Emigrants Bank to her.

We believe that the judgment must be affirmed, with costs.

McGown and Van Wyck, JJ., concur.


author: McGown, J.

text:
    George N. Manchester et al., Resp’ts, v. Thomas C. Van Brunt, Impl’d, App’lt.

      (City Court of New York, General Term,

      Filed July 1, 1892.)

    1. Bills and notes—Protest—Mailing.
    Service of notice of protest by mail is not vitiated by the fact that the envelope bore an endorsement of a request to return if not delivered, where it appears that it was not returned.

      2. Same—Endorser—Extension of time.
    A partial payment by the maker on account of an overdue note is not a valid consideration for a promise of forbearance as to the residue so as to discharge the endorser.
    Appeal from a judgment "entered upon the verdict of a jury in favor of the plaintiff for the sum of four hundred and forty-four and 48-100 ($444.48) dollars, and from an order denying defendant’s motion for a new trial.

      Sackett & Lang, for resp’ts; Alfred A. Cruikshank, for app’lt.
   McGown, J.

This action was commenced August 8, 1890, against above named defendant, as endorser upon a promissory note bearing date May 1, 1890, for the sum of five hundred ($500) dollars, payable three months after date, made by Edward C. Butcher to the order of and endorsed by the defendant Yan Brunt, who alone appears herein.

The note referred to is as follows:

"New York May 1, 1890.
"$500,00-100.
“ Three months after date I promise to pay to the order of Thomas G Van Brunt five hundred 00-100 dollars at the Bank of Harlem, N. Y. city.
“ Value received.
“No. --
“ Due Aug. 4. 1890.
“ Edward 0. Butcher.
“ (Endorsed) Thomas 0. Van Brunt.
“New York, Jan. 14, 1892.
“ Rec’d one hundred dollars on this note.
“ Manchester & Phidbrick.
“ W. T. H.”
Being plaintiff’s Ex. 0.
The answer admits the making and endorsing of the note, but denies that notice of presentation, demand, non-payment or protest was given to the defendant.
And in liis supplemental answer defendant sets up the following instrument in writing, bearing date the 14th day of January, 1892:
New York, Jan. 14, 1892.
“ Received from Edward G. Butcher, Esq., one hundred dollars on.account of a note made by said Edward C. Butcher, and endorsed by Thos. C. Van Brunt, said note now being in litigation, and we hereby agree to stop suit on said note with the understanding that we are to be paid one hundred dollars on account of said note on the 14th day of February next, and paid one hundred dollars on account on the 14th day of March next, and paid one hundred dollars on account on the 14th day of April next, and one hundred dollars and interest on the 14th day of May next, and we are to ■endorse the payment he made on said note.
Manchester & Phidbrick.
“ Witness: John White."

(Being def’t’s Ex. 1), and alleges that thereby the time of said maker Butcher to pay said note was extended, and that said new agreement was substiuted in the place of the note in suit, and that the defendant herein was discharged from all liability as endorser of the note in question.

The note became due on August 4, 1890, on which day it was presented for payment at the Bank of Harlem, and payment demanded, but was not paid, and was protested for non-payment. See evidence of the witness Roberts and notice of protest mailed to defendant on the same day.

Plaintiffs on the following day enclosed notice of protest in one of plaintiffs’ business envelopes, which said: “If not called for in so many days return to us,” and addressed it to defendant, “Thomas C. Van Brunt, 15 to 25 Whitehall street, New York city.”

That was his business address.

“I had been there many times and had seen him, and had done business in his office; I put a two cent postage stamp on and personally dropped it in the U. S. mail box on the morning of April 5th, (Testimony of Manchester). The letter was never returned.”

Defendant testified: “ I never received notice of protest of this-note."

The mailing of the notice, as testified to by plaintiff, was all that he was required to do, and was sufficient to charge the defendant, the endorser. See Laws 1857, chap. 416, § 3; Greenwich Bank v. De Groot, 7 Hun, 210; In re Manley, 17 N. Y. Supp., 200.

It does not appear'that by reason of the return in obedience to the endorsement on the envelope the defendant failed to receive the notice, and the service of the notice by mail was not vitiated thereby.

Manchester, the plaintiff, testified that the letter was not returned to him. See Gaffney v. Bigelow, 2 Abb. N. C., 311.

There was an unqualified legal obligation on the part of Butcher, the maker, and Van Brunt, the endorser, to pa.y the note when due, and the payment of part of the "sum due on the note ($100 paid on January 14, 1892) was not a valid consideration for the extension of payment of the remainder.

The partial payment of $100, even if made by Butcher, the maker, on account of the note then oxrordue, was not a valid consideration for a promise of forbearance as to the residue so as tc discharge Van Brunt, the endorser. Halliday v. Hart, 30 N. Y., 474.

The promise to extend the time of payment of the note was-void unless founded upon a good consideration, and the payment of $100, part of the amount due on the note, was not a good consideration for such promise. See Parmelee v. Thompson, 45 N. Y., 58; Kellogg v. Olmsted, 25 id., 189; O'Hara v. Robinson, 45 St. Rep., 460.

Daniel, in his work on Negotiable Instruments, says, § 1317, 3d ed.: “ Part payment is not a sufficient consideration for an agreement to extend time, and therefore, if there be no other consideration for an extension, it- would not discharge a surety.”

The defendant testified: “ I think I advanced the money that was paid to Mr. Manchester at that time (referring to Def’ts Ex. 1); I think all the money that Mr. Butcher had came from me; he was an employee, and I was paying him wages.”

