author: BarNArd, P. J.

text:
    Silas C. Lewis, Plaintiff, v. Hayden W. Wheeler and others, Defendants.

   Exceptions overruled and verdict for defendant by order of court, and judgment thereon affirmed, with costs. Opinion by

BarNArd, P. J.


source: Caselaw Access Project

author: Barnard, P. J.;

license: Public Domain

text:
    Oliver W. Marvin, Appellant, v. Augustus Prentice, Respondent.

   Order setting aside verdict for plaintiff and directing judgment for defendant and judgment thereon affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., dissenting.


author: Gilbert, J.;

text:
    The People of the State of New York ex rel. John Riley v. James Jourdan, as Commissioner of Police and Excise of the city of Brooklyn, Respondent.

   Order removing relator as captain of police affirmed, with costs. Opinion by

Gilbert, J.;

Barnard, P. J., dissenting.


author: Dykman, J.

text:
    William D. Nichols and others, Respondents, v. Frederica M. Kinney and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Dykman, J.


author: Gilbert, J.

text:
    Edward J. Woolsey, Appellant, v. John R. Morris and others, Respondents.

   Judgment and order denying resettlement of case affirmed, with costs of appeal and disbursements. Opinion by

Gilbert, J.


text:
    Louis Thaler, Respondent, v. The Long Beach Improvement Company, Appellant.

   Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Dykman, J.


author: Barnard, P. J.

text:
    Ira B. Tuthill, Appellant, v. Edmund R. Morris, Respondent.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    William H. P. Reed, Respondent, v. Swane Antrop and Esther Perry, Appellants.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Margaret Flannagan, Respondent, v. Joseph McKim, Appellant.
   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    Herman Haase, Respondent, v. Rosannah W. Eames, Appellant, Impleaded, etc.
   Motion to dismiss appeal withdrawn.


author: Dyhman, J.;

text:
    Phebe A. Griffith, Appellant, v. Julia E. Mayland, Respondent.
   Judgment affirmed, with costs. Opinion by

Dyhman, J.;

Gilbert, J., concurs in result.


author: Dyhman, J.

text:
    The President and Trustees of the Village of Sing Sing, Respondents, v. James L. Wheeler and others, Appellants.
   Order affirmed, with costs. Opinion by

Dyhman, J.


text:
    James K. O. Sherwood, Respondent, v. Samuel T. Hauser, Appellant.
   Judgment reversed and new trial granted, costs to abide event; order of reference vacated. Opinion by

Barnard, P. J.


text:
    First National Bank of Helena, Montana Territory, Appellant, v. James K. O. Sherwood, Respondent, No. 1.
   Judgment of 9tb of May, 1881, reversed and new trial granted, costs to abide event; order of reference vacated. Opinion by

Barnard, P. J.


text:
    Same v. Same, No. 2.
   Judgment reversed and new trial granted, costs to abide event; order of reference vacated. Opinion by

Barnard, P. J.


author: Gtlbert, J.

text:
    Long Island City, Respondent, v. John Horan, Appellant.
   Judgment affirmed, with costs. Opinion by

Gtlbert, J.


text:
    In the Matter of the Application of the New York, Woodhaven and Rookaway Railroad Company to Acquire Lands.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    James Davren, Appellant, v. John R. Morris, Respondent.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    In the Matter of the Boundary Line between the Towns of North Hempstead and Oyster Bay in Queens County.
   Order refusing writ of certiorari affirmed, with costs and disbursements. Opinion by

Gilbert, J.


text:
    Lawrence Odell, Respondent, v. Alexander McCue and others, Executors, etc., Appellants.
   Order confirming report of referee and judgment entered thereon affirmed, with costs. Opinion by

Barnard, P. J.


text:
    In the Matter of the Application of the Central Trust Company
   Order granted.


text:
    John Straihn, Respondent, v. Isaac Spence Smith, Appellant.
   Appeal dismissed.


author: Davis, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE SOCIETY FOR PRETENTION OF CRUELTY TO CHILDREN v. EDWARD G. GILMORE.

      Contempt — what is not a resistance to a lawful mandate of a court— Code of Civil Procedure, sees. 8, 9 — When a mandate is issued by a court — As to the right to take a child from a parent who uses such child for illegal purposes, by habeas corpus— Chap. 122 of 1876.
    The fact that a door-keeper, stationed at the private entrance of a theatre, refused-to allow an officer to enter by that door, for the purpose of arresting, under a warrant, a person then on the stage, and that the door-keeper had been ordered by the manager of the theatre not to allow any but actors and employes to use that entrance, does not render the manager guilty of a contempt, in resisting the mandate of a court, when it appears that such a rule was necessary for the proper management of the theatre, and was made for that purpose, and when it does not appear that he had any notice of the action of the door-keeper on the night in question, or intended in any way to shield the actor or prevent his arrest.
    To render a person guilty of a contempt under sections 8 and 9 of the Code of Civil Procedure, for resisting “ a lawful mandate of a court of record,” the mandate must have been issued by a court, and not by a justice thereof.
    When a mandate is to be regarded as issued by the court and when by the justice signing the same, considered.

      Quiere, as to whether a parent, guardian or other person in the lawful custody of an infant child, although using such child, or permitting it to be used, for purposes prohibited by the act to prevent and punish wrongs to children can be properly regarded as holding the child in illegal confinement or custody within the meaning of section 65 of the habeas corpus act. (2 R. S. [Edm. ed.], 598.)
    Appeal from an order of the Special Term, convicting Edward G. Gilmore of criminal and willful contempt, and adjudging that he be imprisoned in the county jail for the period of thirty days and that he pay a fine of $250, and be committed to such jail until such fine be paid, unless sooner discharged by the court.

      Certiorari on relation of said Gilmore to review the proceedings of the justice before whom such conviction for contempt was had.

      A. J. Dittenhoefer, for the relator, appellant.

      L. L. Delafield and John B. Pyne, for the respondents.
   Davis, P. J.:

The order sought to be reviewed in this case is brought into this court both by certiorari, and by appeal. It is not material to determine whether or not the writ of certiorari is a proper remedy, because the order adjudging the contempt and its punishment was made by the Special Term of the court, as appears upon its face, and is therefore one which can be reviewed on appeal. All the antecedent proceedings out of which the alleged contempt arose are properly brought before the court by the appeal, and the question whether the original process alleged to have been resisted by the appellant was issued by the court or by the justice as a magistrate, is one which must necessarily be considered on the appeal, inasmuch as the authority of the Special Term to make the order may depend upon its determination. On the 9th day of October, 1879, on the application and petition of “The Society for the Prevention of Cruelty to Children,” a warrant was issued under certain provisions of the habeas corpus act, sections 65 and 66 (2 B.. S. [Edm. ed.], 593), commanding the officer to whom it was addressed to take and bring a child called “ La petite Bob,” alleged to be in the illegal custody of one ~W. M. Davene, before the justice who issued such warrant, and commanding also the arrest of said W. M. Davene as for a criminal offense committed in the taking and detaining of such child. The petition upon -which the warrant was issued does not appear in xhe papers before us. The warrant was issued under the hand and seal of a justice of this court, and it commanded that the child and the person to be arrested be brought before him. It was indorsed “ By the court, allowed: Hubert O. Thompson, clerk,” and also bears on its face the seal of the court. The provision of the habeas corpus act under which the warrant was issued are as follows:

“ § 65. Whenever it shall appear by satisfactory proof, that anyone is held in'illegal confinement or custody, and that there is good reason to believe that he will be carried out of the State or suffer sime -irreparable injury, before he can be relieved by the issuing of a habeas corpus or certiorari, any court or officer authorized to issue such writs, may issue a warrant under his hand and seal, reciting the facts, and directed to any sheriff, constable or other person, and commanding such officer or person to take such prisoner and forthwith to bring him before such court or officer, to be dealt with according to law.”

The proceedings to be had upon the return of such a warrant are directed by sections 66, 67, 68 of the same act, which are as follows:

“ § 66. When the proof mentioned in the last section shall also be sufficient to justify an arrest of the person, having such prisoner in his custody, as for a criminal offense committed in the taking or detaining of such prisoner, the warrant shall also contain an order for the arrest of such person for such offense,

“ § 67. Any officer or person to whom such warrant shall be directed, shall execute the same by bringing the prisoner therein named, and the person who detains him, if so commanded by the warrant, before the court or officer issuing the same, and thereupon the person detaining such prisoner shall make a return in like manner, and the like proceedings shall be had, as if a writ of habeas, corpus had been issued in the first instance.

