text:
    The People ex rel. Jacob Spahn, Respondent, v. Frederick Townsend, Adjutant-General, etc., and others, Appellants.
   Order appealed from affirmed on the opinion delivered by Mr. Justice Macomber at Special Term.


source: Caselaw Access Project

license: Public Domain

text:
    H. Emogene Wright, as Executor, etc., Respondent, v. Charles E. Barnard, Appellant.

   Judgment affirmed. Reid, that the evidence authorized the conclusion that King was the agent of the defendant, and that he had apparent authority to make the purchases, etc., which formed the subject of the action, on the defendant’s credit; that the declarations made by King at the time of the purchases, as to his agency, were competent by way of showing to whom the credit was given (Bronner v. Frauenthal, 37 N. Y., 166 ; Tieneyer v. Turnquist, 12 N. Y. W. Dig., 495), and that his declarations made at other times, being simply to the effect that he was the agent of the defendant, without stating the extent of his agency, were mere statements of a fact which was established by legitimate and undisputed evidence, and did no harm. Held, also, that the evidence justified the conclusion that the plaintiff’s testator, Wright, gave credit originally to the defendant (Ferris v. Kilmer, 48 N. Y., 300; Meeker v. Claghorn, 44 id., 349), and that the note of King was taken by him as collateral merely.


text:
    Mary Marsh, Appellant v. William R. McNair, Respondent.
   Judgment reversed and new trial ordered, costs to abide event. Held, that parol evidence was admissible to show that the assignment of the policies, although absolute in form, was intended as a pledge or as collateral security (Matthews v. Sheehan, 69 N. Y., 585, and cases there cited on page 590), and that the evidence clearly established the fact of such intent on the part of Mrs. Marsh, and also on the part of Col. IJosmer, who, upon the uncontroverted testimony, is to be regarded as the agent of the defendant’s assignor.


text:
    Isaac B. Ellsworth and another, by Guardian, Respondents, v. The Ætna Insurance Company, Appellant.

   Judgment affirmed.


text:
    Henry Smith, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.

   Conviction and judgment affirmed and proceedings remitted to the Court of Sessions of Jefferson county to proceed thereon.


text:
    David Clark, Plaintiff in Error v. The People of the State of New York, Defendants in Error.

   Conviction and judgment reversed and new trial ordered in the Court of Sessions of Jefferson county, to which court the proceedings are remitted. Held, that the indictment is sufficient, but there is no satisfactory evidence that the goods alleged to have been stolen were found in the prisoner’s possession, there being no proof that he occupied the upper chamber in which the goods were found by the officer, or that he had access to it.


text:
    Jacob Fisher, Respondent, v. Stephen M. Corwin, Appellant.
   Judgment reversed and new trial ordered before another referee, costs to abide event, unless plaintiff stipulates to reduce the recovery to the sum of sixty-one dollars and twenty-five cents, with interest from the date of the report, and in that case the judgment as so reduced affirmed.


text:
    Levi Nichols, Respondent, v. George Drew et al., Appellants.

   Judgment and order of Special Term reversed and judgment ordered for defendant, Drew, on the demurrer, with costs of the demurrer and the appeal, with leave to the plaintiff to amend his complaint in twenty days on payment of costs. Held, that there is an improper joinder of causes of action, the first count being in tort and the second on contract, and the defect being specified in the demurrer.


text:
    John Crane and others, Respondents, v. Harvey Benham, Appellant.
   Judgment affirmed.


text:
    Walter S. Hubbell, Respondent, v. Levi A. Young, Appellant, Impleaded, etc.

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


text:
    Louisa G. Jones, Respondent, v. Thomas J. Kerr, Appellant.

   Judgment reversed and new trial ordered before another referee, costs to abide event. Held, that the objection to the questions put to the defendant as a witness in his own behalf as to the intent with which he wrote the instrument in question, was improperly sustained. (Thurston v. Cornell, 38 N. Y., 281, and cases cited, page 287; Kerrains v. The People, 60 id., 221.) The subsequent answer of the witness relied upon by the plaintiff as curing the error, was not a full response to such questions.


text:
    Hiland H. Kendrick, Respondent, v. The City of Oswego, Appellant.

   Judgment affirmed.


text:
    Carl Busch, Appellant, v. The Buffalo Creek Railroad Company, Respondent.

