text:
    GEORGE L. KENT, Respondent, v. THE QUICKSILVER MINING COMPANY and others, Appellants.

      Corporation — right of, to issue prefemd stoch.

    inhere a joint stock corporation, in pursuance of its charter, establishes its capital at $10,000,000, divided into 100,000 shares of stock of the value of $100 each, and issues certificates therefor in the usual form, it cannot thereafter, by a vote of a majority of the stockholders, provide that the holders of the common stock may convert the same into preferred stock, entitled to certain privileges, upon the payment of a specified sum, although its charter does not prohibit the creation of such preferred stock, unless all the holders of such common stock consent thereto, or unless the power so to do has been reserved by the corporation itself at or before the time of the issuing of the stock.
    The holders of common shares, who consent that the preferred shares issue, ara precluded by such consent from denying their validity.
    Where a corporation issued a certain amount of preferred stock, the certificates providing that the holders thereof should be entitled to receive interest thereon at the rate of seven per cent per annum, and that any surplus earnings remaining after the payment of the same should be divided among the holders of the preferred and common stock, held, that the corporation could not thereafter issue additional preferred stock, entitled to the same privileges, as the rights of the holders of the preferred stock first issued would be thereby injuriously affected.
    Appeal from a judgment entered upon the trial of this action by the court without a jury, perpetually enjoining the defendant, the quicksilver company, from issuing preferred shares of stock, and the other defendants from converting common shares of the company’s stock into preferred stock.

      Joshua M. Van Cott, for the appellants.

      Grosvenor JP. JLowrey, for the respondent.
   Daniels, J.:

The plaintiff, as the owner of common and preferred shares in the capital stock of the Quicksilver Mining Company, instituted this action to restrain the issuing of further shares of preferred stock. The company was formed by a special act of the legislature of this State, enacted in the year 1866. (Laws of 1866, chap. 470.)

The amount of its capital was not fixed by the charter, but, under its authority, was soon afterwards declared by a by-law adopted under its authority to be the sum of $10,000,000, represented by 100,000 shares of $100 each. These shares were designed to be exchanged and substituted for similar shares of another conrpany chartered under the same name by the legislature of the State of Pennsylvania. A large proportion of the shares of the new company were so exchanged, but up to April, 1870, 14,864 shares still remained unexchanged. The company chartered by the legislature of this State, and the principal defendant in this action, found itself embarrassed by debt and the want of funds, early in the year 1870, and being unable to borrow money to relieve its necessities, proposed to its shareholders a plan for securing money by means oi preferred stock. That was to substitute iu place of common shares preference shares to all who should advance the sum of five dollars on a share of common stock. This plan received the assent and approbation of the holders of 15,658 shares, leaving án unassenting minority of outstanding shares of 9,478. The advantages proposed to be secured to the owners of preferred stock shares were the payment of seven per cent interest annually from the 1st of May, 1870, out of the earnings of the company upon each share, and an equal participation with‘the common shares by way of dividends in the residue of such yearly earnings. And for the purpose of affording an opportunity for the exchange of the common into preferred shares, the books of the company were to be opened at its office in New York, and closed by the board of directors whenever, in their opinion, the interests of the company would be promoted by so doing.

The books of the company were accordingly opened on the twenty-fourth of February and closed on the l‘8th of April, 1870, which was the time for that purpose designated by the directors. During that period 42,913 shares of common stock were surrendered, and the same number of preferred shares taken in their place on the terms proposed by the directors.

The plaintiff afterwards, and between the years 1870 and 1871, purchased 2,500 of these preferred shares, 1,700 of which have been transferred in his name on the books of the corporation, and for which he has received and holds its certificates. lie also became the owner of 100 shares of the common stock of the company, and never consented to the further conversion of common stock into preferred shares.

On the 25th of February, 1874, at a meeting of the stockholders of the company, another resolution was adopted by a vote of 44,750 common and 29,085 preferred shares, extending to the holders of the 57,087 shares of common stock the right to convert them into preferred shares for the sum of five dollars, and interest thereon from the 24th of February, 1870, to be paid upon each share. For that purpose the directors were empowered to open the books of the company, and to close them whenever, in their judgment, the interests of the company would be promoted by doing so

At the time of the adoption of the resolution for the conversion of tbe residue of tbe shares, tbe earnings of tbe. company bad been sufficient to enable it to pay interest at tbe rate of seven per cent on tbe preferred stock already issued, and to make a dividend upon both classes of stock, but it was not proposed to distribute those earnings until after tbe holders of the common were secured an opportunity to convert these shares into preferred shares, and to prevent that privilege from being extended to them, this action was instituted, and tbe plaintiff has predicated bio right to maintain it on tbe preferred as well as tbe common shares owned by him, without determining upon which description of shares he might most securely stand. The court at Special Term awarded judgment in his favor.

It is entirely clear, from the ease, that the plaintiff himself, as the owner of the 100 shares of common stock, has personally done nothing to preclude himself from questioning the right of the company to eonyert the remaining common into preferred shares; and as it was not shown that any previous owners of any of the 9,478 of those common shares had in any form assented to the issuing of preferred shares, it may be assumed, for the present purposes of this case, that no such assent has ever been secured from" either of them. If the fact were otherwise, it was for the' party asserting it to show it by proof, and no evidence of that description was given during the trial; for that reason, the point has been presented, and should now be considered, whether, without the assent or authority of an owner of the common stock, other portions of it may be lawfully converted into preferred shares, entitled to an appropriation of a portion of the net earnings of the company, before the owners of the residue can be allowed to participate in any distribution of them ? The scheme devised was not a loan of money, which the company, by one of its original by-laws, was empowered to make, either with or ■without security, for no agreement, either expressly or by implication, was entered into for the repayment of the money payable on the conversion of the stock. What was agreed upon was a payment of the stipulated .amount as the price or consideration of the privilege afforded of exchanging the common into preferred stock ; and for that, the owner of the common stock making the stipulated payment of five dollars for each share, became entitled to perpetual interest upon the amount of his share at the rate of seven per cent. By tbe arrangement which was made, the net earnings of the company were to be diverted annually, to that extent, from the owners of the common stock, and without any right to redeem the preferred shares.

The charter, in terms, conferred no such power upon the company which it created, but it was authorized to make such by-laws as should be deemed proper to carry out the objects of the corporation, and to alter, amend or repeal them at pleasure, provided that they should not be contrary to the Constitution of the State or the provisions of the charter. It was also given the power to issue certificates of stock, representing the value of its property, in such form and subject to such regulations as it might from time to time, by its by-laws, prescribe. (Laws of 1866, 1021, chap. 470, § 2.) The company, under this general authority, probably had the corporate power in the first instance to have provided by its by-laws for the issuing of a portion of its certificates as preferred shares, but it did not do that.

It'merely provided in terms, that certificates of stock amounting to $10,000,000, should represent the value of the property of the corporation, and that the capital stock should be divided into 100,000 shares of $100 each. No discrimination in the nature or form of the certificates was in any way provided for, but the implication clearly arose that they were intended to be identical in those respects, and so they. were issued and delivered to the persons receiving them. They contained no intimation that they were liable to any future action of the corporation, by which the advantages expected to be derived from them would probably be diminished, and persons investing their money or property in them were' in no way admonished that they were subject to such a contingency. But the import, as well as the language of the certificate, justified an entirely different conclusion. It was issued in such a form as to state that the owner was entitled to $100 in the capital stock of the Quicksilver Mining Company, and by a clear implication that entitled him to a proportionate part of the net earnings of the company. In form the certificates issued by this company were in no respect peculiar. They were identical in their effect and terms with those usually issued by incorporated companies, and they have been so often before the courts for consideration, that the rights of tlieir holders have become reasonably well settled. This is what has been denominated a joint-stock corporation. A corporation of that description has invariably been empowered to raise a certain amount of capital by the mutual subscriptions of the members, and this capital is divided into shares, which are made to vest in the subscribers according to their respective contributions, and they entitle the holders of them to a corresponding proportionate part of the profits of the undertaking.” (Angelí and Ames on Corps. [4th ed.], 562, § 556.)'

This principle impresses the shareholder’s certificate with the common elements of an agreement, which cannot be changed or modified, when no such power over it has been reserved, by the action of either one of the parties. And it has’ been so construed in tlio effect given to it by a decided current of judicial authority.

In the case of Bradley v. Holdsworth (3 M. & W., 422), it was said by Paree, B., that “shares consist of nothing more than a right to have a share of the net produce of all the property of the company.” The same thing was held of the right of a shareholder in a turnpike company in Tippets v. Walker (4 Mass., 595), where PARSONS, C. J., declared that when the road is made, the corporation is entitled to demand and receive a toll of travelers for the use of it, in trust for the members of the corporation in proportion to their respective shares.” In the case of The Union Bank of Tennessee v. State Bank (9 Yerger, 490) it was stated that “the shareholder had the immediate right to receive his share of the dividends as they are declared, and the remote to his share of the effects on hand at the dissolution of the institution.” (Id., 50.) And liis share entitles him “ to his proportion of the profits or dividends, which may be declared from time to time.” (Brightwell v. Mallory, 10 id., 196, 198.) And to the same effect are March v. Eastern Railroad Company (43 New Hamp., 516, 520), Mechanics' Bank v. New York and New Haven Railroad Company (3 Kernan, 599, 627), Wildman v. Wildman (9 Vesey, 174, 177), Bank of Waltham v. Waltham (10 Met., 334), Hutchins v. State Bank (12 id., 421), and Jones v. Terre Haute, etc., Railroad Company (57 N. Y., 196), where it was held that the directors of a corporation have no power to discriminate between its stockholders, where no such power is conferred by its charter. It has also been stated that “prima faoie all tlie shareholders in a company, are entitled to share profits pari passu in proportion to the nnmbei of shares they respectively hold, and a resolution by a majority that dividends shall be paid to some of the shareholders in preference to or to the exclusion of the others, is clearly illegal unless it is warranted by something more than the will of those who mate it.” (Id.; Lindley on Part. [2d ed.], 780; Adley v. Whitstable Company, 17 Vesey, 316 ; Scarboro Hotel Company, 2 D. & S., 514.)