“ § 68. If the person having such prisoner in his custody shall be brought before such court or officer as for a criminal offense, he shall be examined, committed, bailed or discharged, by such court or officer, in like manner as in other criminal cases of the like nature.”

. It will be observed that under these several sections a process may be issued by any “ court or officer ” empowered to issue writs of habeas corpus, and that subsequent proceedings may be had before such court, or officer, as the case may be.

It is insisted on the part of the appellant in this case, that the warrant was issued by the judge as a magistrate, returnable before himself, and was not the process of a court.

This is certainly, upon the face of the proceedings before us, a debatable question and one of much significance, for if the warrant was issued by and returnable before the justice as a magistrate or officer, the alleged charge of contempt for violent resistance to its execution could not be sustained under the provisions of the Code of Civil Procedure (§§ 8 and 9 of the Code of Civil Procedure), because in that case the resistance, if proved, would not be to a lawful mandate of a court of record.” Another and quite different statute, if any, would be applicable to the case. The warrant after its direction to the several officers named, recites: Whereas, E. Fellows Jenkins, * * has applied to me for a warrant, * * and whereas, it appears from the proofs before me on such applications that, etc., * * from which facts it satisfactorily appears to me, * * that the said child is held in illegal confinement and custody of the said Davene, * * and the facts further appearing to me sufficient to justify the arrest of said W. M. Davene.” * * Then follows the mandate:

“ These are, therefore, in the name of the people of the State of New York, to authorize and command you to immediately take the said child ‘ Little Bob,’ or £ Le Petite Bob,’ and also to arrest the said W. M. Davene and bring them, and each of them, before me without delay, to be dealt with according to law.”

“ Given under my hand and seal, at the city of New York, this 9th day of October, 1879, and subscribed by the justice and sealed with his private seal.”

These are the several facts appearing .in the process on which the claim is founded that it is the warrant of an officer and not of a court. But on the other hand, the warrant is indorsed as follows: “ Supreme Court of the State of New York. The People, etc., ex rel. E. Fellows Jenkins, Superintendent of the New York Society for the Prevention of Cruelty to Children, against W. M. Davene. Warrant. (2 E. S., 572, § 65.) Moses Taylor Pyne, attorney for relator, 52 Wall street, New York City. By the court, allowed. Herbert 0. Thompson, clerk.” And it bears also, on its face, the seal of the court.

All subsequent proceedings in the matter were evidently treated as before the Special Term at chambers. But these subsequent proceedings can hardly be held to characterize the warrant, so far as affects the question of the alleged contempt committed before those proceedings took place. The process was undoubtedly prepared by the attorney and presented to the justice for signature, and by him not scrutinized with care. It seems to be obvious that he intended and supposed he was issuing the warrant of the court, and not his own process as a judge, and if the question arose in the proceeding under the warrant itself, affecting the care and custody of the ehild or the examination and commitment of Davene, there would be little difficulty, especially as no question seems to have been made on that subject before the justice or court in treating it as a process of the court. It is not quite so easy to do so when the question arises upon a purely collateral proceeding against a third party upon a charge of criminal contempt.

The complaint was made in this case under the provisions of the “Act to prevent and punish wrongs to children” (chap. 122 of the Laws of 1876, vol. 1, p. 95), and the offense charged against Davene is for violating the provisions of that act, which violations are, by sections 2 and 4 of the act, declared to be misdemeanors. The act of 1876 was, of course, passed long subsequent to the provisions of the habeas corpus act, and it may be doubted whether a parent or guardian or other person in the lawful custody of an infant child, .although using or permitting the use of such child for the purposes prohibited by the act to prevent and punish wrongs to children, can be properly regarded as holding the child in illegal confinement ■or custody within the meaning of section 65 of the habeas corpus act. But we do not deem it necessary to pass distinctly upon either of the propositions thus presented, because, as above stated, all of the proceedings to punish for contempt were had in the Special Term, and the appeal reaches them all. Upon a careful examination of the evidence set forth in the return, we are convinced that, assuming the process to have been the lawful mandate of a court of record within the meaning of the provisions of the act, there was no such resistance willfully offered to such mandate proven against the appellant as is required to. punish him for contempt. It appears that W. M. Davene had the custody and control of the child, “ La Petite Bob.” He and the child were employed at Niblo’s theatre, of which the appellant Gilmore was lessee and manager, as actors on the stage. Some of their exhibitions appear to have been given in the latter part of September, 1819, and to have been objected to on behalf of the Society for the Prevention of Cruelty to Children. Upon such objection the exhibitions were stopped; but in a few days after-wards Gilmore, having taken advice of his counsel, who seems to have advised him that they were not in violation of the law, resumed the exhibitions, and on the eighth of October addressed to the secretary of the society a letter, in which he suggests that, for the purpose of testing the question of the illegality of the exhibitions, he, the secretary, should cause the arrest of some responsible party connected with the theatre, and that on the judicial examination that would ensue the question could be tested as readily as by the arrest of the child, whether the performance is in violation of the law, and great inconvenience and unnecessary fright to the child can be avoided; and he added, “ While we are advised by counsel that the performance in question is entirely lawful, we promise to discontinue if decided by judicial authority to be otherwise.”

The suggestions of this letter were not adopted by the secretary. But on the ninth of October he made application for the warrant above mentioned, which was issued, and on the tenth the officer having it in charge went to the residence of Davene, but not finding him there, left word with his wife for him to appear before the justice at an hour named, or that he would be arrested wherever he could be found. It appears that on Davene’s return to his house his wife informed him of the fact that the officer had been there with the warrant and had left the directions mentioned, and that Davene immediately went to the appellant at the theatre, and was by him told in substance, as Davene says, that they could not arrest him; but, as the appellant says, that he had been advised by his counsel that the performance of Little Bob was not a violation of law and that no arrest could be maintained.

At that time, the appellant sent Davene with a note to his counsel, Mr. Dittenhoefer, who immediately wrote and sent to the secretary of the society a letter in these words:

New York, October 10, 1879.

Mr. Jenkins :

Dear Sir. — Understanding that you have a warrant for the arrest of Mr. Davene, I would like to say that if you will fix any hour on Monday or Tuesday, in the afternoon, Mr. Davene will appear with me, as his counsel, before the justice who issued the warrant.

There is no need of an arrest.

Yours, etc.,

A. J. DITTENHOEFER.

And he added a postscript to the effect that if he desired they would appear on that day.

This letter was received by the secretary, but its suggestions were not accepted. It appears further that on the evening of the tenth, the secretary of the society was at the theatre and saw the performance then on the stage. Little Bob was not there, but Davene was engaged as one of the actors. About ten o’clock in the evening the secretary and officer having the warrant and a police officer, went to the rear entrance of the theatre for the purpose of entering to arrest Davene. A person by the name of John Smith, who was the doorkeeper, having charge of that entrance, refused to-permit them to enter. The evidence of the officer given on this question was that the warrant was produced, shown to Smith, and he was informed that they desired to enter into the theatre for the purpose of arresting Davene, but that Smith told them that that was a private entrance for the use of actors and employes only, and that he had peremptory orders to prevent the entrance of all other persons. The officer’s evidence also shows that Smith used some degree of force in preventing an entrance, and in closing the door against them. A person was sent by Smith to notify Gilmore of- the presence of the officers seeking to enter the theatre, but this person did not find or see Gilmore. He saw a Mr. Tooker, and informed him that there were persons outside who wanted to make an arrest, and Tooker says that he sent back word in substance that the entrance at Crosby street was a private one, and that if the persons had any business there, they could enter at the Broadway entrance. It appears, without any dispute or contradiction, that Gilmore knew nothing of the attempt to enter at the private entrance, or of the resistance made by Smith, or of the notice sent by Tooker, until some time after those things had occurred and after the officers had gone away. He neither knew of nor directed the resistance, such as it was, to the officer having the warrant, and the only fact that connects him, even by inference, with the act of excluding or resisting the officer is that he had long before, and it would seem some years before,' established as a rule of the theatre that no person should be admitted by that entrance to the stage of the theatre, except actors, actresses and persons employed on the stage, and had given orders accordingly. Beyond this, the evidence fails to connect the appellant with the transaction upon which the charge of criminal contempt was based. It certainly cannot be claimed that the establishment of such a rule for the regulation of admissions at that door is in itself resistance to the mandate of a court. The rule was a reasonable and eminently proper one. The facts disclose that a large number of persons were employed upon the stage of the theatre, sometimes to the number of 300, and that a large proportion of them were females. Not to have rigid rules for the exclusion at that entrance of all persons not connected with the theatre would have led not merely to great confusion, but to gross irregularities. Of course such a rule could not operate to prevent the entrance of officers armed with a lawful process seeking persons charged with crime who might be upon the stage of the theatre, but, the act of the doorkeeper in excluding an officer cannot be attributed as a criminal offense to the proprietor of the theatre, on the simple ground that he had established such a general rule. The conduct of the officers in seeking to enter and serve the process at that time and during the performance in the theatre, under the circumstances of this case, certainly deserve condemnation. The secretary having probably seen Davene performing upon the stage and that little Bob was not there, and .having received from Havene’s counsel an offer that he v< ould appear on the same or any following day before the justice without arrest, and having received from the appellant, two days before, a written proposition that the question of the criminality of exhibiting the child in the theatre, should be brought, by the arrest of any responsible party connected with the theatre, before the court for determination, there was no good reason to suppose that an arrest at that time and in that manner was necessary. They must have known that an entrance upon the stage of several officers, for such a purpose, in the midst of a performance before a crowded house, would be likely to lead to excitement and commotion, probably alarming, if not dangerous, to the audience. Under such circumstances, a refusal to permit an entrance at that time for such purpose, although the strict legal right existed, can well be looked upon as less culpable than an actual criminal act, and certainly the law should not infer a criminal act from the mere existence of a reasonable general rule in respect of such admission, designed to preserve the theatre from unreasonable invasion and protect the audience from the possible consequences of such disturbance.

