author: Smith. P. J.:

text:
    ALBERT MICHEL, Respondent, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF MONROE, Appellant.

      Pollution of a stream — damages are to be fixed by the depredation in rental value, though the premises are occupied by the plaintiff.

    In an action to restrain the defendant from polluting the waters of a ditch in the vicinity of the plaintiff’s land and dwelling-house, and to recover the damages already sustained, the fact that the plaintiff did not rent, or propose to rent, the premises during the period for which damages are sought to be recovered, does not make it improper to admit evidence to show the depreciation in the rental value of the premises occasioned by the wrongful acts of the defendant, and to award the same to the plaintiff as pecuniary damages.
    .Appeal from a judgment in faver of the plaintiff, entered upon a decision of the Monroe County Special Term.

      W. F. Cogswell, for the appellant.

      J. A. Stull, for the respondent.
   Smith. P. J.:

The action was brought to restrain an alleged nuisance and to recover damages caused by it. The trial court found, in substance, that from the year 1879 to the commencement of the action, the defendant discharged a large amount of filth, wash water and other offensive matter, the sewage from the county alms-house, penitentiary and insane asylum, containing about 700 inmates, through drains from said buildings, into . a certain ditch running along the north side of Elmwood avenue, past the land and dwelling-house of the plaintiff, and that said matter, so discharged, emitted foul and offensive smells, poisoned and polluted the air in the vicinity of the jilaintiff’s land, impregnated the waters of said ditch, which were previously pure and wholesome, and rendered said waters foul, and the land of the plaintiff unhealthy and uncomfortable and unfit for habitation. These findings are fully supported by the evidence, and they warrant the injunction ordered by the judgment.

A question is raised in respect to damages. The counsel for the appellant contends that it was error to admit proof of the alleged depreciation in the rental value of the plaintiff’s premises, by reason of the acts complained of, and to award the same to the plaintiff as pecuniary damages. The contention is based upon the fact that the plaintiff did not rent, or propose to rent, his premises during the period for -which damages were allowed, but during all that time he occupied them with his family. It is obvious, however, from the evidence and the findings, that the value of the premises as a residence was greatly diminished by the discomfort' and the danger, if not the positive injury, to health to which the plaintiff and the members of his family were subjected, in consequence of the alleged nuisance. .The extent of the depreciation of the rental value of the premises, thus caused, seems to be a just, as it is certainly a convenient, measure of damages. The cases of Francis v. Schoellkopf (53 N. Y., 152) and Wiel v. Stewart (19 Hun, 272) we think justify the ruling. We understand, from the report of the former case, that the rule referred to was there applied, as well in respect to the house of the plaintiff, in which she and her family resided, as to the one which she leased. The court remarked that the house in which she lived was made disagreeable and uncomfortable,” a remark which had no pertinency, unless the rule of damages subsequently approved in the opinion, namely, “ the difference of the rental value free from the stench and subject to it,” was applicable to the plaintiff’s dwelling-house, as well as to the building which she held for rent. The case of Wiel v. Stewart (supra) recognizes the rule referred to as the proper measure of damages, in the case of the- keeper of a hotel, who claimed that she lost boarders by reason of an alleged nuisance maintained by the defendant.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. THE MUTUAL BENEFIT ASSOCIATES, Defendant. (In the Matter of the Commissions of ANGUS McDONALD, Late Receiver of Defendant.)

      Receivers of insolvent corporations — commissions of — upon what they should ho computed.

    The appellant, who had been appointed a receiver of the Mutual Benefit Associates, after having acted for some time in the execution of the trust, tendered to the court his resignation. Upon the settlement of his accounts, the total amount of the funds, which had come into his hands, was fixed at $10,617.90, and it was found that he had reassessed members in the United States to the amount of $73,757.23, and in Canada to the amount of $5,844.32, and that the estimated death claims proven against the trust, and which had not been assessed, amounted to from $40,000 to $50,000, malting a total of $120,000 or $130,000, of which the receiver estimated that one-third might be collected. The court allowed him for commissions $550.

      Reid, that his commissions were to be determined by the law in force at the time of his appointment, viz., section 3320 of the Code of Civil Procedure.
    That the court properly refused to allow any commissions upon the amount of the liability of the members, resulting from the assessment imposed by the receiver.
    That the amount allowed by the court below should not be increased.
    Appeal by Angus McDonald, late receiver of tlie Mutual Benefit Associates, the defendant, from an order of the Monroe Special Term, so far as it fixed the amount of bis commissions as such receiver.

      Angus McDonald, for the appellant, in person.

      D. O’Brien, attorney general, and John W. Hogan, for the respondents.
   Bradley, J.:

The appellant having been appointed receiver of the Mutual Benefit Associates in this action, and after having proceeded some time in the execution of the trust, tendered to the court his resignation. And a referee was appointed to take and state his final account, who made his report by which it appeared that the receiver was charged with the sum of $L0,617.90, as the total amount of funds that had come to his hands as such, which was reduced by credits against it to $1,689.82; that the receiver had reassessed members in the United States $73,757.23, and in Canada $5,844.32, and estimated the death claims proven against the trust and not assessed by the defendant at $40,000 to $50,000, making a total of $120,000 to $130,000, of which the receiver estimated one-third to one-half collectible.

On the coming in of the referee’s report the court allowed to the appellant $550 for his commissions, accepted his resignation and appointed his successor to proceed in the execution of the trust. From that portion of the order awarding commissions this appeal is taken. The appellant’s right to commissions is derived from the statute in force on that subject at the time hs was appointed and entered upon the performance of his duties, which was prior to the passage of chapter 378 of Laws of 1883. And, therefore, .that act has no application to this case. (People ex rel. Newcomb v. McCall, 94 N. Y., 587.) But the allowance of commissions to him is dependent upon the statute which provides that ■“ a receiver, except as otherwise specially prescribed by statute, is .entitled, in addition to his lawful expenses, to such a commission not exceeding five per centum upon the sums received and disbursed by him as the court by which or the judge by whom he is .appointed allows.” (Code Civ. Pro., § 3320.) This is a continuance substantially in that respect of the provision of the Code of (Procedure, as amended in 1867. (Sec. 244, sub. 4.) It does not appear by the order on what amount or basis the allowance of the •commission was made by the Special Term, but it is assumed by the appellant that it was founded substantially on the amount of .money only which had actually come to his hands and that the liabilities of members of the association arising out of the assessments were not taken into consideration. And it is contended on his part that such liabilities as securities held by him were assets in his hands, and to the extent of their availability for the purposes of the trust property may and should have been treated as a fund received by him and as the subject upon which computation and allowance ■of his commissions should be made. And in support of that contention refers to Attorney General v. Chenango County Mutual Insurance Company (12 Barb., 671), where it was held that a receiver was entitled to commissions on the value of deposit or premium notes which came to his hands.

This was there put, upon the ground that they were regarded as advances made by the members of the company who gave them ; that they constituted the capital stock of the company, and that the receiver had the right to collect the whole amount of the notes, and, if that produced any surplus, to redistribute it amongst them.

The latter proposition has since been somewhat criticised in Devendorf v. Beardsley (23 Barb., 656, 665), and may not be entirely in harmony with Attorney General v. North America Life Insurance Company (89 N. Y., 94-105), where it was held that preminm notes, although property, were not assets in the hand? of the receiver for the purposes of commissions. The statute under which the commissions were allowed in the Chenango County Mutual Insurance case, provided that “ such receivers shall, in addition to tneir actual disbursements, be entitled to such commissions as the court shall allow, not exceeding the sum allowed by law to executors or administrators.” (2 R. S., 470, § 76.)

This section, so far as relates to receivers of corporations, seems to have been repealed by operation of Laws 1867 (chap. 781, § 8). But the rule of construction applied to the statute, giving commission to those personal representatives, is referred to in support of the contention here of the appellant, in view of the analogous provisions in some respects of that statute, with -that in question. Such construction is to the effect that bonds, mortgages and other securities, which go to them as such executors or administrators, are regarded as money received and in their hands, and to be treated as such, for the purpose of allowance of commissions. (Bennett v. Chapin, 3 Sandf., 673; In re De Peyster, 4 Sandf. Chy., 511; Laytin v. Davidson, 95 N. Y., 263.) But it is held that other property, not converted into either money or securities, does not constitute receiving of money within the meaning of the statute, because it was not contemplated that the same assets should be burdene'd with a double commission in the same trust, and this remaining duty of conversion, not accomplished by one such trustee, would fall on his successor, who should take the compensation. (Cairns v. Chaubert, 9 Paige, 160, 164; Foley v. Egan, 13 Abb. [N. S.], 362, note; Matter of Allen, 29 Hun, 7; see, also, Schenck v. Dart, 22 N. Y., 420.) While the rate of commissions of executors and administrators are unqualifiedly fixed by the statute, those of receivers are limited by it, and within such limit are regulated by the discretion of the court. But what shall be deemed “ sums received and disbursed ” is a matter of construction of the statute. In that respect the courts have been somewhat governed by the nature and purpose of the trust, and not necessarily by adjudication giving construction to other statutes on the subject relating to different trusts, although susceptible of analogous interpi’etation. (Matter, etc., of Hulburt, 89 N. Y., 259.) Also by the considerations deemed contemplated by the statute, by way of execution of the trust which support the right to commissions. (Matter of the Woven Tape Skirt Co., 85 N. Y., 506.) AVhen the appellant accepted the trust, one and an important duty assumed by him was to charge the members with liability for an amount sufficient to pay the death claims which had arisen against the association. This he could do by assessments and the requisite notice pursuant to its by-laws and rules. (McDonald v. Ross-Lewin, 29 Hun, 87.) And this having been done by him, it is contended that such liabilities were sums received,” within the meaning of the statute, to the amount of their value. He has taken steps to establish the right to collect assessments which arises out of the relation the members so assessed assumed to the association for their mutual benefit when they became such. And while such right constituted the source of its capital, and in that sense may be deemed property, the amount with which the members may be charged cannot be treated as received, while the power to obtain it exists in action only. There were no established securities in the hands of the receiver, nor had anything come to him other than the mere right to take proceedings first to charge and then to collect; the former furnishes him with nothing to hand over and the latter remains unaccomplished.