It has been supposed that a different principle was held to be the law in the case of Hazelhurst v. Savannah Railroad Company (43 Georgia, 53), and an intimation to that effect was very plainly expressed in the opinion of the court, but its effect as authority was entirely counteracted by the preceding remark that the learned judge who delivered the opinion deemed it proper to make, that the court did not feel called upon to decide this question. The case of Evansville, etc., Railway v. Evansville (15 Ind., 395) simply included the determination that a railroad company, under the peculiar circumstances there shown, could agree to allow interest on its stock taken for bonds by a city, until the railroad should be made complete and ready for operation. In Bates v. Androscoggin Railway (49 Maine, 491) the proposition to issue preferred stock is stated to have been first presented to, ratified and adopted by, the stockholders of the company at a meeting held on the 21st of August, 1849. (Id., 502.) And in Henry v. Great Northern Railway Company (1 De Gex & Jones, 606); London India Rubber Company (Law Reports, 5 Equity, 518); Matter of Bangor (id., 20 Equity, 59) the authority to issue preference shares was secured by act of Parliament, and in Prouty v. Michigan Southern, etc., Railroad Company (8 N. Y. Sup. Ct., 655), by the statutes of the States permitting the consolidation. "Without the actual authority of law, or the consent of the holders of the common shares, the power to issue preferred stock of the description of that presented in this case, does not seem to have been successfully maintained in even a single instance And as the shares themselves are issued in a form clearly importing a right in the holder to demand and receive a corresponding portion of the net earnings of the company, it cannot consistently be held that he can be deprived, without his own consent, of that right by the combined act of the directors and other sha eholders in the corporation. If that could be done, corporations would be enabled under tlie sanction of tlie law, to perpetrate tbe most gross frauds ; for they could receive tlie subscribers’ money, ostensibly and expressly for one thing, and afterwards deprive him of its substantial benefit, by converting it into another entirely different, and of inconsiderable value.

Persons do not subscribe for, nor deal in the stock of corporations upon any such understanding. They proceed upon the expectai ion, justified by law, that the shares they buy shall not be destroyed by giving others a preference over them, without first obtaining tlieir consent where no power of that nature has been.created by statute, or reserved to be exercised afterwards by the corporation itself. Property of this description is protected from spoliation by the same safeguards as have been devised for the preservation of the interest of the owner in that of a more tangible character. lie cannot be deprived of it contrary to the essence of the contract creating it, or without his expressed or implied consent.

The shareholders who consented that the preferred shares might be issued, sustain a different relation to such shares, and as the charter itself did not prohibit tlieir creation, but the company was only restrained from doing so by the obligations it had assumed by the certificates of stock it had issued, they should be precluded by their own conduct from denying their binding validity. Por under the terms of its charter tlie company appears to have had the power to have provided by its by-laws for the issuing of preferred shares. In that respect it differed from the authority possessed by the defendant in the ably contested case of Richie v. The Ashbury Company (Law Term Rep., 7 Eng. and Irish Appeals, 653), where the power exercised was expressly prohibited. In the present case the company had simply deprived itself of the right by the form in which its shares had been originally issued. It was a restraint voluntarily assumed in favor of the owners of its stock, which they could yield and surrender again to the comjiany. And those who by their votes or otherwise authorized or sanctioned tlie acts of the company in the creation of the preferred shares must have' intended to, and did, make that surrender. That was tlie understanding on which the case of Bates v. Androscoggin, etc., Railroad Company (supra) was decided, and other authorities have proceeded upon tlie same principle (London Building Society, 21 Law Times [N. S.], 8.) Those parties concurred with the officers in procuring the advance made upon the faith and consideration of the preference shares, and upon plain prim ciples of equity should not, under the circumstances, after that be heard to dispute their validity. But as the plaintiff was not one of those persons, and was not shown to have received but a small portion of his common stock from or under either of them, he cannot, as to the residue, justly be estopped in this manner. Bor neither he nor they, in any form, induced the persons who exchanged their shares to part with their money, on the expectation that the interest proposed should afterwards be paid to them for doing that.

It has also been urged in the plaintiffs’ behalf, that by closing the books, the directors terminated the authority given by the assenting share-owners to issue preferred stock. And such seems to have been the understanding of the parties at the time when the preferred shares were issued, for the certificates contained the statement that this preferred stock is entitled to interest on the 1st day of May, 1811, and annually thereafter to be paid out of the net earnings of the company for each year, at the rate of seven per cent per annum, provided so much in the year preceding shall have been earned. Should there remain a surplus of earnings after the payment of the said interest upon the preferred stock, then this surplus shall be divided among the holders of the preferred and common stock.” The agreement has been plainly stated here, that the existing preferred and common stock shall -alone share in the surplus after paying the interest on the preferred shares issued under the resolution of 1870. And that could not be done if the residue of the common can itself still be changed into preferred shares; for a portion of the earnings in that event will be applied to pay the interest on the newly preferred shares, which otherwise would be applied by way of dividends on those which have already acquired this preference. And that would be a violation of the agreement stated in the preference certificates.

If they were lawfully issued, and they certainly were, so far as they had the assent or approval of the owners of the common shares, it consequently follows that the earnings agreed to be appropriated to them by way of dividends cannot, without the consent of the owners of them, be withdrawn from them and applied by way of interest on other shares afterwards in form promoted to a similar preference. (McLaughlin v. Detroit R. R. Co., 8 Mich., 100.) The judgment recovered in the case restrained the company from creating other preferred shares, and from paying any of its earnings on any newly issued preferred shares, while the plaintiff continued to be the owner of common and preferred shares of its stock. No direction was given as to how the fund held as its net earnings should be distributed, and no such' direction is required for the purpose of fully disposing of the appeal taken in this case. As far as the judgment extended, it was clearly correct,-and it should, therefore, be affirmed, with costs.

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

Judgment affirmed, with costs.


source: Caselaw Access Project

author: DANIELS, J.:

license: Public Domain

text:
    MATTHEW T. BRENNAN, late Sheriff, etc., Appellant, v. THE LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY, Respondent.

      Code, § 123 — when additional parties may be brought in as defendants.

    Ciaflin & Co., in an action against Northman, in which they afterwards recovered judgment, attached a claim existing in favor of Northman against the defendant in this action, upon a policy of insurance. On the return unsatisfied of an execution issued in the principal action, this action was brought by the sheriff upon the attached^claim and a defense interposed. In the meantime an assignee in bankruptcy of Northman had recovered judgment (after a defense interposed by the defendant) upon the same claim in the State of Tennessee. The defendant in this action applied to the court to have the assignee made a party defendant in this action. Held, that as the defendant contested its liability for the loss arising under the policy, the case was not within the provisions of section 133 of the Code (relating to interpleader of parties), and the court had no authority to make such an order.
    Appeal from au order made at tlie Special Term requiring an assignee in bankruptcy to be made a party to tbis action, made upon tbe application of tbe defendant before any answer bad been served.

      JuUen T. Demies, for tbe appellant.

      William A lian Butler, for tbe respondent.
   DANIELS, J.:

H. B. Claflin & Co. commenced an action against E. & J. North-man, in which an attachment was issued to the plaintiff, as sheriff of the county of New York. Under it he attached a claim arising upon a policy of insurance issued by the defendant to the firm of Northman. They recovered judgment and issued execution upon 51 to the plaintiff, and he brought this action to recover the claim seized under the attachment. After Claflin & Co. recovered judgment, proceedings in bankruptcy were taken against the Northmans, and an assignee of their estate appointed. lie brought an action in Tennessee to recover the insurance moneys from the defendant, and recovered a judgment for the amount claimed to be due on the policy. The defendant applied for an order requiring the assignee in bankruptcy to be made a defendant in this action. It appeared that he was willing to be brought into the action, and the court made the order from which the appeal was taken by the plaintiff. The defendant contests its liability upon the policy, but it has been settled against the correctness ' of that contest in favor of the assignee; and by his judgment he has become entitled to the money, unless the plaintiff can establish a superior right to it. If the defendant conceded its liability upon the policy, as seems to have been the case upon the demand made in Sturtevant v. Brewer (4 Bos., 628), there would not have been the slightest difficulty in the way of the order which required the assignee to be made a defendant ; but as it did not, but contested its own liability for the loss, the case was not within the provision of the Code providing for the substitution of defendants in actions upon contracts. Tliis was an action upon a contract, and when that is the form of the action, the Code has only provided for making the adverse claimant a party when he can be substituted in place of the defendant jn'oceeded against; and the latter can be discharged from liability upon depositing in court the amount of the debt. (Code, § 122.) This was not an action for the recovery of either real or personal property, within the meaning of the preceding portion of that section, in which a person having an interest in the subject of it can be made a party on his own application. That class of actions was treated as distinguishable from actions upon contract, by the manner in which the succeeding portion of the section was framed; for actions for the recovery of specific, real or personal property are specially enumerated in the latter branch of the section, for .the purpose of placing them upon the same foundation as actions on contract, when the subject of those actions can he delivered to such person as the court may direct. "When that can be done, the adverse claimant may be brought- in and substituted in place of the defendant in the action, the same as it can be done in actions on contract where no claim is made by the original defendant preventing the payment of the money into court; but where the original defendant resists the claim made for the recovery of the debt or property in controversy, his right must be litigated and determined before the other claimant can be substituted in his place ; and, for that reason, the action was pot in the condition required by the Code for the purpose of allowing the other party to be brought in as a defendant in the case. The order, accordingly, was not, and could not have been, made under that portion of the section, but, evidently, under the part preceding it. The assignee was to be made an additional party, and not substituted in the defendant’s place ; and that could not properly be done, because the action was not brought to recover real or personal property as those terms were used in this section; and the controversy can be completely determined without prejudice to the rights of the assignee in bankruptcy, even if he is not made a party to the action. The case presented by the facts did not bring it within either of the provisions made by this section of the Code, and the result is that there is no authority for the order.