There is no difficulty in officers clothed with the authority of judicial processes, executing them in conformity to the dictates of good sense, as to time, place and manner; and officers who do not do this have no right to demand that the laws shall be strained for their vindication or protection, especially when their acts may lead to the evils that attend a panic in a crowded theatre.

We are unable to find anything in the evidence to uphold the conclusion that the appellant, by any act he is shown to have done, was amenable to the law for criminal contempt. The order of the court below not only adjudges him guilty of such contempt, but imposes the heaviest penalty which the law permits therefor, to wit, an imprisonment in the county jail for the period of thirty days and a fine of $250.

We think the order was a mistaken exercise of the authority of the court given by the provisions of the Code, and for that reason it is clearly our duty to reverse the same upon appeal, with ten dollars costs and disbursements against the respondent, the Society for the Prevention of Cruelty to Children.

Brady and Daniels, J J., concurred in the result.

Order reversed with costs and disbursements against the Society for the Prevention of Cruelty to Children.


author: Davis, P. J.: Daniels, J.

text:
    ISABELLA B. CLUTE, Appellant, v. ADAM EMMERICH, Respondent.

      Judgment — the omission of the middle name of the defendant does not invalidate it — when the legal owner of property wiU be compelled to reimburse one who has paid incumbrances on it to p/'otect his interests. ,

    The omission of the initial letter of the middle name of a defendant, in the entry and docket of a judgment recovered against him, does not render it invalid or prevent its becoming a lien upon his real estate as against subsequent purchasers from him in good faith.
    The plaintiff, on February 25,1869, recorded a deed received on February 17, 1869, from the sheriff, in pursuance of a sale made by him of certain real estate belonging to one Thomas A. Hall, which at the time of the recovery of the judgment was incumbered by a mortgage for $6,000 given» by Hall in 1863. The sale was made under a judgment recovered December 6, 1864, and docketed February 4, 1865, by one Dow against Thomas Hall and William H. Clark. After the recovery of the judgment Hall sold the property, and thereafter it passed, by various mesne conveyances, to the defendant, who acquired title thereto On October 21, 1871. In 1866 one Hyde, who then owned the property, paid $500 on the said mortgage, borrowed $5,500 upon a new mortgage, and with the proceeds of the loan paid off the residue of the first mortgage. In January, 1871, one Cottrell,who then owned the property, mortgaged it to a bank for $5,500 and paid off the Hyde mortgages. The bank mortgage still remains unpaid. The property was purchased and the various mortgages given and taken in good faith, and in ignorance of the plaintiff’s rights, the judgment not having been discovered by reason of the fact that the searches were made against Thomas A. Hall only, and not against Thomas Hall-
    In an action by the plaintiff to recover the possession of the property from the defendant:

      Held, that the second and third mortgages were, so far as the plaintiff’s rights were concerned, continuations of the first mortgage, and that, as her purchase was subordinate to such first mortgage, the third mortgage was, as against her, a valid and subsisting prior lien upon the property.
    That the defendant was entitled to be credited with the $500 paid by Mrs. Hyde upon the first mortgage, and the amounts expended for taxes, assessments, water rates and repairs, but should account for the rents received by her from the property.
    Appeal from certain portions of a judgment, rendered in favor of the appellant, upon the trial of this action, by the court without a jury.

      T. J. Olute, for the appellant.

      J3. Skaats, for the respondent.
   Davis, P. J.:

This appeal brings up the judgment-roll only, which contains, with the pleadings and judgment, the findings of the court on the trial, and the exceptions filed to such findings. The proceedings and the evidence upon the trial are not before us. It must be assumed, therefore, that the findings of fact presented were fully supported by the evidence given, and that no evidence was given from which other facts should have been found.

No exceptions to findings of fact on the ground that they were not sustained by evidence can be entertained. (Stoddard v. Whiting, 46 N. Y., 632; Tomlinson v. Mayor, 44 id., 603; Smith v. Coe, 29 id., 666.)

The action was brought to recover possession of certain premises purchased by the plaintiff at a sheriff’s sale, made under an execution issued upon a judgment recovered against a former owner of the premises. At the time the judgment on which the sale was made became a lien upon the land it was incumbered by a mortgage executed by the judgment debtor for part of the purchase-price of the land. In equity, therefore, the plaintiff purchased at the sheriff’s sale the equity of redemption then vested in the judgment debtor or his grantee. The respondent sets up as an equitable defense in part, to the action in which the plaintiff sought to recover mesne profits as well as possession, certain alleged equitable rights which he, as grantee of the grantees of the judgment debtor, claimed to exist in his favor. The trial was had before and by the court without a jury, and the questions brought up by the appeal for review relate altogether to the alleged equities of the defense. On the trial Mr. Justice Daniels, before-whom the issues were tried, delivered an opinion which fully embraces and covers all the questions presented by the appeal, and in our judgment disposes of them in accordance with equity and substantial justice. The opinion is so full and elaborate, and the discussion of the several questions so complete as in our judgment to render a repetition of the labor it performs quite unnecessary. We therefore adopt the opinion as that of this court. It is as follows:

Daniels, J.

— This action was brought to recover the possession of a lot of land and the building erected upon it, situated on the northerly side of Fortieth street, in the city of NewYork. The plaintiff derived her title to the property under a sale upon execution, issued to collect the amount of a judgment recovered in the case of Peter Low v. Thomas Hall and William H. Clark. The judgment was recovered •on the 6th day of December, 1864, and docketed on the 4th day of February, 1865. The proceedings before and attending the sale were substantially regular, and on the 17th day of February, 1869, the sheriff’s deed of the' property in dispute was delivered to the plaintiff, and it was properly recorded on the twenty-fifth day of that month. This was sufficient, presumptively, to establish the plaintiff’s right to recover the possession of the property. It appeared, however, that the title of Hall, which was sold upon the execution, was conveyed to him by the name of Thomas A. Hall, and that such was in fact his true name, and for that reason the defendant insisted that the judgment never became a lien upon the real estate owned by him ; but this point cannot be sustained, for it was not necessary in the regular prosecution of the action against Hall that the middle initial letter of his name should have been noticed in the proceedings. It was enough that one Christian name was properly added to the surname of the defendant, for in legal proceedings the law recognizes but one Christian name, and where a party is sued by that alone the proceedings taken may regularly be continued to judgment in that name, and the fact that he may have one or more other names between his first Christian name and that of his surname will in no way affect their validity. This is an old and well established rule of the common law, that has in no manner been changed, either by legislation or the ruling of the courts in this State. (Chitty on Pleadings [vol. 6, Am. ed.], 281.) But the authorities, on the contrary, so far as they exist upon this subject, unite in sustaining the correctness of this legal principle. (Franklin v. Talmadge, 5 John., 84; Roosevelt v. Gardiner, 2 Cow., 463; Milk v. Christie, 1 Hill, 102; Weber v. Fowler, 11 How., 458.)

The judgment, consequently, was regularly recorded against the defendant Hall, and for that reason it became an effective lien upon his real estate under the provisions of the statute existing upon this subject. (3 R. S. [5th ed.], 637, § 4.)

