text:
    Henry Wittenberg v. Frederick Seitz et al.

    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    ¡Negligence—Evidence—Question fob juey.
    Plaintiff, while in the employ of a building contractor, was injured by-the breaking of a beam which was furnished and put in place by defendant, who had subcontracted to do the carpenter work on the building. At the point where the beam broke there were eleven knots, and a hole bored through it for an iron rod to pass, with a mortise on the lower side for the washer and nut on the rod. The beam was supported only by a prop composed of three pieces of scantling, two inches by five, nailed together. Several witnesses testified that in their opinion the knots had’ nothing to do with the breaking of the beam. Held, that, though the precise cause of the accident did not appear, the question of defendant’s-negligence was properly submitted to the jury.
    Appeal from trial term, Monroe county.
    ' Action by Henry Wittenberg against Frederick C. Seitz and others for personal injuries. From an order denying a motion for a new trial, made on the minutes, after a trial which resulted in a verdict in favor of plaintiff for $4,000,. . defendant Seitz appeals.

      Edward Harris, for appellant.
    John Desmond, for respondent.
   ADAMS, J.

—The plaintiff brings this action against the defendant to recover damages for personal injuries sustained by him in consequence of an accident which occurred upon the 15th day of September, 1894. The undisputed evidence, in the case shows that the defendants A. Friederichs & Sons, who are builders and contractors, residing at the city of Rochester, in this state, entered into a contract with the state to erect a three-story brick building, to be used as an annex to the Rochester State Hospital. The mason and brick work was all done by the principal contractors, but the carpenter work was performed' under a separate contract entered into between the defendant Seitz and the principal contractors, by which the former was to work directly from plans and specifications furnished; the principal contractors having no control over him, either in the selection of the materials used, or in the performance of the work. At the time of the accident the building was nearly completed. The outside walls had been laid to the level of the bottoms of the joists and the tie beams of the trusses; the tie beams running . north and south, and the joists east and west. The east end of those of the east span (resting upon, but in no manner fastened to, the east wall) were in place, and the attic floor had been laid. The masons were about to begin bricking in between the joists, and to construct the cornice of the wall; and two of them were at work, bricking in between the joists on the north side of the north Avail of the annex building, which was the division wall between that building and the kitchen building. There were a few piles of bricks upng the floor, mostly along the south Avail; and there was nothing resting upon the tie beam, except the joists and floor. The plaintiff, aaJio Avas in the employ of Friederichs & Sons, was, upon the day in question, sent up to the attic with a quantity of brick to be used by the masons in the work which they were prosecuting. While upon the floor of the attic, the same suddenly, and Avithout warning of any kind, gave way and fell, and the plaintiff fell Avith it and was injured.

There was no contractual relation existing between these parties, and therefore the liability of the defendant for the injuries received by the plaintiff, if any exists, results from. his failure to observe the obligations which the law imposes upon a party engaged in the prosecution of any AArork,— of performing the same in such a manner as not to endanger the lives or persons of other parties. This is a A'ery Avell settled " principle, and it is applicable to all cases where a person is engaged in the performance of work AAdiich, Avithout the exercise of a reasonable degree of care and prevision, may be attended Avith risk and danger to others; and a case in point is that of Mullen v. St. John, 57 N. Y. 567, in AAdiich it Aims held that the owner of a building adjoining a street or highAvay is under a legal obligation to take reasonable care that the building shall not fall into the street or highway and injure persons lawfully there. The facts of the case in hand show that, while the plaintiff Avas not in the employ of the defendant, he was in the employ of the principal contractors, and, while in the performance of his duty as their employe, had occasion to go into the attic of this building, and upon the floor which had been constructed under the immediate supervision and direction of the defendant. He was therefore lawfully there, and he had á right to assume that Aidiile there he would not be exposed unnecessarily, by the defendant, to any danger to his life or person. For the defendant’s omission of his duty in this regard the plaintiff seeks to charge upon him the consequences Avhich followed.

The difficulty in this case, A\rhich has proAmked much discussion and contention, arises from the fact that it is claimed that after the accident it Avas impossible to obtain any adequate and satisfactory explanation of its proximate cause. It is true that it Avas found upon examination that the beam running from the north to the south AA'all of this building Avas broken about 14 feet from the .north AA’all, and that at the ■ point Avhere it broke there Avere 11 knots of considerable size, and also a hole about 1 1-4 inches in diameter, AAdiich had been bored through it, and that on the underside there Avas a mortise about 6 inches in diameter and 1 1-2 inches deep, for the purpose of giAring place to a Avasher and nut for a. bolt which was to pass through it Avhen completed, and that the grain of this beam AA’as not continuous at the point of breakage, OAving to the large number of knots. It is likeAvise true that the prop under this broken beam or stick, Arhich Avas composed of three 2x5 inch scantling, and AAdiich AA’as the only support that the beam had, Avas also broken. But it is insisted upon the part of the defendant that these facts, while they 'may possibly account for the falling of the floor, do not necessarily establish any negligence upon the part of the defendant, and that, in attributing the accident to his Avant of care or skill, the jury Avere permitted to indulge in speculation and conjecture. In support of this contention, considerable evidence AA’as furnished,—in effect, that both the prop and the beam Avere sufficient for the purpose for AA’hich they Avere designed; that they Avere made of timber carefully selected, and of a quality ordinarily used for that purpose; and that it was impossible to have obtained a beam of the size of the one in question which would have been entirely free and clear of knots. And some of the witnesses gave expression to the opinion that the presence of these knots had nothing whatever to do with the breaking of the beam. In disposing of this contention on the part of the defendant, it may be assumed that the precise cause of the accident has not been made to clearly appear; and yet we think it was within the province of the jury, and that the trial court was right in submitting the question as one of fact to them, to determine from all the evidence in the case whether or not it could be fairly said that this defendant was legally liable for the injuries received by the plaintiff. It is undoubtedly a general principle of law, applicable to •cases of negligence, that, before a plaintiff is permitted to recover, he shall be required to fasten the responsibility for his injuries upon the defendant with some degreeof certainty; in other words, that he shall point out, and be able to place his finger upon, the particular omission of duty which occasioned the accident. But there are exceptions to this rule, and they arise under conditions so unusual that the law permits a presumption to be drawn therefrom that they are, of necessity, the result of negligence. Thus, it has been said by an eminent authority upon the subject of negligence that:

“Experience teaches that buildings, if property constructed, do not fall without adequate cause. If no external violence appears, the fair presumption is that the fall of the building occurs through some serious defect in the condition of the building, which could scarcely have escaped the observation of the owner. The mind is thus led to a presumption of negligence on his part.” Shear. & K. Neg. sec. GO.

And in the case of Mullen v. St. John, supra, it was held that the happening of such an accident (that is, the fall of a building), in the absence of explanatory circumstances, creates a presumption of negligence, and casts upon the owner the burden of showing the use of ordinary care. We have recently had occasion to apply this rule in a case wdiere the cause of the accident wras not clearly established. Dumes v. Sizer, 3 App. Div. 11. And the authorities supporting it are quite numerous, many of which are cited in the opinion in that case. We think, therefore, that with a presumption arising in the case, from the conceded facts therein, that the giving way of the floor in question was attributable to negligence upon the part of the person responsible for its construction, the. defendant was called upon to show that he had exercised that reasonable degree of care in constructing the floor which was required of him, and wdiich, had it been exercised, would have relieved him from all liability for the accident which befell the plaintiff. The defendant did furnish evidence which Avas designed by him to repel any presumption of negligence Avhich might exist'in the case. That evidence has already been adverted to, and Avhen taken in connection AA'ith the fact that the, floor fell, and that this beam and support Avere found to be broken, and the former at the very point Avhere the knots and hole and mortise existed, it seems very clear that an issue was preented to the jury, which permitted them to fasten the responsibility for this accident upon the defendant without extending their inquiries into the realm of speculation and conjecture; and, looking at the case' calmly and dispassionately, we are not prepared to say that the evidence did not fully satisfy the conclusion reached by them.

We have examined the various exceptions taken by the defendant’s counsel to the charge of the court, and the refusal of the court-to charge in accordance with certain requests, and Ave are unable to discover that any error Avas, committed Avhich requires a retrial of the case. We therefore conclude that the case Avas properly submitted to the jury, that their verdict Avas sustained by the evidence, and that, consequently, the order appealed from should be affirmed.

Order affirmed, with costs.

All concur.


source: Caselaw Access Project

author: FOLLETT, J.

license: Public Domain

text:
    John A Collins v. George K. Collins et al.