The case of Pentz v. Hawley (1 Barb. Chy., 122), cited by the appellant, has reference only to the right to collect. And in the Chenango County Mutual Insurance Company case the trust was fully executed and the receiver, after handing over by direction of the court, the uncollected notes to the makers, was discharged. Here the receiver voluntarily resigns while the trust remains unexecuted. And the burden of making collections from the members of the association will fall upon his successor, who will fairly be entitled to commissions upon the moneys which he may collect out of the liabilities referred to. This will constitute a considerable portion, if not the bulk, of the service required from the outset, to place the money in the hands of the trustee. There appears no cause for his resignation other than his desire to be relieved for his own convenience. And there seems to be no occasion under such circumstances to allow commissions for service which he voluntarily escapes and for a burden which his successor takes. (Matter of Jones, 4 Sandf. Chy., 615, 616.) Then, again, the assets of the association are in the custody of the court and the receiver is its instrument through whom the court has undertaken to execute the trust. And although two or more persons may succeed each other in that relation they constitute but the continuance of the receiver of the court. The law contemplates but one commission for the entire service. The fund, existing only in liability with the right to proceed to collect, cannot be deemed gathered so as to place the corpus of it in the custody of the court, so as to say that the successor will be entitled to commission for disbursing it only. And while the receipt and disbursement of sums may be severally treated for the purposes of commissions to two persons successively occupying the place of receiver, there is no recognized method hy which either one of the two acts of service can be severed for that purpose. (Attorney General v. Continental L. Ins. Co., 32 Hun, 223.) And it is the duty of the court to see, when the trust is fully executed, that the fund has not been burdened with unnecessary expense.

Nothing appears in the papers before us, in any view which might be taken of the condition of the fund existing in the liability of the members of the association, to justify the allowance of commissions upon it so situated. There is no evidence here, and it does not appear by the referee’s report what the value is of these assessments against the members, or that they have any value. He simply reports that the receiver estimated that from one-third to one-half of them can be collected. The burden was on the appellant to establish his right to commissions. We see no reason requiring their-increase beyond the sum allowed.

The order should be affirmed.

Smith, P. J., Barker and Haight, JJ., concurred.

Order affirmed, without costs.


text:
    HORACE B. CLAFLIN and Others, Respondents, v. DONALD GORDON and ABRAHAM E. WOLLF, Appellants.

      Judgment ereditors' action — lien acquired hy the plaintiff first commencing it — priority of it over that acquired hy otherr creditors subsequently becoming parties.

    This action was commenced on January 26, 1884, to set aside, as fraudulent, a general assignment, made by one Gordon to one Wollf, on December 20, 1883. The action was founded on a judgment recovered against Gordon on January-21, 1884, upon an indebtedness existing at the time of the assignment, upon which judgment an execution had been issued and returned unsatisfied. At that time a considerable portion of the assigned property consisted of goods which were, on January 29, 1884, sold by the assignee, the proceeds of the sale being,received by him..
    The action was brought, as appeared from the title of the summons and complaint, and from the allegations of the latter and the prayer for relief by the members of the firm, “ in behalf of themselves and all other judgment-creditors of Donald Gordon, similarly situated, who shall hereafter join in this action.” At the time the action was brought but one of the creditors of Gordon, other than the plaintiff, had recovered a judgment and issued an execution thereon which had been returned unsatisfied. After the action had been commenced, other creditors had recovered judgments and issued executions thereon which were returned unsatisfied. After, the entry of the interlocutory judgment, setting aside the assignment, these latter creditors appeared before the referee, made proof of their judgments, and claimed to be entitled to share equally with the plaintiffs in the funds in the hands of the assignee.

      Held, .that the claim was not tenable ; that only such creditors as were, at the time the action was commenced, in the same situation as the plaintiffs — that is, had judgments upon which executions had been issued and returned unsatisfied — were entitled to share equally with them in the proceeds, and that they were entitled to priority as against all general • creditors who subsequently recovered judgments.
    Appeal by certain creditors of the defendant Donald Gordon from so much of the judgment, entered upon the decision of the Monroe Special Term, as adjudges that the defendant Wollf, as receiver, etc., shall first pay the judgments of the plaintiffs and Cooper & Co., and that until they ax’e paid nothing shall be paid out of this fund upon the judgments of the appellants. The action is in the nature of a creditor’s bill, and was commenced on the 26th day of Januaiy, 18S4, to set aside as fraudulent as against the creditors of Gordon a general assignment made by him to the defendant Wollf, December 20, 1883. In the title of the action in both the summons and the complaint following, the names of the persons composing the firm of Horace B. Claflin & Co. is added “ in behalf of themselves and all other judgment-creditors of Donald Gordon, similarly situated, who shall hei*eafter join in this action.” And the introduction of the complaint is: “ The plaintiffs appealing * * * and complaining on behalf of themselves and all other judgment-creditors of the defendant Donald Gordon, whose executions have been returned unsatisfied, and who shall, in due time, eome in and seek x’elief by and contribute to the expenses of this action,” etc. And the prayer for relief, amongst other things, demands judgment “that the assignment be adjudged fraudulent and void as against the plaintiffs and such other judgment-creditors of said defendant Donald Gordon as shall elect to come in and share the expenses of this action.” The action was founded upon a judgment of Claflin & Go. against Goi’don of upwax’ds of $200,000, recovered January 21, 1884, on an indebtedness existing prior to the time of the assignment, execution on which had been issued and returned unsatisfied before the action was commenced. There was a lai-ge number of other ci’editors having claims amounting to about $150,000, most, if not all, of which were preferred by'the assignment. But at the time of the commencement of this action no judgment had been recovered by any of such creditors except Cooper & Co., whose judgment was recovei’ed January 23, 1884, execution on which was returned the day following unsatisfied.
    Both defendants answered, and after the trial of the issues the court found and determined that the assignment was “ fraudulent and void as against the judgment of the plaintiffs and as against all other judgment-ci'editora who have acquired a lien upon the property of said Gox-don; that the plaintiffs are entitled to be paid the amount of their said judgment or so much thex’eof as the moneys or property applicable thereto will pay; that all creditors of Gordon, who are entitled thereto, may share in the fund in the hands of said Wollf, and that it be referred to John S. Morgan, Esq., to take an account,” and an interlocutory judgment to that effect was entered January 14,1885. In March following, the referee made his report by which it appears that the appellants had recovered judgment on their respective claims against Gordon and appeared and made proof of them before the referee, and claimed the right to share with the plaintiffs in the fund. Upon the coming in of this report the court held that the judgments of the plaintiffs and Cooper & Co. were first to be paid, and appointed Wollf receiver, and final judgment was entered accordingly. The appellants having taken exception, appeal from such direction of the judgment for the payment of the fund.

      William F. Cogswell, for the appellants.

      S. F. Kneeland, for the respondents.
   Bradley, J.:

The question is: what right did the appellants derive from the successful prosecution of the action? They contend that by the invitation and opportunity given to the creditors by plaintiffs’ complaint, they were permitted for all practical purposes to become parties to the action, share with the plaintiffs the expenses and benefits of it, and entitled, on coming in, to a standing equal with that of the plaintiffs in respect to the result and in the distribution of the fund.

The plaintiffs were at liberty to bring their action either for their exclusive benefit or in behalf of themselves an{l other creditors of the assignor similarly situated. (Edmeston v. Lyde, 1 Paige, 637; Parmelee v. Egan, 7 id., 610.) They chose the latter course and thereby gave to such other creditors the right to come in and make the action available to them, and as .effectual in their behalf as if they had commenced actions themselves subject, however, to the power of the plaintiffs to discontinue their action at any time before judgment. (Mattison v. Demarest, 19 Abb., 356; Derby v. Yale, 13 Hun, 273.) The appellants, in the exercise of their right, did come in and prove their claims, and at that time they had, by judgments and return of executions thereon unsatisfied, placed themselves in a situation to seek relief by independent actions or through this action. The question arises : what was the relief to which they were entitled % If they were entitled to share equally with the plaintiffs in the fund, they derive some benefit from the action. But if they are to be postponed until the plaintiffs’ judg ment is satisfied, and to rely upon what may remain, they evidently will realize little or nothing from the fund, as it will be substantially exhausted by the payment of such judgment.