   Motion for reargument granted.


text:
    The Same v. The Same.
   —Motion to modify decision made at the last term and the order thereon denied, without costs.


text:
    In the Matter of the Application of George W. Phelps, etc., v. The Trustees and Assessors of the Village of Mt. Morris.
   Motion to modify order of June term granted, as specifically asked for in notice of motion.


text:
    James F. Angel, Respondent, v. John Felt and others, Appellants.

   Motion to dismiss appeal granted, with ten dollars costs.


text:
    Henry J. Waggoner, Appellant, v. Mary Walrath, as Executrix, etc., Respondent.

   Ordered, that the respondent have leave to-enter an order of affirmance nunc pro tnmc as of the January term, 1881, and that the appellant have leave to appeal therefrom to the Court of Appeals, on the ground that the case presents questions of law which ought to be reviewed by that court.


text:
    George A. Coe, Respondent, v. David Bearup, Appellant.
   Motion to dismiss appeal granted,'with ten dollars costs, unless the appellant pays said costs within twenty days, and by the twentieth day of November next serves printed papers, as required by tbe rules, including copies of the case as settled by tbe referee, in which case the motion is denied.


text:
    Edgar L. Gillis, Appellant, v. John W. Hill, Respondent.
   Judgment reversed and new trial ordered before another referee, costs to abide event.


author: Dwight, J.

text:
    In the Matter of the Application of the Lake Shore and Michigan Southern Railroad Company, Appellant, for the Appointment of Commissioners to Examine the Proposed Route of the New York, Lackawanna and Western Railroad Company, Respondent.

   Decision of commissioners affirmed, with costs of the appeal. Opinion by

Dwight, J.


text:
    In the Matter of the Application of the New York, Lake Erie and Western Railroad Company, Appellant, for the Appointment of Commissioners to Examine the Proposed Route of the New York, Lackawanna and Western Railroad Company, Respondent.

   No. 1, No. 2 and No. 3. In each of the three cases the decision of the commissioners affirmed, with costs of appeal.


text:
    George W. Moak, as Receiver, etc., Respondent, v. Nathan S. Hayes, Appellant, Impleaded, etc.

   Order affirmed, with ten dollars costs and disbursements. Held, that on an appeal to the General Term from a final judgment all the security is required, under section 1352 of the Code to stay execution, that is required by sections 1326 and 1331, to perfect an appeal to the Court of Appeals and stay execution, although by section 1351 no security is required for the sole purpose of perfecting such appeal.


text:
    Gazena C. Jones, Appellant v. Orvis H. Zollar and others, Respondents.

   Order appealed from affirmed, with ten dollars costs and disbursements. Held, that the matters of fact alleged in the second defense antecedent to the settlement and release are to be construed as matters of inducement to the alleged settlement which embraces the release of the plaintiffs right of dower.

Smith, P. J., dissenting.


text:
    In the Matter of the Assignment of Calvin L. Winters.
   Order appealed from affirmed on the opinion of the county judge, with ten dollars costs and disbursements to be paid by the appellant personally.


text:
    Norton W. Stoddard, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.

   Conviction and sentence reversed and a new trial ordered in the Court of Sessions of Lewis county, to which court the proceedings are remitted. Held, that the charge in respect to the consideration to be given to the fact of the assignment of the mortgage from George Hush to William Hush, and the refusal to charge as requested upon that subject were erroneous.


text:
    Thomas Stanton, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.

   Conviction and sentence reversed, and new trial ordered in the Court of Sessions of Onondaga county, to which court the proceedings are remitted. Meld, that the court erred in overruling the objection taken to the question put to the plaintiff in error on cross-examination: “ How many times have you been arrested ? ” (Crapo v. The People, 15 Hun, 269 ; S. C. affirmed, 76 N. Y., 288.)


text:
    The People of the State of New York ex rel. Albert Brisbane and others, Respondents, v. John Zoll and others, Assessors, etc., Appellants.

   Judgment of Special Term affirmed with one taxed bill of costs to the respondents. Meld, that it is clearly to be inferred from the appeal book that the assessors in reaching the conclusion that, no damages were sustained by the relators’ set-off against the damages proved, the benefits which were found to have accrued to the relators from the change of grade, and in so doing, as we think, violated a rule of law. Meld, also, that the statutory limitation of one year did not begin to run until the physical change of grade was actually made.


text:
    George H. Gilbert, Respondent, v. Shadrach Groff, as Administrator, etc., Appellant.