If the defendant shall be held liable to pay the loss in this action, as it already has been in the action by the assignee, then an action to interplead the contesting or adverse claimants will be proper. It cannot justly be rendered liable to pay both, and their conflicting claims will require to be settled before the money can properly be exacted by either. That can b.e done, at the defendant's instance, as soon as it shall be determined that the plaintiff can recover upon the policy, if such a determination shall ever be made in his favor. If it can be shown that the assignee has the paramount claim, for any reason, the defendant will be able to fully protect itself by its own defense against the demand made by the plaintiff, and that will entirely end the controversy concerning the right to the insurance money. But if the contest in the present action shall be limited simply to its liability for the loss asserted to have been incurred, then, in case it shall be defeated upon that issue, it will probably be able to secure full protection against a double payment by interpleading, at its own instance, the conflicting claimants of the fund. It is sufficient, however, for the present, that the section of the Code providing for the addition and substitution of parties by motion does not include the case presented in support of the application made by the defendant.

The order, for that reason alone, should be reversed, with the usual costs and disbursements.

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

Order reversed, with ten dollars costs and disbursements.


author: Daniels, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN LYNCH, Plaintiff in Error, v. THE JUSTICES OF THE COURT OF SPECIAL SESSIONS, Defendants in Error.

      Ordinance of board of health of New York — ordinance must be specified, in complaint foi' violation of.

    Where proceedings are instituted against any person for a violation of an ordinance of the hoard of health of the city of New York, the particular ordinance violated should he specified in the complaint.
    Weit of certiorari to the justices of the Court of Special Sessions of the city of New York, to review the trial and conviction of the relator for a misdemeanor.

      I. G. Waehner, for the relator.

      W. P. PrenUee, for the respondents.
   Daniels, J.:

The relator was arrested, tried and convicted of violating an ordinance made and published by the board of health of the health department of the city of New York. A variety of objections were taken to the proceeding before the Court of Special Sessions previous to and during the trial. The principal of those not already considered in other cases brought before the court, related to the complaint upon which the trial was had. That was in the following form:

“Police Court, First District.

State oe New York, City and County of New York,

“ Joseph S. 0. Rowland, assistant sanitary inspector of said city, being'duly sworn, deposes that on the 28th day of February, 1877, John Lynch, residing at number 180 Hester street, New York, where milk was then kept for sale, did violate the sanitary code, then, and at all times thereafter in force, and operative in said city, in this, that he, the said John Lynch, did keep, offer, and have for sale, unwholesome, watered, adulterated .and reduced milk. And did water and adulterate milk, and bring the same into the said city vof New York.

“JOS. S. C. ROWLAND, M. D.,

Assistant Sanitary Inspector.

Subscribed and sworn to this 30th day of March, 1877, before me.

“ J. F. Kilbretii, Police JusticeP

And the objection taken to it, which has been chiefly relied upon, is, that it should have set 'out the particular ordinance-of the sanitary code alleged to have been violated. The same objection was repeated when the code was proved and offered in evidence. Rut on both occasions it was overruled by the court. The violation of the portion of the code on which the proceeding was based, ivas a misdemeanor, and punishable as such, and the complaint alleging it, should upon its face, have shown that a crime had been committed by the accused. The rule laid down is that the complaint should contain a complete statement of the offense, and as the law does not seem to have provided that courts shall take notice, without proof, of the ordinance, that can only be done by showing, at least, what provision contained in it has been violated. That is the general rale, including both civil and criminal proceedings taken to punish the violation .of .corporate or- municipal by-laws. (Barb. Crim. law, 519, 520; Harker v. Mayor, etc., 17 Wend., 199 ; Bishop on Statutory Crimes, § 406; State v. Soragan, 40 Vt., 450; Commonwealth v. Worcester, 3 Pick., 461, 473.) The complaint in such a case, to be sufficient, should set out the offense charged and the substance of that part of the ordinance which has been violated, with a reference to the title, date or section.” (Dillon on Corp. vol. 1, 437, § 347.)

While there seems to have been no good reason to doubt the relator’s 'guilt, still, as he denied it, he was entitled to have the proceedings instituted to ascertain its existence carried on in conformity with the established forms of law. They have been devised for the protection of the innocent as well as the discovery of the guilty, and the courts are equally bound to maintain them in both classes of cases.

The reversal of the proceedings will not release the offender. He can still be tried, as he should be, in the formal manner he is entitled to have observed. But the present conviction cannot be sustained without violating rules as binding as those contained in the sanitary code itself. The conviction in this case should be reversed.

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

Conviction reversed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM F. MORGAN and JOHN E. WALSH, v. HENRY KETELTAS, as one of the Executors, etc., of EUGENE KETELTAS, Deceased, and as Agent of THOMAS McCARTY.

      Summary proceedings — service of written demand for rent — what statement as to, in affidavit, sufficient.

    Upon an application for the issuing of a summons in summary proceedings to procure the removal of a tenant, the only proof of a demand for the rent was contained in an affidavit in which the deponent stated that “ he has demanded the said rent from the said tenants by a three days’ notice, in writing, a copy of which is hereto annexed,” held, that the affidavit failed to show such a service of the written demand for rent as was required by subdivisions 1 and 2 of section 32 of the statute relating to summary proceedings; and that a judgment in favor of the landlord, entered upon the default of the tenant, should be reversed

      This is a writ of certiorari issued to review proceedings taken to remove tbe relators from premises occupied by them as tenants, for tbe non-payment of rent. Tbe proceedings before tbe justice resulted in a determination in favor of tbe landlord, and tbe relators .were removed from possession of tbe property. They did not appear in any form, but tbe adjudication against them was made upon their default.

      George A. Black, for tbe relators.

      Benjami/n Merritt, for tbe respondent.
   Daniels, J.:

According' to tbe affidavit upon wbicb tbe proceedings were com menced, and tbe summons issued, tbe rent alleged to bave been in arrear was duly demanded by a three days’ notice, in writing. Tbe averment upon that subject was made in tbe following terms, by tbe person making tbe affidavit. “ That be has demanded tbe said rent from tbe said tenants by a three days’ notice, in writing, a copy of wbicb -is hereto annexed, since tbe same became due and payable under said agreement, and that be has made default in tbe payment thereof,” etc. Tbe notice annexed required tbe rent to be paid before tbe expiration of three days from tbe day of tbe service of this notice, or surrender up tbe possession of said premises to said landlord, in default of wbicb tbe landlord will proceed under tbe statute to recover tbe possession thereof.”

Tbe statute has provided for such a proceeding against tbe tenant on bis default in payment. But in doing so it has declared that tbe three days’ notice, in writing, requiring tbe payment of such rent, or tbe possession of tbe premises, shall bave been served by tbe person entitled to such rent on tbe person owing tbe same, in tbe manner prescribed for tbe service of tbe summons in tbe thirty-second section of this title. Tbe thirty-second section prescribed several distinct modes for tbe service of tbe summons. It could bo qtersonally served by delivering a copy to tbe tenant, and at tbe same time showing him tbe original; or, if absent from bis residence, and it be in tbe same city or town as tbe demised premises, by leaving a copy with a person of mature age, residing on tbe premises; or, if that cannot be done, then by leaving a copy with a person of mature age residing on tbe demised premises, or employed in the business in which they are used, or by affixing it upon a conspicuous part of such premises when no such person can be found. (3 R. S. [5th ed.], 836, § 28, subd. 2 ; 837, § 32, subds. 1 and 2, as amended by laws of 1868, vol. 2, 1930, chap. 828, § 2.)

According to the first of these sections service of the notice used by the landlord in this case could only be lawfully made in one of these modes. And such service, when a three days’ notice is used, is necessary to entitle the landlord to maintain summary proceedings for the removal of the tenant. It has been made one of the facts on which alone the landlord can lawfully proceed in the case. The provision upon this subject is that the landlord, his legal representatives, agents or assigns, may institute the proceedings by an oath, in writing, of the facts which, according to the preceding section, authorize the removal of a tenant. (3 R. S. [5th ed.], 836, § 29.) And one of the facts rendered essential for that purpose by the preceding section is the service of the three days’ notice, in writing, in the manner prescribed for the service of the summons by the thirty-second section. The affidavit made in this case, or the oath, in writing, as the statute has denominated it, showed no such service of this notice as the statute required to be made of it, in order to warrant the institution of the proceeding upon its basis to remove the tenants. It was neither shown to have been served personally, nor by leaving a copy with a person residing on the premises occupied by the tenant, or by affixing a copy on a conspicuous part of the demised premises. All that was said upon the subject was that he had demanded the said rent, from the said tenants, by a three days’ notice, in writing, a copy of which is hereto annexed,” etc. That was very clearly insufficient, because it showed no such service of the notice as the statute in very plain terms had required.

This constituted a fatal defect in the proceedings, and without examining any other objection urged on behalf of the tenants, it requires that they should be reversed, with costs, but without any direction for restitution, as that is waived in his points by the counsel for the relators.

Davis, P. J., and Ready, J., concurred.

Proceedings reversed, with costs, but without direction for restitution.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM S. KEILEY, as Receiver, etc., v. GILBERT M. SPIER, as Justice of the Superior Court of the City of New York.