The rights of creditors who had judgments against the assignor, on which executions had been returned unsatisfied at the time of the commencement of the action, were, on their election in due time made, entitled to avail themselves of it equal to those of the plaintiffs in the results derived from recovery. And on coming in and making that appear, were entitled to share with them pro rata in the fund. This was held by the trial court, and the creditors, Cooper & Co., having that position, took the benefit of it. And the reason for its support is that in view of the invitation given by the plaintiffs, the situation of the last named creditors was such as to enable them to assume, in practical effect, the relation of plaintiffs as of the time the action was commenced. None of the other creditors had judgment at the time the action was brought, and, therefore, were not then in a situation to become parties plaintiff to an action of this character. In that fact is found the reason which distinguishes their relative situation from that of the plaintiffs. And the superior rights of the latter are substantial if any advantage may be derived from the commencement of the action. That question has some importance in this ease, for if the plaintiffs have, as against the appellants, no other or greater rights in respect to the fund than they would have had if the action had not been instituted prior to the return of the executions upon the judgments of the latter, then their relation to the fund is no better than that of those creditors. This is the foundation of the contention on the part of the appellants. By the commencement of an action in equity, by a judgment-creditor as such, he obtains a lien upon the things in action and equitable interests of the debtor, which is defeasible until, and becomes effectual upon, his recovery of judgment. (Edmeston v. Lyde, 1 Paige, 637; Eager v. Price, 2 id., 333; Clarkson v. De Peyster, 3 id., 320; Utica Ins. Co. v. Power, Id., 365; Storm v. Waddell, 2 Sandf. Chy., 494; Boynton v. Rawson, Clarke, 584.)

But the rule is otherwise in respect to property which is the subject of levy by execution, in so far that the action is no interruption to such legal remedy. And no lien is acquired in or by the action to defeat the right to make such levy until a receiver is appointed. (Davenport v. Kelly, 42 N. Y., 193; Albany City Bank v. Schermerhorn, Clarke, 297; Storm v. Badger, 8 Paige, 130.) The creditor may, in such case, obtain a specific lien by the levy of his execution, and bring action in aid of it for the removal of obstruction and for determination of his right to sell and vest title by the sale. (Beck v. Burdett, 1 Paige, 305.) At the time of the commencement of this action a very considerable portion of the assigned property consisted of goods in store in the city of Rochester, which were then the subject of levy by execution, but shortly after, and on the 29th day of January, 1884, they were sold by the asignee for $175,200, and the proceeds deposited by him in banks to his credit, which constitute a part of the fund in question. From and after the time of such sale the execution leviable character of the property disappeared, and the proceeds of it were held by him in the form of credits, with his bankers, and had the nature of choses in action.

The proceeds in the form they had taken cannot be deemed property acquired subsequently to the commencement of the action, but the same property in a changed form and condition, which the plaintiffs sought to obtain in the outset. And it would seem that when it was thus converted that an equitable lien existed in behalf of the plaintiffs by force of the action, because except as against legal process of execution to which those proceeds were not then exposed they were charged by the action for the purposes of the result given by the judgment. The effect of the commencement and prosecution of the action in respect to the property and upon the relation to it of the parties may have an important bearing on the question under consideration. The situation produced by an action in equity is such that the parties have not the right during its pendency to voluntarily dispose of the property involved in and sought by it, so as to defeat the operation of the judgment that may -be recovered. This results from the defeasible charge given by the action upon the property, the perfection of which is dependent upon the result. And as a necessary consequence third persons charged with notice of its pendency are affected in like manner, so that the property may be protected for the purposes of the action against interference or the taking of any right by means of transfer of it to the prejudice of the relief of the plaintiff derivable from the result of it. (1 Story’s Eq. Jur., §§ 405, 406; Murray v. Ballou, 1 Johns. Ch., 566; Heatley v. Finster, 2 id., 158; Green v. Slayter, 4 id., 38; Scudder v. Van Amburgh, 4 Edw., 29; Hadden v. Spader, 20 Johns., 554; affirming 5 Johns. Ch., 280.)

The familiar doctrine of Us pendens has no importance here as relates to third persons, because the appellants have acquired no rights in respect to the property and fund in question other than that derived from their relation to the action, and furnished to them by its prosecution and result'. When there is no interruption by any effectual intervening rights of others, the successful result of an action brought to reach property, has relation to the time of its commencement, and the judgment perfects the relief sought as of such time, so that the defendants, in the meantime, cannot legally do anything with the subject of the action to impair the beneficial effect of the judgment, nor can a third person, affected by notice of the action and its purpose, be permitted (except by proceeding in invitum by legal process) to acquire any rights to the prejudice of the relief which the judgment purports to give to the plaintiffs. This doetz-ine is founded in the necessity for the preservation of the rights of parties litigant during the pendency of actions and for the efficiency of results. (Murray v. Ballou, 1 Johns. Ch., 566-576; Bellamy v. Sabine, 1 De G. & J., 566.)

It would, therefore, seem that rights are acquired by a plaintiff in an action of the character of the one at bar by its oommenceznezzt, and as of that tizne. And in that view, the question as to the character and condition of the property at the time of che commencement of the action is, perhaps, not importazit. The right then accrued to the plaintiffs and those who were similarly situated, in respect to the property which could not be divested without the aid of legal process, and as against other creditors not so situated they liad priority in the nature of a lien which characterized the relief and its effect given by the result.

The appellants assert here no rights to the fund, founded upon any interest acquired, other than through the prosecution to judgment of this action. They could not come in at the time the action was instituted, because their situation did not permit them to do so. They were then creditors at large of the assignor, and not, therefore, permitted to attack his assignment. Their rights are relative and arise as of the time they were permitted to assert them for the purposes of the relief in view by the action. And to support such action the requisite facts were judgments and the return of executions unsatisfied. (Adee v. Bigler, 81 N. Y., 349; Adsit v. Butler, 87 id., 585.) The appellants did not attain that situation until considerable time after the action was commenced, and in the meantime evidently relied upon the assignment and its preferable provisions for their protection.

While the proposition that “ equality is equity ” is a cardinal principle, it does not deny to successful diligence suitable reward. The plaintiffs took the burden of initiating and conducting the prosecution of the attack upon the assignment, and gave to the other creditors similarly situated the opportunity of availing themselves of the result of the action. And when they elected and were enabled to do so they took their places in the order which the requisite preliminary steps taken by them respectively placed them. (Edmeston v. Lyde, 1 Paige, 637, 640; Parmelee v. Egan, 7 id., 610, 613, 614; Corning v. White, 2 id., 567; Fitch v. Smith, 10 id., 9.) If these views are correct, it follows that the appellants are not entitled to take pro rata with the plaintiffs the fund in controversy. The rule is otherwise when an action is brought, not in hostility to an assignment, but to carry it into effect, or to compel the execution of a trust, also in cases of the enforcement of obligations, contracts and securities in which by force of the instruments or by operation of law, several persons are in like manner interested. Then their respective rights must be observed and diligence in proceeding gives no relative advantage or preference. (Wakeman v. Grover, 4 Paige, 23; Kerr v. Blodgett, 48 N. Y., 62; Travis v. Myers, 67 id., 542; Prouty v. M. S. and N. I. R. R. Co., 1 Hun, 655.) And the same effect is given to actions of creditors of deceased persons to reach the estate of the decedent. (Edwards v. Harben, 2 Durn. & E., 587; Bate v. Graham, 11 N. Y., 237; Johnson v. Waters, 111 U. S., 640-674.

The view taken of the case renders it unnecessary to consider the question, whether the appellants have so ratified tiie assignment and elected to take the benefits of it as to have denied to themselves or waived the right to come in and make the action and its results available to them.

The portion of the judgment appealed from, should be affirmed.

Smith, P J., Barker and Haight, JJ., concurred.

The part of the judgment appealed from affirmed, with costs.


text:
    In the Matter of the Estate of EDWIN GILBERT.

      Decree of surrogate — when appealable— Code of Civil Procedure, sees. 2568, 2570 — when real estate held by administrators is treated as assets — assignment of a mortgage as collateral security — right of the assignor to redeem after an assignee has purchased the property in under a foreclosure.

    In 1861 tlie appellant, George Thayer, was appointed one of the administratoi-s of one Gilbert. At the time of Gilbert’s death he held a note for $1,000 given by Thayer, and a mortgage given to Thayer by a corporation to secure the payment of its note for the same amount, which mortgage and note had been assigned by Thayer to Gilbert. Thereafter the company gave another mortgage on other lands to Thayer, who thereafter assigned the same to the estate of Gilbert as further security for the said note. In December, 1862, Thayer, as administrator, foreclosed the last mentioned mortgage; the premises being struck oil to the administrators of Gilbert’s estate for the sum of $1,168, although no money was in fact paid by them. Subsequently the administrators, without consideration, conveyed the said lands, by a deed expressing a consideration of one dollar, to a son of Thayer, and thereafter the son convej'ed the same by a similar deed to Thayer. At the time of the foreclosure of the said second mortgage Thayer’s note had not been paid or credited to the estate, but some months after the date of that sale the amount of the said note was credited to the estate as appeared upon the final settlement of the accounts of the administrators in June, 1864.
    Thereafter these proceedings were instituted in which a decree was made by the surrogate requiring Thayer to account for the moneys subsequently received by him upon the sales of portions of the said land so conveyed to him, upon the ground that it belonged to the estate.