   Judgment and order reversed and new trial ordered, costs to abide evént. Meld, that the part of the charge which related to defendant’s refusal to answer the question in regard to taking security from Mrs. Whitney, was erroneous, and the defendant’s exception thereto was well taken.


text:
    Jesse B. Anthont, Respondent, v. Leonard Seaton, as Sheriff, etc., Appellant.

   Judgment of County Court affirmed.


text:
    Morris F. Sheppard, Appellant, v. Frank Earle, Respondent.

   Judgment reversed and new trial ordered, costs to abide event. Meld, that as the complaint contains sufficient allegations to constitute a cause of action for the recovery of the money paid, on the ground of an entire failure of consideration, all the other allegations may be disregarded, and a recovery may be had on that ground if the evidence warrants it. (33 N. Y., 581; 42 id., 83.) This point was not passed upon on the former appeal, all that was then held being that an action for a breach of warranty could not be maintained upon the facts proved.


text:
    Carlon Church, Respondent, v. Charles Van Buren and others, Appellants.

   —Judgment affirmed. The only question raised by the appeal is res adjudicata in this court. (55 How. Pr., 489 ; see, also, Earl v. David, 20 Hun, 527, and McKennan v. Frazer, 23 Alb. L. J., 255.)


text:
    Richmond Putnam, Respondent, v. Alphonzo Matthewson and another, Appellants.

   Declined to be heard, there being no evidence in the appeal papers that the case has been settled according to rule 32.


text:
    Edwin C. Butts, Respondent, v. The Village of Lowville, Appellant.

   Déclined to be heard for the reason that there is-no evidence in tlie appeal book that the case has been settled as required by the rules of court.


text:
    Thomas D. Penfield, Surviving Partner, etc., Respondent, v. Mary Dailey and others, Appellants.

   Order affirmed without costs. Held, that as the'receiver appears to have complied strictly with the directions of the judgment in respect to depositing the surplus money, and is not shown to have received any interest thereon, he should not be required to pay interest.


text:
    Samuel P. Burnell, Respondent, v. De Forest Weld, Impleaded, etc., Appellant.

   Judgment affirmed.


text:
    John M. Jaycox and others, Respondents, v. Lyman Clark and another, Appellants.

   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Alonzo B. Chamberlain, Respondent, v. Eli Gallup and others, Appellants.

   Appeal dismissed, with ten dollars costs and disbursements. Held, that an appeal does not lie from an order in supplementary proceedings made by a judge out of court. (Code of Civil. Proc., sec. 2133, and Throop’s note to same.)


author: IIakdin, J.

text:
    Syracuse Savings Bank v. The Syracuse, Chenango and New York Railroad Company.
   Order denying motion to vacate order directing receiver to sell affirmed, and the stay therein directed continued until the further order of the court, without

prejudice to a new application. Opinion by

IIakdin, J.


text:
    Syracuse Savings Bank v. The Syracuse, Chenango and New York Railroad Company. N. Stanton Gere v. The Same.
   Order denying motion to discharge the receivership affirmed, without prejudice to a new application. (See opinion in last case.)


author: Per Curiam

text:
    The same two actions.
   Order vacating the orders of August 27, 1881, discontinuing the actions, reversed, without prejudice to a new application.

Per Curiam

opinion filed with the clerk of Monroe.


author: Hardin, J.

text:
    In the Matter of the Application of the Syracuse, Chenango and New York Railroad Company, and of George Lewis, Jr., a stockholder, etc.
   Order of Special Term modified so as to direct, in addition to its present provisions, that the transfer books be returned to the officer from whom they were taken by one of the directors of the corporation, or to such other person as shall be appointed by the court at Special Term to receive them, and as so modified affirmed. Opinion by

Hardin, J.


text:
    In the Matter of the Application of the Syracuse, Chenango and New York Railroad Company, Defendants, etc., and others.
   Order denying the second motion to discharge receivership affirmed, without prejudice to a new application.


text:
    In the Matter of the General Assignment of Cowing & Co. and John P. Cowing and others, individually.
   Order appealed from reversed. Opinion by

Dwight, J.


text:
    Jefferson New, Appellant, v. Samuel Aland, Respondent.
   Order of Comity Court modified so that the only right to amend which the defendants shall have thereunder shall be the right to serve the amended answer set out in the appeal book, and as so modified affirmed, with ten dollars costs of this appeal, and disbursements to be paid by the respondent.


text:
    William N. Strong and others, Respondents, v. Addison P. Jones and others, Appellants.