      Won-imprisonment act — § 1, chap. 300 of 1831 — when warrant may issue under— Code, § 292 — examination of judgment-debtor under — when it may be read in evidence. ■

    The prohibition against arrest and imprisonment, contained in section 1 of the non-imprisonment act of 1831, is not confined to actions at law for the recovery of money due upon, or for the broach of a contract, but includes actions in courts of equity;, nor is it necessary that a contract should be averred as the foundation of the plaintiff's claim, but it is sufficient that it appears that the action was in fact brought for the recovery of money due upon a contract express or implied.
    Proceedings instituted upon a warrant, issued under section 3 of said act, are not criminal proceedings within the meaning of section 292 of the Code, and the examination of a judgment-debtor, taken in proceedings supplementary to an execution, may be given in evidence therein.
    Writ of certiorari to review proceedings under the non-imprisonment act, taken against Charles Dusenbury.
    Tbe proceedings were taken under tbe act of 1831, against tbe defendant for assigning, removing or disposing of bis property with intent to defraud creditors, and tbe plaintiff obtained a warrant under that act.
    Prior to tbe obtaining tbe warrant, be bad taken measures against the defendant in proceedings supplementary to execution under section 292 of tbe Code. Hpon bis application for tbe warrant under tbe act of 1831, he used tbe evidence taken in the sippplementary proceedings for tbe purpose of obtaining tbe warrant. Tbe judge before whom tbe proceedings' were pending held that this evidence was improperly used for that purpose and must be rejected, and if stricken out, that there was not sufficient evidence to sustain tbe warrant.

      P. M. Porter, for tbe relator.
    Certiorari is proper to review these proceedings. (Kmg v. Kvrby, 28 Barb., 49; People v. Paly, 4 Hun, 641; 6 Wait’s Pr., 461; Spencer v. P.ilton, 10 Wend., 608, 610; Townsend v. Morrell, 10 id., 578; People v. Reed, 5 Denio, 554; Ex parte Robinson,■ 21 Wend., 671; People y. The Recorder, 6 Hill, 429; People y. Daly, supra.) They are before a judge out of court, and not appealable under the act of 1854. (QlarJc v. Gallagher, 20 How. Pr., 308 [307].) They are not special proceedings. (In re Dodd, 27 N. Y., 632.) The judgment roll being a part of the evidence upon which the warrant was issued, cannot be controverted, but is conclusive. (Kreheler v. Ritter, 62 N. Y., 372.) A warrant may issue in all eases prescribed by this act. (Latham v. Westervelt, 26 Barb., 256; The People v. O'Brien, 6 Abb. [N. S.], 63 [Ct. of App.] ; Same v. Goodwin, 50 Barb., 562.) The respondent erred in deciding that the supplementary proceedings could not be used in evidence in these proceedings. ' This is not a criminal proceeding. (The People v. Underwood, 16 Wend., 546 [549] ; Goodwin v. Sharkey, 5 Abb. [N. S.], 66 [64]; Berthe-■ Ion v. Betts, 4 Hill, 577 [581] ; Moak v. De Forrest, 5 Hill, 605 ; Hall v. Kellogg, 2 Neman, 325 ; Spearr v. Wardell, 1 Comst., 144), but a mere remedy to collect the debt. (King v. Kirby, 28 Barb., 49; Wheaton v. Fay, 62 N. Y., 275.)

      Hall (& Blandy, for the respondent.
    The examination of the defendant in supplementary proceedings and the judgment roll in the case should not have been considered by the justice. (§ 292 of the Code; LatJvropY. Olapp, 40 N. Y., 332; see, also, Forbes v. WiUard, 37 How., 193; The People v. Samuel L. Underwood, 16 Wend., 546.) This is a criminal proceeding. (Lynd v. Montgomery, 15 Wend., 461; MoaJc v. De Forrest, 5 Hill, 605 ; The People ex rel. Latorre v. O'Brien, 3 Abb. Ct. App. Dec.; S. C., 6 id. [N. S.], 63.) And the defendant having been tried and acquitted, lie should not be placed in jeopardy again for the same offense. (N. Y. Constitution, § 6, art. 1; Block v. The People, 2 Parker’s Crim. Rep., 676, and cases cited; The People v. Goodwin, 18 Johnson, 187, cited and approved; 24 N. Y., 82; 24 id., 101; 25 id., 421; 26 id., 183.)
   Daniels, J.:

The judgment on which the proceedings were instituted was recovered in an action brought by the relator, as receiver, to determine the title to certain moneys received by Dusenbury from tlie Chamberlain of the city of New York and for the recovery of such moneys. These moneys were affected by conflicting claims, and one of the objects of the action was to secure a determination of those claims, and to establish the right of the plaintiff, as receiver, to the moneys. It was prosecuted in the form of an action in equity. The relief demanded by the complaint was entirely consistent with the case it presented. That was that the plaintiff should be adjudged entitled to, and to be vested with, the property, estate and credits of the judgment debtor; that his preceding assignment should be adjudged fraudulent and void as to his creditors; that the Chamberlain of the city of New York should account to him for the debtor’s moneys in his hands, and that he should have judgment against the defendants for the moneys received by them. The relief awarded was substantially that which was demanded. The assignment was set aside as fraudulent and a recovery was had in the relator’s favor for the amount of the judgment debtor’s moneys in the hands of the defendant Dusenbury, and upon this judgment proceedings for its collection were taken against him under the provisions of the act abolishing imprisonment for debt. The complaint in the receiver’s action neither set forth in terms, nor in any manner alluded to any contract existing between himself or the judgment debtor and the' defendant Dusenbury, either as a basis of the liability desired to be enforced and maintained or otherwise. It was, on the contrary, an action to set aside an assignment made by tlie judgment debtor, and for an accounting concerning the moneys received by the respective defendants. The defendant Dusenbury had received such moneys, claiming to be entitled to them under the authority of the assignment. But it was held that he had no such right and that the plaintiff, as receiver, should recover the money.

By the provisions of the non-imprisonment act a party can proceed against his debtor under it, when he has a demand upon which, according to the preceding provisions, the debtor cannot be arrested or imprisoned. (3 R. S. [5th ed.], 126, § 6.) And the cases in which, by such preceding provisions, the debtor cannot be arrested or imprisoned are those where the suit shall be brought for the recovery of any money due upon any judgment or decree founded upon contract or due upon any contract, express or implied, or for-the recovery of any damages for the non-performance of any contract. (Id., § 1.) The prohibition against arrest and imprisonment contained in this section was not confined to what was understood to he actions at law for the recovery of moneys due upon, or for, the breach of a contract, but it also included actions in courts of equity; and where they were founded upon an express or implied contract, then the debtor, according to the express language of this section, could not be imprisoned upon any execution issuing upon the decree.

It was not necessary under these provisions of the statute tnat a contract should be averred as the foundation of the plaintiff’s action in order to exonerate the defendant from arrest and imprisonment; but it was sufficient for that purpose that the suit should he for the recovery of money due upon contract, express or implied; and from the facts imperfectly stated in the complaint as they were, it could readily he seen that an implied contract existed in law for the payment of the moneys received by the defendant Dusenbury to the receiver, in case he had no right to receive and hold them upon the ground claimed by him. As the facts turned out, the moneys were received by the defendant Dusenbury, without right, and consequently for the use of the receiver; and the law therefore implied a promise against him to pay them over, as the judgment directed that to be done. (Admr. of Dumon v. Carpenter, 3 Johns., 183; Buel v. Boughton, 2 Denio, 91; Cobb v. Dows, 6 Seld., 335, 341.) This action was not one in which the defendant could be imprisoned upon an execution, for the reason that it was on an implied contract against him, and therefore he could be proceeded against under the non-imprisonment act. The action might have been prosecuted in a different form, but as it was not that fact qannot affect the plaintiff’s right to maintain this proceeding. No wrongful act was alleged as the foundation of the action beyond the circumstances showing that the money had been secured without any actual right to it, and the judgment proceeded upon the same theory, so far as it was recovered against Dusenbury. It was simply that the plaintiff recovei against him, personally, with costs, the sum adjudged to be in his hands. All that was stated conformed to the theory that the liability enforced was for money received by him under the claim of authority to act under the assignment. He had no such authority, and where the assignment was set aside as fraudulent, it followed that he must account for, and pay over, the money he had received, and the law implied a promise against him that he would do so. The warrant was issued against the defendant upon an affidavit, and his own examination in pi'oceedings supplementary to execution, taken on the judgment. lie, himself, made an affidavit controverting certain facts contained in the affidavit presented on the part of the plaintiff. But the return does not show that he then, or at any previous time, objected to the admissibility of his own examination as evidence of the facts required to be established to support the proceeding ; but afterwards it was objected that this examination could not be used for that purpose because of the provision contained in the Code of Procedure, that his answers at that túne given, should hot be used .against him in any criminal prosecution or proceeding. (§ 292.) But although proceedings under the non-imprisonment act may be, to some extent, punitory in their nature, they are still not of the character known as criminal; their object, primarily, is the enforcement of civil remedies, and in this instance they were carried on for the purpose of collecting a debt, not to punish the defendant. The case of People v. Underwood (16 Wend., 546) arose upon an indictment and, for that reason, did not require the examination to be rejected as a basis of the present proceedings. Where the object sought is the punishment of the debtor for an offense committed by-him, this provision of the Code requires the examination to be rejected, but it proceeds no farther than that, and no sound reason can be discovered for allowing the prohibition any greater latitude or effect. For the purpose of collecting his debt the creditor is entitled to a full and complete discovery of his debtor’s affairs, under oath ; and he may use answers given by him as pertinent evidence to support the enforcement of any civil remedy afforded by the laws of the State to secure that end. That such a proceeding is not criminal was held in the ease of Moak v. De Forrest (5 Hill, 605), because the debtor could relieve himself from it by merely paying the debt, and the present proceeding was subject to the same provisions of the statute, which provided for-a discharge upon payment, and by four other different modes of proceeding, designed to promote the remedy of the creditor, and to enable the debtor to relieve himself from it. (3 R. S. [5th ed.], 128, § 15.) The case of Gilles pie v. Thomas (15 Wend., 464) arose upon, au arrest by warrant of. a criminal nature, and for tbat reason it has no weight as authority in the defendant’s favor. The proceeding should not have been, as it was, dismissed, but it should have been heard and disposed of upon its merits. For that reason the order made should be reversed and further proceedings directed before the judge having cognizance of them.