If this be true, then the payment was made by defendant to reduce his own indebtedness upon the note long past due.

The exception taken by the defendant to the admission of the. testimony of plaintiff Manchester was not well taken.

The testimony did not vary or contradict the written instrument (Def’ts. Ex. 1); it simply showed the whole transaction at, the time, the circumstance and conditions under which the instrument was made and delivered by the plaintiffs and accepted, without objection by the defendant through his agent White.

The question as to whether White was Van Brunt’s agent in the matter was left to the jury by the trial justice, and in finding for the plaintiff the jury evidently found that he was such agent.

The trial justice in his charge submitted the issues raised upon the trial fully and fairly to the jury, and we find no error therein, and also find that the exceptions taken by defendant’s attorney to the rulings made by the trial justice, and to his charge, are without merit.

The judgment and order appealed from must be affirmed, with costs to the respondent.

Van Wyck and Fitzsimons, JJ., concur.


text:
    Ellen M. Crane, Resp’t, v. Albert Crane, App’lt.

      (City Court of New York, General Term,

      Filed July 1, 1892.)

    1. Jurisdiction—City court of New York.
    All causes of action are within the jurisdiction of the city court of New York where the relief is pecuniary only; where the damages do not exceed $2,000, and where the action is one not requiring equitable relief for the complete disposition of the controversy; within these limits the jurisdiction is as broad as that of the supreme court,

      2. Same—Action upon foreign judgment for alimony.
    An action upon a judgment of another state, directing the payment of certain sums to plaintiff as long as she remains unmarried, is one upon contract, and within the jurisdiction of the city court.
    3. Pleading—Sufficiency of complaint.
    The complaint alleged the commencement of an action between the parties hereto in a court of general jurisdiction of the state of Connecticut; personal service of process; recovery of judgment for the payment of certain sums monthly to plaintiff so long as she remained unmarried; that plaintiff had not remarried, and failure of defendant to make said payments. On demurrer, Held, that the complaint stated facts sufficient to constitute a cause of action.
    Appeal from an interlocutory judgment adjudging that the demurrer of the defendant herein be overruled.
    Complaint alleges the commencement of an action between the plaintiff and defendant herein, on or about December 16, 1889, in the supreme court of the state of Connecticut, a court of general jurisdiction, the personal service of the summons upon the defendant, the recovery of a judgment on February 11, 1890, in favor of plaintiff, adjudging that defendant should pay to the plaintiff, so long as she remained unmarried, the sum of four thousand ($4,000) dollars a year, in equal monthly instalments, viz.: three hundred and thirty-three and 33-100 ($333.33) dollars on the first day of each month, commencing on the first day of March, 1890, and that said sum should be placed to the plaintiff’s credit at the Farmer’s Loan & Trust Company of New York city, or at such other place as plaintiff might thereafter designate.
    That plaintiff has not married since the entry of said judgment.
    That defendant has failed to comply with said judgment, in that he has not paid the amounts directed to be paid, in and by said judgment, on the first days of February, March and April, 1890, or deposited the same as directed by said judgment.
    Wherefore plaintiff demands judgment against defendant for the sum of nine hundred and ninety-nine, 99-100 ($999.99) dollars .and interest.

      Defendant demurs to the complaint:

      First. That the court has not jurisdiction.

      Second. That the complaint does not state facts sufficient to constitute a cause of action.
    Upon the hearing of the issue of law raised by the demurrer herein, an interlocutory judgment was entered, overruling the demurrer, and from this judgment defendant appeals.

      Davies, Short & Townsend, for resp’t; George Hill, for app’lt.
   McGown, J.

First. As to the jurisdiction of the court over ' the subject matter of the action.

“ The statutory jurisdiction of this court embraces an action against a natural person or against a foreign or domestic corpor ation wherein the complaint demands judgment for a sum of money only." * * * Code Civ. Pro., § 315.

In an action wherein the complaint demands judgment for a sum of money only, the sum for which judgment is rendered in favor of plaintiff cannot exceed two thousand ($2,000) dollars, exclusive of interest and costs as taxed. * * * Where the-action is brought upon a bond or other contract, the judgment must be for the sum actually due, without regard to the penalty, and where money is payable in instalments, successive actions may be brought for the instalments as they become due. Code Civ. Pro., § 316.

All causes of action are therefore within the jurisdiction of this court, where the relief is pecuniary only; where the damages do not exceed two thousand ($2,000) dollars, and where the action is one not requiring equitable relief for the complete disposition of the controversy, as this court has no chancery jurisdiction or equitable powers; and within these limits the jurisdiction is as broad as that of the supreme court.

No relief other than the recovery of a money judgment is asked for.

And no equitable relief is’necessary. The plaintiff asks for nothing more than a judgment for damages, for nine hundred and ninety-nine and 99-100 ($999.99) dollars, an amount within the jurisdiction of this court.

The cause of action as stated in the complaint is simply a common law action of debt upon the contract of the defendant to-pay to plaintiff certain sums of money, and is a constructive one, which the law implies from the fact of a judgment having been rendered against him directing such payment. In Taylor v. Root, 43 N. Y. (4 Keyes), 344, the court of appeals held that, “ A judgment is a contract of the highest nature known to the law ; actions upon judgments are actions on contract.” Sec. 2, Blackstone’s Commentaries, 465.

The cause or consideration of the judgment is of no possible-importance ; that is merged in the judgment.

When recovered the judgment stands as a conclusive declaration that the plaintiff therein is entitled to the sum of money-recovered.