   Order affirmed, with ten dollars costs and disbursements. Held, that the defendants, having ‘availed themselves of the benefit which the order granted them, cannot now be heard to complain of the condition imposed by the order.


text:
    Horace S. Whiting, Appellant, v. John Edmonds and others, Respondents.
   New trial denied and judgment ordered for defendants on the verdict. The case of Chamberlain v. Edmonds, decided in this department in 1866. (MS. opinion of E. I). Smith, J., followed.)


text:
    Hiram Dillenbeck, Respondent, v. Ambrose Gray and another, Appellants.

   New trial denied and judgment for defendants already entered on the verdict to stand as security made absolute.


text:
    Newton D. Noble, Respondent, v. Mary M. Lyon, Appellant.

   Motion to dismiss appeal granted, with ten dollars costs, unless the appellant, within ten days, pays said costs and serves a case and exceptions, and by the tenth day of December next causes the case to be settled and printed papers to be served, as required by the rule, in which case the motion is denied.


text:
    John J. Greenough, Respondent, v. George N. Stearns, Appellant.
   Judgment and order reversed and new trial ordered, costs to abide event. Held, that the offer of the defendant to show that the testimony as taken by plaintiff was thrown out because it was not in accordance with the rules of evidence, was erroneously rejected.


text:
    George W. Bradner, Respondent, v. William O. Gile, Appellant.

   Declined to be heard, the appeal book containing no evidence that the case has been settled by the referee, and containing neither the opinion of the referee nor an affidavit that none was delivered by him.


text:
    James W. Fitzgerald, Appellant, v. James Fitzgerald, Respondent.
   Judgment and order of County Court affirmed. Held, that the original return of the justice could not be controverted upon a material fact by an amended return or otherwise (Barber v. Stettheimer, 13 Hun, 198), and that as the original return showed that issue was joined before the justice, the motion to strike the cause from the trial calendar in the County Court was properly denied. Held, also, that the judgment of the justice was properly reversed, as there was not sufficient evidence before the justice to sustain the judgment as to the last three items of the plaintiff’s account, and in respect to all the items except the last one, they were apparently within the statute of limitations, which was pleaded as a defense.


text:
    The Lacustrine Fertilizer Company, Respondent, v. The Lake Guano and Shell Fertilizer Company and others, Appellants.

   Order denying the defendant’s motion for leave to withdraw demurrer and to answer affirmed, with ten dollars costs and disbursements, unless defendant, within twenty days after service of taxed bills, pays all of plaintiff’s costs and disbursements in this action accrued since the service of the complaint (not already paid), including said costs of this appeal, and delivers to the plaintiff’s attorney an undertaking executed by the defendant and two sufficient sureties, each of whom shall justify in the sum of $10,000, to be approved by a justice of this court, conditioned that the defendant will pay any judgment that shall be recovered against it in this action, and that it will not remove any of the marl in dispute until the final determination of this action, unless sooner permitted to do so by the order' of this court, in which case the order appealed from is reversed and the defendant’s motion for leave, etc., is granted.


text:
    The Same v. The Same.
   Order denying motion to set aside execution affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Application of the New York, Lake Erie and Western Railroad Company, for the Appointment of Commissioners to Examine the Ppoposed Route of the New York, Lackawanna and Western Railroad Company in the Town of Erwin.
   Order appealed from reversed and motion for appointment of commissioners granted, with leave to the petitioners to apply to the Special Term to name commissioners, costs of appeal to abide event.


text:
    In the Matter of the Application of the New York, Lake Erie and Western Railroad Company, for the Appointment of Commissioners to Examine the Proposed Route of the New York, Lackawanna and Western Railroad Company in the County of Livingston.
   The like order in all respects as in the last case.


author: Smith, P. J.

text:
    Margaret Miller, as Administratrix, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment affirmed. Opinion by

Smith, P. J.


author: Davis, P. J.:

text:
    In the Matter of the Estate of MILTON S. CURRY, Deceased.

      Discovery of property wrongfully withheld from an executor — the provisions of the Code of Civil Procedure relate to the possession only, and are constitutional.