Davis, P. J., and Bbadt, J., concurred.

Order reversed and further proceedings directed.


text:
    BENJAMIN C. EVERINGHAM, Respondent, v. EDWARD W. VANDERBILT and others, Appellants.

      Administrator of insolvent estate — assignment by, in fraud of creditors — remedy of creditors — Extra allowance — presumption as to amount involved.

    Where an administrator of an insolvent estate assigns, without consideration, and in fraud of the creditors of the estate, to the widow of the intestate two leases belonging to it, a judgment creditor of the intestate may maintain an action to set aside such an assignment, procure the sale of the leases, and have the proceeds arising therefrom applied to the payment of the debts of the intestate, in the order prescribed by law, even though no execution has been issued upon his judgment and returned unsatisfied.
    Where, upon an appeal from an order granting an extra allowance, the amount involved in the controversy does not appear, the court will presume that the amount of the extra allowance does not exceed five per cent of the amount involved.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury, and from an order granting an extra allowance of $500.

      Richard H. Jl'imtley, for the appellants.
    The creditor must exhaust his legal remedies as a condition precedent to his coming into a court of equity. (.Dunlevy v. Talmage, 32 N. Y., 457 , Ocean B1&. v. Olcott, 46 id., 12, 18; Allen v. Thurston, 53 id., 622, 623; Voorhies v. Howard, 4 Abb. C. A. Dec., 503.) This is no new law. {Clarkson v. De Peyster, 3 Paige, 320 ; Beck v. Bur'dett, 1 id., 305 ; Bf. A. Fvre Ins. Co. v. Graham, 5 Sandf., 197; McCulloch v. Colby, 5 Bosw., 477; Parshall v. Tilton, 13. How., 7 ; Child v. Brace, 4 Paige, 309; Benaucl v. O’ Brien, 35 N. Y., 99; Chataugua Co. Bk. y. White, 6 id., 236; Beamdsley S. Co. v. Foster, 36 id., 561; McFl/wain y. WilUs, 9 Wend., 549 ; Crippen v. Hudson, 13 N. Y., 161, 165; Winslow y. Pitkin, 1 Barb., Cli., 402; Field v. Chapman, 15 Abb., 434; Cooper’s Pldgs. in Eq., 149; 1 Whittaker’s Pr., 922 [3d ed.] ; Forbes y. Logan, 4 Bosw., 475, 482; Williams y. Hogeboom, 8 Paige, 469; Cassidy y. Meacham, 3 id., 311; Campbell, Peer., v. Foster, 16 How., 275; Wilson y. Forsythe, 24 Barb., 114; Jones v. Green, 1 Wall., 330.)

      Dennis McMahon, for the respondent.
    Treating the execution issued on the. Sherwood judgment as invalid, yet the plaintiff, as assignee of the executors of Samuel Sherwood, a judgment creditor of the late Oliver Vanderbilt, treated as a creditor at large, is entitled to attack the transfer, by the administrator of said Oliver, of the two leases in controversy to his mother, Catharine, after the death of the intestate. {McCartney v. Bostwicky 32 N.Y., 53; Loomis v. Tift, 16 Barb., 541.) The same principle is applied in Donovan v. Sheridan (37 Superior C. R., 256), Sweeney v. Sheridan (37 id., 287), Bates v. Graham (11 N. Y., 237), Barnwall v. Thread-gill (5 Iredell [N. C. Eq.], 86). The rule of the English chancery and of the courts of equity of the Hnited States has been that where a devastavit has been worked by the personal representative, the creditor at large may always follow the property, if in existence, and have it impounded for the purpose of administration, as assets. (Per Sir John Leach, Eease v. Roberts, 4 Madd., 357, 358 ;■ Story’s Eq.> Jur., § 581, and cases cited in note, also, 579, 580; Ram. on Assets, chap. 37, § 4, pp. 491, 492; Adair v. Schcm, 1 Schoe & Lefroy, 261, 262.) A creditor of a deceased debtor may resort to equity in the first instance, without having recovered a judgment at 'aw, especially when it appears that the debtor’s estate is insolvent, and that the debt could not be paid in the ordinary course of administration. {Sheeve v. Hoagland, 39 111., 264; O'Brien V. Coulter, 2 Blackf., 421; Whitney v. Kimball, 4 Ind., 546; Bay v. Cook, 31 111., 336 ; Thorp v. Felty, 6 B. Mon., 6.)
   Daniels, J.:

The-plaintiff as the assignee of two judgments recovered against Oliver Vanderbilt in his lifetime, brought this action to set aside the assignment of two leases made by Edward W. Vanderbilt the administrator of his estate to Catherine Ann Vanderbilt the widow of the intestate. These leases formed a valuable portion of the estate and stood in the name-of the intestate, at and for many years preceding the time of his decease. He paid the taxes upon the property, the expenses of its repairs and collected the rents. He had previously owned preceding leases of this and other property, which had been purchased by him by way of exchange of other property. They failed to be as renumerativo as he expected and he became involved in litigation concerning the facts under which they had been acquired. He also made an assignment for the benefit of his creditors. The assignee finally assigned alb the leases to James Humphrey, who, in 1859, transferred the two preceding leases to the wife of the intestate. When the term was about to expire, he, with her assent, took these leases to the owner of the reversionary estate to procure their renewal, pursuant to a stipulation contained in them, by which the tenant had the right to insist upon such an extension of the terms, and the leases-in controversy were executed for the purpose of performing that obligation. But they were made in the name of the intestate, and were claimed by him as his own, as the preceding leases had been, while they were held by virtue of the assignment in the name of his wife. The judgments assigned to the plaintiff were recovered in 1851 and 1853, and the evidence tended to show that the intestate was insolvent when the two leases were assigned by Humphrey to his wife, and continued to be so to the time of his decease. There was enough made to appear in the case to warrant the conclusion on which the recovery proceeded, tliat the leases were assigned to her by way of an equitable concession, that her husband, although defeated in the litigation from the result of which he had appealed, was justly entitled to receive back so much at least of his property. The surrogate on the accounting of the administrator before him deemed that conclusion warranted by the circumstances, and on an appeal from his decision that view was sustained by the General Term of the second department. And the court at Special Term also appears to have been well warranted in assuming that to be tbe truth. Tbe consequence of this conclusion was that tbe assignment of tbe two leases by tbe administrator to tbe widow of tbe intestate was fraudulent and void as to tbe creditors of tbe estate. It was made without consideration and Included a portion of tbe property required for tbe payment of tbe debts of the intestate. The surrogate charged the administrator with their value, but as he had no power to set aside the transfer and restore the property assigned, this action was brought by the plaintiff as a creditor for that purpose.

An execution had been irregularly allowed to be issued, upon the judgment proceeded upon, by the Superior Court of the city of New York, and it was returned by tbe sheriff wholly unsatisfied, for tbe reason that tbe order made was not sufficient to authorize the execution. It was for that reason objected that tbe action could not be maintained by the plaintiff. But as tbe action was prosecuted to redress a wrong committed by the administrator himself, by which he had deprived tbe estate of. the intestate of a valuable portion of its assets, the issuing and return of an execution unsatisfied upon tbe judgment was not necessary to enable the plaintiff to succeed in the action. It could be well maintained for that purpose, by any creditor or creditors having an interest in tbe assets, and entitled to have them applied to the payment of tbe debts owing by the intestate. This principle is a common one, of extensive application, and it sanctions the actions of creditors in cases of this description, of stockholders in corporations whose officers are about to, or have unlawfully disposed of their property, and of beneficiaries whose trustees in like manner betray their trusts. They are necessary for the protection and preservation of the legal rights of the parties ultimately interested in tbe property or fund endangered, or misappropriated, and for that reason they have been maintained by the courts. (Robinson v. Stewart, 10 N. Y., 189; Bate v. Graham, 1 Kernan, 237; Memphis City v. Dean, 8 Wallace, 65, 73; Weetjen v. St. Paul and Pacific Railway Co., 11 N. Y. Sup. Ct., 529; Weetjen v. Vibbard, 12 id., 265.) And the case of Jackson v. Forrest (2 Barbour Chy., 576), in no respect impairs the application of the principle to this case. For the actual insolvency of the intestate at the time when the leases were assigned by Humphrey, the assets shown by tbe accounting to bo in tbe hands of the administrator, tbe debts including tbe jhdgments owned by tbe plaintiff to be paid, and the return unsatisfied of the irregular execution were abundant evidence of the insolvency of the estate, and the consequent necessity of such an action to secure the restoration of the leases as a portion of the assets. Beyond that, no objection was taken upon the trial presenting any such question, as this authority was cited to support. The plaintiff had a clear right to maintain the action as a creditor of the estate whose debts could only be paid by the restoration of these assets, and the evidence given upon the trial was sufficient to warrant the judgment allowed to be recovered.

Declarations and admissions of the intestate were received during the progress of the trial to show that he at all times after the assignment made by Humphrey, claimed to be the owner of the assigned leases. This evidence was objected to by the defendants generally, in some instances, and in others as incompetent, immaterial and irrelevant, but in neither case as improper against the wife and widow of the intestate as the assignee of the leases. Upon that ground solely the .rulings, allowing this evidence have been relied upon as erroneous, and for that reason sustaining the appeal. But as that objection was not mentioned at the trial, it could not have been ruled upon by the court, and it cannot be held now that any such use was made of these declarations and admissions in tlio decision of the case. The administrator, whose conduct was assailed as unlawful, because of the disposition made by him of these leases was a party to the action, and against him this species of evidence was admissible. (Bullis v. Montgomery, 50 N. Y., 352, 358, 359; 1 Greenleaf on Ev., § 189.) For that reason the, objections which were made to this evidence are of no avail by way of supporting the present appeal.