      jHeld, tbat the said decree affected a substantial right of the administrators, and was as such appealable under sections 2568, 2570 of the Code of Civil Procedure.
    That the surrogate had jurisdiction over the proceedings, as the land purchased by the administrators represented the mortgage, and should be treated as assets for the purposes of the accounting.
    That the right of Thayer, as a debtor, to redeem the mortgage upon the payment of his debt, did not cease upon the sale and the purchase of the lands by the administrators, but continued unaffected by the change of the security, and that upon subsequently paying the debt he was entitled to retake and dispose of the lands for his own purposes.
    Appeal from an order of the surrogate of Ontario county, directing George Thayer, as administrator, etc., of Edwin Gilbert, to render an account of the proceeds arising from the sale by him of certain real estate.
    In April, 1861, Edwin Gilbert died intestate, and in May following letters of administration were issued to Elizabetli O. Gilbert, his widow, and George Thayer, and they, as such administrators, made final settlement of their accounts, and a decree was entered, accordingly by the surrogate in June, 1861.
    Prior to the death of Gilbert, Thayer gave to him, Perry E. Pitts and Gideon Pitts, his two notes, one dated October 1, 1859, for $1,000, due at two years with interest, and the other for $2,000, dated November 1,1859, due at three years with interest. A mortgage upon lands in the State of Minnesota, of the date of September 28, 1859, was made by the Little Falls Manufacturing Company of that State to Thayer, by its terms to secure the payment of its two notes made by it to him of dates October 1 and November 1,1859, for $1,000 and $2,000, payable in two and three years, with interest at the rate of fifteen per cent per annum. By an instrument of tbe date of February 1, 1860, Thayer assigned and transferred this mortgage and the notes described in it to Gilbert and tbe two Pitts, by its terms to secure the payment of his two notes to them before mentioned. And it provided that “ on the full payment of said notes this assignment to be void and. of no effect.” By an instrument of even date with the assignment, made by Gilbert and Gideon Pitts to Thayer, wherein the assignment and its purpose, as expressed in it are recited, and they say “ now it is understood by tbe parties tbat if the mortgage is not paid as therein expressed, tbe said Thayer have a reasonable time to close said mortgage before we call on him for the amount of his note.”
    On the 26th November, 1861, the Little Falls Manufacturing Company made to George Thayer another mortgage on other lands situate in the State of Minnesota, and on the west side of the Mississippi river, to secure the payment of its note to him of like date and due in one year with interest at the rate of twelve per cent per annum. And on August 8, 1862, Thayer assigned the. mortgage and note to the Messrs. Pitts, and the estate of Gilbert, deceased, as further security for the payment of his two notes first before mentioned.
    In December, 1862, Thayer, in the names of the Messrs. Pitts and of Mrs. Gilbert and himself as administrators, instituted proceedings to foreclose the last mentioned mortgage by advertisement under the statute of Minnesota, which was accomplished by sale on the 16th February, 1863, and “struck off to George Thayer, administrator, and Elizabeth O. Gilbert, administratrix of the estate of Edwin Gilbert, deceased, for sums amounting in the aggregate to $1,168,” but no> money was in fact paid by them. About the time that such proceeding to foreclose was instituted, the administrators assigned the other mortgage to the two Pitts, and in their names afterward by suit in equity proceedings were taken to foreclose it, which resulted in a judgment of foreclosure October 24, 1863, and a sale by the master on January 13, 1864, and George Thayer was the purchaser. The master’s deed was made to him April 3, 1875.
    On the 24th May, 1865, the administrators made to Samuel R. Thayer, son of George Thayer, a deed of the premises so, as aforesaid, pm-chased by them on the foreclosure of the second mortgage. The consideration expressed in this deed was one dollar, but nothing was in fact paid. And Samuel R. Thayer on February 1, 1866, executed to George Thayer a deed of the same premises upon a like consideration expressed, and none was paid. On September 1,1881, the latter sold and conveyed a portion of this land embraced in the last mentioned deeds to one De Graff for $25,000, and on the first of July, 1882, other portions of it to other parties for $12,000.
    The widow Gilbert died in August, 18Y8, and on the petition of Edwin "W. Gilbert and Albert J. Gilbert, sons of the intestate, proceedings were had before the surrogate to require George Thayer to account, as administrator, for tlie proceeds derived by him from such sales of the land, and the surrogate, by order to that effect, granted the prayer of the petition, from which order Thayer ajipealed.
    The other facts material to the review appear in the opinion.

      William F. Cogswell, for the appellant.

      E. G. Lapham, for the respondents.
   Bradley, J.:

The form of the prayer of the petition is that Thayer, as surviving administrator, appear and render a further account of his proceedings. This is founded upon allegations in relation to the Minnesota lands and the proceeds of the sales. The order is to the same effect as the prayer of the petition, and further especially directs him to render an account of the proceeds of such sales.

The counsel for the petitioners contends that the order is not appealable because it is interlocutory, that it can I ie reviewed only after and with the appeal from the final decree, as the questions involved can only be determined by such final decree, and that until then it cannot be ascertained that the rendering of a further account will substantially affect the appellant. We think the order is one affecting a substantial right and appealable. (Code Civil Pro., §§ 2568, 2570; Fiester v. Shepard, 26 Hun, 183; affirmed, 92 N. Y., 251.)

On the part of the appellant it is insisted that the surrogate had no jurisdiction to entertain the proceeding for the purpose in view, for the reason that the appellant having possession of the land and claiming title, the relief in behalf of the petitioners required adjudication imposing and declaring a trust, and establishing his relation as trustee in respect to the premises.

The Surrogate’s Court and his powers are created by and wholly derived from the statute. And he and his court have such jurisdiction only as is given by it. lie cannot try an issue involving the validity of a claim. (Hurlburt v. Durant, 88 N. Y., 121.) And when a verified answer to a petition sets forth facts showing that it is doubtful whether the petitioner’s claim is valid and legal and denying its validity and legality the petition must be dismissed. (Code Civil Pro., § 2718.) His jurisdiction in proceedings for accounting, and for the disposition of the assets of the decedent, is prescribed and defined by the statute (Id., §§ 2472, 2718) and is confined within it. (Bevan v. Cooper, 72 N. Y., 317; Seaman v. Whitehead, 78 id., 306.)

There is no power in that court to declare and direct the execution of a trust, where the aid of a court is required to impose it. If such, was the situation of the parties in their relation to the land in question and to each other, as to require the determination of a court to charge the appellant with the relation of trustee as distinguished from such relation a t law, then it was necessary first to go to a court of equity for the imposition and declaration of the trust, and the surrogate toolc no jurisdiction in the matter.

In this case the administrators as such took the title as purchasers on the mortgage foreclosure sale, and without any consideration paid, they through his son placed the title in the appellant. In the hands of the administrators the property had the character of personalty and the handing it over to one of them, unembarrassed with any other facts, would seem to continue its character and relation to the estate represented, of which it might be treated as assets for the purpose of accounting. (Lockman v. Reilly, 95 N. Y., 64; Valentine v. Belden, 20 Hun, 537; Clark v. Clark, 8 Paige, 152.) Ve are inclined to think that upon that state of facts the surrogate had jurisdiction of the proceeding, and that the answer to the petition was not such as to require the dismissal of the latter. If the appellant had no relation to the mortgage (pursuant to the foreclosure of which title was derived to the land) other than that afforded by his position as administrator, he clearly was disabled from taking title in his own right by the conveyance from the administrators through his son Samuel, and he would be treated as such trustee in respect to it and the. proceeds of the sale. (Case v. Carroll, 35 N. Y., 385; De Caters v. De Chaumont, 3 Paige, 178.) That would have been his situation if he had been a stranger to the mortgage, until he assumed the relation of administrator.

He then could acquire no right of property for himself through or under the mortgage, or resulting from any proceedings founded upon it. But he had assigned the mortgage to his intestate and others as security for the payment of his notes made to them. The apparent relation between him and the intestate was that of debtor and creditor, and assuming that it was such in fact, his right was to pay the debt and redeem the mortgage transferred by him as such security.

This proposition is not questioned. The contention of the counsel for the petitioners is that when the sale was had on the foreclosure of the mortgage, and the land purchased and title taken by the appellant and Mrs. Gilbert as administrators, the right of redemption by the appellant was gone, that the debt was paid by such purchase, that the property became in their hands a substitute for it, and that no debt remained to support redemption by him. A complete understanding of the situation requires the statement that the relation of Gilbert and the Messrs. Pitts was not that of joint creditors, but each was treated as the lender of one-third of .the $3,000 for which the notes were taken. The latter were paid by the appellant, the amount going to them upon the notes, and the first mortgage on the premises on the east side of the river having been assigned by the administrators to them as representing their .share in the securities, he was permitted and enabled to purchase the property upon the foreclosure of that mortgage. The other ■one, covering land on the west side of the river, was then held by the administrators solely as security for the debt due the estate of ■Gilbert, the amount of which was $1,(500 and some interest.

The sale on the foreclosure of this mortgage was for a sum .about sufficient to pay the debt and expenses of the sale. In June, 1861, application was made by the administrators for final settlement of their accounts which was had and completed in that month. And in the schedule of moneys collected and received by them is ■entered under date of May 30, 1863, as received the amount of the .appellant’s note. This is treated as the debt the security for which •the mortgage was held by the estate. And the fact that entry of its receipt was upwards of four months after the foreclosure sale is referred to as a significant fact. And it is contended by the petitioners counsel that while Thayer may have had the right to •pay the debt and have the mortgage restored to him before the foreclosure of it, that no right of redemption survived the sale. ■It may not be important for the purposes of this case to inquire whether from and after the time of his appointment as administrator the appellant held the relation of debtor upon his note, or that of depositary of the amount of the debt as administrator, ftlie debt in such case is deemed paid from that time if then due, or from the time it becomes due i-f not then payable, the amount of it in his hands as administrator, and he liable to account for it as assets.