    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)

    1. Appeal—Harmless error.
    In an action for accounting between tenants in common, plaintiff cannot complain of a violation of the rule that one tenant in common cannot charge his co-tenant for use and occupation, where the application of the-rule would reduce the amount recov'ered by plaintiff.
    2. Tenants in common—Liabilities inter se.
    A tenant in common, on accounting to his co-tenants, is entitled to credit for money paid by him to agent for collecting of rents.
    Appeal from special term.
    Action by John A. Collins against George K. Collins and others. From an order setting aside the report of a referee appointed under an interlocutory judgment, and appointing a new referee to take and state the accounts between the parties, defendants George K. Collins, Kate Collin, and Mary A. Collins appeal.
    August 15, 1853, John Collins died intestate, leaving Mary A. Collins, widow, aged 40 years (born January 31, 1813), George K. Collins, aged 16 years (born April 15, 1837), John A. Collins, aged 8 years (born July 17, 1845), and Frank Collins, aged 3 years (born in 1850), sons, his only heirs and next of kin- "September 1, 1853, the widow was appointed administratrix of his estate, but no general guardian was appointed' for any one of the sons. At his death John Collins was the owner of certain real estate in the city of Syracuse, on which there was an unfinished brick building, known as the “Collins Block,” which was incumbered by a mortgage for, $2,400. The personal estate of the intestate was not more than sufficient to pay his funeral expenses and unsecured debts. Immediately after his death his widow and his sons took up their residence in the building, and she, with their assistance, managed it until 1862, at which time George Bh Collins was 25 years of age, John A. Collins 17 years of age, and Frank Collins 12 years of age. On the 31st of May, 1862, this property was sold upon a statutory foreclosure of the mortgage given by the intestate, and Aras bid off by George IC. Collins for the amount due thereon, Avith costs. He paid $210 and gave a mortgage thereon for $2,400. February 18, 1862, John A. Collins, the plaintiff, Avhen 16 years of age, married, and immediately thereafter took up his residence in the block, and Avithin a few years tAVo children Arere born. From that time to the present he and his family have continually resided in the block, paying no rent for the rooms occupied, and during a. considerable portion of the time they have been supported in great part out of the rents and profits of the building, AA'hich were collected by and received from the mother. From the time that George K. Collins acquired the legal title to the property under the foreclosure sale, the mother has continued to reside in the building, and during that period, the rents, were collected sometimes by her and sometimes by George IC. Collins. September 26,1873, Frank Collins, having become of full age, conveyed his interest in the premises and in the rents and profits thereof to George K. Collins in consideration of $8,000, by a deed dated that day, and recorded September' 27, 1873, in the office of the clerk of, the county of Onondaga. In 1887, the plaintiff first learned that the defendant George IC. Collins claimed to be the sole OAvner of the premises, and on the 13th of December of that year began this action to set aside the sale under the foreclosure, and to recover his share of the rents and profits collected by the defendants George K. Collins and Mary A. Collins, June 14, 1890, an interlocutory judgment AAras recoArered, by which it Avas adjudged that the foreclosure Avas induced by the efendant George IC. Collins; that his purchase. AA'as in fraud of the lights of his brothers; that an accounting be had between the parties to the action for the rents and profits received by them; and that^the plaintiff was entitled to recover two-ninths, Mary ZA. Collins three-ninths, and George IC. Collins four-ninths of the net rents and profits of the premises. This judgment was affirmed by the general term in February, 1891 (13 N. Y. Supp. 28), and by the court of appeals in March, 1892 (131 N. Y. .648, 43 St. Eep. 660). After the affirmance of the judgment by the court of appeals, N. M. White was appointed a referee to take and state the accounts between John A. Collins, .plaintiff, and George IC. Collins and Mary A. Collins, two of the defendants, who were at that time the only persons interested in the property, or in the rents and profits thereof. A report was made, which the court refused to confirm, and it was referred to William S. Andrews to take and state the accounts between John A., Collins, George K. Collins, and Mary A. Collins. There is no contest between George K. Collins and his mother, Mary A. Collins. The referee reported that the plaintiff was entitled to a final judgment against the defendant, George IC. Collins for $1,293.86. The evidence taken by the referee is annexed to his report. John A. Collins, plaintiff, and George K. Collins and Mary A. Collins, defendants, filed exceptions to the report. The defendants moved that the report be modified in certain respects, and, as modified, confirmed; but when the motion came on to be heard they withdrew their exceptions, and asked that the report be set aside, and a new referee appointed to take and state the accounts, and it was so ordered and from this order the defendants appeal.
    H. Hoyt, for appellants.
    T. E. Hancock, for respondent.
   FOLLETT, J.

This accounting covers a period of 29 years

and 11 months, from March 31, 1862, to April 1, 1892. The learned referee has stated the acounts as follows:

Eents collected.................................... $66,355 17
Eental value of rooms occupied by Mary A. Collins- 5,370 00
Eental value of rooms occupied by plaintiff....... 3,714 00
Eental value of rooms occupied by George IC. Collins. 28 00
Total rents received and rental values.... $75,467 17
George IC. Collins is charged with this sum by the
referee, and is credited by the referee with the
following sums:
Taxes, insurance, etc.............................. $37,11170
$38,355 3&
Of tMs balance Mary A. Collins, as dowress, is entitled to three-ninths............................. $12,785 127
John A. Collins (plaintiff), two-ninths............. 8,523 418
George K. Collins, four-ninths.................... 17,046 836»
$38,355 38'
Plaintiff’s interest in rents......................... $8,523 41
Against this the following sums are charged.
Rental value of rooms occupied by
plaintiff ------ $3,714 00
Board of hmself and family by mother. 1,944 00 Coal furnished by mother.............. 701 27
Wood furnished by mother............ 250 00
Milk furnished by mother.............. 328 50
Ice furnished by mother.............. 30 00
One-third cost of small piece of land paid for by George IL Collins and
added to property.................... 36 66
Mary A. Collins, as agent for George K,
Collins, collected $20,261.64 of the rents, all of wThich is charged to George K. Collins, who held the legal title of the property. The referee allows the mother 5 per cent, for collecting $20,261.64, which amounts to $1,013.08, two-ninths of which is charged to John A. Collins.......... 225 12
■-- 7,229 55
Amount due John A. Collins.................... $1,293 86

The rents collected (the first item in the account), the rental value of rooms occupied by Mary A. Collins (the second item in the account), and the rental value of rooms occupied by George K. Collins (the fourth item in the account), are conceded by the plaintiff to be correct. But he challenges the right of the referee to charge him wiih $3,714 for the rooms occupied by him. The value of the use of these rooms was established by competent evidence, which . is hardly questioned by the plaintiff, but it is urged that one tenant in common cannot charge his co-tenant for use and occupation. This is undoubtedly the rule in cases between co-tenants, but if the rule should be applied in this case the rental value of the rooms occupied by Mary A. Collins and George K. Collins would necessarily be deducted from the account, which would leave the amount of rents to be charged against George K. Collins at $66,355.17, and, after-deducting taxes, insurance, etc., —$37,111.79,—would leave $29,243.38 to be divided among die co-tenants, two-ninths of which belongs to the plaintiff, and equals $6,498.52, or $2,024.89 less than the sum now credited to him. It is urged that the court erred charging the plaintiff with the value of board, coal, wood, milk, and ice furnished to the plaintiff and his family by the mother, Mary A. Collins. The evidence shows beyond question that the items charged for were furnished by the mother to this plaintiff and his family, and were of the value charged, and that she paid for them out of the rents colleted by her from the tenants of the building, and that between her and George IC. Collins she had no right to make this application of these moneys, and is accountable to George IC. for his share of the moneys so applied. It is also urged in behalf of the plaintiff that the referee erred in charging him with $225.12, two-ninths of the amount found due the mother for collecting part of the rents of the building. Had the defendant George K. Collins employed and paid a collector, the amount, if reasonable, would ave been allowable, under the rule held in Loos v. Wilkinson, 113 N. Y. 485, 23 St. Rep. 282. The referee finds that, as between George IC. Collins and his mother he is chargeable with a reasonable sum for the collection of these rents, and, under the circumstances of this case, we think the charge of two-ninths thereof against this plaintiff was -eminently fair and equitable. It is conceded that the defendant George K. Collins mainly had the charge of this building for 30 years, made all of the expenditures, and man aged the business, for which he made a claim of $6,000, or at the rate of $200 per year; but nothing was allowed for his services during all of this period. He also insisted, and gave some evidence tending to show, he had expended at least $40 a year, or $1,200 in all, for items in connection with the building, not charged for in his account. This claim was also disallowed. The plaintiff further insists that the accounts should have been stated with annual rests, and that George IC. Collins should have been charged with interest upon the balances in 1ns hands. It is apparent from the way in which the 2nembers of this family lived a2id con ducted their business that this 2node of co2nputatio2i would have bee2i, impossible. If this could be do2ie, the amount Avhich the plaintiff received during each year would be charged against him, and deducted from the a2nount charge able to the defendant, a2id the differe22.ce betwee2i this method of accomiting and the 02ie adopted by the referee would not be great.

It should be ohserwed that this is not an accounting by a trustee who has a defhiite or ascertainable fund in his hands, which it is his duty to invest and pay over the income, and the principles applicable to such an accounting would be inequitable in a case like- the present. An examination of the evidence in this case convinces me that ample justice ' was done by the referee to the plaintiff on this accounting. I am aware of the fact that the defendant George K. Collins is in form charged by the judgment as a fraudulent trustee, but it seems to me to have been a case of constructive, rather than of intended, fraud. It may be that his action in acquiring the title, which ivas concurred in by the mother, was for the purpose of preserving the plaintiff’s interest in this estate, who seems not always to have been a successful business man. This view is strengthened by the fact that when the youngest brother, Frank, became of age, the defendant settled with him for his share in the property upon terms the justness of which has not been assailed. I think that the referee has done substantial justice between these litigants, and if he has erred he • has erred in favor of the plaintiff.

The order should be reversed, the report confirmed, and a final judgment ordered thereon, with costs to the plaintiff up to the date when that report ivas filed, and with costs in favor of the defendant George K. Collins against the plaintiff subsequent to that date, including costs of this appeal, to be taxed and set off against the plaintiff’s costs. All concur.


author: WARD, J.

text:
    Central Presbyterian Church of Rochester v. James J. Thompson.
    (Supreme Court, Appellate Division, Fourth Department,
    July 29, 1896.)
    Subscriptions—Consideration.
    A subscription for tile purchase of land and erection of a church, followed by such purchase and erection, is supported by a sufficient consideration.
    Appeal from trial term, Monroe county.
    Action by the Central Presbyterian Church of Rochester against James J. Thompson to recover $30, on a subscription made by defendant towards the purchase of land and the building of a new auditorium for plaintiff. Judgment was entered on a decision of the trial court in.favor of plaintiff, a jury trial having been waived, and defendant appeals.
    Medcalf & Burns, for appellant.
    Hubbell & McGuire, for respondent»
   WARD, J.