As the case was presented at the trial, the leases in continuation of which these were given, were the property of the intestate debtor, and being insolvent, his wife had no right to them against the unsatisfied claims of his creditors.

The consideration for the original assignment to her proceeded wholly from him, and they were entitled to have the leases taken in renewal appropriated to the satisfaction of their debts.

That was the disposition directed to be made of them by the judgment recovered. It was not that they or their proceeds should be applied to tbe payment of the^ plaintiffs judgments ; but simply that tbe judgment on the basis of which the action had been carried on should be entitled to payment in diie course of administration of said assets, out of the funds in the hands of such receiver or to be realized on the aforesaid sale, according to his (the plaintiff’s) priority as determined by statute in case of intestacy.

The administrator had violated his trust by the disposition he made of these leases, and a receiver of the rents and profits of the leasehold interests had been appointed in the action. These interests were properly ordered to be sold under his direction. That necessarily will bring the fund to be created by the sale under the control of the court, and it could more surely make a proper disposition of it by having the creditors and next of kin brought before it, than by the transmission of it to the administrator who had already been shown to have disregarded the obligations of his trust. It was incidental to the complete disposition of the case properly brought before the court. And the fund could not be effectually, and at the same time safely, disposed of in any other manner.

After the action was decided an application was made to the court for an additional allowance of costs, and an allowance of $500 was ordered. An appeal has been taken from that order. It does not appeal’ by the order, nor by anything contained in the ease, that this order was made without proof of the value of these leasehold interests, which formed the subject-matter involved in the action. For that reason this court is unable to say that the allowance exceeded five per cent of the subject-matter of the controversy, and if it is to indulge in presumptions upon the subject, it must presume that the order appeared to be a proper one from the facts then before tbe court. Error cannot be presumed to have intervened in the course of legal proceedings of this character.

It must be shown by the party alleging its existence. And as that has not been done in support of either of the appeals, both the judgment recovered and the order made must be affirmed, with costs.

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

Judgment and order affirmed, with costs.


author: Davis, R. J.:

text:
    WILLIAM E. WARING, Respondent, v. JULIUS SOMBORN, Appellant.

      Appeal — stay of proceedings pending— Oode, § 348 — what condition may be imposed under.

    In an action brought to foreclose a mortgage, one of the defenses set up in the answer was a tender of tlie amount due. Pending an appeal from a judgment therein recovered by the plaintiff, the defendant applied for a stay, which was granted on condition that he executed a bond in a prescribed penalty, and that he waived the defense of tender. Upon an appeal from the latter clause of the order, held, that, under section 348 of the Code, the terms to be imposed were left to the sound discretion of the justice, and that, in the absence of all evidence to the contrary, it must be assumed that it appeared to the justice that the alleged defense was not involved in the appeal, and that it would bo inequitable to allow it to remain in the record if, for any reason, a new trial should be granted.
    Appeal from an order made at Special Term, fixing tbe terms on whicli tbe proceedings in tliis action should be stayed, pending an appeal from a judgment recorded by tbe plaintiff.

      Mr. Sanders, for tbe appellant.

      II. H. Anderson, for tbe respondent.
   Davis, R. J.:

This action was brought to foreclose a mortgage. Issue was joined therein, and, amongst other defenses, tbe defendant alleged by bis answer that be tendered, before said suit was brought, tbe moneys dne on tbe mortgage.

On tbe trial tbe plaintiff bad judgment of foreclosure and sale. Tbe defendant appealed therefrom, and after such appeal was taken, applied to tbe judge who tried tbe cause, for an order staying proceedings under section 348 of tbe late Code of Procedure.

Tbe judge granted tbe stay upon defendant’s execution of a bond in a prescribed penalty to pay deficiency, etc., and wawmg the defense of tender.

Erom so much of tbe order as required tbe waiver of the defense of tender, the defendant appealed. Section 348 of the Code pro vides that the stay granted thereunder may be “ upon such terms as to security, or otherwise, as may be just.” This leaves to .the judge a wide field of discretion. But where it appears that such discretion has manifestly been abused, to the prejudice of the defendant, this court should not hesitate to correct such abuse. We cannot, however, presume such abuse. In this ease the papers disclose no fact tending to show that the appeal involves any question touching the alleged tender. Certainly, if it did, it would be improper to require the defendant as a condition of stay, to strike out or waive any substantial ground of such appeal. But, in the absence of anything tending to show the contrary, we must assume that it appeared to the judge who tried the cause not only that the alleged defense of tender was not involved in the appeal, but that it would be inequitable to allow it to remain in the record, if, for any reason, a new trial should be had. lie acted as he had a right to act on every thing that occurred on the trial, as well as on the affidavit and notice brought before us on this appeal. Neither the case made on the appeal, nor the evidence taken on the trial, nor any thing else, from which we can see that the judge acted harshly or improvidently in imposing the condition appealed from, is laid before us. Hnder such circumstances, wo think it our duty to affirm the order. The appellant is, of coarse, not bound to accept the conditions of the order. lie may proceed without stay, or may have leave to file an undertaking, mino pro 1mio, under the other provisions of the order.

The order must be affirmed, -with ten dollars costs and disbursements.

Brady, J., concurred; Daniels, J., not acting.

Order affirmed, with ten dollars costs and disbursements.


author: Davis, P. J.:

text:
    GEORGE HOFFMAN and ALBERT W. CURTISS, Appellants, v. DERRICK W. SPARLING, Respondent.

      Reference — when proper — or dar of, when appealable — Order changing place of trial — where appeal from talcen — Laches.
    An action to recover damages arising from an attorney’s negligence and want of skill is not referable.
    An order vacating an order of reference, and changing the place of trial, affects a substantial right and is appealable to the General Term.
    An appeal from an order vacating an order of reference and changing the place of trial is properly brought in the department in which the motion was made. Where the issues in an action have been joined for two years, and it has been promptly noticed for trial and placed upon the calendar, held, that a motion on defendant’s part to change the place of trial should be denied on the ground of laches.
    Appeal from an order of the Special Term vacating an order of reference, and changing the place of trial from New York to Ulster county, in an action brought to recover damages arising from defendant’s alleged malpractice.
    The action was reached in its order on the calendar and defendant’s default taken; it appearing however that an account must be taken to determine what judgment plaintiff was entitled to, an order of reference to hear and determine the issues was made. The defendant thereupon noticed a motion to vacate and set aside the order of reference and to change the place of trial from New York to Ulster county, which motion was granted.

      E. G. Evpley, for the appellants.

      Wm. G. Crook, for the respondent.
   Davis, P. J.:

The order of the Special Term was clearly appealable. Although discretionary, it affected substantial rights within the meaning of that term as settled by the Court of Appeals. (Howell v. Mills, 53 N. Y., 322; Martin v. Windsor Hotel, MS. op. by Church, C. J.) The appeal was properly brought in this department, notwithstanding the order is in part to change the place of trial. The Court has recently so determined in several cases not reported. (Kellogg v. Smith, 7 Hun, 551; Darragh v. McKim, 2 Hun, 337.)

So much of the order as vacated the order of reference was right. The action is not a referable one. The complaint sets up no claim to recover for moneys collected by the defendant as the attorney of plaintiffs, and shows no case in which an accounting is either necessary or requisite. It shows several causes of action against an attorney for mala praxis, and nothing more. The first count alleges in substance, that the defendant undertook to prosecute and conduct an action in favor of plaintiffs against a debtor of theirs, and by his want of skill, and delay and negligence, the plaintiffs were beaten, and thrown in costs, and suffered the damages alleged and demanded.

The second cause of action alleges that the defendant, as attorney, undertook to prosecute and collect divers other claims and demands against divers debtors of the plaintiffs in a proper, skillful and diligent manner, yet wholly failed and neglected to do so, and mismanaged and neglected the business, and failed and neglected to account to plaintiffs therefor, that plaintiffs suffered damages by loss of the claims.

The action is, therefore, not one to recover money collected for plaintiffs but damages for failing, through negligence and want of skill, to collect the demands mentioned. The answer is in respect to these allegations a simple denial. It was in its nature and substance a tortious action, depending upon the ability of plaintiffs to establish the alleged negligence and want of. care and skill.

Such an action is not referable, either on motion or by order of the court, when reached on the calendar for trial. The court at Circuit doubtless acted, after the default of defendant, upon the statement of the plaintiffs’ attorney, and made the order without examining the pleadings. The Special Term properly corrected the mistake by vacating the order of reference.

But the order changing the place of trial was improvidently granted. The motion came altogether too late. The issue had been joined two years. It was promptly noticed for trial, and placed on the calendar, and the defendant failed to appear when it was reached and called for trial. In Darragh v. McKim this court said: “ The motion should be made with reasonable diligence after issue joined. If it is not, that is of itself sufficient reason for the denial of the motion,” and in that case the denial of the motion was upheld, on the ground of want of diligence, though it was made in much less time after issue joined than in the present ease. This has been the settled rule for many years. (Chapin v. DeGroff, 4 Cowen, 554; Miller v. Palmer, 1 How. Pr., 52.) In the two years that had elapsed, there have been many Circuits in Ulster county, at which the case might, it is proper to. presume, have been tried, if tho motion had been made promptly after issue joined, and the place of trial changed. By defendant’s delay those Circuits, and consequently the intervening period of more than a year have been lost.

This laehes was not satisfactorily excused. The excuse feebly tendered, was met and sufficiently repelled. That part of the motion should have been denied. The order should be affirmed, so far as it vacated the order of reference, and reversed, so far as it grants a change of place of trial, without costs of this appeal to either party.

Brady and Daniels, JL, concurred

Order affirmed, so far as it vacates the order of reference, and reversed, so far as it grants a change of place of trial, without costs.