This doctrine is founded upon the necessity arising out of the relation of administrator, as he cannot be prosecuted by action at law for the collection of the debt, and “proceeds upon the ground that when the same hand is to pay and receive, that which the law requires done shall be deemed done.” (Stevens v. Gaylord, 11 Mass., 267, 271; Ipswich Mfg. Co. v. Story, 5 Metc., 310, 313; Leland v. Felton, 1 Allen, 531; Kaster v. Pierson, 27 Iowa, 90; 1 Am. R, 254; Griffith v. Chew, 8 Serg. & Rawle, 17; S. C., 11 Am. Dec., 56; Beall v. Hilliary, 1 Md., 186; S. C., 54 Am. Dec., 649.) And at common law the rule as to executors went farther, so that the appointment of a debtor executor operated to extinguish the debt and liability on account of it, except in the event of deficiency to pay debts and legacies. (Gardner v. Miller, 19 Johns., 188; Marvin v. Stone, 2 Cow., 781.) But by statute that rule has been so modified as to preserve the debt by way of assets in his hands, which has the effect to also preserve any existing security for the payment of, or liability to account for, the debt, and thus is removed the common-law distinction in that respect between executors and administrators. (2 R. S., 84, § 13; Soverhill v. Suydam, 59 N. Y., 140.) The appellant’s notes became due before the proceedings were instituted to foreclose the mortgage, and it was thereafter held to secure his liability to account for and pay over the amount of it then deemed in his hands. This may be entitled to no consideration, as the security remained for such liability to account. And in the view taken of this case, on the assumption that the mortgage was held to secure the debt of the appellant, the question whether or not the debt may be deemed to have been paid by him before the foreclosure and sale is not important. By the foreclosure of the mortgage the equity of redemption of the mortgagor only was foreclosed; that of the appellant was not barred, but the title taken by the purchase was held as the mortgage had been, subject to his right of redemption. (Slee v. Manhattan Co., 1 Paige, 48; Hoyt v. Martense, 16 N. Y., 231.) The only question is, what was the character or extent of that right ? It was suggested, in Bloomer v. Sturges (58 N. Y., 168), that the right of redemption in the assignor might be limited to the amount secured by the mortgage, and that a lien attached to the land purchased on the foreclosure to that extent only. The right so limited as one of redemption would be of no value to him as the amount required to redeem, would equal that secured by the mortgage. The question was not in the Bloomer case. There the assignors were made parties defendant and their equity of redemption foreclosed by the judgment, and the remarks of the learned judge tending to qualify and limit the Slee and Hoyt cases were obiter. And in Dalton v. Smith (86 N. Y., 183) the court, by unqualified expression in the opinion, reaffirmed the doctrine of those cases. But in none of those cases did the facts require a complete deternn ination of this question, as to the extent of the right of redemption, although in the two former ones it was fairly covered by the views given by the court in the opinions delivered. The proposition is one of importance and interest, and its disposition depends upon the rights as between the assignor and assignee of a mortgage assigned as security resulting from the foreclosure of it and the purchase -of the premises by the latter, without barring the equity of redemption of the former, but vesting title absolute as against the mortgagor who held the legal title. Before the foreclosure the assignee, who has taken an assignment as security for a debt due him from the assignor,, caunot, unless he has acquired some junior interest in the mortgaged premises, require the latter to accept the amount-due him on the mortgage, and thereby extinguish the assignor’s right of redemption. He forecloses the mortgage and becomes the purchaser without affecting such equity of the assignor. By what principle is he permitted for that reason to acquire a superior right ■then to extinguish such equity ? The proceeds he has derived from the mortgage is the title relieved from the equity of the mortgagor. Who then is entitled to the benefit of the extinguishment of that .equity of redemption ? The assignee has taken it by means of the assignment to him of the mortgage as security. As between him and his assignor he was entitled to his debt, and the equity of the latter embraced all the benefits beyond that of the security furnished by the assignment of the mortgage, and this would seem to include the fruits derivable and derived from it. And it is difficult to see why the assignee thus taking the title did not, as against his assignor, take and hold it as a like security as that for which he held the mortgage and as a substitute for it. The mortgage was a defeasible conveyance of the premises covered by it. The assignee has merely eliminated the defeasance and taken the title by force of the conveyance given by it.

The assignor’s right of redemption must relate to the land as effectually and completely as it existed to reclaim the mortgage. The former has become a substitute for the latter, and as to the assignor the defeasance continues until legally barred. In such case the equity of redemption or title is held in the nature of a trust in behalf of the party having such right. (Terrett v. Crombie, 6 Lans., 82; affirmed, 55 N. Y., 683.)

The view of the learned, surrogate, that because the appellant was the promoter of the foreclosure of the mortgage and a party to the proceedings he cannot assert that any right of redemption remained or was reserved for his individual benefit is not' supported. Such proposition was urged and prevailed at Special Term in Hoyt v. Martense (8 How., 196) where the assignor of a mortgage as security was a party plaintiff with the assignee in an action to foreclose it. But the Court of Appeals held to the contrary and reversed the court below. (16 N. Y., 231.)

His relation as debtor to the intestate and the assignment to the latter by him of the mortgage as collateral security for its payment, relieves the appellant from disability to redeem the security so held by the administrators for the discharge of his liability. And he is legally no more embarrassed in the exercise of this equitable right than if he were a stranger to the trust.

But it is contended that the purchase of the premises was a satisfaction of the appellant’s debt and merged it; that the land became a substitute for it, and that thereafter he could not account for the debt,because none remained, but must account for the land, its value or proceeds.

At the time of this foreclosure sale and purchase the appellant had not accounted for the debt secured by the assignment of the mortgage. And it was not only proper, but his duty to see that the security was retained until such liability to account was discharged. There is nothing in the circumstances of such foreclosure sale and purchase by the administrators to indicate a purpose to change the relation of the property from that of security, for which the mortgage was held, to that of an indefeasible title in the representatives of the testator. This change would not result from the mere fact of such sale and purchase.

Merger is the consequence of the union in the same person of the legal and equitable estates, when those estates are co-extensive or when the legal estate is more comprehensive than the equitable one, subject, however, in equity to the intention of the party in whom they unite to continue the existence of the equitable estate, (James v. Morey, 2 Cow., 246.) And to permit merger both estates must also be held in the same right as well as by the same person.

The administrators were sub modo trustees of the appellant’s equity of redemption of the mortgage which would not be merged and extinguished by the mere operation of law upon the sale and purchase by them. (Hadley v. Chapin, 11 Paige, 245.) The facts will not support the conclusion that he intended to surrender his equity of redemption and extinguish his liability to the estate by vesting title absolute for its benefit-. He had no legal right to satisfy his liability by buying in property held as security for it. In such case if the property turned out not to afford proceeds sufficient to pay the amount of liability the trustee would still be liable to account for the deficiency. Otherwise, the opportunity to thus discharge his own debt might be productive of much abuse. And, as before remarked, the taking the title on the foreclosure sale in the name of the administrators was consistent with the duty of the appellant to continue the security for his liability to account for the amount of the debt to secure which the mortgage was assigned to his intestate. The amount of such debt was accounted for and his liabilitydiscliarged before the conveyance was made of the land to his son Samuel for him. This was the method adopted to produce the redemption by him pursuant to the equitable right he had to accomplish it.

Thus far we have proceeded on the assumption that the debt was that of the appellant. This the surrogate has not distinctly found. But he has found that application was made to Messrs. Pitts and Gilbert in behalf of the Little Palls Manufacturing Company for a loan, and that they were willing to loan $3,000 if Thayer would guarantee or become responsible for it, and thereafter such proposition was accepted. The loan was consummated in the manner before mentioned. And while the purpose was to enable the company to obtain a loan, the transaction as between the lenders and the appellant took the form which gave them the apparent relation of creditor and debtor by their taking the notes of the latter. And he took from the company its notes secured by its mortgage. And . the lenders had nothing from the company except by the assignment made to them by the appellant, which was for the expressed purpose of securing the payment of his notes. This situation does not seem to affect the question here. He stepped in and assumed an original liability for the amount loaned and his relation must be treated in fact as it was in form, that of debtor. It was so treated by them in the papers made in relation to the matter, and by the administrators, when the inventory of the assets of their intestate was made and in the final accounting had. And it became unnecessary to consider whether his rights would have been any different if they had depended upon that of subrogation.

There are some other minor matters having relation to a rate of interest upon the securities taken by the appellant from the company, greater than that afforded by his notes, in which the lenders claimed the right to participate, and on account of which the appelllant later made some further payments to Pitts and some of the next of kin of the intestate. Those circumstances import nothing to defeat his equity or right of redemption. This right furnished a sufficient reason for, and to support the conveyance made to him. It does not appear that he at any time had the purpose to relinquish such right, nor is there any injustice to the petitioners by its exercise. They had the benefit derived from the payment by him of the debt which was the extent of the liability to the estate arising out of the loan, and the appellant by such payment redeemed that which had been received from him as collateral security for the debt he had so incurred to his intestate. The ultimate value of such security is entitled to no consideration upon any question involved in this review. The view taken of this case requires the consideration of no other question presented on the argument.

The order of the surrogate should be reversed.

Smith, P. J., Barker and Haight, «LL, concurred.

Order of surrogate reversed, with costs of this appeal.


text:
    FREDERICK B. POTTER, Appellant, v. SYLVANUS K. GREENE and WILLIAM EPES, as Executors of DAVID GREENE, Deceased, Respondents.

      Indenture of apprenticeship — 2 B. 8., 154, secs. 1, 2, 8 — when voidable by reason of the absence of the certificate of the justice — when the infant may recover for sen-y^ices he.was compelled to render under duress of his supposed master. .

    In January, 1871, the plaintiff, then of the age of fourteen years, became a party to an indenture of apprenticeship by the terms of which he, with the consent of his mother, bound himself as apprentice until he attained the age of twenty-one years to the defendants’ testator. The instrument, which recited that the plaintiff’s father had abandoned his family and was dead, was properly executed, except that there was no certificate indorsed thereon by a justice of the peace to the effect that the father had abandoned and neglected to support his family as required by the statute, although such abandonment and neglect had in fact occurred. The plaintiff, pursuant to this agreement, went to reside with the testator and remained there working for him between five and six yoars, when he left without the testator’s consent and did not return. This action was brought to recover the values of the services rendered by the plaintiff during that time upon the ground that the indenture of apprenticeship was void, and that the services were rendered under duress.