No matter what may have been the original cause of action, the judgment forever settles the plaintiff's claim, and the defendant’s assent thereto; this assent may have been reluctant, but in law it is an assent, and the defendant is estopped by the judgment to dissent

Forever thereafter, any claim on the judgment is setting up a cause of action on contract

It is strictly an action ex contractu if suit is brought thereon. Mallory v. Leach, 23 How. Prac., 507.

A similar question arose in Howard v. Howard, 15 Mass., 196, and is directly in point upon this question.

In that case the plaintiff had previously obtained judgment for divorce and alimony in the same court, and brought this action to recover arrears of alimony.

The court said: “The only question made in this case is whether an action of debt will lie to recover the sum ascertained to be due by the decree of this court for alimony; and there seems to be no reason why it should not.

“The debt is certain, and it is proved by record; and the decree is, in effect, as much a judgment as if rendered on the common law side of the court.” See also Dubois v. Dubois, 6 Cowen, 494; Springsteene v. Gillett, 30 Hun, 260; McDougall v. Richardson, 3 Hill, 558; Higgins v. Callahan, 2 Civ. Pro., 302.

The judgment of a court of foreign jurisdiction may constiute a contract binding upon the defeated party, as well as though it had been rendered by a domestic tribunal.

But the judgment of a sister state stands upon even higher authority than that of a foreign court, as the constitution of the United States has provided (§ 1, art 4), that “ Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.”

And it has been held that the judgment rendered in one state may constitute a proper subject of an action in a court of another state. See Hatcher v. Rocheleau, 18 N. Y., 86, 93.

Second: As to the complaint: The Code (§ 481), provides that the complaint shall set forth “ a plain and concise statement of the facts constituting each cause of- action without unnecessary repetition,” and the plaintiff is only required under the system of pleading now prevailing in this state to state concisely those facts which go to make up his cause of action, and which upon a general denial he must prove in order to show himself entitled to a judgment.

The complaint alleges the recovery of a judgment against the defendant in a court of Connecticut, and that that court was a court of general jurisdiction, directing the payment to plaintiff of certain specified sums of money.

The complaint also alleges personal service upon the defendant of the process of that court; thus giving the court jurisdiction of the person; in fact the jurisdiction of the court, of the subject matter of the action, of its jurisdiction of the person of the defendant and of the recovery of the judgment, are admitted by the demurrer, which concedes all the facts stated in the complaint.

The demurrer was therefore properly overruled, and the judgment appealed from must be affirmed, with costs to the

Yan Wyok and Fitzsimons, JJ., concur.


text:
    Carrie W. Bell, Resp’t, v. James W. Good, App’lt.

      (City Court of New York, General Term,

      Filed July 1, 1892.)

    1. City court of New York—Service by publication—Form of summons.
    The summons in this action was served on defendant in the state of Connecticut, in pursuance of an order of publication. The summons required defendant to answer within six days. Held, that the form of the summons was improper under § 3165, sub. 2 of the Code, and that the court did not acquire jurisdiction by its service.
    2. Same—Appearance.
    The mere obtaining of an extension of time to answer is not a sufficient appearance to operate as a waiver of irregularities in the service of the summons and to confer jurisdiction.
    Appeal from an order entered in above action on February 19, 1892, re-settling an order .entered January 18, 1892, denying-defendant’s motion to vacate a judgment entered herein on or about ¡December 15,1891, and to set aside the service of summons.

      Jeroloman & Arrowsmith, for resp’t; Carpenter & Hassell, for app’lt.
   McGown, J.

Upon an affidavit made by one of plaintiff’s attorneys, setting forth among other things that the defendant is a non-resident of the state, that he resided in the state of Connecticut, and upon the complaint herein, an order was made on September 2, 1891, that the service of the summons herein be-made by publication * * * or, at the option of the plaintiff, by service of the summons and a copy of the complaint and of this order, without the state, upon said defendant personally; and that on or before the day of the first publication the plaintiff deposit at the post-office in the city and county of ¡New York a set-of copies of the summons and complaint herein, and of the order, in a securely closed postpaid wrapper, directed to said defendant, at Roxbury, Conn., his last known place of residence.

The summons referred to bears date April 17,1891, and directed the defendant to answer the complaint, and to serve a copy of his-answer on plaintiff’s attorneys within six days after the service thereof, etc.

The action was brought, as stated in the complaint, to recover the amount of two checks, drawn by defendant upon the Importers & Traders’ Bank.

Service of the summons, complaint, affidavit and order of publication and notice was made on the 9th day of September, 1891,. in the state of Connecticut on the defendant personally.

An affidavit made by John Jeroloman, one of plaintiff’s attorneys, on the 14th day of December, 1891, states “ that no answer, demurrer or notice of appearance has been received or served in pursuance of the requirement of the summons in said action, except to appear herein by attorney on November 1%, 1891, and obtain twenty» days farther' time to answer, but that said defendant has not answered within said extended time, and is in default herein, etc.,”" and on December 15, 1891, a judgment was entered by plaintiff’s-attorneys, against said defendant, for the sum of four hundred and thirty-four and 78-100 dollars ($434.78), amount claimed, interest and costs.

On December 23, 1891, an order was granted by one of the-justices of this court, directing. plaintiff to show cause on December 28, 1891, why the service of the summons herein, and judgment entered December 15, 1891, should not be set aside upon the ground, among others, of irregularity in the form and. service of the summons, etc., and an order was entered on or about January 18, 1892, whereby it was “ Ordered, that said motion be and the same hereby is denied, with leave to defendant to-move to open default on the merits in another motion if he so desire.”