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    NEPTUNE BOWDEN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Defense of insanity — right of jury to consider prisoner's appearance at trial.

    The plaintiff in error was tried and convicted for falsely swearing to his qualification as hail in a criminal case. Upon the trial the prisoner claimed that he was, at the time of the commission of the offense, some six months previous to the trial, insane from delirium_ tremens. The judge charged the jury that, in deciding upon his insanity, they might take into account his physique and apparent age, and consider his conduct upon the trial; there was no evidence tending to show that his physical appearance, six months after the disease, would he affected thereby. Held, that the charge was erroneous.
    Writ of Error to tbe Court of G-eneral Sessions of tlie city and county of New York, to review tlie conviction and sentence of tbe plaintiff in error of tbe crime of perjury.

      Charles W. JBroohe, for the plaintiff in error.

      J3. K. Phehps, for the defendants in error.
   Davis, P. J.:

The plaintiff in error was indicted and tried for perjury in swearing to his' qualifications as bail in a criminal case. Abundant evidence was given to justify his conviction. He alleged as part of his defense that at the time of swearing to his qualifications he was so far insane from déUriwn tremens as not to be responsible for his acts.

Hpon this alleged defense some evidence was given, and so much that the court submitted the question, as was its duty to the jury.

In charging upon that branch of the case the learned recorder, amongst other things, said, “ I ash you, gentlemen, to look at the physique of that prisoner, and his apparent age, and consider his conduct, if you please, during this trial, and tell me whether you believe such a man was suffering, or is suffering from deUrvum tremens, or any attack of it. You have to judge from all the evidence and from the appearance of this prisoner.”

After the charge was concluded the counsel for the prisoner, amongst other things, excepted as follows: “ I also except to that portion of your honor’s charge in which you said to the jury to regard the prisoner, his apparent age, and his demeanor during the trial, and his appearance, and say whether he had delirium tremens, or not, upon the occasion when he signed this bond and did not know what he was doing.” To this exception the recorder said, “ I did not say so; I said let that enter into your examination whether you think a man of his physical appearance, and his manner here was at the time a man so deprived of reason that he was unable to know what he was doing.”

To the charge, as thus explained, the counsel for the prisoner also excepted.

It appeared that the offense was committed some six months before the trial. The effect of the charge was, therefore, that the jury might judge from his physical appearance and his manner on the trial, whether the prisoner could have been at the time of becoming bail and taking the oath, six months previous to the trial, so far affected by delirium tremens, as to be so far deprived of reason that he was unable to know what he was doing.”

This was submitting to the jury an inquiry altogether beyond their province. It carried them into a region of the merest speculation. It would, probably, have been impossible for the ablest expert to have said from the prisoner’s physical appearance and manner at the trial, whether, or not, he had had deliriwn tremens six months previously. There was no proof that that disorder leaves any infallible mark of its existence from which jurors or any person can say six months, or any other period afterwards, that a person had been its victim, nor was there any proof of the absence or presence of any indications in the “physical appearance” of the prisoner that would show that he had had, or had not had, the delirium tremens at any time. The charge was, therefore, open to the criticism and objection that it left to the jury to infer from the present physical appearance of the prisoner whether he could have been non compos mentis from a disease which he was alleged to have had six months before, without the slightest proof that his physical appearance would have been so affected by the disease, as to disclose, or disprove the fact of its having existed at any time after the disease itself had passed away. We venture to say that no precedent can be found for such a charge, and none ought to be established.

It is quite impossible for us to say that no harm was done to the prisoner by this charge. It may have controlled the jury (as it seems to have impressed the court), in disposing of the prisoner’s only possible defense against an otherwise clearly-established offense.

We are compelled, therefore, to reverse the judgment and order a new trial, under the well-established rules governing the review of criminal trials.

Daniels, J., concurred.

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

Conviction reversed, and new trial ordered.


author: JDavis, P. J.:

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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. MARY A. CANTRELL v. HENRY ALKER.

      Oonter.%pt of court — Stay of proceedings where the attorney is guilty of the conlempl — not proper.

    One Moses was the attorney for Louise Adolphus in an action in the Marine Court brought against the relator. The relator obtained, in proceedings for a mandamus instituted in the Supreme Court, a stay of the proceedings in the action, and, upon an alleged violation thereof, applied for an order declaring the attorney of Adolphus guilty of a contempt. The application was denied, and the relator appealed.
    Subsequently the relator procured from the Special Term of this court an order staying the proceedings of the said Adolphus, in the action in the Marine Court, until the determination of the appeal. Held, that as Adolphus had no interest in the question whether or not her attorney should be punished for a contempt, and as its decision in no way affected her action, the Special Term had no power to grant the stay of proceedings, and that the same should be vacated.
    If the proceedings in the Marine Court were irregular, the proper remedy was by motion in that court to vacate the same.
    Appeal from an order of the Special- Term, staying all proceedings on the part of the appellant, Lonise Adolphus, in an action pending in the Marine Court, in which she was plaintiff, and the relator was defendant, until the decision of an appeal from an order denying an application to have the said Adolphus’ attorney adjudged guilty of a contempt. *

      George C. Moses,- for the appellant, the relator.

      H. H. Morrnge, for the respondent, Louise Adolphus.
   JDavis, P. J.:

The relator made application at the Special Term for an order declaring George 0. Moses the attorney for one Louise Adolphus (who is plaintiff in an action pending in the Marine Court against said relator), in contempt and to punish him therefor, for proceeding in violation of a stay of proceedings contained in an order to show cause why a mandamus should not issue in the above entitled matter. The application was denied, and the relator appealed to this court, and thereupon applied at Special Term for an order staying all proceedings on tbe part of the plaintiff Adolphus in said Marine Court, till the decision of the appeal. An order staying such proceedings was granted, and the plaintiff Adolphus appealed therefrom to this court. The order of stay was improperly granted. The appellant Adolphus had no legal interest in the question whether her attorney should be punished for contempt, and his punishment,, if ordered, would have no legal effect upon her action or judgment in the Marine Court. The stay should not, therefore, have extended beyond the proceedings in the motion to punish the attorney. It was not in the power of the Special Term to stay proceedings in the Marine Court on a judgment, or in any action pending in that court, till an appeal in another matter pending in this court, which could in no wise affect that judgment or action, should be determined.

The motion to punish the attorney for contempt had been denied; but if it had been granted, his punishment could not have affected the proceedings in the action in the Marine Court. Nor could this court, if it should reverse the order in the contempt proceedings and proceed to punish the attorney, make any order that would affect the action or judgment of the Marine Com’t.

The appellant Adolphus was not a party to the contempt proceedings. Her rights were not affected thereby, and she should not be stayed till those proceedings are determined. • If the proceedings in the Marine Court were irregular, because of some order made in the mandamus proceeding, the remedy was by motion in the Marine Court to vacate the same. We must assume that that court would have fully protected the relator. There was no ground, therefore, for the order granting a stay against her till this court should dispose of an appeal in a matter to which she was not in anywise a party.

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

Daniels, J., concurred; Beady, J., not present.

Order reversed, with ten dollars costs and disbursements.


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    REUEL D. DARLING, Appellant, v. LAWRENCE W. HALSEY, as Executor, etc., of CATHARINE A. BERWICK, Deceased, Respondent.

      Services — when promise to pay for, will be implied..
    The testatrix, who was an invalid, resided for the last eighteen months of her life with the appellant, who owned and was accustomed to exercise horses. Ho frequently took her to ride with him in the park, sometimes at her special request, she saying that it would do her more good than medicine. The testimony tended to show that she intended to pay for the services, and by her will she directed “ that the friends with whom I board, and my physician, to whom I feel under great obligations of gratitude for their kindness, be liberally paid for their services to me.” Held, that the appellant was entitled to receive a reasonable sum for the services he had rendered.
    Appeal from a judgment in favor of the defendant, entered on the report of a referee.

      Wm. H. Meeks, fór the appellant.

      Drnid J. H.W illcox, for the respondent.
    The mere rendering of services does not establish any liability to pay for them. To constitute a valid contract to do so, the minds of both parties must have assented thereto. (Among v. Flyn, 10 Johns., 102; Dunbar v. Willianns, id., 219; Bartholomew v. Jackson, 20 id., 28; Utica Ins. Co. v. Bloodgood, 1 Wend., 6521) No contract to pay will be implied unless the circumstances clearly indicate it. (.li/omgston v. Ackeston, 5 Cow., 531; Qriffi/n v. Potter, 11 Wend., 209; Maltby v. Ilarwood, 12 Barb., 173; Moore v. Moore, 3 Abb. C. A. Dec., 303; Cra/ne v. Baudoume, 55 N. Y., 256.) And a request to render the services will not by itself establish a contract to pay for them. {Crane v. Baudoime, 55 N. Y., 256; Buck v. Amidon, 11 How. Pr., 320 ; Boyd v. Bappington, 1 Watts, 219'; Veitch v. Bussin, 3 Ad. & Ell. [N. S.], 927.) Where services are rendered by one member of a family to another there is a presumption that they were rendered gratuitously. (Wilcox v. Wilcox, 18 Barb., 327; Moore v. Moore, supra; Bobinson v. Cushman, 2 Den., 119 ; Wil

      Hams y. Hutchinson, 5 Barb., 122, 124; Dye v. Kerr, 15 id., 444; Sturley v. Bermett, 6 Bans., 512; Uoojo&r v. Twrner, 2 Hun, 515 ; Van Kuren v. Saxton, 3 id., 547; Bowen y. Bowen, 2 Bradf., 33G.)
   Daniels, J.:

Tbe judgment in this case was recovered upon a report made in a reference to determine tbe justice of a claim made for services performed for tbe testatrix, and even though it may not have been brought before tbis court in a strictly regular manner, it should still be determined on its merits, as tbe appeal itself has not been set aside. Tbe testatrix boarded with tbe appellant for about eighteen months previous to her decease. She was an invalid lady, and while she boarded with tbe family of tbe appellant be frequently took her riding in tbe park with him. Tbe evidence of Maria Donohue established tbe fact that tbis occurred at times at tbe request of tbe testatrix, who remarked that tbe riding would do her more good than medicine. Her evidence also showed that tbis continued to tbe period when she could not leave her room, and extended to as much as 200 times. Tbe evidence given by tbe wife of tbe appellant was to about tbe same effect. It also showed that there was an expectation on the part of tbe testatrix that tbe appellant should be paid for bis services, and by tbe first paragraph of her will tbe testatrix directed “ that tbe friends with whom I board and my physician, to whom I feel under great obligations of gratitude for their kindness, be liberally paid for tlieir services to me.” Tbis evidence was not contradicted or in any way whatever impaired in its force, and it would seem to leave but little, if any, room for doubt on tbe subject of tbe liability of tbe estate to remunerate tbe appellant.