      Held, that the omission of the certificate of the justice rendered the indenture voidable at the election of the infant.
    That so' long as the plaintiff voluntarily remained in the service of the testator, pursuant to the terms of the instrument, no promise on the part of the testator to pay him for his services would be implied.
    That if the plaintiff did not voluntarily remain in the service of the testator, pursuant to the indenture, but refused so to do, and sought to leave him and was compelled to remain by the threats or duress of the testator, then he would be entitled to recover in this action the value of the services so rendered.
    That the facts in this case required that the question as to whether or not the plaintiff had been retained in the service of the testator by threats or duress should have been submitted to the jury.
    Appeal from a judgment, entered upon a nonsuit ordered at tbe Monroe Circuit.
    The action was brought to recover for services alleged to have been performed by the plaintiff for the defendants’ testator, who died during the pendency of the action, and the defendants were substituted as such.

      J. S. Garlock, for the appellant.

      Walter S. Hubbell, for the respondents.
   Bradley, J.:

When at the age of fourteen years the plaintiff became a party to an indenture of apprenticeship of date January 1, 1871, by the terms of which he, with the consent of his mother, bound himself as apprentice until he attained the age of twenty-one years to the defendants’ testator. The instrument was subscribed by those parties, and annexed was the written approval and consent of the mother of the plaintiff subscribed by her of the same date. In the body of the indenture it is parenthetically stated that the father of the x>laintiff “ being dead and having abandoned liis family,” etc. The plaintiff, pursuant to this agreement, went to reside with such testator, and into his service, and remained there between five and six years, when he left without the consent of Green and did not return. This action is brought to recover the value of his services. And in support of it the plaintiff’s counsel contends that the instrument so executed was void, because: First. The father was then living, and the consent of the mother was ineffectual ;.and second. There was no certificate oi a justice of the peace indorsed of the fact of abandonment and neglect by the father to provide for his family. The statute provides that an infant under the age of eighteen years may bind himself to serve as an apprentice with the consent of his father, and if the father be dead or not of legal capacity to give his consent, or he shall have abandoned and neglected to provide for his family, and such fact be certified by a justice of the peace of the town, and indorsed on the indenture, then by the mother.” (2 R. S., 154, §§ 1, 2.) And the consent required shall be in writing at the end of, .or indorsed upon the indenture. (Id., § 3.)

Whatever view may be taken of this instrument and its effect, no promise on the part of Greene can be implied to pay for the services of the plaintiff while the latter voluntarily remained with him, in the relation in which such agreement of apprenticeship purported to place them, in respect to each other. The implication of a promise to pay was repelled by the fact that the plaintiff was with him and in his service pursuant to the terms of that instrument. (Williams v. Finch, 2 Barb., 208; Maltby v. Harwood, 12 id., 473.)

It is contended that there was evidence tending to prove that the plaintiff did not voluntarily remain in such service, and that it was sufficient to permit the jury to find that he was retained there by threats or duress of Greene, and therefore, by reason of the invalidity of the indenture of apprenticeship, the latter became liable to pay for the services. A promise will be implied to pay for beneficial services performed where the circumstances and relation do not rebut the implication. (Lewis v. Trickey, 20 Barb., 387.) And a liability may arise, where the services are obtained by fraud or duress, without any right to require their performance. This is upon the principle that a party will not be allowed to show that he has himself committed a wrong in order to defeat an implied promise.” (Maltby v. Harwood, 12 Barb., 479.)

On the part of the plaintiff testimony was given to the effect that the plaintiff said he would leave and go away, and that Greene said to him if he did he would bring him back, and then if he did not stay would put him in a place so as to know where he was, and spoke of the work-house, and the plaintiff testifies that he heard Greene say to his wife that if the plaintiff did run away he would arrest him and bring him back. This was not said to him or in his presence, but he says he was where he heard it.

The requests to submit to the jury the questions whether the threats of Greene constituted compulsion, and whether the plaintiff was held in his service b.y force and compulsion when he was under no legal obligation to perform service for him, were refused by the court and exception was taken.

There is no evidence tending to prove or to justify the conclusion that the apparent relation in which the indenture purported to place the parties was produced by any fraud or misconduct on the part of Greene, or that he used any improper means to cause such relation or to obtain the services of the plaintiff; nor is the conclusion required that he afterwards asserted any claim to such services which he did not believe was within the relation and right furnished by the instrument in question. Both parties evidently entered upon the discharge of the duties of the relation of master and apprentice in good faith. If, however, that instrument was absolutely void it was no justification for Greene to require the performance of services by the plaintiff against his will. But we think the indenture was not void, although it may have been voidable. For the purposes of an agreement of apprenticeship the statute lias removed the disability of the infant, and makes his execution of it effectual to charge him with the obligation which its terms import to create, provided it is executed in conformity with the statute. One of the requisites is that it be done with certain prescribed consent. The mother under some and defined circumstances is competent to give the consent. She has done it in this instance in the manner required. The fact of abandonment and neglect of the father (if living) is the requisite one to enable her so to consent as to support the agreement and make it binding on the part of the infant. That fact did exist; as it appears by the evidence of the plaintiff that the father and mother separated in 1866 or 1867; that he (the plaintiff) went with his mother, and thereafter the father never contributed to the support of his family or of the plaintiff. The mother, therefore, in fact came within the qualified condition provided for by the statute to furnish the requisite consent to enable the plaintiff to bind himself by the execution of the indenture. But we think that the certificate of the justice of the peace is so essential that it cannot be dispensed with, and that the existence of the fact permitting the certificate where not supported by it does not defeat the right of the plaintiff to invalidate the agreement, as the statute provides that it shall not be valid against the infant unless made in the manner prescribed. (2 R. S., 158, § 26.) The father does not seek to avoid it. It was probably valid as to the mother; and, at the most, it was as to the plaintiff voidable only. (In re McDowles, 8 Johns., 328; Schermerhorn v. Hull, 13 id., 270; Fowler v. Hollenbeck, 9 Barb., 309; People ex rel. Barbour v. Gates, 43 N. Y., 40-45; reversing 57 Barb., 294.) The defendant’s testator was bound by the instrument, and if the plaintiff had remained with him until the expiration of the time provided for by it, he would have taken the benefit of its terms. (Owasco v. Oswegatchie, 5 Cow., 527; Hamilton v. Eaton, 6 id., 658.) The right of an infant to bind himself as an apprentice, did not depend upon statute. It was deemed binding at common law when for his benefit. (King v. Arundel, 5 Maule & S., 257.) The method by which he .may be bound is wholly statutory in this State, and where he executes the indentures they are not void as to him, but voidable only for any substantial defect or omission in their execution, which is the rule applicable to other executory contracts of infants. During the time he was with Greene, the plaintiff did or said nothing by way of avoiding the agreement, other than such as was inferable from his expressed purpose to leave. A purpose on the part of the plaintiff to leave the service of 1-reene, and the expression of such purpose, did not constitute a disaffirmance of the agreement and severance of the relation between them, nor did it, with the denial by Greene of his right to leave, have that effect. The fact that the relation of master and apprentice was lawfully instituted and voluntarily assumed, with the mere right of disaffirmance on the part of the plaintiff/distinguishes the case from one where the services of another are obtained by force or fraud, and’their continuance characterized by the like wrong. There the wrong is not available to defeat implication of a promise to pay. Here continuance in the service, after expression of purpose to leave, will be treated as restoration of purpose to remain and continue the same relation until the contrary is made to appear, which was evidenced by the act of the plaintiff iu leaving. And while this gave effect to his purpose, the act did not by relation apply to the time the purpose was previously so expressed, so as to operate as a disaffirmance as of that time for the purposes of the relief in view in this action. But the question arises whether the evidence was sufficient to permit the conclusion that the plaintiff had, and expressed to Greene, the purpose to disaffirm the agreement, and was denied the exercise of such right by duress on the part of the latter, and that he thereafter continued in his service by the force of such duress and not by reason of the relation produced by the articles of apprenticeship. Duress,per minas, is not, as defined in 1 Blaekstone’s Commentaries, 131, confined to fear of loss of life orilimb or mayhem, but in this State is held to embrace also threats and fear of unlawful imprisonment. (Foshay v. Ferguson, 5 Hill, 154; Knapp v. Hyde, 60 Barb., 80; Dunham v. Griswold, 2 Eastern Rep., 674; see to same effect Taylor v. Jaques, 106 Mass., 291; and with some qualification Harmon v. Harmon, 61 Me., 227; S. C., 14 Am. R., 556; Seymour v. Prescott, 69 Me., 376.) Although the plaintiff did not refer to the agreement, or in terms his right to disaffirm it, he did express a purpose to do that which in effect might operate as disaffirmance, and if he was prevented by duress, it is difficult,to see why that fa/Ct may not be available to him for the purpose of relief. The evidence is not decisive that the plaintiff declared his purpose to leave with a view to disaffirmance of the indenture (which depended upon his intent to thus permanently sever his relation of apprentice), or that he remained thereafter in the service of Greene in any other relation than that which the indenture purported to give. And it may be that the latter in expressing his purpose to bring him back and put him in restraint if he did leave, had in view only what he believed his legal right justified him in doing. (2 R. S., 159, § 29.) The right of the plaintiff to leave the service of Greene and thus disaffirm the indenture, would render his arrest unlawful. And as the language used may be construed into a threat to arrest him if he left the service, we think there was sufficient in the evidence • to present for the jury the question of fact for them to determine, ■whether the plaintiff had and expressed his purpose to leave, with a view to the disaffirmance of the agreement, and if he did, whether the defendant’s testator threatened to arrest him if he did go away, and whether by fear of such arrest and by reason of it only, the plaintiff thereafter remained in the service of Greene under circumstances which fairly repel the inference that he did so in the relation of apprentice, pursuant to the indenture. For if his purpose to remain may be deemed to have been restored after the expression of his purpose to leave, so that he did not, in fact, stay under any new or different relation, he is not entitled to recover.