On January 25, 1892, an order was granted requiring plaintiff to show cause on January 28, 1892, why the order entered on January 18, 1892, should not be vacated or re-settled, or why a re-argument should not be granted, etc. And on January 19th an order was made as follows:

. Ordered, that the order entered herein on or about January 18, 1892, be re-settled by the entry of this order, and that said motion to vacate the judgment entered herein be, and the same hereby is denied, with leave to the defendant to move to open the default on the merits in another motion if he so desire,” and it is from this order that defendant appeals.

Section 3165, subd. 2, of Code of Civil Procedure provides that': “ When an order directing service of the summons without the city of New York, or by publication, is granted, the summons must state that the time within which the defendant must serve a copy of his answer is ten days after service thereof, exclusive of the day of service.”

And further provides, “ If the summons, requiring the defendant to answer within a shorter time, has been issued, * * * before an order specified in this subdivision is granted, the justice-granting such an order may direct that the summons be amended accordingly, and thereupon the summons published, or served without that city, pursuant to the order, must correctly state the-time.”

The summons served herein required the defendant to serve his answer within six days.

No direction was made by the justice granting the order that the summons be amended, and the same was not amended as required by subd. 2 of § 3165 above cited.

The court, for this reason, therefore, never acquired jurisdiction of the defendant.

No motion has been made to amend the summons, nor could such amendment be made if such motion should be made and granted now, as the court did not acquire jurisdiction by the service of the six days summons.

Where an attachment, or other provisional remedy, is granted as provided by § 416 of the Code, the court acquires jurisdiction from the time of the granting of the attachment, and has control of all subsequent proceedings. In this case, it does not appear from the case on appeal that an attachment or other provisional remedy was applied for or granted.

Section 3165 of the Code, forming part of article 2, title 1 of chap. 20, entitled “The Marine Court of the city of New York ” (name changed to City Court, Laws 1883, chap. 26) provides that:

“ The summons, in an action brought in the court, must state that the time within which the defendant must serve a copy of his answer is six days after the service thereof, * * * except in one of the following cases: ” Subd. 2. “ Where an order, directing service of the summons without the city of New York, or by publication, is granted,_ the summons must state that the time within which the defendant must serve a copy of his answer is ten days, etc.”

Section 3170 ^provides that “An order directing the service of a summons either without the city of New York, or by publication, may be granted by the court, or by a justice thereof; but only in a case where a warrant of attachment has been issued as prescribed in the last section and personal service of the summons cannot be made with due diligence within that city, etc.” See Kierst v. Von Biela, 1 City Court, 243; Gibbon v. Freel, 65 How. Prac., 273.

A voluntary appearance of the defendant herein, however,' would cure the irregularities in the service of the summons, and confer jurisdiction.

It is claimed by the plaintiff that there was an appearance herein by the defendant.

Section 421 of the Code provides that “ The defendant’s appearance must be made by serving upon the plaintiff’s attorney * * * a notice of appearance, or a copy of a demurrer or of an answer. A notice or pleading, so served, must be subscribed by the defendant’s attorney, who must add to his signature his office address, etc.”

It is not claimed that any such notice of appearance was served herein.

Plaintiff’s attorney Jeroloman, swears, “That on the 1st day of November, 1891, a person from the defendant’s attorneys’ office obtained twenty days further time to answer, and at the expiration of said twenty days an application for further time to answer was applied for by a clerk from defendant’s attorneys’ office, and he was told by deponent to file his answer.

“ His excuse for asking time was, on account of the absence of Mr. Carpenter, the defendant’s attorney; that the defendant’s attorney has a paper extending defendant’s time to answer twenty days from November 12, 1891.”

Freeman, a clerk in the office of Jeroloman & Arrowsmith, plaintiffs attorneys, swears “That be remembers the time the young man called from the office of Carpenter & Hassett, the attorneys for the defendant herein, and wanted to obtain further time in which to answer the complaint; * * * that he well knows the said young man, whose name is George Eckhard * * * and knows he was then employed by the said defendant’s attorneys, Carpenter & Hassett.” *

The affidavits on the part of the defendant allege [in substance that defendant never appeared in the action, and that George Eckhard, above referred to, was not authorized to appear for the defendant.

Philip Carpenter swears that “I am one of the attorneys for the defendant in making this motion. Ho notice of appearance of the defendant in this action was served. Hor did I, nor did the firm of Carpenter & Hassett, or any other attorney to my knowledge, appear for him in the action, nor was any one in our office authorized to appear for the defendant in any way. I never asked plaintiff’s attorneys for any extension of time to answer, nor authorized any such request”

It appears however, uncontradicted, that an extension of time for twenty days was given to defendant to answer, and that he received the benefit of it.

Conceding that defendant’s attorneys obtained an extension of time for defendant to answer, as alleged in plaintiff’s affidavits,, after a careful examination of all the authorities referred to and cited in the briefs submitted by the attorneys for the plaintiff and defendant, in the absence of any other evidence as to defendant’s appearance, I do not think that the mere obtaining of such extension was a sufficient appearance on the part of the defendant to operate as a waiver to the irregularities in the service of the summons and to confer jurisdiction.

Order appealed from must be reversed, with costs.