The case, as it was made out by the plaintiff, entitled her to recover the possession of the property unless the defense interposed, has been so far sustained as to defeat her apparent legal right. This in substance, so far as it was supported by proof upon the trial, consisted of the fact that the defendant, as well as those through whom the title had passed from Hall to him, had acquired it in good faith, without actual notice of the existence of the judgment, and had improved the property and paid off the incumbrance previously existing upon it, by mortgage, and for which he should hold it until the amount paid by him should be reimbursed. The defense so made was equitable in its character, and for that reason it was claimed that the only remedy which the plaintiff possessed for the enforcement of her rights as a purchaser of the property was by means of an action to redeem it from the incumbrance existing upon it before the recovery of the judgment under which she derived her title, and the case of Chase v. Peck (21 N. Y., 581) is relied upon as an authority supporting that position. But there the mortgage, though equitable in its character, appeared at the time to exist in full force as an incumbrance in the defendant’s own favor, and for that reason it cannot be held to be controlling in this case unless it shall appear that the defendant has maintained a valid claim in his own behalf to reimbursement out of the disputed property for the amount of the mortgage relied upon. The defense has been made under the provisions of the Code of Procedure, in force at the time when the answer was interposed, allowing equitable defense to be made to a legal action. (Code of Pro., § 150.) And by another provision of the same Code such a defense, it was provided, was to be deemed to be controverted by the-adverse party as upon a direct denial, or by way of avoidance as the case might require. (Code, § 168.) Under these two provisions the entire controversy relating to the right of possession of this property has been presented by the evidence and must be determined by the court. The case cannot be dismissed unless the defense shall be found to be completely established; and it must be fully examined and considered in order to discover whether it has been or not. (Phillips v. Gorham, 17 N. Y., 270; Sheehan v. Hamilton, 2 Keyes, 304.)

At the time Hall became the purchaser of the property he executed a mortgage, which was properly recorded, to secure the payment of the sum of $6,000. This mortgage was given on the 20th day of November, 1863, and it existed as an incumbrance upon the property at the time when the judgment under which the sale was made to the plaintiff became a lien. Hall afterwards sold the property, and it finally passed by intermediate conveyances to the defendant in this case. The evidence shows that he became the owner on the 21st day of October, 1871, and he has been in the possession and occupancy of the property since that time. When he took his title he had no actual knowledge of the existence of the judgment recovered against Hall, but supposed and believed from the search made of the title that the only incumbrance upon the property was the present mortgage which was given to raise money to pay off the one preceding it. The original mortgage continued to be a lien until the 1st day of August, 1866; and at that time Jane E. Hyde, who was then the owner of the property, paid the sum of $500 upon it and obtained a loan of the further sum of $5,500, for which a new mortgage was given by her and the proceeds of the. loan were used to pay off the residue of the original mortgage. This mortgage continued to be a lien upon the property to the 30th day of January, 1871. At that time it was owned by Marks ■Cottrell, who procured a loan from the Emigrant Industrial Savings Bank, and with its proceeds paid off the mortgage given by Mm. Hyde. The mortgage to the bank, upon which this loan was made, is the one which still remains an incumbrance upon the property. It appeared that when each of these mortgages was given a search was made of the title to the property, and for incumbrances upon it; but this judgment was not discovered, for the reason that the search was confined to the name of Thomas A. Hall. No search for either incumbrances or judgments were made against Thomas Hall, and neither of the parties giving or taking these mortgages supposed or believed that any such judgment'in point of fact existed. They each acted in good faith, fully believing that the mortgage given by him respectively was the only incumbrance at the time existing upon the property, and as between them and the present plaintiff, and the defendant, who acquired the rights and interests, of the mortgagors by their conveyance, that should be held to be the nature of these different transactions; and the rule is well settled in such cases that a person holding the legal title to property of this nature affected by a paramount incumbrance shall be allowed, even after it has been paid by him, to avail himself of the benefit of it as against an intermediate claimant by judgment, of whose existence he was ignorant, for the purpose of resisting legal proceedings brought for its enforcement, or maintain a title acquired under it. The party paying the first incumbrance finder such circumstances is entitled to be substituted to the benefit of the incumbrance itself, although it may have been in form extinguished, so far as that may be necessary to sustain his title to the property in dispute. The creditor or the purchaser under him is in no worse condition by reason of the application of this rule than he was when h'is judgment was recovered. All his rights and interests in the property are protected by its observance, but he is not allowed to acquire a priority by reason of a payment made in ignorance of his claim, which would give him an inequitable advantage over the person who has taken the deed and formally discharged the incumbrance for the completion or perfection of his title. This rule is well settled, and it has frequently been applied to the protection of parties making payments of prior incumbrances under circumstances of this nature. In Downer v. Fox (5 Wash. Ver., 388), it was held that where a second mortgagee pays the first mortgage, if justice requires it, the law will presume an assent by the latter to the use of all securities in his hands in order to produce his reimbursements, where equity requires that to be done, and when a purchaser of property pays off a prior incumbrance, and an attempt is made- to subject the property in his hands to still other and subordinate incumbrances existing at the time of his purchase, it has been held that a court of equity will substitute him to the rights of those whose incumbrances he has paid off. (Planters' Bank v. Dodson, 9 S. & M. [Miss. Rep.], 527; Peet v. Beers, 4 Ind., 46; Fisher v. Johnson, 5 id., 492.)

This principle has also been applied to the case of a fraudulent purchaser of a debtor’s property, who paid off an incumbrance upon it while he held the title. (Robinson v. Stewart, 10 N. Y., 189.) It was there said that it was entirely equitable that the defendant should be substituted in place of the creditor, whose debts he had paid, although the conveyance was void as to creditors; they, were valid between the parties, and the debts were paid as a consideration in part for the conveyances. (Id., 196.) The same principle has been applied in a different form, where a mere surety, or the owner of the property, has paid off incumbrances upon which he was not primarily liable. In those cases it has" been held, where that was necessary for the purpose of subserving the ends of justice, that the incumbrances, although in form extinguished, should still be considered as existing in favor of the person making the payment. (Wilkes v. Harper, 2 Barb. Ch., 338; Cole v. Malcolm, 66 N. Y., 363.)

The rule in general terms has been stated to be that when a subsequent incumbrancer or purchaser is compelled to discharge the lien of the vendor upon the property, he will, in like manner, be entitled to stand substituted in his place against other claimants under the vendor on the estate. (2 Story Eq. Jur., 227, § 1; Bright v. Boyd, 1 Story Rep., 478.) And the principle of the " civil law was there stated with approbation, which entitled a bona, fide purchaser or possessor of real estate, who pays money to discharge any incumbrance existing upon it, having no notice of any infirmity in his title, to be repaid the amount of such payment by the true owner seeking to recover the estate^ from him. (Id., 498.) Mickles v. Dillaye (17 N. Y., 80) is to the same effect. Under these authorities it is very clear that the person who owned the legal title at the time when the payments were made, would be entitled to have the original incumbrance revived in his or her favor as a protection against the claim now made by the plaintiff; and no good reason appears to exist for excluding the person who advanced the money, at the request and upon the application of such owner for the purpose of procuring the payment to be made, from the operation and protection of the same principle. The party making the advance was neither a stranger or a volunteer, but it was made at the instance of the owner who was entitled to this protection, and being made in that manner, the same equitable considerations which would protect the owner, should equally protect the party advancing the money for him or her. For that reason the second mortgage, given by Mrs. Hyde, upon which the money was obtained to pay off the first, was substantially a continuation of the original incumbrance, and the same thing was true as to the mortgage now existing upon the property, and held by the savings hank. So far as the plaintiff’s rights are concerned the incumbrance has been continuous, and her purchase under the judgment was subordinate to it. She has a right to claim, however, as she did upon the trial, that she should be permitted to recover the possession of the property, notwithstanding these transactions, through which the lien of the mortgage might be held to extend; but to resist this claim the defendant has made proof to show payment by him of assessments and taxes and water rates upon the property, and expenditures to keep it in repair; and these charges in turn have been answered by the plaintiff by the allegation that they have been more than reimbursed by the rents and occupancy of the property itself. The taxes, assessments and rates paid by the defendant, and the expenses incurred by way of repairs, were required to protect the property itself, and to enable the defendant to obtain rents for it by means of its occupa-; tion by his tenants. The charges were legal in their nature and have been paid in good faith, and for that reason they should be allowed in the adjustment of the claim made against him for the use and occupation of this property. (Miner v. Beekman, 50 N. Y., 338.)