—The plaintiff is a religious corporation, and located in the city of Rochester, N. Y. It desired to purchase land and build a new auditorium for religious purposes. About the 10th of March, 1890. a large church meeting was held upon the subject, and the meeting determined, to obtain promises or subscriptions for the purchase of land and for the building of the structure. The trustees of the plaintiff concurred, and subscriptions were obtained to the amount of $104,000, and the plaintiff proceeded and purchased the land needed, and constructed the building at a cost exceeding the amount subscribed, relying upon those subscriptions, among which was the undertaking of the defendant in writing that the plaintiff received, executed on the 10th day of March, 1890, of which the following is a copy:

March 10th, 1890.
To the Trustees of the Central Presbyterian Church: I agree to pay the sum of one hundred dollars per year for-five years towards the purchase of land and the erection of a new auditorium, and such improvements as you have eomtemplated. Payments to be made quarterly, commencing April 1st. 1890. J. J. Thompson,
Residence 24 So. St. Paul.

The defendant paid $200 upon this subscription at various-times from April 17, 1890, to March 31, 1892, inclusive, but he refused to pay the balance, and a recovery was had against him therefor, upon which judgment was entered, and from that judgment an appeal brings the question before uSy and the appellant makes the point that there was not sufficient consideration shown by the evidence to support the promise. Iñ examining the appeal book, we find no statement that it embraces all the evidence and proceedings upon the trial, so that the respondent may stand upon the presumption, in the absence of such statement,' that there was-evidence sufficient upon the trial to sustain the judgment: but assuming, as is very likely the case, that we have all the evidence before us, and the omission of the statement referred to was accidental, we have reached the conclusion that there was evidence sufficient to sustain the finding of the-trial court; that, relying upon the said subscriptions, and pursuant to the requests therein implied to purchase the lands and construct the church edifice, made by the defendant and other subscribers, the plaintiff, by its trustees, aftortile execution of the defendant’s subscription and others, did purchase land at an expense of $36,500, and proceeded to erect thereon a church edifice for the use of the plaintiff, expending therefor between eighty and ninety thousand dollars. A careful examination of the instrument signed by the defendant will disclose that it is addressed to the trustees of the-plaintiff; that it contains an agreement to pay the $500 towards the purchase of land and the erection of the new. building “as you [the trustees] have contemplated.” Here is an agreement, first, to pay; second, to pay for such build-' ing as the plaintiff has contemplated. This, therefore, is at least an implied proposition on the part of the defendant that, if the plaintiff will go to the expense of this structure, the defendant will pay the money at the stipulated period; and when it appears, as in this case, that the plaintiff has compBed with the conditions imposed upon it by the defendant’s writing, a sufficient consideration is shown to support the defendant’s promise, and he is liable; and this position is abundantly sustained by authorities. McAuley v. Billenger, 20 Johns. 89; Barnes v. Perine, 12 N. Y. 18; Union Seminary v. McDonald, 34 N. Y. 379; Roberts v. Cobb, 103 N. Y. 600, 4 St. Rep. 290.

The judgment should be affirmed, with costs.

All concur.


author: WARD, J. FOLLETT, J.

text:
    James Heffern v. Garrett Hunt.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1886.)
    1. Necessary parties—Action por tort.
    Code Civil Procedure, section 452, which provides that, where a complete determination of a controversy cannot be had without the presence of other parties, the court must direct them to be brought in, does not authorize the court in an action for personal injuries to bring in a new suit at the instance of plaintiff.

      2. Same—Discretionary power op court.
    Code Civ. Pro. section 723, which authorizes the court in furtherance of justice, to add or strike out the name of a party, does not authorize the court, at the instance of plaintiff, to bring in. a new defendant in an. action for a toft but such section must be construed in connection with sections 447 and 452, applicable only to equitable actions, authorizing the court to bring in new parties defendant on plaintiff’s motion, in. order that a complete determination of the controversy may be had,
    Follett J, dissenting.
    3. Appeal—Party interested in order.
    A sole defendant in an action for personal injuries has such interest in an order bringing in a new defendant and directing service of a supplemental complaint as entitles him to appeal.
    Appeal from special term, Erie county.
    Action by James Heffern against Garret Hunt to recover damages for personal injuries. From an order granting leave to plaintiff to issue a supplemental summons on one John E„ Little, to make Mm a co-defendant, and serve a supplemental complaint on Garret Hunt, defendant appeals.

      Moses Shire and Glenn S. Warner, for appellant.
    King & Morgan, for respondent.
   WARD, J.

The plaintiff, Heffern, brings this action to recover damages against the defendant Garret Hunt for an injury alleged to have occurred to the plaintiff on the 11th of March, 1894, through the wrongful act and neglect of the said defendant in leaving a hole not properly guarded in the sidewalk on a public street in the city o.f Lockport, opposite to the defendant’s premises, on Lock street, in said city, The defendant Hunt answered, putting in issue the claim of the plaintiff; and subsequently the plaintiff attorney discovered that at the time of the plaintiff’s injury the premises were leased to Little, and he was in possession of the premises, and the plaintiff moved at special term to haAre Little brought in and made a party defendant, and that a supplemental summons and complaint be issued for that purpose, which Avere attached to the motion papers. The supplemental complaint charged that, prior to the time Avhen Little went into possession of the premises as a tenant, the sideAAralk in front of the store, being constructed of stone flagging, became fractured for about two feet square, causing the same to sink and depress into the cellar or excavation beneath, and to be unsafe, which the defendant Hunt negligently permitted, and that thereafter, when Little Avent into possession of the premises, he carelesslyand negligently placed a piece of board, of about íía'p feet in length and twelve inches in width, over the said hole and negligently caused the same to be insecurely fastened, leaving the same in such a condition that it tipped, twisted, and changed position when pedestrians stepped upon it; that the plaintiff afterwards, after dark, ignorant of such defect in the sideAvalk, while, passing along it, caught his foot in the board, and the same, tipping, tripped the plaintiff, and caused him to be thrown with violence on the sidewalk, AA'hereby he Avas injured, etc. The special term directed, by its order, that Little be brought into the case as a defendant, and that supplemental summons be seiwed upon him, and a supplemental complaint upon the defendant Hunt, from Avhich order the defendant Hunt appealed. The respondent seeks to sustain this order under section 452 of the Code of Civil Procedure, A\-hich is as follows:

“The court may determine the controversy, as between the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had Avithout the presence of other parties, the court must direct them to be brought in. And Avhere a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment.55

The following section (453) directs that when a new defendant is brought in, and the other is not made upon his own application, a supplemental summons must be issued, etc., for that purpose. Section 452 provides for a relief similar to that authorized by section 122 of the Code of Procedure. Under that Code, and under our present one, the courts have held that the provision permitting or requiring the court to have parties brought in, in order that a complete determination of the controversy might be had, applied only to equitable actions. The other provision of section 452 of the new Code, permitting a person not a party, that had an interest in the subject-matter of the action, to come in upon his own application, applies to all kinds of actions,—whether legal or equitable. McMahon v. Allen, 12 How, Prac. 39, affirmed in 2 Abb. Prac. 89; Webster v. Bond, 9 Hun, 437; Chapman v. Forbes, 123 N. Y. 532, 34 St. Rep. 351; Rosenberg v. Salomon, 144 N. Y. 93, 63 St. Rep. 62; Baylie, Trial Prac. 268, 269, and cases cited, and Hornby v. Gordon, 9 Bosw, 656, and A. H. King Co, v. Seed (City Ct. Brook.) 25 N. Y. Supp. 1115, hereafter cited. This is purely a legal action,—an action to recover damages for a tort,—whether that tort springs out of negligence, or of a nuisance. In such actions the plaintiff, in the first instance, in case of more than one person engaged in a common tort, can sue one or all of the parties offending, in one action. The plaintiff in this case chose to sue Hunt alone, and he now seeks aid of the court to bring in' Little, who he now alleges was also liable for the same tort that Hunt committed. We are not referred to any case, nor has considerable research enabled us to discover any case, where the court has permitted a plaintiff to bring in a party defendant, in an action of tort, where he has omitted to include him in the action as first instituted, by means of supplemental process, or by amendment of the orginal process and complaint. At common law, new defendants could not be added by way of amendment, unless by express consent of the parties. 1 Enc. Pl. & Prac. p. 542, note 1; Commission Co. v. Russ, 8 Cow, 122. In Hornby v. Gordon, 9 Bosw. 656, Judge Monell reaches the conclusion that under section 122 of the old Code, in an action by a vendor of goods to recover possession of them on the ground of fraud on the part of the purchaser, third persons claiming under the purchaser by virtue of a contract with him, and in hostility to each other, could not be granted leave to come in as parties, and that, under the practice as it prevailed before the Code, the courts possessed no power, in actions at law, either to bring in parties necessary to a complete determination of the controversy, or to allow substitution of defendants, except in the single action of ejectment; that power, in equity actions, resided in the court of chancery. In Chapman v. Forbes (decided, under our present Code, in December, 1890) supra, it was held that the plaintiff in an action at law which seeks nothing but a money judgment can not be compelled to bring in other parties than those he has chosen to make defendants. The motion to compel the plaintiff to bring in, in this case, was made by the defendant, and the ground of this decision was that in such a case the sections 447 and 452 of the Code did not apply. In Rosenberg v. Salomon, supra, it was held that where a third person, claiming title to property levied upon by a sheriff by virtue of an execution, has brought replevin against the sheriff to recovei1 the property, the judgment debtor has a,n interest in the subject of the action, and the court has power, under the provisions of the Code (section 452), to grant an order, upon his application, allowing him to come in and defend. This was an application on the part of the defendant himself to come in as a party, and not a proceeding to compel the plaintiff to bring in the defendant, and in that respect distinguishes the case from Chapman v. Forbes, supra. And in A. H. King Co. v. Seed (City Ct. Brook.) 25 N. Y. Supp. 1115, which was an action of 1 replevin, where the plaintiff sought, as in this case, to bring in another party defendant, the general tenn of the city court of Brooklyn held that an order permitting this to be done was error, as section 452 did not authorize it, and there was no authority for it.