Van Wyck and Fitzsimons, JJ., concur.


author: Putnam, J.

text:
    The People ex rel. Grove Webster, Resp’t, v. William T. Van Tassell, Sheriff, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    Contempt—Refusal to produce books—Laws 1872, chap. 150, § 33.
    Under the provisions of § 32 of the charter of the city of Kingston, chap. 150, Laws 1873, a committee of the common council has no power to compel a witness to produce books and papers; nor has the recorder of said city the power to commit such witness for contempt for a refusal to produce them.
    Appeal from order of the county judge of Ulster county, discharging relator from imprisonment under a warrant of commitment issued by the recorder of Kingston for refusing to obey a subpoena and direction of a committee of the common council to produce books and papers.
    The facts appear fully in the opinion of the county judge, as follows:
    Clearwater, J.—By a resolution of the common council of the city of Kingston, adopted January 15, 1892, it was
    Resolved, That two members of the common council be added to the committee to investigate the city treasurer’s accounts in the place of Aldermen Murray and Dolson, whose terms of office have expired, and that said committee have full power to send for persons and papers.
    The chair appointed, in addition to the mayor, Alderman Brinnier and the city clerk, the other members being Aldermen Dederick and Tubby.
    Claiming to act under the provisions of the city charter, Laws •of 1872, chap. 150, § 32, this committee issued a summons to the relator, by which he was summoned “ to attend before the committee at the mayor’s office in the city hall on Wednesday, January 27, 1892, at 3 o’clock p. m., there to give such information touching the subject of inquiry as might be in his possession: ” .and he was further directed to “ bring with him before said committee all bank books had and held by him as city treasurer of the city of Kingston, and containing the record of transactions between such officer and the First National Bank of Rondout, relating to the general fund account, bond and coupon account, and all other accounts, and such other documents in his custody as might be required in the investigation of the said subject.”
    In obedience to the command of the summons the relator appeared at the time and place therein specified, and was sworn and ■examined as a witness by the members of the committee, but refused to produce any books or documents.
    Thereupon Alderman Dederick, a member of the committee, presented an affidavit to the recorder of the city of Kingston, setting forth the refusal of the relator to produce such books, and an order of attachment was issued by the recorder directed to the sheriff, commanding him “ to attach the relator and forthwith bring him before the recorder, at his office in the city hall, to .answer for his refusal to obey the said summons and bring the said books, and attend and appear and testify as thereby required,” The relator was arrested by the sheriff and taken before the recorder, who thereupon adjudged that he had failed and refused to attend and appear as required by the summons, and • who, forthwith, by an order under his hand, committed the body of the relator to the custody of the sheriff, commanding the sheriff that he keep him in close custody in the county jail of the county of Ulster for a period of' twenty days, or until he “ shall attend and appear in obedience to such summons directing him to bring the books aforesaid before the said committee.”
    It is claimed by the relator that the action of the committee, of Alderman Dederick and of the recorder is absolutely void, and that his detention is illegal for three reasons:

      First. That the committee is illegally constituted, in that the city clerk is made a member thereof without authority of law.

      Second. In that the warrant committing the relator to the custody of the sheriff is fatally defective, in that it provides for his perpetual imprisonment in case of his failure to comply with the order of the committee.

      Third. In that the recorder had no .power to commit him to the county jail for refusing to produce the books and papers specified in the summons,

      There is possibly some question whether the action of the committee is not invalidated by the fact that the city clerk, who is in no sense under the charter a member of the common council, was made one of its members.
    But it is not necessary to discuss that point.
    Upon a careful examination of the statute and the authorities I am rather of the opinion that the warrant of the recorder committing the relator to the custody of the sheriff is fatally defective, and that under the provisions of the habeas corpus act the relator would be entitled to his discharge upon that ground alone. Code of Civil Procedure, § 2033, subdivision 3.
    However correct these views may be, it was stated on the argument by counsel for the relator, and by the corporation counsel, that what was most desired was the opinion of the court as to the power of the recorder to commit the relator for a refusal to produce books and papers.
    It was suggested by the court in order to avoid circumlocution of proceeding that the relator waive the point as to the claimed illegality of the organization of the committee and the defective character of the recorder’s warrant, and that a stipulation of waiver be entered upon the record in order that the more important matter involved could be passed upon as the only point of the case. This, however, was not assented to. The proceeding is a special one under the provisions of § 32 of the charter of the city, which is as follows:
    The common council, br any committee thereof, shall have power to issue a summons to any person to appear and testify before them in respect to any matter pending before or referred to them. Such summons may be served at any place within the county of Ulster in the same manner as subpoenas for witnesses in criminal cases. Any person who shall refuse to attend in obedience to any such summons may be arrested by an order or attachment, which may be issued by the mayor or recorder upon proof of the service of such summons and of such refusal, and be committed to the county jail or other proper place of detention until he shall appear or testify as required. Such witness so refusing to attend may also be fined or imprisoned for disobedience of such summons by the mayor or recorder, in the manner and to the same extent as witnesses refusing to attend in obedience to a subpoena duly issued by a justice of the peace. Whenever any person summoned as a witness before said common council, or any committee thereof, shall refuse to be sworn or affirmed or to answer any proper or pertinent question, the mayor or recorder, on complaint made, may forthwith commit such person to the county jail or other proper place of detention for a period not exceeding twenty days, or until he shall be sworn or affirmed or answer such questions. Such commitment shall be made by a warrant directed to the sheriff of - the county or other officer having such place of detention in charge, and shall recite the cause of such commitment, and such officer shall keep such person in close confinement as directed thereby.