His right to be reimbursed to this extent is also sustained by the authorities which have already been cited. It appears by the evidence that the taxes and assessment upon the property were paid by him to and including the year 1879, for which period they amounted to the sum of $1,377.35. The water rates, which were paid to 1880, for the purpose of supplying the premises with water, amounted to $121.13, and the expenditures made for repairs, as they have been detailed by him and mostly sustained by his bills and receipts, amount to the further sum of $1,128.66. These items in the aggregate make the sum of $2,627.14. The right of Mrs. Hyde to be substituted in place of the original mortgagee, for her payment of $500 upon that mortgage, has passed to the defendant as an incident to the title received by him, and adding that to the sum already given increases the amount to the sum of $3,127.14. It appears further that the defendant himself has paid the interest upon the mortgage now existing upon the property from the thirtieth day of January, when it was given, to January 1, 1880, at the rate of seven per cent. That extended over a period of eight years and eleven months, and it amounts to the sum of $3,745. Since then interest has been paid at the rate of six per cent; probably, however, only for the half year which had expired before the time of the trial. That amounted to the sum of $190. Adding these two sums to the aggregate already stated, and it appears that the defendant has paid on account of this property, including the $500 he is entitled to claim through Mrs. Hyde, the sum of $7,062.14. From his own evidence it appears that the premises for the first year, ending October 21,1872, produced a rental of $1,200; for the second year a rental of $960, and since then a rentahof $900; and bringing these amounts down to the twenty-first day of January of the present year will create an aggregate of $8,685; deducting from this sum the expenditures made by the defendant, including the $500 he is entitled to claim under his deed, will leave a balance of rents due from him still amounting to the sum of $1,623.14. No allowance is made to him for the expenses of insurance, for that was incurred expressly for his own benefit, not for that of the property. Under this state of the proof it is evident, therefore, that the defense relied upon in favor of the defendant is not a complete answer to the plaintiffs action, for after allowing all that the evidence will properly warrant, a balance still exists against him on account of the rents realized by way of his own occupancy and that of his tenants. The mortgage still held by the savings bank against the property will, for the reason already assigned, be established as a valid lien to which it will be subjected until it shall be paid; and subject to that she is entitled to judgment in the action for the property, together with this sum of $1,623.14 and such rents as may yet accrue to the time of signing the decision by way of damages at the rate of $900 a year from the twenty-first day of the present month. Should any errors be found in the computations made they will be corrected when the decision shall be settled, which will be done on notice to the defendant’s attorney.

Judgment was entered in conformity to this opinion, and no question is made of the correctness of the computations included in the judgment.

We are of opinion, for the reasons assigned by Mr. Justice Daniels, that the judgment is correct and should be affirmed, with costs of the appeal to the respondent to be adjusted and allowed upon and deducted from the amount recovered against him.

Brady, J., concurred.

Present — Davis, P. J., and Brady, J.

Judgment affirmed, with costs.


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    JULIUS BAERE and LOUIS BAERE, Respondents, v. GEORGE E. ARMSTRONG and ROBERT H. RILEY, Appellants.

      Sureties to an undertaking given upon the issuing of an attachment — a/re entitled to the benefit of all payments made by their principal — liability of, for costs of unsuccessful appeals, taken byhm.

    The sureties to an undertaking given upon the issuing of an attachment, by which they covenant to pay all costs and damages which may he awarded to, or sustained by the defendants, not exceeding a sum specified, are entitled to the benefit of all payments for costs or damages made by their principal, and can in no event be held liable for more than the difference between the amount so paid by him and the sum specified in the undertaking.
    Qwere, as to whether the sureties to such an undertaking are liable thereupon for the costs and expenses of unsuccessful appeals, taken by their principal to the General Term and the Court of Appeals, from an order vacating and discharging the attachment.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury.

      Mel/oille U. Regensburger, for the appellants.

      BVumenstiel c& Sirseh, for the respondents.
   Davis, P. J.:

On the 30th of December, 1878, H. B. Claflin and others applied under the provisions of the Code of Civil Procedure for an attachment against the property of Julius Baere and Louis Baere, the above-named respondents; and the above-named appellants, as sureties, under the provisions of section 640 of the Code of Civil Procedure, executed an undertaking whereby they jointly and severally undertook, in the sum of $250, that if the defendants in that action recovered judgment, or if the warrant of attachment were vacated, the plaintiffs therein would pay all costs which might be awarded to the defendants and all damages which they might sustain by reason of the attachment, not exceeding the sum mentioned. The attachment was issued and served, and in January following was discharged by the court upon the execution of the bond required by section 688 of the Code. Afterwards, and in April following, upon motion made by the defendants in the attachment suit, at Special Term, the attachment was set aside, vacated and discharged with ten dollars costs. From the order so vacating the attachment, Claflin and others, the plaintiffs therein, appealed to the General Term of the Supreme Court where the order was affirmed with costs. They then appealed to the Court of Appeals from the order of the General Term, which order was there affirmed with costs. An action was then brought upon the undertaking against the present appellants by the respondents, to recover, as damages alleged to have been sustained by reason of the attachment, the expenses for counsel fees upon the motion at Special Term to vacate the attachment, and for attorneys and counsel fees upon the appeals to the General Term and the Court of Appeals. On the trial proof was given, under objection and exception, of the expenses of counsel fees paid by the respondents for the argument of the motion at Special Term, and on the several appeals, to a sum exceeding $250, the amount named in the undertaking, and a verdict was rendered in their favor for that amount.

The appellants, in the course of the trial offered, in substance, to prove that Claflin & Co. had paid the costs awarded upon the motion, and upon the appeal to the General Term, and the costs of appeal to the Court of Appeals, amounting in the whole to about $110. Evidence to show these payments was rejected by the court and an exception duly taken. There seems to be no doubt, under the authorities, that the reasonable expenses for counsel fees, on a motion necessary to get rid of the attachment, may be recovered upon such an undertaking. (Northrup v. Garrett, 17 Hun, 497; Ball v. Gardner, 21 Wend., 270; Bennett v. Brown, 20 N. Y., 99.)

These cases establish that where the defendant in an attachment suit is obliged to bring ail appeal, or several appeals, to the higher courts to get the attachment vacated, the expenses attending such appeals are covered by the language of the undertaking. But in this case the motion at Special Term to vacate the attachment was not denied; it was granted, and the attachment wholly ceased to exist upon entering the order vacating the same. It was Claflin & Co. who brought the appeals to the General Term and the Court ■of Appeals, and the expenses recovered in this suit were not incurred in an effort to get rid of the attachment, but in resisting an attempt on the part of Claflin & Co. to have the order which vacated it reversed.

No case has been called to our attention where the sureties in such an undertaking have been held liable for the costs and expenses made by their principal, by -appeal, in an effort to reinstate his attachment. "Whether the liability of the sureties goes to such an extent need not now be determined, for we are of opinion that it was error to exclude the offer to show that Claflin & Co. had paid the costs awarded upon the motion and the several appeals.

The undertaking of the sureties was that their principals would pay all costs which might be awarded to the defendants, and all damages which they might sustain by reason of the attachment, not exceeding the sum of $250. If the evidence had been received it would have shown that Claflin & Co. had paid a portion of the liability which the sureties had undertaken they would pay.

Undoubtedly if the respondents in this action are right in their position that the undertaking followed the appeals to the several ■courts, the costs awaided by these courts were a part of the liability which the sureties in the undertaking agreed that their principals should pay. Their undertaking was that their principals will pay such costs and damages to the amount of $250; and when their principals do make payment to that amount their liability on the undertaking is at once discharged. The respondents could not proceed to collect of Claflin & Co. a portion of their costs or damages and then proceed upon the undertaking against the appellants for the whole amount therein specified. Such a construction would impose upon the sureties a greater liability than they have undertaken ; and while the rule is that they should be held like other contracting parties strictly to the liabilities incurred, the doctrine that their agreement is to be construed strictissimi juris forbids any extension of liability by construction.

This question has been distinctly passed upon by McAdam, J\, in., a case in the Marine Court, in which he held to the effect that any sum paid by the plaintiff in an attac^paent suit for costs and damages awarded against him, operated to reduce the liability specified in the undertaking given by the sureties. We think that decision correct, for the liability of the sureties is not to pay any balance for which his principal may he responsible and which cannot be collected of him, but that his principal will pay all such liability not exceeding a specified sum.

In this case, unfortunately, the judge who granted the attachment only required that sum to be $250, although the attachment was for an indebtedness of $6,000. The sum was altogether too small, but nevertheless it fixed the liability of the sureties, and cannot be extended at this stage of the case.