We have reached the conclusion that the order appealed from cannot be sustained under section 452; but the respondent claims that the court has power to grant this order under section 723 of the Code of Civil Procedure, which authorizes the court, in furtherance of justice, to add the name of a party, or correct a mistake in such name. The language of this section seems to confer a broad grant of power upon the court’s discretion in relation to parties; but this section should be construed in connection with section 452 and section 447, and the ¡Dower should not be exercised unless the defendant sought to be brought in must be a necessary party, or interested in the event of the action in connection with the original parties to the action. The lessee of the premises where the accident to the plaintiff occurred, whom the order appealed from brings in as a party defendant, is no wise interested in the event of the action between the plaintiff and the defendant Hunt. Little is liable, if at all, for his own wrongful act, as also is Hunt for his own wrongful act. Perfect relief in damages can be obtained from either of these defendants in separate actions, because each is liable if at all, for the whole damage incurred. The plaintiff does not seek, in his motion, to bring in Little by way of an amendment to his original pleadings, but by supplemental pleadings, upon the idea that sections 452 and 453 applied. If the complaint cannot be compelled to bring in a party, in ■a common-law action, by one of the defendants to that action, ■why should he have the power to bring in that party upon liis own motion? The reason of the exclusion in the one case is as strong as in the other. The Code does not permit it. Granting however, that the court has the power, under section 723, to grant the order appealed from, under the guise of an amendment of the original summons and complaint, it is a practice that should not be encouraged. While the plaintiff could have originally included in one action both of these defendants, who are jointly and severally liable, if either is liable, he cannot be permitted to proceed to an issue between the original parties in this class of actions, and. then bring in other parties, as provided in this order. It is unnecessary that he should do so.

If the accident to the plaintiff were due to the sole negligence of Hunt, or to his negligence in conjunction with Little, he can proceed to judgment against Hunt just as well with Little out of the case as in it; and therefore, in a legal sense, Little has no such interest in the controversy between the plaintiff and Hunt as justifies his intrusion into the case, either on the motion of the plaintiff or of the defendant Hunt or of Little himself; but it is claimed by the learned counsel for the respondent that the order does not in any manner prejudice the appellant, Hunt, and he should therefore not be heard to complain of it here. The order requires that the supplemental complaint served upon the defendant Hunt, with the moving papers, “be, and the same shall be, the complaint in the action, and the defendant Garret Hunt to have twenty days after the service of this order * * * in which to answer such supplemental complaint.” So that a new complaint is thrust upon Hunt, with a new defendant, .and he is compelled to answer that new complaint, or he will be in default. He has, then, such an interest in this order as will permit him to be heard there to overthrow it. Akin v. Railroad Co., 14 How. Prac. 337.

This appeal involves an interesting question of practice and procedure, and we have given it careful consideration, and have reached the conclusion that the order appealed from should be reversed, with $10 costs and disbursements, and the action shall proceed between the original parties,, and upon the original pleadings.

HARDIN, P. J., and ADAMS and GREEN, J.J ., concur.

FOLLETT, J.

(dissenting). It is conceded that the plaintiff might have joined John F. Little as a. defendant with Garret Hunt, who was sued ' alone. It seems to me that in such a case the court has power, under section 723 of the Code of Civil Procedure, to authorize a.n additional defendant to be brought into an action at law. What the plaintiff might have properly done in the first instance, in the way of maídng persons defendant, may be permitted by the court to be done. The joinder of the additional defendant may prevent the necessity of bringing another action. I am unable to see any objection to the order, and think it should be affirmed, with costs.


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    Maloney v. Northwestern Masonic Aid Association.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    A provision of a policy that it shall not take effect until payment of the first premium and delivery of the policy while the insured is in good health was not waived by the fact that the agent of the insurance company, during the last illness of the insured, and a few hours before his death, delivered the policy to a third person who informed the agent that the insured was at home sick, but did not state the nature and extent of his illness, and at the request of the agent, but without authority from the insured, received the policy and paid the premium, it appearing that, but two days before the insured had sent a statement to the company that he was then in good health, and the agent having no reason to suspect from what was said at the time that the insured was dangerously ill.
    Action by Margaret Maloney against the Northwestern Masonic Aid Association on a policy of insurance. A verdict Avas directed for defendant at the Erie circuit on September 24, 1895, and plaintiff moved for a.ueiv trial, on exceptions, ordered to be heard at general term in the first instance.
    E. G. Mansfield, for plaintiff.
    William L. Marcy, for defendant.
   WARD, J.

This action was brought to recover $2,000 and interest upon a policy of insurance issued by the defendant,, a corporation transacting its business at Chicago, TIL, upon the life of the plaintiff’s son, Simon Maloney. The policy Avas made payable, in case of the death of the son, to his-mother, the plaintiff. Pursuant to the ruled of the defendant, an application Avas made for this insurance by Simón Maloney to the defendant, dated the 26th of February, 1894, and in writing, which contained an agreement that all the statements made in the application were material, and were warranted to be true, and the application, including that agreement, was thereby made a part of any certificate of membership or policy that might be issued pursuant thereto, and "that said certificate of membership or policy shall not take effect until the first bimonthly premium shall have been paid, and the said certificate, of membership or policy shall be issued and delivered to me during my lifetime and in good health. The seventh clause of the application was as follows: "Q. Are you now in good health? A. Yes. Q„ Have you usually had good health? A. Yes.” Then the applicant was asked if he had, or ever had, a large number of diseases, all of which he answered in the negative but none of the questions included the disease known as "typhoid fever.” He was then asked: "Q. Have you now, or have you ever had, any disease, infirmities, weakness, ailment, or disability of any kind not hereinbefore mentioned? A. No.” This application was forwarded to the defendant, and, there being some discrepancies in the statement in regard to the age of the applicant, on the 2d of March the secretary of the company, at Chicago, mailed a letter to Simon, in which it Avas stated that in the application he had given his birth as the 15th day of August, 1869, and his age at nearest birthday 24, and, if the date of his birth Avas correctly given, he avoaiM be 25 years of age instead; and he Avas asked, in order that there might be no doubt as to his age, to ansAver the question given as to his birth, and the date thereof, and his age at nearest birthday, his age being material. At the close of this communication Avas the following statement, Avhich appears to have been signed by Simon Maloney: He stated that his age Avas 25 at his nearest birthday, and proceeded: "I hereby expressly agree that the answers and statements made by me hereon, in reply to the foregoing questions, are full and true; and I agree that the same, together Avith my application for membership in the Northwestern Masonic Aid Association, shall constitute a Avarranty, and, if found untrue, the contract to be made with me by said association in accordance Avith said application shall be null and void. Signed by Simon Maloney, applicant, at Buffalo, New York, on the 14th day of March, 1894.” It is not questioned in the case but Avhat this letter was executed at the time it bears date, nor but Avliat it was signed by the authority of Simon. The evidence is undisputed in the case to the effect that on the 2d of March, 1894, the assured, Simon, Avas taken sick Avith typhoid fever, was confined to his house, continued to grow worse, and on the 14th of March was dangerously ill from said disease, and died on the 16th day of March. He lived at home with the plaintiff, and was sick and died there. Lewis Newland, a witness for the plaintiff, who was a ticket broker in Buffalo, testified that Maloney was in his employ; that he did not see him from the time he was taken sick until after his death; that on the 16th of March, at about 9 o’clock in the morning, a Mr. Koch, who acted as agent with certain prescribed powers, for the defendant, in Buffalo, * ame to witness’ office, and asked if Mr. Maloney was in the office (meaning the assured). The witness said he was not. We quote; 3‘That he was home, sick. Then he told me he had a policy for him. * * ® He wanted to know if I would take it. I told him, ‘Yes.’ He wanted to know if I would pay the $4.50. I told him, ‘Yes.’ That is the premium [the first bimonthly premium], and I took the policy, and put it away in the safe until it was called for.” The witness stated that he owed Simon three or four dollars, salary, and advanced the money for the premium because Koch asked him for it. It does not appear that this witness had any authority from the assured to pay this premium and take the policy. The witness further stated that he did not know what was the matter with Simon; did not know that he had typhoid fever; that he thought that it was some simple malady at the time he made the statement to Koch. Koch testified that he did deliver the policy, and accepted the premium, at the time and as stated by Newland, but that Newland made no statement in regard to the health or condition of Simon, or that he was sick at home, and he (Koch) had no knowledge at the time but what Simon was in perfect health. Simon died on the evening of the 16th of March. The complaint in this action originally was upon the policy but upon the trial it was amended so as to alleged that the provision in the policy that it should be delivered to the assured in his lifetime and in good health was waived. The defendant’s answer alleged that the policy was not issued or delivered to Simon during his life, and while in good health, but that he was dangerously ill of typhoid fever, and was never, in fact, delivered to Simon.