      It is claimed by the learned corporation counsel that although the city charter does not in express language confer upon the common council or its committee the right to compel the production of books and papers, still that that power is one incident to-the power to compel the presence of and the giving of testimony by a witness, and if this contention be correct, were it not for the alleged defects above referred to, it would be evident that the relator was in contempt, and was properly committed to the county jail for refusal to obey the command of the summons issued by the committee appointed under the resolution of the common council.
    If the proceeding were before a judicial instead of a legislative tribunal,-there would be no question as to the correctness of this, position, as courts of justice have for centuries had the inherent right to compel the attendance of witnesses and the production of such books and papers as were pertinent to the determination of the rights of parties in an action pending before them, and the Eevised Law, the Eevised Statutes and the provisions of the Code of Civil Procedure have in no sense conferred this power, but have simply defined, limited it and provided a method for its enforcement.
    There seems, however, from the earliest times to have been a wide distinction between the powers thus possessed by courts of ■ justice and those conferred upon legislative bodies, and seems also, to be a marked disposition upon the part of the courts of justice to limit the scope of the inquiry by legislative bodies, particularly those of a subordinate character, within the strict limit of the law authorizing such investigations. And the reasons assigned by the courts for the severity of their construction of such statute is that such investigations were unknown to the common law, are purely creatures of the legislative body itself, are informally conducted without the usual safeguards and restrictions imposed by rules of evidence and procedure in courts of justice, are apt to be inquisitorial and oppressive, and are too often used for strictly partisan purposes, becoming a menace to the rights of the citizen, without affording him that protection guaranteed by the constitution and the laws. Interesting as the subject is, it is not possible within the limited time at the disposal of the court to review the authorities, ancient and modern, upon this important branch of the law. I can only refer to the statutes and to two or three of the more recent decisions.
    It is admitted by the corporation counsel, and by counsel for the relator, that the language of the charter, “Suchsummons may be served at any place within the county of Ulster in the same-manner as subpoenas for witnesses in criminal cases,” means simply that such summons may be served without the payment to the witnesses summoned of the statutory per diem allowance, and the sum for mileage directed to be paid to witnesses in civil cases-
    It is claimed, however, by counsel for the relator, that as the-city charter does not in express terms provide for the issuing of a. summons commanding the witness to produce books and papers,, and does not in express language provide that if a witness fail to produce books or papers he may be committed to the county jail, that that power is not conferred by statute, and that as the provision of the charter providing for the punishment of a recalcitrant witness is penal in its nature, it must be literally and strictly construed.
    It will be seen "by an examination of the statutes that in each case where the power to punish for contempt for a failure to comply with the provisions of a subpoena duces tecum commanding the production of the books and papers is given, that the statute itself specifically and distinctly directs that a failure to produce such books and papers is a contempt. This distinct provision, it is admitted, is absent from the city charter. Whether it be a casus omissus or a deliberate withholding of power by the legislature is for the purpose of this inquiry immaterial. Thus, under the provisions of the Code of Civil Procedure and the Code of Criminal Procedure, express provision is made by statute for the production of books and papers, and for the punishment of a witness who fails to produce a book or paper, when properly required so to do. The penalty for disobedience in civil cases is prescribed by § 853 of the Code of Civil Procedure, which is as follows:
    “ A person so subpoenaed, who fails without reasonable excuse to obey the subpoena, or a person who fails without reasonable .excuse to obey an order duly served upon him, made by the court or a judge, in an action before or after final judgment therein, requiring him to attend and be examined, or so to attend and bring with him a book or a paper, is liable, in addition to punishment for contempt, for the damages sustained by the party aggrieved in consequence of the failure and fifty dollars in addition thereto.”
    The provisions of the Code of Criminal Procedure are embodied in § 613, and are to the effect that if books, papers or documents be required, a direction to the following effect must be contained in the subpoena, etc., etc.-
    In a leading case before the general term of this department, Presiding Justice" Learned writing the opinion, says : “ The power which courts possess of punishing for contempts and for refusal to give evidence is in its nature an exception to the provisions of the constitution. It is a power to deprive a man of his liberty without a jury and without a regular trial. It cannot, therefore, be extended in the least degree beyond the limits which have been imposed by statute. No implication and no fancied necessity can be permitted to add to the literal meaning of the words by which the legislature have restricted this power. And this is especially true of all tribunals which are not courts of general jurisdiction.” Rutherford v. Holmes, 5 Hun, 317.
    This case, in which it was held that a justice of the peace had no power to adjudge a person in contempt and to punish him therefor, save in the exact cases prescribed by statute, and that a justice was liable in an action for false imprisonment at the suit •of one imprisoned under and in pursuance of his warrant of comanitment for such a contempt, was affirmed by the court of appeals in 66 N. Y., 368, in which Judge Folger, delivering the-opinion, says “ that it is significant that the legislature, so far as it has in general terms enacted for proceedings as for contempts to-enforce civil remedies and to protect the rights of parties in civil actions, has confined ,its action to courts of record, and that no-court not of general jurisdiction has any inherent or implied power to punish for contempt save in a case stated in the statute law.” •
    In the case of The People ex rel. Fries v. Riley, sheriff of Kings county, 25 Hun, 587, Judge Gilbert says : “ There exists no undefined power authorizing the commitment of citizens for contempt in cases defined and limited by statute.”
    This case, in which the relator was committed to the county jail of the county of Kings for refusal to pay a sum of money ordered to be paid by the city court of the city of Brooklyn and released on habeas corpus by a justice of the supreme court in the second district, was followed by the court of appeals in 95 ¡N. Y., 493, and in 100 ¡N. Y., 358, and in numerous cases at the general term since that time.
    In the Matter of Bradner, 87 N. Y., 171, it was unanimously held by the court of appeals that the board of supervisors of the county of Livingston had no jurisdiction to appoint a committee of its members for the purpose of an investigation relative to the railroad commissioners of one of the towns in that county, and that they had no authority to require the attendance of a-witness before the committee upon such an investigation, and that therefore a subpoena requiring such attendance conveyed no-mandate which imposed compliance and disobedience thereto was not within the meaning of the law a contempt.
    In that case the board of supervisors appointed a committee to make an investigation, and a subpoena signed by the chairman of the committee was issued, requiring the defendants to appear before the committee at a time and place named, and to bring certain documents in their control as might be required in the investigation of the subject.
    The subpoena was not obeyed and the recalcitrant witness was-committed to the custody of the sheriff of the county. He sued out of a writ of habeas corpus, and on the return of the writ the judge ordered it to be vacated and quashed, and imposed as a condition that no action for false imprisonment on account of the imprisonment of the relator should be brought.
    On appeal the general term reversed that part of the order imposing the condition, and on appeal to the court of appeals that, court unanimously held that the board of supervisors had no authority to compel the production of the books and papers, that no-case of contempt was made out, that the warrant committing the' relator to the custody of the sheriff was absolutely void, and furnished no jurisdiction to the party causing it to be executed, who-thereupon became liable to the defendants for false imprisonment; that that right of action which had accrued to the relator could not be interfered with by the court, and that it therefore had no-authority for imposing such a condition.