The plaintiff’s right to maintain his action, depends upon a promise, ■ expressed or implied, of the testator to pay him, other than that contained in the indenture agreement, and to justify a recovery it must Dbe found that a new and different relation was in some manner produced. If the plaintiff was by force or duress denied the exercise of his right of disaffirmance, which he otherwise would have done, and was thereby continued in Greene’s service, the latter could not make his wrongful detention available to defeat the implication of a promise to pay for services obtained in that manner, but if thereafter at any time before be left the service the purpose of the plaintiff was restored and he voluntarily continued in the relation of apprentice under the agreement, he could not assert the previous duress in support of any claim for services performed. And in no event could he recover for his services obtained by Greene otherwise than by such duress. But while duress may be the result of the requisite threats, it is not necessarily produced by them. It depends wholly upon the effect they have upon the person to whom they are directed and comes from fear of their execution and its consequences, and thus deprives the person of voluntary action and places him under the influence and control of the menace against his consent or will. The evidence was sufficient for the consideration of the jury, and whether it established any fact to support the plaintiff’s action founded in the charge of duress was for them to determine. That question, therefore, should have been submitted to the jury with proper instructions. "We have proceeded on the assumption that the plaintiff’s father was living when the indenture was made. If he was then dead, as recited in it, no certificate of a justice was necessary to effectuate the consent of the mother and the agreement was not voidable. (People ex rel. Barbour v. Gates, 43 N. Y., 40.)

We think there was no error in the refusal to submit to the jury the question whether there was any express promise of the defendants’ testator to pay for the plaintiff’s services. The fair construction of the evidence in that respect, and that which seems to be required, is that the expressions referred to of Greene had relation to the full performance by the plaintiff of his agreement to remain until he reached twenty-one years of age, and were in view only of such performance.

These views lead to the conclusion that the judgment should be reversed and new trial granted, costs to abide the event.

Smith, P. J., Barker and Haigi-it, JJ., concurred.

Judgment reversed and a new trial granted, with costs to abide the event.


author: Bbadley, J.:

text:
    S. HATCH GOULD and Others, as the Board of Health of the Town of Brighton, Appellants, v. THE CITY OF ROCHESTER, Respondent.

      Boards of health in towns — power of, to malee orders and regulations affecting ■nuisances — they cannot compel affirmative action beyond the town limits — all orders and regulations must be served within the town limits — power of the boa/rd to maintain actions to restrain violations of its regulations — 1850, chap. 824; 1881, chap. 431, sec. 2; 1882, chap. 351, secs. 2 and 4.
    A large portion of the sewage of the city of Rochester is discharged within the limits of the city into a creek, which flows into and through the adjacent town of Brighton into Irondequoit hay. The waters in the creek are naturally pure and wholesome, hut by reason of the discharge of the sa id sewage they have become filthy and unwholesome, emitting foul and unwholesome odors and being dangerous to the public health of the town. The board of health of the town adopted a resolution forbidding any person or corporation from discharging any sewage into any of the streams crossing the said town under a penalty of $100, and another which declared the discharge of the sewage into the creek at the outlet of the sewers to be a nuisance, and its suppression and removal to he necessary for the preservation of the public health, and ordered that the said nuisances be suppressed under a penalty of $100, and that the board prosecute any person or corporation who should violate the regulations and restrain him or it from so doing.
    Copies of the resolutions having been served upon the city of Rochester and posted as required by the resolutions, this action was brought by the hoard to restrain the defendant from violating the said regulations, and to suppress the nuisance created by its acts.

      Meld, that the board of health could only maintain actions to restrain the violation of regulations and orders which had been duly passed by it and duly served as required by law upon the offending party.
    That as the defendant in this action, the city of Rochester, was not within the territorial limits of the town of Brighton, no jurisdiction over it oould be acquired by any proceedings which the plaintiffs, as a board of health, were permitted to take with a view to the relief in question.
    That the service of the order upon the defendant in this case was not within the statutory power of the plaintiffs, and that the defendant could not be treated as disobeying or violating any order of the plaintiffs for the purposes of any remedy founded upon it.
    Appeal by the plaintiffs from a judgment of dismissal of the complaint, entered on a decision made at the Monroe Special Term.
    The action was brought to restrain the continuance, by the defendant, of an alleged nuisance affecting the public health in the town of Brighton, and for damages occasioned by it.

      Walter S. Hubbell, for the appellants.

      J. N. Beókley, for the respondent.
   Bbadley, J.:

The plaintiffs constitute the board of health of the town of Brighton, in the county of Monroe. This town adjoins the city of Rochester on the northerly and easterly, sides of the latter. A large part of the city is drained by sewers having their outlet near the head of Thomas creek, and known as the Monroe avenue outlet. And from there is an artificial drain leading to'the creek within the city, by which the contents of those sewers are conducted into it. Another considerable portion of the city is drained by a system of sewers having what is known as the East avenue outlet which discharges the sewage at Culver street, which is the line between the city and the town of Brighton, and from there by means of an artificially constructed ditch the sewage is conducted to Thomas creek. This ditch is wholly within the town of Brighton. The creek rises in the south-easterly portion of the city and flows thence into and through the town of Brighton into Irondequoit bay. The creek is largely supplied by springs and in its natural condition the water of it is pure and wholesome. But by the constant flow of sewage in this ditch to the creek, thence down it through the town, deposits are made on and along its banks the waters of the creek are polluted, are filthy and unwholesome, causing the emission of foul and unwholesome odors, and as a consequence this condition has become dangerous to the public health in the town. The circumstances seem to be such as to make relief important if not actually a necessity for the protection of the health of the inhabitants in that locality. And the question arises, whether the remedy sought by this action is wdthin those cases which the plaintiffs may apply for relief. Their powers are those only com ferred by statute.

The creation of boards of health for towns, was provided for by Laws of 1850, chapter 824, which was entitled “An act for the preservation of the public health.” No right of action was then given to tbem, but later to facilitate their proceedings they were permitted to maintain actions. (Laws of 1870, chap. 559.)

In respect to the powers they may exercise, the statute provides that “ they shall have cognizance of the causes of injury or danger to the public health” (Laws 1881, chap. 431, § 2), “to receive and examine into the nature of complaints made by any of the inhabitants concerning causes of danger or injury to the public health within the limits of its jurisdiction” (Id., § 4); * * * “to make orders and regulations in their discretion concerning the suppression and removal of nuisances, and all such other orders and regulations as they shall think necessary and proper for the preservation of the public health; also, to enter upon or within any place or premises where conditions dangerous to the public health, are known or believed to exist, and by appointed members or persons, to inspect and examine the same for the protection of life and health and for no other purpose, and all owners, agents and occupants shall permit and facilitate such sanitary examinations, etc., * * * to publish from time to time all such orders and regulations of general obligation as they shall have made, in such manner as to secure early and full publicity thereto, and to make, without publication thereof, such orders and regulations in special or individual cases not of general application as they may see fit concerning the suppression and removal of nuisances, and concerning all other matters in their judgment detrimental to the public health, and to servo copies thereof upon any occupant or occupants of any premises whereon any such nuisances or other matters aforesaid shall exist, or by posting the same in some conspicuous place on such premises, * * * to impose penalties for the violation of or non-compliance with their orders and regulations, and to maintain actions in any court of competent jurisdiction, to collect such penalties not exceeding one hundred dollars in any one case, or to restrain hy injunction such molaitons, or otherwise to enforce such orders and regulations.” (Laws of 1882, chap. 351, § 1, subs. 3, 6, 9.) And it is further provided that every person who shall willfully violate or refuse to obey any order or regulation so made and published, or any order so made and served or posted as aforesaid, shall be deemed guilty of a misdemeanor * * * and in any case of non-compliance with any order or regulation which shall have been so served or posted * * * the said board * * * may lawfully enter upon any premises to which such order or regulation relates and suppress or remove the nuisance or other matters in the judgment of said board detrimental to the public health mentioned in such order or regulation, and any other nuisance or matter of the description aforesaid found there existing.” (Id., § 4.) These embrace all the provisions of the statute requiring consideration here, and all that seem to be necessary to aid in their construction and purpose as applicable to the boards of health of towns.

Assuming to proceed pursuant to the statute the board of health •of the town of Brighton adopted a resolution “ that no person or -corporation discharge or empty upon or cause to be flowed upon or to be discharged or emptied upon any of the lands or into any of the streams crossing in the town of Brighton, the contents of any privy, water-closet or urinal. That a penalty of one hundred -dollars, be and the same is hereby imposed upon any person •or corporation who violates this regulation, that a copy of this regulation be served upon the city of Rochester, and that ■three copies thereof be posted in three conspicuous places in ■the town of Brighton.” The serving and posting were done as -directed by the resolution. And the board of health adopted .another resolution or order to the effect that the discharge of sewage from the Monroe avenue, and from the East avenue sewer into the ■town of Brighton, the sewage from both of which ultimately flows Into Thomas creek, are nuisances; that the suppression and removal of said nuisances are necessary for the preservation of the public 'health; that it is ordered that each of them be suppressed, and that ,a penalty of $100 is imposed upon any person or corporation violating this regulation, and that this board prosecute any person or corporation who violates it, or commence an action in the name ■of the board to recover the penalty, or to suppress or restrain each ■of said nuisances, or otherwise enforce this regulation, and that a ■copy of it be served on the city of Rochester. Such service was -made. And the flow of sewage, as before, has continued without relief from the cause .of complaint. This action was afterwards brought.