The plaintiff seems to concede, as she must, that, unless she can stand upon the alleged waiver, she must fail. The act of waiver was not performed by the deceased. As we have seen, he died within a few hours after the policy was delivered to NeAvland, and had no lcnoAvledge of the facts of the delivery, upon Avhich the alleged Avaiver is based, so far as the case discloses. So there Avas no ratification by the deceased of the acts of NeAA’land, nor has there been any such ratification by any representative of the deceased, but a ratification is claimed by a stranger to the contract,—the beneficiary thereof, the plaintiff. It is an elementary principle that a party can not ratify what he could not originally .authorize. The beneficiary could not, during the lifetime of Simon have authorized Newland to take the delivery of the policy, and pay the premium. Can she ratify it after the ■death of Simon? This is a serious question that meets the plaintiff upon the threshold; but, in view of other decisive questions in the case, it is not necessary to determine that question. Assuming that the agent Koch had the power to waive for the defendant, as claimed by the plaintiff, was there, under the circumstances of this case, a waiver upon which the plaintiff can stand. The policy provided that it should be delivered to the assured in his lifetime and in good health, and should not take effect until the first bimonthly payment was made. It was not delivered to the assured. He was dangerously ill when the policy was delivered to Newland. He did not make the first bimonthly payment, and the plaintiff’s whole case hinges upon what occurred with Newland, to which we have referred.

This leads us to the consideration of what a waiver is, and we find an excellent definition in Bishop on Contracts (Ed. 1887, see. 792), as follows:

“Waiver is where one in possession of any right, whether conferred by law or by contract, and of full knowledge of the material facts, does or forbears the doing of something inconsistent with the existence of the right, or of his intention to rely upon it. Thereupon he is said to have waived it and he is precluded from claiming anything by reason of it afterwards.”

The waiver, then, must be made “with full knowledge of the material facts.” It cannot be claimed that the agent Koch acted in the light of all the facts, or of the material facts. He was simply told that Maloney was sick at honieHe was not told that lie was dangerously sick; that he had a disease often fatal, and recognized as among the most dangerous of diseases; or that Simon had been dangerously ill and confined to his bed for two weeks. From what was said the agent might well have inferred that it was a temporary ailment, and no wise affected his right under the policy, and such as people frequently have which means nothing but a few days’ attention at home. There was nothing in the statement to point to the death of Maloney, when he was at the point of death, and within a few hours of his death, and that the defendant might soon be called upon to pay $2,000 if it accepted the trivial sum of $4.50. If Newland ivas acting as the agent of the deceased, so that the plaintiff can avail herself of his acts, then he should have fully informed the agent of the truth, and not suppress the important fact of the. real condition of the. assured. It is true that he says that he did not know what his true condition was. If that were so, no amount of inquiry on the part of the agent, of Newland, would have elicited the fact.

“Waiver” belongs to the family of “estoppel,” and often, in such cases, they are convertible terms. The waiver is a defense when the party insisting upon the contract has done something which in equity prevents the party from enforcing the contract, and, if permitted to do so, it would operate as a fraud upon the other party. Here,- at last, there was a suppression of a most -vital fact by the representative of the insured, from the insurer; and to permit an estoppel in such a case would operate as a gross fraud upon the insurer. The agent had no reason to suspect on the 16th that the deceased was dangerously ill, from what was said at that time, when but two days before he had been assured by a statement, in effect (that appeared to have been signed by the assured), that he was then in good health, and capable of performing his contract, receiving his policy, and paying the first premium, because he there affirms, under date of March 14th, in his letter, wherein he corrects his age, the statements as to his health, and his freedom from disease, which is made a. warrant, under the contract. The agent would naturally conclude from this statement on the 14th that the illness was. not serious, and be diverted by such statement from making further inquiries. If it be claimed that there was no intentional suppression of the facts from the agent by Newland, and therefore no fraud was practiced upon the defendant, we then have a condition quite as fatal to the plaintiff’s right to recover as if such fraud existed, because then the waiver was made in ignorance by both parties of the conditions which, if known, would have prevented the delivery of the policy and the acceptance of the premium. Waiver is an equitable defense, as well as estoppel, and cannot be predicated upon a mistake of facts. It seems clear, therefore, that there was not a waiver, under the circumstances of this case, which will permit the plaintiff to recover.

The defendant contends that the agent had no power to bind the company by the assumed waiver. In view of the conclusions reached upon the other questions, it is perhaps unnecessary to consider this question at length. The extent and the limitations of this agent’s authority to act for the defendant clearly appear in the evidence, and we fail to discover any such authority. The agent had power to deliver policies and collect premiums in cases where the condition imposed upon the assured by the contract had not been violated. He could only deliver a policy to an assured in health, and he could only take a premium from a person ful - filling those conditions. He could no more deliver a policy to a man stricken with a fatal disease, and at the point of ■death, and take a premium from him, that would hind the company as a waiver, than he could to the personal representatives of a deceased. In no aspect of this case can the plaintiff recover.

The motion for a new trial should be denied, with costs, and judgment entered upon the verdict in favor of the defendant.

All concur.


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    Bagley Sewall Co. v. Charles Ehrlicher et al.

    (Supreme Court, Appellate Division, Fourth Department,
    July 29, 1896.)
    A creditor of an insolvent corporation, who", after dissolution, brings an action against the stockholders in behalf of himself and all others similarly situated who will come and share the expense, to ascertain the liability of each stockholder, and to compel each one to pay Ms just share of the debts, may enjoin other creditor's from suing stockholders at law.
    Appeal from special term, Jefferson county.
    Action by the Bagley & Sewall Company against Charles Ehrlicher and others, for an injunction. From an order vacating an injunction granted by the county judge, restraining defendant creditors of the Globe Paper & Fiber Company from commencing actions against the stockholders of said company, and from prosecuting actions already begun, plaintiff appeals.
    Elon R. Brown, for appellant.
    Purcell & Carlisle, for respondents»
   WARD, J.

The plaintiff is a manufacturing corporation, organized under the laws of this state, having its principal office at Watertown, N. Y. In the latter part of 1895, and in the fore part of 1896, the Globe Paper & Fiber Company became indebted to the plaintiff for work done and labor done, and merchandise sold and delivered, in the sum of $858.78. The Globe Paper & Fiber Company was a manufacturing corporation, created under the laws of this state about April 27, 1.894, and transacted its business at Brownsville, N. Y., until February 25, 1896, when it ivas dissolved as insolvent, under a judgment rendered against it in an action by the people of this state, and a permanent receiver was appointed to distribute its assets to those entitled thereto. Such assets would pay about 50 per cent, of the unsecured indebtedness of the concern. The usual injunction in such cases had been granted, restraining its creditors from commencing or maintaining actions against it to recover their debt. This injunction was served upon the plaintiff. There were upwards of 100 creditors of the Globe Paper & Fiber Company whose claims were unpaid. The capital stock of the concern was fixed and limited at $300,000, composed of 3,000 shares, of $100> each. Twenty-two hundred and sixty-nine shares were issued, and a large percentage of the stock issued was not paid up either in part or in whole, and a large portion of the same was issued for fictitious values, no real value having been received therefor by the corporation; and the stock so issued was issued before the incurring of the debt of the plaintiff or the other debts now outstanding and due from or by the company. About 15 creditors have brought separate actions at law against the stockholders to recover their debts, representing the aggregate amount of claims of $100,000. Many more actions are liable to be brought. Twenty-nine stockholders hold the 2,269 shares issued. There are many transfers of stock during the périod when the debt of the plaintiff, and other outstanding debts of the company, and for which the stockholders have an individual liability, were incurred; and the debts, or parts of debts, were incurred at different times, and the liabilities on stock are in some instances divided as to such debts between two or more stockholders, and some of the stockholders are insolvent. This action is brought on behalf of the plaintiff and all other creditors of the Globe Paper & Fiber Company similarly situated, and who will come in and share the expenses of this action, against 44 defendants, being the said stockholders and the plaintiffs xvho had brought actions against them at the commencement of this action; and the relief demanded in the complaint was to the effect that an accounting be had as to the liability of each individual stockholder in the dissolved corporation for the debts thereof in the actions already instituted and such stockholders as might thereafter be brought in; and that said stockholders shall pay and contribute the amounts, respectively, which it shall be ascertained they are just liable for, sufficient to pay the debts of the plaintiff and all such persons as should join as plaintiffs in this action; and for an injunction; and for further relief. The learned justice at special term directed that the injunction obtained from the county judge of Jefferson county be vacated, with $10 costs of motion, without prejudice to any defendant stockholder to move for an injunction in any proper action or proceeding brought by such stockholder or stockholders.

It will be seen that this is an action in equity to ad juged in one action the rights of the creditors and the liabilities of the stockholders in this dissolved corporation, in order to avoid a multiplicity of actions, and the wasting of the property of the stockholders in a large number of litigations, incurring a large amount of costs. Owing to the peculiar circumstances indicated by the moving papers and the complications arising from conflicting interests, it would seem very desirable that the rights, interests, and responsibilities of the stockholders and creditors should, if possible, be adjusted in one action. The power of the court in this action . to restrain the actions at law against the stockholders cannot be doubted. Courts of equity have exercissed that juris- ; diction from time immemorial. The cases in this state sanction it. Railway Co. v. Ramsey, 45 N. Y. 637; Pfohl v. Simpson, 74 N. Y. 137; Cochran v. Opera Co., 20 Abb. N. C. 114; National Park Bank v. Goddard, 131 N. Y. 494, 43 St, Rep. 777. Pfohl v. Simpson, just cited, was an action brought by a creditor of the People’s Safe Deposit & Savings Institution, organized under the act (chapter 816, Laws 1868), in his own behalf and that of other creditors, and such creditors, against the stockholders of said company, the assignee in bankruptcy, and such creditors as had brought actions at law to collect of said stockholders the sums for which the-are liable under the provisions of sections 13 and 14 of that act, to distribute the same among the creditors, and to restrain the prosecution of said actions at law. The action was held to be well brought. It was further held that the fact that by said provisions the stockholders were made severally liable did not preclude the attaching and exercise of this equitable jurisdiction. This case, in principle, is analogous to the one at bar, and affords complete justificaion for its maintenance, as is also the case of Bank v. Goddard, supra. The liability of the stockholder for the debts-of the corporation under the stock corporation law (Laws 1892, c. 688, sec. 54), is a legal liability; and no reason can. be urged w-hy the equitable poAver of the court, such as is sought in the action at bar, should not be exercised as Avell as in other legal actions, such Avere restrained in the case-cited.