For the error in excluding this evidence there must be a new trial.

The judgment must be reversed and a new trial granted, with costs to abide event.

Brady and Daniels, JJ., concurred.

Judgment reversed, new trial ordered, costs to abide event.


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    In the Matter of the Petition of LYDIA A. STEPHENS to Vacate Assessment, etc. In the Matter of the Petition of THADDEUS B. WAKEMAN to Vacate Assessment, etc.

      Assessment — when the irregularity affects all the items of the work, it cannot be affirmed in part and set aside inpmt.

    When an assessment is invalid by reason of the fact that the work was not let by contract, as required by the statute, but was done by day’s work, the court cannot determine from the testimony of witnesses the difference between the costs of the respective modes of doing the work, and modify the assessment by affirming it to an amount equal to what it would have cost under a contract, and reversing it as to the residue.

      Appeal from orders made at a Special Term vacating assessments for regulating, grading, etc., One Hundred and Sixteenth street, from Avenue A to Sixth avenue, in the city of New York.

      J. A. Beall, for the City of New' York, appellant.

      A. Wakeman, for the petitioners, respondents.
   Davis, P. J.:

The question of the validity of the assessment brought under review by these appeals has been finally determined by the court of last resort in the Matter of the Petition of Edward Lange to vacate an assessment for the same work. The court held in that case that no valid assessment could be imposed upon the property of the petitioner, because the work was not let by contract, but done by day’s work, in violation of the statute. It is manifest that the irregularity for which the assessment was vacated in the ease of Lange is one that affected the entire work, for no portion of it was let by contract, nor did it appear that any of the materials furnished in and for the construction of the work was obtained under contracts authorized for that purpose. In this case it was shown by the petitioners at Special Term, in order to establish their alleged grievance, that the work could have been done by contract at a much lower cost than it was done by day’s work, and the several witnesses gave estimates of the amount of its cost if done by contract. It is now urged that this court, under various of its own decisions, and under decisions of the Court of Appeals in assessment cases can ascertain from the estimates given by such witnesses, the difference between the costs of the respective modes of doing the work, and modify the assessment by affirming it as to the cost under contract as thus ascertained, and reversing it as to the residue only. But none of the cases have gone the length to hold that where the alleged irregularity affects the entire work in all its items, the court can adopt any such course to uphold a portion of the assessment. The cases referred to are those in which some- portions of the work were done in conformity to law, but other portions, either of work or materials furnished, had not been conformed to the requirements of the statute. In those cases it is easy to separate the regular portion of the assessment from that which is clearly irregular, and in such cases the courts have reduced the assessment as required by such separation.

In the Matter of the Petition of Benjamin W. Merriam (84 N. Y., 596) it was held that certain items of work to be done had not been submitted to competition, and for that reason the assessment as to them was held to be invalid. No such state of facts exists in the present case, for no portion of the work was offered or let by contract, as required by the law, and although we should be very glad, if in our power, to ascertain what the work done by the city in this case would fairly have cost if done by contract, and uphold the assessment to that extent for the purpose of protecting the taxpayers of the city, yet we are unable to see any sound principle upon which we can justify that course.

The result is that the orders of the court below must be affirmed, but, under the circumstances, without costs.

Brady and Daniels, JJ., concurred.

' Orders affirmed, without costs.


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    SETH M. MILLIKEN and Others, Respondents, v. JOSEPH DART, Appellant, Impleaded with JOHN A. SWEZEY. FRANCIS W. WILLIAMS and Others, Respondents, v. THE SAME.

      General assignment— the fact that it is invalid as against creditors does not authorize an attachment to issue under section 636 of the Oode of Civil Procedure — Irade-mcvrlc.

    The fact that a general assignment is rendered invalid as to the creditors of the assignor, by the insertion therein of provisions authorizing the assignee to compromise with the debtors and to sell on credit, does not of itself show that the assignor has assigned, disposed of or secreted his, property with the intent to defraud his creditors, within the meaning of section 636 of the Oode of Givil Procedure, authorizing the issuing of an attachment.

      Qucere, as to whether a trade-mark will pass under a general assignment, or is the subject of attachment or of levy under an execution.

      Appeals from orders denying separate motions to vacate and set aside warrants of attachment granted in each of the above cases.
    The questions involved in both cases are the same. The warrants were granted subsequently to the making, delivery and recording of a general assignment for creditors by and in behalf of the defendant and his co-partner, and were levied upon the property so assigned.
    The facts stated in the plaintiffs’ affidavit in each case are the same. They allege that the defendants are indebted to them ex conf/ractu, and aver that the defendant Dart and .his co-partner, by the firm name of Swezey & Dart, made the assignment for creditors before referred to; that by such instrument the defendants had “ assigned and disposed of their property with intent to defraud their creditors; ” and that the same is fraudulent and void, because it authorizes the assignee in his discretion to compromise and compound with debtors to the assigned estate and to sell the assigned property on credit.
    A further ground of attachment aliv/nde the assignment itself, but alleged to render it void, is stated by the plaintiffs to be, that since the assignment was executed and filed the defendant Dart has become the manager of a corporation, and that as such manager he is using a trade-mark which he formerly used in the business of Swezey & Dart.

      Wm. Stanley, for the appellant.

      J. J. Adams, for the respondents.
   Davis, P. J.:

In the first of the above entitled appeals the motion to vacate the attachment was made at chambers, before the judge who granted the same, and the motion was denied. The reasons for denying the same, assigned by the learned judge in his memorandum, are as follows:

“ The assignment gives the assignee power to compromise all claims in words; and also to sell on credit by giving power to execute bills of sale on terms other than money, and is within the cases making such powers avoid the assignment.”

In the second case the motion was made at chambers held by another justice, and lie refused to hear the motion upon the merits, upon the ground that the question had been disposed of by the former Special Term.

The attachments were granted upon affidavits showing that the defendants'in the action had made and executed a general assignment to one John A. Bagley, for the benefit of their creditors, of all their property as co-partners, and that in the same instrument, the defendant Dart had assigned all his individual property for the same purpose. It is neither claimed nor shown that the assignment was made, either by the firm or by Dart, with any actual or personal intent to defraud their or his creditors, but that the assignment itself under the authorities is invalid and void as against creditors, because it contains some provisions alleged to be not authorized by law. There is no doubt about the validity of the assignment as between the assignors and the assignee; but the first question to be considered is, whether the making of such an assignment, which carries to the assignee the title to the whole of the property of the assignors as against the latter, is alone sufficient evidence under the provisions of section 636 of the Code of Civil Procedure, to show that the assignors have assigned, disposed of, or secreted their property with intent to defraud their creditors. This depends upon the construction to be given to the language of the section which, amongst other things, provides that a warrant of attachment may be issued when it is shown to the satisfaction of the judge granting the same, that the defendant has assigned, disposed of or secreted his property with intent to defraud his creditors. The only evidence of intent in this case is that to be inferred from the supposed fact that the assignment, a copy of which was annexed to the affidavit, contains provisions upon which the court would adjudge it invalid as against creditors.

Ve think the Code requires an actual, personal intent to defraud, and the manifestation of that intent in a different form than the mere execution, in good faith, of an assignment which transfers all the property of the debtor to an assignee for the benefit of creditors; and that the intent to defraud is not sufficiently shown by the mere fact that such assignment contains some invalid provision of which the creditors may take advantage to defeat it. The leaking of.an assignment may, of course, in some cases be a portion of the evb dence of the intent to defraud, or a part of the scheme carried out by the debtor with that design; but there must be something more to establish the intent required by the Code, where the assignment is made in good faith, and without any actual intent to defraud, than the mere fact that an invalid provision is contained in the assignment. Where there is nothing in the case but that fact, an attachment, if. granted, cannot be upheld.

It has been settled by the Court of Appeals in Thurber v. Blanck (50 N. Y., 80), and by this court in Smith v. Longmire (24 Hun, 257), that an attachment cannot be levied on property in the hands of an assignee under a general assignment of all the property of the debtor, notwithstanding the assignment is fraudulent in law.

In this case it was satisfactorily shown by the appellant that' no intent to defraud, in fact, existed. Sweezey, one of the members of the firm, had committed forgeries to a large amount and fled the country. His criminal conduct had rendered it necessary that steps should be taken by the other partner to protect the creditors of the firm, and his own creditors, from the consequences of the absconding debtor’s crime, and with that view alone he executed the assignment prepared by counsel, which contains the provisions supposed to render it void. There is nothing in the provisions of the Code which authorizes an attachment upon that condition of things alone. We think, upon this ground, the motion to vacate the attachment should have been granted.