The purpose of 'the statutory powers in question was the protection -of the public health. The statute is therefore remedial in character and entitled to a liberal construction witli a view to the beneficial results designed. (Hudler v. Golden, 36 N. Y., 446.) There is no right of one so to use his property as unnecessarily to injure the property or rights of another. And the same rule applies with equal force to the right of protection of the health oí one community against the unnecessary consequences endangering it, which come from the action of the people of another and adjacent community of persons. The question is one of remedy simply. The foundation of the right of action in the plaintiffs is the provision of the statute giving them power to make orders and regulations for the purpose of interfering, removing, suppressing or restraining whatever may be deemed necessary to relieve the public within their town from danger to the public health, and for its protection and preservation from causes which may be so removed,, suppressed or restrained. Their powers and jurisdiction are of course confined to the protection from those consequences in their, town. And it is hardly to be supposed that the board has been given the power to go beyond the limits of its town to summarily remove or suppress the causes from which nuisances complained of proceed. The evident legislative intent was to confer jurisdiction upon the boards of health to control or regulate the use of property and premises in their respective towns when the public health required, and to thus confine their summary action in respect to properties. Rut the same reason does not necessarily apply to an action to restrain or require the suppression of a nuisance in the town, although it spring from or is occasioned outside its limits. The nuisance, with its effect upon the public health, is in the town and within the protectorial care and the territorial supervision of its board of health. It may make orders for the suppression and removal of nuisances and such as they think necessary for the preservation of the public health, and concerning all matters in their judgment detrimental to the public health, and maintain actions to restrain by injunction violations of its orders and regulations. Those made in this case were to suppress and remove the nuisances occasioned by the flowage of the two sewers before mentioned. We think the plaintiffs could not make an order effectual to permit them to go upon the territory of the city and remove a nuisance, or the cause of a nuisance there, although such nuisance was continued into their town, or because such causes developed into a nuisance on reaching the boundaries between the two municipalities. And it is only to that extent that the decision in Regina v. Cotton (1 Ellis & Ellis, 203) is applicable. The right of action for penalties under the statute in question depends upon the violation of or non-compliance with an order or regulation of the board, and to produce such violation or non-comqfiiance, those of “ general obligation ” must be so published as to secure early and full publicity; and in other or special cases they must be served upon the occupant of the premises where any such nuisance shall exist, or by posting them in some conspicuous place on such premises. The premises in view, by the provisions of the statute, would seem to be those within the town. The inquiry arises: First. Whether to restrain by action the violation of an order or regulation of the board of health, it is necessary that the order or regulation be first served upon the party who is thus to be restrained; and if so, second. Whether the statute can be so construed as to provide for or permit the service of such order outside the limits of the town upon a party who does not reside, and never has resided or been, in the town. This is the situation of the defendant. The action is not founded upon the violation of an order or regulation, but upon the non-compliance with one which in terms required of the defendant an affirmative act by way of suppression of a nuisance in the town which had been caused by a consummated act of the defendant before the order for suppression was made. The action is one to compel the defendant to abate it, because its continuance is in violation of such order of the plaintiffs. The right of action rests upon the fact that its continuance is in violation of their order, and because of the non-compliance of the defendant with it. It seems to us that the statute contemplates that this remedy by action shall be dependent upon previous notice to the party, and that until then the right of action does not arise, and that the difficulty in this case is in this limitation upon the right to resort to an action for relief. The service provided for is that it be made upon the occupant of the premises where the nuisance exists. But for those qualifications of the powers and their exercise there might, perhaps, be no difficulty in the way of the maintenance of the action in view of the purpose of the act as expressed in the title. They, however, tend to sbow that so far as any affirmative act can be required by way of compliance with an order the jurisdiction of the board embraces only parties twho are within the town, and such is the construction which the language of the statute in that respect seems to require.

The right of action follows the right to make orders and regulations and is given that they may be made efectúa!. It would seem that the board of health had the right of action to restrain the violation of any order or regulation legitimately made by it. Such is the evident purpose of the statute in giving the remedy by action. The violation of such an order would necessarily require the performance of some act in the town because its operation could not reach beyond its boundaries. And any party who by any agency employed to proceed to violate such order would be subject to the remedy by action in behalf of the board to restrain. And the order or regulation having become effectual by the requisite service or publication no notice specially to the party whose violation of it is apprehended would be necessary to support such action. And there is no apparent reason why this rule and right of remedy would not be applicable as against an adjacent municipal corporation, as well as against an individual who should, by himself or by another, attempt some affirmative act in violation of such an order. Hut here the complaint is founded upon an omission to act. The order made by the board in effect directs the abatement or suppression of an existing nuisance, the compliance with which requires some affirmative act on the part of tiie defendant, and to accomplish that is the purpose of the action. The city has made a system of sewage and provided an outlet. The flowage from the outlet, the board of health, by the terms of its order and in effect, direct the defendant to suppress and discontinue. It is, therefore, mandatory in character and designed to be operative upon the defendant beyond the limits of the town.

The question arises whether such an order is within the powers of the board. If it is the remedy by action would seem to follow. It is quite evident that the statute does not permit the operation of an order or regulation beyond the boundaries of the town or upon any party beyond its limits. The relief in view by this action rests upon non-compliance by the defendant with the order of the board of health. It seems to us that the statute contemplates that the remedy by action in such case shall be dependent upon previous notice to the party, and that until then the right of action does not arise. The service provided for is that it be made upon the occupant of the premises where the nuisance exists. The statutory limitations and qualifications of the powers of the board and of the manner of service, seem to deny the right to make service of an order outside the town, so as to make it effectual upon a party not within it. This is the situation of the defendant.

There is no charge that it designs to do any act within the town of Brighton, but that it is in disobedience of an order requiring it to discontinue the wrong which is being done by means of an act accomplished before the order was made.

In Reed v. The People (1 Park. Cr. R., 481), the plaintiff in error was by indictment charged with a misdemeanor for violation of a regulation of the board of health of the village of Albion, made pursuant to the Laws of 1850 (chap. 324). He had previously resided in the village, but shortly before the adoption of the regulation he removed from there and became a resident outside of and only a short distance from the limits of the village. And the order or regulation was then served upon him and it had relation to premises within the village owned by him and which he had previously to his removal occupied. The case came before the General Term of the Seventh Judicial District on writ of error to review the judgment of conviction of the Orleans sessions. The court there held that the refusal of the trial court to chai’ge that if the defendant at the time of the making and serving the order resided out of the corporation of the village of Albion, and the notice or order was served on him out of said corporation, they should acquit the defendant was error, and added “ that persons residing out of such corporate bounds may render themselves obnoxious to the by-laws and regulations of the corporation by coming within and while there violating them,” but denied “the right of such a corporation to make by-laws or regulations binding personally upon an individual not residing within its geographical bounds and who has done no act within them after the making of the by-law * * * that it clearly could possess no more.extensive jurisdiction in regard to persons or territorial limits, than the corporation of the village of Albion, by whose action it was brought into existence.”

So far as relates to the power of the board of health of the town of Brighton to bring a party into violation of its order or regulation for the purposes of a right of action, the conclusion of the court in the Reed case, as expressed in the opinion delivered, is applicable, and in that respect there seems nothing to substantially distinguish the statute of 1850 from the subsequent amendatory acts. And in the view taken of the statute the same rule is applicable to afford the right to enforce compliance with an order of the board, which is the purpose of this action. While in that case the party was charged with crime, the right of the board to maintain a civil action under the statute depends no less upon the force of the order upon the party defendant than to support an indictment, except that the latter requires that the violation be willful. But it is said that the defendant is deemed engaged in the act of creating the nuisance so long as it continues and, therefore, is proceeding in violation of the order of the board. It is true that for the purpose of remedy and . relief, every continuance of a nuisance is deemed a fresh one. But in fact the defendant is doing and proposes to do no affirmative act to create or continue the nuisance. Its continuance is occasioned by structures within the city which it constructed. The relief asked for requires action and not-non-action on the part of the defendant. And the question still remains whether it can be put into disobedience by an order of the plaintiffs so as to permit an action for relief in the nature of a mandatory injunction, although theoretically to restrain the continuance of a nuisance. The question is one of jurisdiction of the board of health to reach by operation of its order a party beyond the bounds of its municipality so as to require of him some affirmative action. We are unable to give to the statute a construction which permits the exercise of such power. And however important it is to the town represented by. the plaintiffs that it ■ should have relief, the statutory qualification of the powers given, whether deemed wise or not, must be observed.

The conclusion here is upon the ground that no jurisdiction of the party defendant could be acquired by any proceedings which the plaintiffs as a board of health were permitted to take with a view to the relief in question — that the service of the order upon defendant was not within the statutory power of the plaintiffs and therefore the defendant cannot be treated as in disobedience or violation of the order for the purposes of any remedy founded upon it.

These views lead to the conclusion that the judgment should be affirmed.

Smith, P. J., Barker and Haight, JJ., concurred.

Judgment affirmed, with costs.