Although be owned and exercised horses, it is not to be supposed that be would have taken tbe testatrix so often with him while she was an invabd boarder at bis bouse without expecting some compensation for bis services, and her will showed that she participated in tbe same expectation.

Her explicit direction was that her friends with whom she boarded should be liberally paid for their services for her. She made no distinction whatever as to tbe services referred to by her, but included them all alike, and those for which compensation w'aa claimed in this proceeding constituted an important portion of them. The case was not one in which it was to be presumed that the services were intended to be gratuitously performed. She was a mere boarder, dependent upon the comforts she could secure by making an equivalent return by way of compensation, and the presumption is that she expected and designed to pay for what was supplied to her at her instance, and expressed or implied requests. The services performed, in taking her upon these rides, were as meritorious as the right of payment for her board. She was taken out for the benefit of her health, and at times in compliance with her own express request, and while she had no other claims upon the attention and time of the appellant than any other invalid boarder would have had. The referee should have allowed Jiim what her will contemplated he would receive, reasonable payment for the services he had performed. The decision was not only against the evidence, but really without evidence to support it.

The judgment should be set aside and a new trial ordered.

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

Judgment set aside. New trial ordered;


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    SAMUEL CARDWELL, Jr., Respondent, v. ELLA A. CARDWELL, Appellant.

      Diowce on account of adultery — specification of time and place.

    Where, in an action for divorce on tlie ground of adultery, the complaint alleged that the defendant, from the 1st day of November, 1876, up to the time of the verification of this complaint, went to, visited, and at various houses or places of prostitution or assignation in the city of New York (which times and places plaintiff cannot particularize) committed adultery and had carnal connection with a person therein named, held, that the allegation should be rendered more definite and certain as to the place at which the adultery was committed.
    Appeal from an order denying a motion for a bill of particulars, or that certain portions of the complaint should be stricken out as vague and insufficient.

      The action was brought to procure a divorce' on the ground of adultery. After having alleged in the complaint that the plaintiff had committed adultery at certain specified places, between certain dates, with persons therein named it proceeded :
    “ Tenth. And the plaintiff, upon information and belief, further shows to the court and alleges that the said defendant from the 1st day of November, 1876, up to the time of the verification of this complaint went to, visited and at various houses or places of prostitution or assignation in the city of New York (which times and places plaintiff cannot particularize, and exclusive of the times and places in this complaint particularly mentioned) committed adultery and had carnal connection with the said John Hinckley.”

      John JBrimnemer, for the appellant.

      Samuel G. Gourfmey, for the respondent.
   Daniels, J.:

The action is for a divorce because of adultery and it has not been usual, in cases of this kind, to order a bill of particulars to be served. That cannot ordinarily be necessary in order to prevent surprise upon the trial, for the settled practice of the courts requires that the charges shall be accompanied with so much particularity of time and place as reasonably to inform the defendant of the criminal intercourse designed to be relied on as the basis of the action. That is essential for the support of the plaintiff’s case as well as the proper protection of the defendant against fictitious and unfounded charges of misconduct. And where it may be omitted and success on that account improperly secured, no reluctance on the part of courts of justice would be felt in setting aside the verdict for the purpose of obtaining a fair and intelligent trial. The defendant would not be allowed to be overreached by evidence given to support charges so indefinite, as to be incapable of being met and properly contested.

The fourth, fifth, sixth and seventh paragraphs of the complaint charge the defendant with criminal -misconduct with individuals, whose names are alleged and set forth, and the places are meiffioned where it is supposed to have been committed. The only uncertainty is as to time, and that is stated to have been on frequent occasions between different but not very distant dates. More precision in tbe designation of tbe dates is stated not to be within tbe ability of tbe plaintiff, and that is a sufficient reason for its omission. There can be no difficulty preventing tbe defendant from being prepared to meet these charges upon tbe trial. They are as pointed and precise as circumstances will allow, and sufficient within tbe rule maintained by tbe adjudicated cases. (Wood v. Wood, 2 Paige, 108; Tim v. Tim, 16 Abb. [N. S.], 39; Mitchell v. Mitchell, 61 N. Y., 398.)

Tbe charge contained in tbe tenth paragraph of tbe complaint is much more indefinite by reason of tbe omission of any specific place. Tbe individual has been named and tbe times between which tbe intercourse is stated to have occurred are set forth, but a statement of tbe places has been omitted. Tbe allegation on that subject is that it was at various bouses of prostitution or assignatio a in tbe city of New York. A charge so general even the most alert could not be expected to be prepared to meet with evidence. It comprehends too much space and too many suspected localities, and evidence under it could not fail to operate as a surprise upon tbe defendant. This should be rendered definite and certain as to tbe place intended to be referred to or it should be stricken from tbe complaint. Reasonable certainty as to these charges can only be secured by stating tbe place or places intended, and they can be given if tbe misconduct alleged has sufficient color of foundation to. render it a proper subject of legal investigation. As to this paragraph tbe complaint should be made more definite and certain by stating tbe places where tbe misconduct is supposed to have occurred; and tbe order should be so far modified as to require that to be done. Tbe former practice allowed tbe defect to be corrected by putting tbe issue to be submitted to tbe jury in definite form. (Wood v. Wood, supra, 113.) But tbe provision of the Code, under which a reasonable degree of definiteness and certainty in pleadings can be secured by motion, renders it unnecessary for tbe defendant to resort to that alternative.

Tbe order should be so far modified as to require tbe plaintiff to amend tbe tenth paragraph of tbe complaint by stating tbe place or places where tbe misconduct is supposed to have taken place. And if that be omitted for twenty days after tbe service of a copy of tbe modified, order, then that entire paragraph should be stricken out of the complaint.

In all other respects the order should be affirmed without costs.

Davis, P. J., concurred.

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

Order modified as directed in opinion, and affirmed as modified, without costs.


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    MARK L. McDonald and ALVIN W. WHITNEY, Respondents, v. ERWIN DAVIS, Appellant.

      Discharge in bankruptcy — leave to set it up by supplemental answer— laches.

    On September 9, 1869, tbe plaintiff commenced an action against tbe defendant m California; on the eleventh, the latter was adjudged a bankrupt, and, on the fifteenth, the plaintiff was enjoined from further proceedings in the action. On February 25,1873, the injunction was dissolved on account of the laches of the defendant in applying for a discharge; and on the next day plaintiff procured a judgment, upon which he subsequently brought this action. After-wards, and in 1876, defendant applied for a discharge, which he obtained on the 6th of March, 1877. Upon an application by him for leave to file a supplemental answer setting up his discharge, held, that it was properly denied on the ground of laches.
    Appeal from an order denying a motion for leave to serve a supplemental answer, setting up as a defense a discharge in bankruptcy.

      Henry A. Root, for tifie appellant.

      Herbert <& Wilber, for tbe respondents.
   Daniels, J.:

This action is brought upon a judgment recovered by the plaintiffs against the defendant in the Stale of California. It was recovered in an action commenced on the 8th of September, 18G9. The defendant commenced proceedings for his discharge as a bankrupt in the United State District Court for the State of California, on the eleventh day of the same month, and was then adjudicated a bankrupt. On the fifteenth day of that month, by an order of the District Court, the plaintiffs were enjoined from proceeding in the prosecution of their action, but the injunction was dissolved on the 25th of February, 1873,-because of the defendant’s delay in prosecuting his proceedings for a discharge. And on the next day the judgment of the plaintiffs was recovered. After the present action was brought, and in the year 1876, the defendant applied to the United States District Court for his discharge as a bankrupt, and that was decreed and allowed on the 6th of March, 1877. lie applied to the court in which the judgment had been recovered to set it aside, and after having been defeated in that motion instituted an action for the same purpose which was decided against him upon a demurrer taken to his complaint.

It appeared in the bankruptcy proceedings that he had no assets, and he was consequently entitled to apply for his discharge after the expiration of sixty days from the time of the adjudication that he was a bankrupt. That he neglected to do until his activity was stimulated by the prosecution of this suit. For a period of about seven years, he allowed his proceedings to remain in a dormant condition. And during that time, and apparently for that reason, the plaintiffs were allowed by the United States District Court to pro.ceed with their action, and perfect their judgment. Ilis neglect was sufficient to justify the liberty which was extended to the plaintiffs. And they cannot equitably be deprived of the advantage of their proceedings by a discharge, only applied for when there may have been a probability that they might derive some pecuniary benefit from their judgment.

. Laches on the part of the bankrupt in making his application for leave to present liis discharge as a defense by way of supplemental answer has been deemed a sufficient reason for its denial. (Holyoke v. Adams, 59 N. Y., 233.) And similar delay on the part of the bankrupt in applying for and obtaining the discharge itself should on principle be followed by the same consequences. The delay in that respect in the present case has in no way been excused and the application made was, for that reason, very properly refused.

The order appealed from should be affirmed, with the usual costs and disbursements.

Davis, P. J., concurred.

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

Order affirmed, with ten dollars costs and disbursements.