    In the proceedings authorized by the Code of Civil Procedure (§§ 2706-2714) for the discovery of property of a decedent, wrongfully withheld from his legal representatives, the question of possession only and not that of title can be examined, and the said sections are not in conflict with the provisions of the Constitution declaring that no person shall be deprived of life, liberty or property without due process of law, and that trial by jury in all cases in which it has been heretofore used shall remain inviolate.
    Mattel• of Beebe (20 Hun, 462) distinguished.
    Appeal by Horace H. Brockway from an order of the surrogate of the county of New York, directing his appearanee and examination for the discovery of property.

      F. B. lord, for Horace H. Brockway, appellant.

      J. JD. Townsend, for the administratrix, respondent.
   Davis, P. J.:

This appeal is from an order of the surrogate in proceedings taken under article 1, title I chapter 18, sections 2706, et seq., of the Code of Civil Procedure. On the 21th of January, 1881, Sarah L. Curry, administratrix of Milton S. Curry, deceased, presented her petition to the surrogate under section 2706 of the present Code, in which she alleged that she believed that some of the chattels and personal property of the estate of Milton S. Curry, deceased (describing the same), which belonged to him at the time of his death,-or were in his possession within two years prior to his decease, were withheld by one Horace H. Brockway, into whose hands or possession the same had fallen or been taken; that she had caused a demand of the articles and property to be made and said Brockway had refused to deliver the same to her, and she prayed, in substance, that an inquiry be had respecting the property and that Brockway be cited to attend the inquiry and be examined accordingly. The surrogate thereupon issued the citation prayed for, and upon the return the said Brockway appeared by counsel and objected to the jurisdiction of the court and to the constitutionality of the proceedings provided for by the Code of Civil Procedure under which such citation was issued. The surrogate overruled the objection and made a further order that the examination of the said Brockway be taken upon an adjourned day, and from this order the said Brockway appealed. The appellant relies upon the decision of the General Term of this court, held in and for the third department, In the Matter of the Estate of Mary Ann Beebe (20 Hun, 462). The proceedings in that case were taken under the provisions of chapter 394 of the Laws of 1870, and it was held that the act was unconstitutional and void. If the proceedings in this case arose under that act we should feel ourselves constrained to follow that decision without suggesting any doubt of its correctness. The provisions of the Code of Civil Procedure from sections 2706 to 2714, inclusive, are a re-enactment, with modifications, of the provisions contained in the act referred to. But as the note of Mr. Tliroop to section 2712 states, care has been taken to confine the decree to a determination of the question of possession.” An examination of the several sections shows that the question of possession is the sole object of the provisions. In the Matter of Beebe (ubi supra), the court seem to have been of the opinion that the question of title might, under the act of 1870, be determined by the surrogate, and perhaps that view may be maintainable. But it seems clear that, under the provisions of the Code, the surrogate can only deal with the question of possession, and can only decree that the possession be delivered to the representative of the deceased party, where it clearly appears that such possession is wrongfully withheld. ¥e are unable to see that these provisions are of necessity in conflict with the Constitution. They are analogous, in some respects, to the familiar proceedings taken formerly in actions of replevin, and now in actions of- claim and delivery, by which the possession of property may be transferred and delivered without determining the question of title; and to some extent, also, with the relief given in proceedings supplementary to execution, where a third person is claimed to have property of a judgment debtor, and is summoned to appear and be examined upon the question of his possession, and, in proper cases, subjected to an order for the delivery of the property of the judgment debtor in his hands. Neither of these proceedings has ever been supposed to be obnoxious to any constitutional provision, and so long as they are limited to the question of possession, there does not seem to be any good reason for doubting their constitutionality. It certainly is extremely desirable that there should be some speedy mode by which the property of testators and intestates, of which possession has been obtained by third parties, can be promptly reached in the Surrogate’s Court, and placed in the hands of an executor or administrator. It was by no means the intention of the statute to go further than to rescue the property clearly belonging to the estate of the decedent from a party not lawfully entitled to withhold it; and a system of procedure which sufficiently guards the rights of claimants of the property, as the Code seems to do, ought to be upheld unless clearly unconstitutional.