The learned justice at special term seems to have reached the conclusion that the injunction should have been sustained in the case before us but it had been obtained by a stockholder. It is difficult to conceive, if a stockholder is entitled to an injunction, why a creditor is not. In this case none of the stockholders had ansAvered at the time of the dissolution of the injunction. Seven of them had appeared, and moved for its dissolution, and the affidavits presented by them, which were embraced in their motion papers, did not materially contradict or vary the case made by the plaintiff’s papers upon which the in junction was obtained; and in the replying affidavit of the plaintiff’s attorney, read upon the motion, it appears that, since the commencement of this action, other creditors than the plaintiff, holding undisputed claims against the defendants for upward of $2,500, have arranged with the plaintiff’s attorney to come in as plaintiffs in this action, and to share the expenses thereof; That, at the time of the making" of said affidavit (April 4, 1896), 25 actions had already been brought by the creditors of the Globe Paper & Fiber Company against single stockholders of the said company, and among such actions, 5 thereof were brought by the Watertown Press Brick Company against 5 several stockholders of the said company, on a claim of $90.40; and I hat many other claims sued upon were moderate in amount. So it appears that between the granting of the injunction, March 24, 1896, at the time of the commencement of this action, when 15 stockholders Avere made defendants, and the dissolution of the injunction, on the 4th of April folloAving, 10 new actions had been insti-. tuted against the unfortunate stockholders. The fact that the laAv permits the creditor of the corporation holding a small claim to bring actions against any number of its stockholders, individually and separately, and to pursue them until he obtains the satisfaction of his debt out of some one of them, is liable to great abuse, and affords, in a proper case, a strong reason for the exercise of the equitable jurisdiction invoked in this action.

We have reached the conclusion that the order dissolving the injunction herein should be reversed, with $10 costs and disburements of this appeal. All concur.


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    William Duffus v. Howard Furnace Co.
    (Supreme Court, Appellate Division, Fourth Department,
    July 29, 1896.)
    A hoi air furnace set up in the cellar of a house on bricks placed on the bottom of the cellar, with a smoke pipe extending into the chimney and hoi-air pipes extending through the house, which can be disconnected Avithout substantial injury to the building, does not pass under a mortgage of the house, where it was placed therein under a contract providing that it should remain the property of the seller until paid for.
    Under Laws 1884. chapter 315, providing that in every contract for the conditional sale ol' chattels, accompanied by delivery, the condition shall be absolutely void against subsequent prchasers and mortgagee in good faith unless the contract shall be filed,a failure to file the contract does not a.void the condition as to a mortgagee who had actual notice of the condition

      Appeal from Onondaga county court.
    Action by William Duffus against Howard Furnance Company to recover the value of a portable furnace. A judgment of the municipal court of the city of Syracuse, in favoi? of defendant, was reversed by the county court (37' No To dupp. 19), and defendant appeals,
    Ceylon H. Lewis, for appellant,
    Walter S. MacGregor, for respondent,
   WARD, J.

John Schaffer, of the city of Syracuse, was om the 8th day of October, 1891, the owner of lot 21 in block Wo, 613 in the city of Syracuse, being 40 -feet front and 8 rods deep. Upon this lot a new house was constructed by Schaffer, and a portable furnace put therein by the defendant under a contract between Schaffer and the defendant, whereby the defendant was to be paid for the furnace §155 on the following March. The contract was in writing, and signed in duplicate, and contained this clause:

<cThe furnace, together with all materials furnished by the first party [the defendant], shall remain the property of said first party until the contract price below named is fully paid; and the second party shall be liable for any damage to said apparatus, after completion, until said, amount is paid in full.’1

This furnace was for the purpose of heating the house. It was set up in the cellar of the house, upon a row of bn" eks placed upon the bottom of the cellar, connected with a smoke pipe that extended into the chimney, and with hot-air pipes, made of tin, extending through the house; and there was a cold-air box, also, connected with the furnace. The furnace could be readily disconnected from the cellar and the pipes and cold-air box, without substantial injury to the building. The furnace was put in early in December, 1891, and two days before this, and on the 7th day of December, Schaffer and his wife executed and delivered to the plaintiff a mortgage upon the house in question, as collateral security for the payment of any and all promissory notes which had theretofore been, or which should thereafter he, given by either Shaffer or his wife and which had been, or which might thereafter be, indorsed by the plaintiff for the accommodation and benefit of Schaffer; and Schaffer convenanted to save the plaintiff harmless from anv and all loss, costs, and expenses, or counsel fees, which might accrue to the plaintiff by reason of any indorsemeuts as aforesaid, and as security for the payment of any other indebtedness, of any name or nature, to the extent of $3,500, which, if done, the conveyance would be void. Schaffer was also the owner of four other houses and lots, or buildings and lots, in the city of Syracuse, upon which plaintiff took mortgages from Schaffer as collateral security, with the same condition in each, as above given,—one on August 27, 1891, for $1,000; another, of January 15,1892, $2,000; one of February 20, 1892, of $6,000; and one of April 7,1892, $6,000; making a total of $18,500. These mortgages were collateral to notes that were renewed monthly, made by Schaffer, and indorsed by the plainti ff, and the plaintiff was to receive, as compensation for such indorsements, interest at the rate of 2 per cent, a month, or 21 per cent, a year. The business was-all transacted at the same bank in Syracuse, where the notes were cashed, and the money advanced to Schaffer,—less, we conclude from the evidence, the 2 per cent, bonus to the plaintiff. The notes outstanding at the time of the trial in the municipal court were 13 in number, of various, amounts. On the 6th of May, 1892, Schaffer and his wife-executed to the plaintiff what was called in the case a “blanket mortgage” upon all the five lots above referred to, containing the same conditions as first above set forth, and securing the plaintiff to the extent of $18,000. Three days later, Schaffer executed to the plaintiff, in writing, a sale and transfer of all the right, title and interest of Schaffer to all the rents, with leases, then due, and to become due, to Schaffer on the said houses and lots, and plaintiff went into possession of all the houses and lots, and collected the rents and controlled the property thereafter. The plaintiff immediately commenced foreclosure upon this-blanket mortgage, and afterwards amended his complaint, by including all the other mortgages, none of which were surrendered upon the execution of the blanket mortgage; and this foreclosure resulted in a sale of the premises-in August for $4,000, the property being bid in by the plaintiff, leaving a net application of the proceeds of the sale upon the mortgages of $2,640.30. In the meantime the defendant, claiming to own the furnace (it not having been paid for), removed the furnace, for which this action was brought, with the result in the municipal court as above indicated.

We are favored with two able opinions in this case by the-learned judges in the courts below,—the first in favor of the defendant, by the judge of the- municipal court, and the second in favor of the plaintiff, by the county judge, reported in 15 Miscx. Rep. 169, 37 N. Y. Supp. 19. The amount found due in the foreclosure action, upon the notes, was $12,523.01, with interest from July 3, 1893. The net result of these business operations of the plaintiff was that he obtained all these properties upon the foreclosure, that but a few months before he had deemed security for $18,000, including the property where the furnace was placed, four brick houses, and also, brick flats, on valuable lots in different portions of the city of Syracuse, and a deficiency judgment of nearly $10,000, including whatever he may have received from the bank at the rate of 2 per cent, a month.

The cases of Ballard v. Burgett, 40 N. Y. 314, and Austin v. Bye, 46 N, Y. 500, finally settled the law in this state to be that, where personal property should remain in the conditional seller until paid for, the seller could retake the prop- ' erty, if not paid for as stipulated, even from a bona fide purchaser from the conditional purchaser while in his possession. Folger, J., says in Tifft v. Horton, 53 N. Y. 380:

“It is well settled that chattels may be annexed to the real estate, and still retain their character as personal property. See Voorhees v. McGinnis, 48 N. Y. 278, and cases there cited. Of the various circumstances which may determine whether, in any case, this character is or is not retained, the intention with which they are annexed is one; and if the intention is that they shall not, by annexation, become a part of the freehold, as a general rule they will not. The limitation to this is where the subject or mode of annexation is such as that the attributes of personal property can not be predicated of the thing in controversy (Ford v. Cobb, 20 N. Y. 344), as where the property could not be removed without practically destroying it, or where a part of it is essential to the support of that to which it was attached.” e