      In the case of The People ex rel. Sabold v. Webb, sergeant at arms of the assembly, 23 St. Rep,, 325, a committee of five members of the assembly, including the speaker, were given charge of certain repairs and alterations in the capítol, the same to be completed by December 15, 1888. Subsequently, and after the organization of the legislature of 1889, a committee of members were appointed to investigate all the questions connected with the work, with power to send for all persons and papers and report to the house with such recommendations as in its judgment the public interest might require and for the purpose of remedial legislation. The committee issued its subpoena directed to the relator, the superintendent of the Western Union Telegraph Company of Albany, commanding that he bring with him certain telegrams addressed to one Snaith, to whom the contract had been awarded. Upon the relator’s refusal to produce the telegrams or to give information thereof he was arrested on the warrant of the speaker and subsequently committed to the common jail. He sued out a writ of habeas corpus, which came up before Mr. Justice Mayham, who, in a learned and exhaustive opinion, says:
    “ It is well settled that the legislature cannot, nor can any committee appointed by it, constitute itself into a court of general jurisdiction or a grand inquest for the purpose of inquiring into the conduct of a citizen not a member of its body. Nor can it compel the answer of the witness on an inquiry or an investigation before it, except for legislative purposes, or requiring information upon which to predicate remedial legislation.
    “Assuming, therefore, as we must under the authorities, that the legislature has no general judicial powers and that it can confer none upon its committees and that its power to punish contumacious witnesses is confined strictly to examination for legislative purposes, we are forced to the consideration of the question, was the investigation in which the special committee of the house was engaged when the relator refused to answer and produce papers for legislative purposes or to promote beneficial legislation, or was it inquisitorial in the nature of a judicial investigation ? * * *
    “As we have seen, a legislative committee may summon and examine witnesses in legislative proceedings or to promote remedial legislation, but when they seek to enforce obedience to their orders by proceedings for contempt they must be acting strictly within the limits of their delegated authority. Both committee and witness are subject to the provisions of the statute. In this case the recitals and preambles purporting to give reasons for the adoption of the resolution of investigation do not suggest any new legislation. The chief object seems to be the gratification of a very natural and perhaps a very laudable curiosity on the part of the press and the public to know what had been done with the $100.000 profit on the contract. * * *
    “ The rule is elementary that the mere assertion of jurisdiction does not confer it upon a tribunal of special and limited authority.
    “I am of the opinion that the assembly had no jurisdiction to compel the relator to answer the question and furnish the telegrams demanded, and that his committal 'for contempt on refusing to comply with the requirements of the committee was without jurisdiction and void, and that he must be therefore discharged.”
    It will hardly be contended that the legislature of the state and the board of supervisors of a county are bodies inferior in dignity to the common council of the city of Kingston, and if the courts have uniformly viewed with such strictness the powers of these superior legislative bodies and denied to them in' cases of this character the existence of any implied or inherent powers other than those expressly given by statute, it is difficult to see how it is possible to apply a different rule in construing the provisions of the charter of the city, which, it is conceded, contains no express statutory provision authorizing the commitment of a person who declines to produce books and papers.
    It would seem, therefore, entirely aside from the questions raised as to the legality of the constitution of the committee and the defect in the warrant of commitment, that the committee of the common council had exceeded its jurisdiction in undertaking to compel the relator to produce the books and papers specified in the summons, and that its action in causing a complaint to be made before the recorder of the city of Kingston, ana the action -of the recorder in committing the relator to the common jail of the county for disobedience of the summons, was without jurisdiction, and absolutely void ; that the imprisonment of'the relator is illegal, his detention by the sheriff unlawful, and that he is entitled to his discharge.
    If the books mentioned in the summons be in fact the property of the city, and not the individual property, of the relator, the city is of course entitled to their possession, which can readily be obtained by the ordinary process of the courts, and it ought to be entirely unnecessary to call attention to those provisions of law which provide for the obtaining possession of property unlawfully withheld by another.

      D. M. De Witt, for resp’t; G. D. B. Hasbrouck, for app’lt.
   Putnam, J.

The opinion of the court below contains a full statement of the facts of the case, and a learned and able discussion of the questions involved. In addition to what he has said, I will only make a few suggestions regarding one phase of the case.