The provision of the Constitution which declares that no person shall be deprived of life, liberty or property without due process of law, has received very able consideration by the courts in several cases. (Taylor v. Porter, 4 Hill, 140; Wynehamer v. People, 13 N. Y., 461; Rockwell v. Nearing, 35 id., 302; Westervelt v. Gregg, 12 id., 212.) Under those cases, the phrase “ due process of law ” must be held to mean, lawful judicial proceedings in a court of competent jurisdiction. It is claimed that the provisions of the Code under consideration are unconstitutional, because they do not provide for trial by jury. The Constitution declares, in section 2 of article 1, that “ trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever, but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.” Trial by jury is not therefore, in all cases, an essential element in due process of law.” It is oniy in cases in which it had been theretofore used that the Constitution makes it a necessary element in such “ due process,” and hence it follows that cases within the jurisdiction of the equity courts, although they often involve the title and final disposition of property, are, nevertheless, “ due process of law ” within the meaning of the Constitution; hence, also, those proceedings affecting the possession of personal property in actions at law which existed prior to the adoption of the Constitution and the subsequent proceedings which have taken their place as, fór instance, creditors bills and proceedings to reach property of judgment debtors in supplementary proceedings, are not supposed to be obnoxious to the Constitution, although no jury trial is provided. Undoubtedly courts of equity could have intervened to aid executors and administrators to discover and obtain possession of property belonging to a testator or intestate; and ever since Surrogates’ Courts or courts of probate have been known in this or other States the power of the court to control the possession of property in the hands of an appointed representative of the estate, and in many cases to impound it for the benefit of the estate, has in some form been used. The legislature has unquestionably, we think, power to confer upon the surrogate any summary authority in respect of estates within its jurisdiction which courts of equity could have used before the adoption of the Constitution; and especially would this be so if the power simply related to the possession of the personal effects of a deceased party.

But we do not intend to discuss the question further than is necessary simply to state our reasons for affirming the order of the surrogate. The question is one of grave importance and will doubtless be finally determined upon full consideration by the Court of Appeals. We think, therefore, the better mode for its presentation to that tribunal will be reached by affirming the order, notwithstanding its apparent conflict with the case of the Matter of Beebe above cited.

The order should, therefore, be affirmed.

Daniels, J., concurred.

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

Order affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES ROSENKRANZ, Appellant, v. JOSEPH B. CARR, Secretary of State of the State of New York, Respondent.

      Surrogate of JYeio York — in ease of his Heath his successor holds only for the unexpired term.

    When the board of supervisors of the city and county of New York have, m pursuance of section 3 of chapter 488 of 1847, filled a vacancy in the office of surrogate, caused by the death of the incumbent, the officer elected at the general election next ensuing the happening of such vacancy holds only for the unexpired term of his predecessor.
    Chapter 292 of 1869 only modifies the act of 1847 by changing the duration of the term of office of the surrogate from three to six years. It does not affect those provisions of the act of 1847 which relate to the manner of filling vacancies in the office caused by the death or resignation of the incumbent.
    The city of New York never had a " county court ” or a “ county judge ” within the meaning of section 15 of article 6 of the Constitution, pi-oviding that the county judge should be surrogate of his county, but that in counties having a population exceeding 40,000 the legislature might provide for the election of a separate officer to be surrogate, and the laws by virtue of which the office of the surrogate of the city and county of New York exist are not affected by the provisions of the Constitution relating to county courts and county judges.
    Appeal from an order made at Special Term in the third judicial district, denying a motion for a mandamus.

      James M. Zyddy, for the relator.

      W. £. Juggles, first deputy attorney-general, for the respondent.
   Davis, P. J.:

The relator, as a citizen of the United States and of the State of New York, and a resident and elector of the city and county of New York, moved at Special Term for a mandamus to require the respondent, who is the Secretary of State of the State of New York, to include in the election notice required to be published by statute, the office of surrogate of the city and county of New York, claiming that the office of the present incumbent will expire with the year 1881, and that a surrogate is to be elected for a succeeding term of six years. The question presented by the motion is, whether the present incumbent, under the existing provisions of the Constitution and statutes relating to that office, was elected for a full term of six years, or to fill a vacancy caused by the death of Stephen D. Yan Schaick, who was elected to a full term of six years at the general election of 1875, and entered upon the duties of his office on the 1st of January,. 1876, and died in April following. Upon-the death of Mr. Yan Schaick, Delano C. Calvin, the present incumbent, was appointed by the board of aldermen of the city of New York, acting as supervisors under the provisions of chapter 488 of the Laws of 1847, to fill the vacancy caused by such death, “ until the general election next ensuing.” At the general election, in November, 1876, Mr. Calvin was elected to the office, as appears in the papers presented, “ in place of Delano C. Calvin, appointed in the place of Stephen D. Yan Schaick, deceased.” The relator contends that this election conferred on Mr. Calvin only the residue of the unexpired term of Stephen D. Yan Schaick, which will terminate with the year 1881. The respondent insists that it conferred on Mr. Calvin a full term of six years, which will expire with the year 1882. So far as the question is controlled by statutes, it depends upon the provisions of chapter 488 of the Laws of 1847, and chapter 292 of the Laws of 1869.