Some of the cases use the expression that, where it is expressly agreed that the property attached to the freehold shall not become a part of the realty, there is impressed upon it, although attached to the realty, the character of personal property; and as germane to this, we cite Sisson v. Hibbard, 75 N. Y. 545; Ford v. Cobb, 20 N. Y. 346; Tyson v. Post, 108 N. Y. 220,13 St. Rep. 503; Manning v. Odgen, 70 Hun, 399, 54 St. Rep. 113; Iron-Works Co. v. McEvony (Neb.) 66 N. W.290. In the case at bar the retaining of the title by the defendant, in the furnace, with the implied right to retake it if not paid for, after it had been placed in the building, amounted to an agreement between the pallies that the defendant could disconnect the property from the realty upon the failure of Schaffer to perform his contract; and therefore there was impressed upon this furnace, although attached to the freehold, the character of personal property, and the prior mortgage of the plaintiff upon the house and lot did not include it. The case does not show ill at the removal of the furnace would create such an injury to the freehold as would bring it within the exception above quoted in Tifft v. Horton, supra. The county court reversed this judgment upon the ground that under the blanket mortgage, which was given subsequent to the furnace being put into the house, the plaintiff was a purchaser for value; agreeing, however, that if the mortgage had been given for a pre-existing debt, without any new consideration , he would not be such purchaser for value (Duffus v. Furnace Co., 37 N.Y. Supp. 21); citing Jones v. Graham, 77 N. Y. 628; Thompson v. Van Vechten, 27 N. Y. 568-580; De Lancey v. Stearns, 66 N. Y. 157; Asher v, Deyoe, 77 Hun, 533, 60 St. Rep. 268,—which sustain the proposition thus laid down. The county court then assumes that, the plaintiff being such purchaser for value, he comes within the protection of the statute, chapter 315 of the Laws of 1884, and the amendments thereto. That portion which it is material here to consider is as folio ays:

“In every contract for the conditional sale of goods and chattels hereater made, which, shall be accompanied by an immediate delÍArery, and be alloAved by an actual and continued change of possession of the thing contracted to be sold, all conditions and reservations Avhich provide that the OAvnership of such goods and chattels is to remain in the person so contracting to sell the same, or other person than the one so contracting to buy them until said goods or chattels are paid for, or until the occurring of any future event or contingency, shall be absolutely void as against subsequent purchasers and mortagees in good faith, and as to them the sale shall be deemed absolute, unless such contract for sale Avith such conditions and reservations therein, or a true copy thereof shall be filed as directed in the succeeding section of this act.”

Then folloAvs the direction as to Avhere such instrument should be filed, which in this case should have been filed in the county clerk’s office, in the city of Syracuse. There was- no evidence before the trial court Avhether this instrument was filed or not. The judgment roll in the foreclosure was introduced in evidence upon the trial, and the plaintiff testified upon the subject of the consideration of the blanket mortgage. He did not give any evidence tending to show that he was ignorant at the time he took the blanket mortgage of the terms of the contract under Avhich the furnace was put into the house, and there Avas no such evidence in the case; but the plaintiff did testify that he lcneAV that the defendant, in the fall of 1891, Avas putting a furnace into the cellar of the house in question, and he saw it there after he had obtained possession, and that he asked Schaffer if it had been paid for. But Schaffer’s answer does not appear in the evidence. It was not sufficient for -the plaintiff to simply establish, if he has done so, that the blanket mortgage was given upon some new consideration, in whole or in part, in order to establish that he was a mortgagee in good faith. He must only be a mortgagee for value, but also a. mortgagee without notice. Berner v. Kaye, 14 Misc. Rep. 1, 35 N. T. Supp. 181; Spicer v. Waters, 65 Barb. 220,231,232; Jewett v. Palmer, 7 Johns. Ch. 65. The burden of proving that the plaintiff was a mortgagee, in good faith was upon him. If there was an omission to file the mortgage, that omission does not relieve the plaintiff. The contract is not void, as against him, unless he proves himself within the class of persons that the statute declares the contract void as against. See above cases, and Abb. Tr. Ev. 716, and cases there cited. The opinion of the chancellor in Jewett v. Palmer, supra, is stated in the syllabus of the case, and is quoted with approval in Spicer v. Waters, supra, as follows:

“To support the plea of bona fide purchase without notice the defendant must aver and prove, not only that he had no notice of the plaintiff’s rights before Ms purchase, but that he actually paid the purchase money before such notice.”

The judgment in foreclosure confers only the right which the plaintiff possessed as mortgagee, and unless, as subsequent mortgagee in good faith, he is protected by this 'statute, he must fail. Rector, etc., v. Mack, 93 N. Y. 488; Code Civ. Proc. sec 1632. The municipal court passed upon the fact as to whether the blanket mortgage was given for a pre-existing debt merely, and whether any new indorsement had been made, or costs or liability incurred, upon the faith thereof. It had before it evidence that all the notes that the blanket mortgage was given to secure were renewals of old notes, except a small one of ,S183, and a portion of another note, the amount of which was not denied. The plaintiff testified on the subject. If any new indorsements were made, or costs or liability had been incurred, by the plaintiff upon the faith of this particular blanket mortgage it should have been shown. There were two mortgages in existence that had been given before the furnace was put in, including the one upon the house where it was put in, and we have no evidence but what these new liabilities were incurred upon the faith of the first mortgages, and as to them the plaintiff was not a subsequent mortgagee. Upon this question of bona tides the trial court could take into consideration all the evidence in the ease. It does not appear that any of the notes that were renewed from time to time were surrendered upon renewal, and we have seen that none of the mortgages were surrendered when the blanket mortgage was given. The plaintiff testified that the amount for which he was liable upon the notes fluctuated from $600 to $12,000. The plaintiff testified that he took the blanket mortgage to save costs in foreclosure. He collected about $600 in rents, as mortgagee in possession. Under all the extraordinary circumstances of this case, the plaintiff being an interested party, the trial court was not bound to believe the evidence of the plaintiff that there was even the trifling amount of new consideration stated in the evidence. We think there was no evidence tending to justify the conclusions of the trial court upon the subject we are considering, which should have sustained its judgment in the county court.

The. appellant makes the point that inasmuch as, by chapter 684 of the Laws of 1893, portable furnaces were taken out of the statute of 1884, requiring the filing of the contract, it operated as a repeal of the statute last mentioned, so far as portable furnaces are concerned, and that such repeal having been made without any saving clause, reserving former rights of action, the plaintiff’s cause of action fell with such repeal. There is some authority upon this subjct. In Butler v. Palmer, 1 Hill, 334, the court says:

'“A repealing clause is such an express enactment as necessarily divests all inchoate rights which have arisen under the statute which it destroys. These rights are but an incident of the statute, and fall with it, unless saved by express words in the repealing clause.”

And see, upon this subject, Knox v. Baldwin, 80 N. Y. 610; Church v. Rhodes, 6 How. Prac. 281; Richardson v. Pulver, 63 Barb. 67; Comstock v. Carr, 6 Wend. 526; Washburn v. Franklin 35 Barb. 599. It is necessary, however, to determine this question, and we put our decision upon the other propositions in the case.

The judgment of the ounty court should be reversed, with costs in that court, and that of the municipal court affirmed, asso Avith costs of this appeal.

All concur.


author: PER CURIAM.

text:
    William H. Hamilton v. Joshua Samuel Piza.
    (Supreme Court, Appellate Division, Jb'irst Department.
    July 31, 1896.)
    Where the judgment demanded in a complaint is for an amount which must be determined after an accounting, the cause is triable at special term without a jury.
    Appeal from special term, New York county.
    Action by William H. Hamilton, as assignee for the benefit of creditors of Washington Belt, Elliot L. Butler, and, Theophilus Jowett, partners trading under the firm name of Belt, Butler & Co., against Joshua Samuel Piza, for an accounting under a contract between the parties, and to recover judgment for such sum as might be found due on the account. From an order striking the cause from the special term calander, plaintiff appeals.
    The complaint aHeged that on the 19th day of February, 1893, plaintiff’s assignors, composing the firm of Belt, Butler Co., entered into a certain agreement with defendant to form a corporation to be known as the New York Fur-Cut■ting Company, which company was duly organized, and proceeded to carry on its business; that plaintiff’s assignors, pursuant to the agreement, furnished all the money necessary for the corporation to carry on its business; that under the agreement, defendant, at the expiration of two years from the date thereof, was to take by assignment two-fifths of the debts of the company which might then be existing in favor of Belt, Butler, & Co., reimbursing them to that extent ; that the New York Fur-Cutting Company continued to carry on its business until January, 1895, when its factory was destroyed by fire; that on May 3, 1895, defendant procured an order of court to show cause why a receiver for the New York Fur-Cutting Company should not be appointed. that thereafter Samuel W. Milbank was appointed receiver; that plaintiff caused a statement to be prepared of the moneys furnished by Belt, Butler & Co., pursuant to the terms of the agreement showing that the amount of the debts of the New York Fur-Cutting Company then existing in favor of Belt, Butler & Co. amounted to $195,758.70, and that plaintiff, on March 3, 1896, presented a copy of such ■statement to defendant, and presented to him an assignment in writing of two-fifths of said debts, with a request that he would accept the same, and pay plaintiff two-fifths of said .sum, which he refused to do, and that the firm of Belt, Butler & Co., and plaintiff, as their receiver, have duly performed aU the terms and conditions of the agreement, and that defendant has failed to perform his part of said agreement. The complaint demanded judgment against defendant: “(1) That an account be taken and stated of the amount furnished by plaintiff’s assignors by loan in amount current during the time mentioned in the agreement hereto annexed, marked ‘Exhibit I’, for the proper management of the business of said New York Fur-Cutting Company, and that the .amount of the debts of the New York Fur-Cutting Company which existed in favor of plaintiff or his assignors on February 19, 1896, be determined. (2) That the amount of the •debts due by- the New York Fur-Cutting Company on the said February 19, 1896, on the responsibility of the defendant, be determined. (3) That the amount of two-fifths of the debts of the said New York Fur-Cutting Company which existed in favor of the plaintiff or his assignors on February 19, 1896, after deducting any debts due by the said company on the responsibility of the defendant, be determined. (4) That the defendant be directed-to pay to the plaintiff the amount so determined to be due by him, with interest thereon from February 19, 1896, upon the assignmen t to him of twofiftlis of the debts of the said New York Fur-Cutting Company which existed .in favor of the plaintiff or his assignors on the said February 19, 1S96, together with a two fifths interest in the securities, collaterals, and other rights or liens which plaintiff or his assignors may have to secure the said debts of the said New York Fur-Cutting Company to plaintiff or his assignors. (5) That plaintiff have judgment against the defendant for the amount so determined to be due plaintiff by the defendant with interest and the costs of this action.”
    R. S. Ransom, for appellant,
    E. E. Baldwin, for respondent.
   PER CURIAM.