Another ground for sustaining the attachment is urged here, which does not seem to have been considered by the court below. That is, in substance, that the defendant Hart, one of the assignors, has since the making of the assignment used and claimed to own a trade-mark which should have been assigned. In respect of that it is enough to say, that if the trade-mark was assignable property, it is assigned by the assignment, and the title to it is wholly vested in the assignee. A subsequent use of it by Hart, under a claim that it is not assignable, is no evidence of a disposition of property with intent to defraud. If his claim be correct, the property is tangible and in reach of his creditors, and not disposed of. If the claim be not well founded, the assignee may take jiossession and dispose of it for the benefit of the creditors. It is, to say the least, a disputable question, whether property in a trade-rnark is the subject of attachment or levy under execution. (See Hegeman v. Hegeman, 8 Daly, 6.) But it is not necessary to consider that question, as nothing is shown in respect to the use of the trademark, that in our judgment indicates the fraudulent intent required by the provisions of the Code under which these attachments were issued.

The result is, that the orders in both cases are reversed and the attachments vacated, with ten dollars costs of the appeal, besides disbursements in each case.

Beady and Daniels, JJ., concurred.

Orders reversed and attachments vacated, with ten dollars costs and disbursements in each case.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THOMAS KEECH v. HUBERT O. THOMPSON, Commissioner of Public Works, Respondent.

      Removal of a clerk in New York city, by the head of his depa/rtment — he is not entitled to a formal trial — the decision of the head of the department is not remewable on appeal — 1873, chap. 335, see. 28.
    Under section 28 of the New Fork charter (chap. 335 of 1873), providing that “no regular clerk or head of a bureau shall be removed until he has been informed of the cause of the proposed removal and has been allowed an opportunity for explanation,” the head of a department must assign as a cause of removal some dereliction of duty or incapacity to perform the duties of the office, or some delinquency affecting the general character of the officer and his fitness for the office and give him an opportunity for explanation; but the officer is not entitled to demand a formal trial or to require that evidence, either oral or written, should be produced and received either to sustain or disprove the charges made.
    The statute makes the head of the department the exclusive judge of the sufficiency of the explanation presented, and his decision thereon cannot be reviewed by the courts.
    Certiorari to the respondent, who is commissioner of public works, to review his action in removing the relator from the office of superintendent of the bureau of repairs and supplies in the department of public works in the city of New York.

      Be B. Wilmot, for the relator.

      B. J. Bean, for the respondent.
   Davis, P. J.:

On the 29th day of March, 1875, the relator was appointed superintendent of repairs and supplies by the then commissioner of public works. He entered upon the duties of his office on the first day of April following, and continued in the office until his removal by the commissioner of public works, on the 15th of April, 1881.

Subdivision 7 of section 72 (chap. 335 of the Laws of 1873, p. 503) creates a bureau of repairs and supplies, which shall have cognizance of all supplies and repairs to public buildings, works, lands and places, and all other necessaiy repairs and supplies not provided for in other departments, the chief officer of which shall be called superintendent of repairs and supplies.” JBy section 28 of the same act it is provided that “ the heads of all departments (except as otherwise herein specifically provided) shall have power to appoint and remove all chiefs of bureaux (except the chamberlain), as also all clerks, officers, employes and subordinates in their respective departments, except as herein otherwise specially provided, with; out reference to the tenure of office of any existing appointee.”

Hpon this general power of removal a limitation is imposed by the act in respect of two classes of officers, which is expressed in these words: “ But no regular clerk or head of a bureau shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of making an explanation, and in every^ase of a removal the true grounds thereof shall be forthwith entered upon the records of the department or board.”

The general power of the commissioner to remove the relator is subject to two conditions: First, that he shall be informed of the cause for which his removal is proposed; and second, shall be allowed an opportunity for explanation.

The use of the word “ cause ” in the first of these conditions indicates a restriction of the right of removal to- some reasonable and substantial ground, other than the mere pleasure of the head of the department, or a change of his political character.

As was held by the Court of Appeals in the People ex rel. Munday v. Fire Commissioners (72 N. Y., 445), the cause assigned should be some dereliction or neglect of duty or incapacity to perform the duties, or some delinquency affecting the general character of the officer, and his fitness for the office.

Three questions therefore arise in this case for our consideration, upon the return of the commissioner:

First. Was the relator informed of the cause of his proposed removal ?

Second. Was the cause or causes of which he was so informed of such a nature as to authorize his removal if unexplained ?

Third. Was the relator allowed an opportunity for explanation within the meaning and requirements of the statute ?

It appears by the return that on the 11th of April, 1881, the commissioner of public works addressed to the relator the following letter:

Department of Public Works, Commissioner’s Office,

No. 31 Chambers St., New York, April 11,1881.

To Mr. Thomas Keeoh :

Sir — Since our recent conversation, when I had occasion to complain of the manner in which the duties of your bureau are discharged, I have concluded to ask a full and formal explanation of the matters talked about by us.

You are therefore notified that you will be allowed an opportunity, at this office, at twelve o’clock noon of the fourteenth instant (Thursday), of making an explanation of such matters, and unless satisfactory, I shall remove you from the office of superintendent of repairs and supplies.

After a very careful examination into the affairs of your bureau, 1 have become fully convinced that you have not performed the duties of your office with the requisite promptitude, intelligence and efficiency.

The following are some of the facts and circumstances which have led me to this conviction and conclusion:

In the final estimate for the year 1881, special appropriations were made, as requested in the department estimate, for “fitting up Fifth regiment armory, Essex market, $18,000,” and for “ fitting up Sixty-ninth regiment armory, Tompkins market, $15,000.” It was your duty to report to me plans or measures toward the execution of these necessary works, which came under the charge and supervision of your bureau, especially since officers of the regiments repeatedly urged upon you the necessity of fitting up the armories as speedily as possible, and you were informed of the fact that the Fifth regiment will have to vacate its present quarters and move into the armory over Essex market on the first of May next. Yet, for a period of more than three months since the appropriations were made you have failed to report or even suggest to me anything whatever in connection with these works, or to make any preparation or report as to their execution, and officers of the Fifth regiment have finally complained to me of your inattention and inaction in this matter.

In the matter of placing an elevator in the brown-stone courthouse, for which provision was made in the departmental and final estimates for 1881, you have shown the same want of attention.

It is one of your duties to furnish to the head of the department estimates of the cost of any work to be done, or supplies to be furnished through your bureau, to enable him to make a proper apportionment of the moneys appropriated among the various works and supplies required according to their necessity. But your estimates have been so flagrantly incorrect that they cannot be taken as an indication even of the ultimate cost of the respective works or supplies.

A large proportion of the bills or vouchers for work done and supplies furnished has been unnecessarily and unreasonably delayed -in your bureau. I have submitted to a great deal of annoyance by reason of complaints from tradesmen and persons dealing with the city of the delays attending the approval of bills passing through your bureau, and I finally came to the conclusion, after mature deliberation, to adopt a rule which, in my judgment, gives adequate time for the necessary examination and work. It is, of course, annoying to the head of a department to be dunned about bills against the department, and I have determined to relieve myself from this annoyance in the future; to that end I issued the circular letter requiring the transmission of all bills for work, supplies or services from the respective bureaux within seven days after the receipt of the same. In your letter to me of the thirty-first ultimo, in reference to that circular, you say that it is not possible to make proper examination as to bills in your bureau -within that tune. You thereby state your inability or unwillingness to do that which in my opinion an intelligent, diligent and well disposed officer in your position could readily do, and to discharge the duties of your office with that promptitude which the public interest requires.

You have allowed some of the work, under your supervision to be performed in a very dilatory manner to the great inconvenience of public officers, and after repeated requests by me personally and through my deputy that these works be more promptly executed.

In your letter to me of the fourth instant you say that the business of your bureau is suffering very much for want of efficient clerical help, and that for the last two months the only clerical work done was to voucher bills. You thereby acknowledge that you allowed such state of things to exist for two months without reporting it to me to enable me to correct it if necessary.

Yery respectfully.

(Signed) HUBERT 0. THOMPSON,

. Commissioner of Public Works.

This letter certainly very clearly accomplishes two things: It assigns-a cause for the proposed removal, specifying with a sufficient degree of particularity the facts out of which such cause is alleged to have arisen. It seems to us impossible to say that the facts thus alleged did not indicate, if true, a serious neglect and dereliction of duty,, sufficient to justify a removal, if unexplained. And in addition to specifying the causes of the proposed removal, the letter gives a reasonable opportunity for explanation, by assigning a place and time for the relator to appear and make the same. So far as these matters go, the requirements of the statute were certainly satisfied.