Chapter 488 of the Laws of 1847, provides as follows:

Section 1. There shall be eleeted at the general annual election in and for the city and county of New .York, held in the month of November, in the same manner that other county officers of said city and county are elected, a recorder and surrogate for said city and county who shall hold their respective offices for the term of three years from the first day of January next after said election.”
Section 3. In case a vacancy shall occur in either of said offices by death, resignation or otherwise, the board of supervisors of said city and county are authorized to fill such vacancy until the general election next ensuing the happening of such vacancy, when an election shall be had to fill the unexpired term of the officer whose term had so become vacant.”

These sections clearly provided for several distinct things: '

First. The electing of a surrogate and the fixing of his term of office.

Second. The filling of a vacancy, caused by death, resignation or otherwise, by an appointment to be made by the board of supervisors “ until the generad election next ensuing the happening of such vacancy,” and then by an election for “ the unexpired term of the officer whose term had so become vacant.” The provision which fixes the term of the office, and those provided for filling a vacancy occurring during a term are so clearly distinct and independent that a repeal or modification of either has no necessary effect upon the other ; and especially would this be the case where the supposed repealing act left the system of the statute untouched in most of its general features, aud directed itself to a single one of them.

The act of 1869 (chap. 292, Laws of 1869) contains but one section. Its title is “ An act to fix the dwration of the term of office of the recorder, city judge and surrogate in the city and county of New York.”

This is one, and but one, feature of the system created by the statute of 1817 for filling the office of surrogate. The duration of the term of office is fixed by that statute at three years. In 1869 the legislature having in view that term, and intending, as declared by the title of the act, to “ fix ” it at a different and longer term, enacted that “ the term of office of the persons who shall hereafter be elected to the office of recorder, city judge and surrogate, respectively, in the city and county of New York, shall be six years.” There is in this brief enactment no expressed repeal of any portion of the statute of 1817. It therefore repeals by implication only so much of the provisions of that statute as is necessarily and absolutely inconsistent with it; and it falls within the rule that “ repeals by implication are not favored in the law, and that if consistently with the plain words of the later statute the older statute can stand, it shall be so adjudged.”

Aided by the index given by the title of the act, we have no difficulty in discerning that its sole object 'was “ to fix the duration of the term of office,” and then collating its single section with the first section of the former statute, we at once see that the only change made is in that part of the section which fixes such term; The former statute does it in these words: Who shall hold their respective offices for the term of three years from the first day of January next after such election.” The later statute does it by these words: “ The term of office of the persons who shall be hereafter elected shall be six years.”

It seems to us perfectly apparent that the provision was not intended to repeal or abrogate any portion of the provisions relating to the filling of accidental vacancies. The periods for which that class of vacancies are to be filled are not regarded by either act as terms of the office; ” they are- provided for as something different in their nature, and requiring independent legislative attention and regulation, and the best argument that can be made against the contention that they are repealed or chahged is, that the legislature, in fixing the term of the office of surrogate by the act of 1869, left them entirely alone.

This view is greatly strengthened by observing what provisions of the act of 1817 remain unquestionably intact.