This cause was properly upon the equity calendar. The issues joined were such as could not be tried by a jury. It specifically appeared that the action was not to recover damages to be assessed or ascertained only by a jury in the ordinary way, but judgment was demanded in the complaint against the defendant for an amount which must be determined to be due to the plaintiffs after an accounting, which accounting was also prayed for of all the amounts of loans furnished by the plaintiff’s assignors under and pursuant to an agreement for the management of the business of a corporation, and of the amount of the indebtedness of the corporation existing in favor of the plaintiffs’ assignors, and judgment is asked for the ajDplication of moneys to be found due on an accounting to the payment of the indebtedness provided for mider the terms of the contract annexed to the complaint. The accounting lies .at the very foundation of the action, and it was error to refuse to try the cause at special term.

The order must be reversed with costs, and the cause restored to the special term calendar for trial, - -


text:
    Howard S. Jaffray et al. v. Edward Hunter.
    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    An action brought in New York will not be stayed on the ground that, the same matter is in litigation between the same parties in another statewhci-e it appears that the action was begun in such other state to forestall the action in New York, and to compel plaintiffs, who were receivers appointed by the courts of New York, to litigate in a foreign jurisdiction.
    Appeal from special term, New York county. ■-
    Action by Howard S. Jaffray and others, as receivers of E. S. Jaffray & Co., against Edward Hunter, on two promissory notes of defendant, for $2,500 each, payable to plain-, tiffs. From an order denying a motion to stay proceedings until the determination of an equity suit brought by defendant against plaintiffs and others, in the state of Tennessee, to restrain the collection of said notes defendant appeals»
    S. L. Samules, for appellant.
    David Wilcox, for respondents.
   PER CURIAM.

It is altogether within the discretion of the court to stay proceedings in an action here, when the same subject-matter is in litigation between the same parties in the courts of another state or country. Many cases may arise in which that course shorn! be pursued, particularly where the foreign court first acquired jurisdiction. But in this case no sufficient or satisfactory reason was given for staying the common-law action here until the suit in equity can be disposed of in Tennessee. The two notes sued on were given by the defendant directly to the plaintiffs, as receivers, and they formed part of the consideraton paid on the settlement of transaction had between the defendant and the receivers of the co-partnership of Jaffray & Co. The suit in Tennessee was brought in anticipation of the maturity of those notes, and upon allegations of the failure and of consideration. That it was begun to forestall action here, and to compel the officers of this court to litigate in a foreign jurisdiction, seems obvious. What is alleged as constituting a cause of action in the Tennessee suit, to entitle the defendant to a decree for cancellation and surrender of the notes which were sent by the plaintiffs to that state for collection, would furnish, if true, a complete defense to the action pending here, and no adequate reason is shown why this action should not proceed. That is especially true in "view of the delay of the defendant in making this motion. Issue was joined in this case in April last. It was set ■down for trial as a preferred cause on June 11th. This motion was then made and the trial is now fixed for the first day of the term after the summer vacation. It is to the interest of the receivership and of the creditors that the question of the liability of the defendant should be determined speedily. He has answered in the cause, and it is ready for trial. The court below was right in refusing to ¡stay the trial, and the order is affirmed,, with costs.


text:
    Martin Lehman v. Lewis Mayer.
    (Supreme Court, Appellate Division, First Department.
    July 31, 1896 )
    An order requiring the sheriff to take chattels from a person who is, not a party to the action or to the motion for the order is erroneous, as it is no protection to the sheriff in an action against him by such third person for trespass.
    Appeal from special term, New York county.
    Replevin by Martin Lehman against Lewis Mayer. From .■an order requiring the sheriff to execute a requisition, and to take certain property into his possession, he appeals.
    B. N. Cardozo, for appellant.
    B. F. Einstein, for respondent.
   PER CURIAM.

The only party defendant to this action was Lewis Mayer. Ruscher & Muller, in whose possession the tobacco which is the subject of the action ivas, are not parties to the action; and there is nothing in the papers upon which this motion ivas made tending to show that they are agents of the defendant, or have any connection with him whatever. The requisition upon the sheriff authorizes the taking of the property only from the defendant named in the action, or his agent. It is no protection to him if he takes the property from any other person. Otis v. Williams, 70 N. Y. 208; Bullius v. Montgomery, 50 N. Y. 352. Ruscher & Muller being neither parties to this action, nor to the motion, the order to the sheriff, requiring him to take the property from their possession, would be no protection whatever to him in an action brought by them for the trespass which he must necessarily commit in executing against their property process which had been delivered to him against the property of another person. There is nothing in the facts shown upon this motion from which it can be inferred that the proceeding was taken under chapter 633 of the Laws of 1895, and consequently the provisions of that-statute need not be consideed. No foundation was laid for the granting of such an order, and it must be reversed, with 4>10 costs and disbursements.


text:
    The People ex rel. Mulligan v. Charles H. T. Collis.
    (Supreme Court, Appellate Division, First Department,
    July 31 1896.)
    The trial court has no power to strike from papers on appeal from order granting a peremptory mandamus an affidavit recited as one of the papers on which the motion was decided, but the remedy, if the printed papers were not the papers read before the trial court, was to apply to the appellate court to correct the papers.
    Appeal from special term, New York county.
    Certiorari by Daniel Mulligan to review the determination of Charles H. T. Collis, commissioner of public works of the city of New York, discharging the relator from the pos— tion of inspector of street opening. A peremptory writ of mandamus was granted, and defendant appealed. Afterwards an order ivas entered striking out from the papers on appeal an affidavit made by defendant, and from said order he appeals.
    Terence Farley, for appellant.
    John W. Browne, for respondent.
   PER CURIAM.

We do not think that the court below had any power to grant this order. The order appealed from reited, as one of the papers upon which the motion had been decided, the affidavit of Charles H. T. Collis on behalf of the commissioner of public works of the city of New York,—not a draft affidavit, a copy of which had been served upon the relator; and the general rules of practice require that the appeal should be heard, not upon the papers that had been served, but upon the papers that were before the court when the motion was granted. If the printed papers upon appeal were not the court papers that were recited in the order of the court, the proper remedy of the relator was an application to the appellate court to correct the printed papers that had been filed and served under the provisions of the rule. So long as the order remained in the form in which it was entered, the court below had no right to require the appeal to be heard upon different or other papers than those upon which the motion was decided and the order entered.

The order should therefore be reversed, with $10 costs and disbursements,- and the motion below denied, with $10 costs.


text:
    Thomas N. Dwyer v. James Rorke.
    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    An undertaking on appeal to pay all costs and damages which may be awarded against appellant, and, if the judgment is affirmed or the appeal dismissed, to pay the amount of such judgment, is not sufficient to stay the enforcement of the judgment pending the appeal.
    Appeal from special term, New York county.
    Action by James N. Dwyer -against James Rorke for dissolution of a partnership, and for an accounting. By consent, an interlocutory judgment judgment was entered, dissolving the partnership and directing an accenting before a referee as to the partnership transactions. Defendant appealed from this judgment, and gave the following undertaking :
    “Whereas, on the-day of--, 1896, in the supreme court, city and county of New York, Thomas N. Dwyer, the respondent, recovered a judgment against James Rorke the appellant, for four thousand eight hundred fifteen and 57-106 dollars costs and disbursements, and the appellant, feeling aggrieved thereby, intends to appeal therefrom to the appellate division of the supreme court for the first department: Now therefore, we, Michael H, Haggerty, residing at No. 221 Union street, in the city of Brooklyn, and Terence F„ Curley, residing at No. 59 Eighth avenue, in the city of Brooklyn, do jointly and severally, pursuant to the statute in such case made and provided, undertake that the appellant will pay all costs and damages which may be awarded against the appellant on said appeal not exceeding five hundred dollars, and do also undertake that if the judgment so appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the sum recovered or directed to be paid by the judgment, or the part thereof as to which judgment shall be affirmed.”
    An accounting was had, and the referee’s report was confirmed, and judgment was entered thereon that plaintiff recover of defendant $4,815.57, and that neither party hereto may apply at the foot of this decree for a distribution of any ¿moneys or other assets of said copartnership not heretofore distributed.” Plaintiff moved for an order directing payment to him of a portion of moneys of the firm which had been collected. The motion was denied, and plaintiff moved for a reargument, which was also denied. From the order denying the original motion and the motion for a reargument, plaintiff appeals.
    George Putman Smith, for appellant.
    George A. Strong, for respondent.
   PER CURIAM.

The rights of the parties to the fund in court are settled by the judgment in this action, and, so long as that judgment stands, there is no doubt that the plaintiff is the owner of more than $10,000 of that fund. That judgment, although appealed from, is presumed to be correct and, unless proceedings are stayed in the action pending the appeal, the plaintiff is entitled to his share of the money awai'ded him by that judgment. The undertaking which was given in this action is not sufficient to stay the proceedings of the plainti if for the purpose of obtaining the payment of that money. Síenback v. Diepenbrock, 5 App. Div. 208, S3 N.Y. Supp. 137. Until those proceedings were stayed the plaintiff was entitled to have the money paid over to him, within the rule laid down in that case. The order made in case, therefore, was erroneous, and must be reversed, with $10 costs and disbursements, and the motion granted.