At the time and place assigned, the relator appeared in - person, accompanied by his counsel, and presented an answer or explanation, which was also in the form of a letter and was as follows:

New Yoek, April lé, 1881.

To Hubert O. Thompson, Commissioner of PublicWorks:

Sir. — I am in receipt of your favor of April 11, 1881, containing certain charges against me relating to the conduct of my office of superintendent of supplies in the department of public works, of the city of New York.

With reference to said charges and any others which you desire to make I wish to say:

First. That I shall be ready at any time and place which you .may designate, to controvert or satisfactorily explain the same, provided lawful evidence be produced by you of the foundation of said charges against me, and a sufficient opportunity be given me of explaining or disproving them.

Second. I deny your right to remove me as superintendent aforesaid, until I shall have been specifically and lawfully informed of each and every cause of the proposed removal, and am allowed an opportunity of making such explanation as I may be advised I am justly entitled to.

Third. With reference to the charge contained in your said letter of the eleventh, relating to the “ fitting up of the Fifth and Sixty-ninth regiment armories,” I desire to say that the charge and supervision of the work to be done and supplies to be furnished in this matter did not come under my bureau or control, and is not, up to this date, under my control- or under the charge and supervision of my bureau, and I deny that I am in any sense responsible for the delays or inattention complained of by you in the premises.

Fourth. As to the matter of placing an elevator in the brownstone court-house, which came under the charge and supervision of my bureau, I desire to say that when the appropriation therefor was passed to the credit of my bureau, I at once took the necessary steps to carry out the work, but by the direction of the acting commissioner, and in consequence of his acts, and not of mine, in the premises, the carrying out of the work has been delayed up to this time, of all of which you had due notice.

Fifth. I deny that my estimates on work to be done for the department have been so flagrantly incorrect that they could not be taken as an indication of the ultimate cost of the respective works or supplies, and I deny that bills or vouchers for said work done and supplies furnished have been unnecessarily and unreasonably delayed in my bureau, and also that in any instance I have refrained from transmitting to you bills for work and supplies or services within seven days after the receipt of them, except in a very few cases, where a proper and accurate examination and report thereon could not be made within that time, and of which, whenever oecuring, I informed you.

Sixth. I deny that I have allowed any portion of the work under my supervision to be performed in a dilatory manner, to the great inconvenience of public officers, and I demand that you produce lawful evidence of specific times and places where such acts as you allege occurred.

Seventh. I desire to state further that all delays which may have occurred for some time past in the business of my bureau are due to the fact that all the clerical force in my office .is, and has been for some time past, very inefficient, and was originally placed there without consultation with me and without my knowledge, and was removed in the same manner, and of this inefficiency you have been, from time to time, notified by me.

Eighth. I assert that at all times since I have held this office '(now six years), I have performed its duties honestly and with’that degree of intelligence which the position requires, and I further assert that any delays in business, unskillful work, or any other matters in my bureau which may have beén complained of, were not due to my conduct but to others, over whom you did not permit me to have sufficient control to regulate the speed and quality of the work performed.

Ninth. I respectfully urge my right and request:

(1.) That each and every charge which you desire to make be ■ reduced to writing and be definitely and specifically framed, and ■ that lawful evidence be produced to sustain each of them.

(2.) That I be allowed to answer each charge in writing, and to produce lawful testimony to controvert or explain the same; and

(3.) That I may be represented by counsel in the hearing and conduct of any investigation which may be made by you in the premises. Tours very respectfully,

(Signed) THOMAS KEECH.

A colloquy then took place between the commissioner and the counsel, which is set forth at length in the return, the substance of which is that the relator reiterated his claim to the right to take testimony as to any defense or explanation which he might have to make to either or any of the charges, and insisted that before the commissioner could remove him, he (the commissioner) must produce oral or other testimony to substantiate any charge which he had made or desired to make; and that the answer in writing was a sufficient explanation of the charges in the commissioner’s letter, so far as they were specific and definite enough to be answered. The commissioner declared his readiness to hear anything that the relator wished to say in addition to his written answer, but refused to postpone the hearing for that purpose, and insisted that his letter of the eleventh of April was a sufficiently definite and specific statement of the charges. The upshot of the colloquy appears to have been that the relator, by his counsel, demanded a trial or hearing on which the commissioner should produce proof of the alleged causes or charges, and that the relator should be allowed to produce evidence to contradict, explain or defeat them.

We are of opinion that, under the provisions of the act above quoted, where causes are assigned which, if unexplained, would be sufficient to justify the removal, and an opportunity of explanation is given, the law has devolved upon the commissioner alone to determine whether or not the explanation is satisfactory. In this case the commissioner, on the presentation of the written answer of the relator, after hearing whatever was orally alleged or claimed, adjudged that the charges of his letter were not satisfactorily explained. The answer consisted in part of denials of portions of the charges, and in “part of such explanations as the relator was able or saw fit to make. No further charges than those contained in his letter were made by the commissioner, and he declined to make any others than those thus named, and refused to make them more specific, but offered, at that time and place, to receive any additional or further explanation that the relator desired to make.

This was, it seems to us, so far as respects the charges, all that ■the law requires at the hands of the commissioner; and the whole case turns upon the question of the right of the relator to demand a trial or hearing by the production of oral or other evidence on the part of the commissioner and of counter evidence on the part of the relator. No such trial is contemplated by the act and no such trial has ever been had or been required by the courts in any of the several eases that have arisen under this provision.

The language of this provision is different from that used by the act in providing for the removal by thei mayor of the heads of departments. By section 25 of the act it is provided that the mayor may remove the head of any department “for cause, and after opportunity to be heard.” In The People ex rel. The Mayor v. Nichols (79 N. Y., 582), it was held by the Court of Appeals that, under this provision, the heads of departments are entitled to a trial by and before the mayor, in which-that officer is to produce proof of such charges, and the answering officers may appear by counsel and produce witnesses to disprove the same. The decision turns upon the force to be given the words “ after opportunity to be heard.” But no such effect or force belongs to the words used in the twenty-eighth section, which are “ allowed an opportunity for explanation.” Neither the spirit nor the letter of this provision requires any mode or form of trial beyond that expressly indicated, to wit, the presentation of charges sufficient in themselves, if true, to justify the removal; a notice to the officer of such charges, and an allowance, to him of an opportunity for explanation. When the explanation is presented to such charges, either oral or in writing, the statute makes the head of the department the exclusive judge, whether it is sufficient or satisfactory. Any other course would launch the heads of departments of the city into farcical mockeries of trials, shocking to both the moral and common sense of the community, in which those 'officers, without any power to enforce the .attendance of witnesses, and without any authority to punish for contempt, or to preserve order in their pseudo courts, -might be helplessly subjected to the delays and the insolence and abuse which have marked similar trials.

It is of no consequence in this case -whether or not, in our opinion, the explanation of the relator might well have been accepted as satisfactory by the commissioner. The rule on that point is well expressed by Church, Oh. J., in the case of The People ex rel. Folk v. The Board of Police (69 N. Y., 409), in which the chief of police was removed for alleged incapacity. After commenting upon the fact that nothing culpable or criminal, either in omission or commission, was clearly established, and that it would be difficult for the learned judge to find from the evidence a want of capacity, he proceeds to say:

“Yet there are facts disclosed from which an inference of want of proper capacity might be drawn by those possessing superior knowledge upon the subject, and this necessarily refers it to the judgment and shill of the members of the board, who are presmned to be competent, and who are responsible in some degree for the most efficient working of the force.

“It is not needful that we should concur on the merits in their finding, in order to affirm their judgment.”

There is no doubt, we think, that the statute in this case' committed to the commissioner a discretionary power to act upon his own knowledge of the facts, so far as they were denied by the relator, and to judge of the reasonableness and sufficiency of the excuse he presented, so far as the facts were not denied; and that discretion is not the subject of review by the courts.

This view of the law leaves to the power of removal a degree of efficiency which would be wholly lost by the construction claimed by the relator. -It is eminently important to the public that the tone and vigor infused into the bureaux of the several departments should be maintained by the decision of the courts, and this cannot be done by our interference with the discretion of the head of a department which he has exercised in conformity to the .directions of the statute and for such causes as the statute requires.

The writ should be dismissed, but, under the peculiar circumstances of this case, we think without costs.

Daniels, J., concurred; Brady, J., concurred in the result.

Writ dismissed, without costs.