The proceedings which resulted in the order of the recorder adjudging the relator guilty of contempt in declining to produce books and papers were brought under § 32 of the charter of the city of Kingston, chapter 150 of the Laws of 1872. And the question submitted is, does this section of said chapter authorize the commitment of relator for contempt in declining to produce books and papers ?

It provides for two cases where a commitment may be made. First. Where one summoned shall refuse to attend. Relator did attend, and hence should not be imprisoned under that clause of the section. Second. Section 32 provides that one summoned who refuses to be sworn, affirmed, dr to answer any proper and pertinent question may be committed. The relator did not refuse to be sworn, or to answer any proper or pertinent question. The above quoted clauses are the only ones relating to commitment for contempt

The power to punish for contempt is derived from the statute, and cannot be extended beyond the limit imposed by the law. “ Ho implication, and no fancied necessity, can be permitted to add to the literal meaning of the words by which the legislature have restricted this power. And this is especially true of all tribunals which are not courts of general jurisdiction.” Rutherford v. Holmes, 5 Hun, 317; 66 N. Y., 368.

There seems to be an omission in the act under consideration to provide for a case where a witness declines to produce papers, and unless we attempt to disregard the doctrine laid down in the case of Rutherford v. Holmes, supra, that the power to commit for contempt cannot be extended in the least degree beyond the terms of the statute, we are compelled to adopt the view oí the court below.

The statute under which the recorder acted being silent as to any power on his part to commit for non-production of papers or books, in this regard is different from the Civil and Criminal Codes and Revised Statutes.

Under § 856 of the Code of Civil Procedure, power is conferred upon the court to commit a witness “ when he fails to produce a booh or paper which he was-directed to by the terms of the subpoenaThe Criminal Code (§ 613) provides for a subpoena duces tecum, and (§ 619) that for disobedience to a subpoena the witness may be punished in the manner provided by the Civil Code. Under the Revised Statutes (§§ 1 and 2, R. S.) it was provided that the court could punish, as for a contempt, a person summoned as a witness for refusing to obey such subpoena.

Section 32 of the charter qf Kingston does not contain any general authority on the part of the recorder to commit for a refusal to obey the summons, but limits the right of commitment to certain acts of disobedience, viz.: The refusal to attend, and the refusal to be sworn or answer proper or pertinent questions.

I, therefore, conclude that there is an omission in the statute to confer power upon the recorder to 'commit for failure to produce papers and books, a defect that cannot be remedied by courts, and that, hence, the conclusion reached by the county judge was correct.

This view of the case renders it unnecessary to consider the other questions raised as to the order made by the recorder.

The order of the court below should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.


text:
    Morgan L. Taylor, Resp’t, v. Lewis W. Derrick et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    Foreclosure—Deficiency.
    Where the final judgment in foreclosure directs the payment by a de-

      fendant of any deficiency found to be due on the sale, it is not necessary to enter any further or other judgment, nor as against such defendant an order confirming the report of sale, and the entry thereof, if an irregularity, is a harmless one.
    Appeal from order denying motion to set aside order confirming referee'.s report of sale, and judgment for deficiency entered thereon.
    On or about the 14th day of September, 1882, a judgment of foreclosure and sale in the above entitled action was entered in the office of the clerk of the county of Rensselaer. Said judgment directed that the premises described in the complaint be sold by Yolkert J. Oothout, Esq., referee; that said referee make a report of such sale; that said referee should in such report specify the amount of deficiency, if any, and that the defendants, Lewis W. Derrick and Adam Derrick, pay the same to the plaintiff. Such sale was had, and the referee paid to George Day, Esq., who had been attorney for the plaintiff, the costs of the suit, and he signed a receipt therefor, and the balance of proceeds of sale, after payment of all costs, were paid to the plaintiff in person, who signed a receipt therefor. The referee made a report of such sale, naming therein a deficiency of $860.18, for which the defendants, Lewis W. Derrick and Adam Derrick, were liable, attached thereto the proofs of publication and posting of notices and vouchers, and gave the same to said George Day, Esq. Said report of sale was made at the time it bears date, November 9, 1882.
    On October 27, 1891, an order of this court was made at special term confirming such report of sale, and on the 9th day of November, 1891, the county clerk of Rensselaer county entered a judgment against Lewis W. Derrick and Adam Derrick for the sum of $1,324.50, being the amount of deficiency reported, with interest to date. On this same day a judgment for $860.18 deficiency was docketed against Lewis W. Derrick and Adam Derrick.
    A motion was made by Lewis W. Derrick to have the said referee’s report of sale vacated; to have the judgment for $1,324.50 entered November 9, 1891, set aside, and to have the docket of a judgment for $860.18 cancelled.
    This motion was argued at a special term held at the city of Troy, by Mr. Justice Eursman, on the 4th day of January, 1892, and an order was made and entered denying said motion, with ten dollars costs. From that order the said Lewis W. Derrick takes this appeal.

      H. D. Bailey, for app’lts; Calvin S. McChesney, for resp’t.
   Putnam, J.

J.—I think the order of Judge Eursman should be affirmed, and that the case is one where an opinion is unnecessary. The final judgment in the case was entered in 1882, directing foreclosure and sale and judgment for deficiency against appellants. No motion is made to set aside or modify that judgment. Such being the case, it was not necessary in 1891 to enter any further or other judgment, nor as against the defendant an order confirming the report. If there is any irregularity of the proceedings of the plaintiff it seems to be a harmless one. and, hence, under § 721 of the Civil Code, should be disregarded. See Moore v. Shaw, 15 Hun, 428; Morris v. Morange, 38 N. Y., 172.

Order affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.