In the first section, the portion that provides for the- election of a surrogate, and prescribes the time and manner of such election, are left in full force; and the portion which declares that the term shall commence from the first clay of January next after said election was undoubtedly intended to be preserved. But no such provision is contained in the act of 1869. That act simply declares that the term of office of persons who shall hereafter be elected shall be six years. Six years from when? To answer 'that question we must resort to the first section of the act of 1817, and by force of the latter enactment, in place of the words “ who shall hold their offices for three years,” read, “ the term of office of persons hereafter elected shall be six years from the first day of January next after such election,” and we have the manifest purpose of the legislature. It is not easy to see what intention of the act of 1869 is not fully answered by this view. If we look at the third section of the act of 1817 it appears clearly that the part relating to filling vacancies by the board of supervisors cannot be affected. They “ are authorized to fill such vaccmoy until the general election next ensuing the happening of such vaccmoy.” It was under this provision that Mr. Calvin was ajjpointed, and he held the office under it until the next general election. As soon as that election was completed by the final canvass and announcement of his election by the board of county canvassers, his appointment by the supervisors ceased, and he held by virtue of his election. He could not hold by his appointment until the first day of January next ensuing, for the statute declares otherwise. If he took by that election a term of six years under the act of 1869, there must either have been an absolute interregnum in the office from the time of the completed election until the first of January following, or his term of six years commenced at the time his election was consummated by the final canvass and certificate. In the latter case his term will expire and another vacancy will ensue of a month or more in 1882. Surely the legislature had no such thing in contemplation, nor had the people of the city when they voted for him to succeed to the unexpired term of Mr. Yan Schaick,- deceased.

But we avoid all possible confusion in construing these statutes, when we regard that of 1869 as simply enlarging the term, of the office to six years, leaving in full vigor the provisions of the act of 1847 for filling vacancies caused by death or resignation or otherwise. Great stress is laid by the court below upon the words “ the term of office of the persons who shall be hereafter elected to the office of surrogate shall be six years,” arguing that these words indicate an intention to cover every election of a person to perform the duties of the office, whether for a full term or an accidental vacancy. But so did the first section of the act declare, with equal emphasis, that persons elected under the provisions “shall hold their respective offices for the term of three years from the first day of January next after such election.” Yet no one thought of claiming that if the election of the surrogate was made after the death of an incumbent, there was any inconsistency between the declaration of the first section that a person elected surrogate shall hold for three years, and the provision that one elected to an unexpired term, when a vacancy occurs by death, shall only fill out the term of his predecessor.

The fallacy of the argument grows out of the failure to observe that the statutes recognize a clear distinction between an election “ to the office ” of surrogate, and an election to fill a vacancy that has occurred by death in the office. "When this distinction is borne in mind all conflict between the statutes disappears, and no difficulty arises as to the period for which any incumbent is chosen.

But it is contended that certain provisions of the Constitution affect tlie question. We are not able to perceive any soundness in tliis position. There is no provision of the Constitution which provides for filling vacancies by death in the office of surrogate of this city and county. It may be laid down as an indisputable proposition that where the Constitution creates or recognizes an office, and prescribes its term, but fails to provide expressly, or by necessary implication, for what period and in what manner vacancies occurring (except by lapse of terms) shall be filled, such vacancies are the subject of legislation, and may be provided for and regulated by statute. There is no incongruity between such legislation and the Constitution. The provisions of the Constitution referred to by the court below, and relied upon by counsel, have, in our opinion, no application to the case before us.

By section 15 of the present judiciary article (art. 6 of the Constitution), it is provided that “ the existing county courts are continued, and the judges thereof in office at the adoption of this article shall hold their offices until the expiration of their respective terms. Their successors shall be chosen by the electors of the counties for the term of six years. * * * The county judge shall also be surrogate of his county; but in counties having a population exceeding forty thousand, the legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be the same as that of the county judge.” It is under this provision, of course, that all the counties which have county courts are provided, also, with surrogates. In all of them the county judge is, by the Constitution, made surrogate; and there is and can be no other surrogate unless the legislature choose to provide for the election of a “ separate officer to be surrogate,” and in cases where that is done the term of office of such officer is the same as that of the county judge whom he supercedes in the duties of the office. But the city of New York never had a “county court” or a “county judge” within the meaning of the fifteenth section; nor has a “ separate officer ” ever been provided for and elected to be surrogate under its provisions. The office of surrogate of the city and county of New York existed long prior to the present Constitution, by operation of laws not complicated in any wise with the system of county courts and county judges as recognized or created by the Constitution for other counties of the State. The surrogate of the city is not elected to perform duties which otherwise devolve on a county judge, because the population exceeds forty thousand. The Constitution did not abrogate the office nor interfere with the laws which created it, but by section 12 of article 11 it provided that the “ Surrogate's Courts of the city and county of New Yorlc shall remain, until otherwise directed by the legislature, with their present powers and jurisdictions'' And that the judge of such court and any clerk thereof in office on the 1st day of January, 1817, should continue in office until the expiration of their terms of office, or until the legislature should otherwise direct.

We have seen by the act of 1817, already so often referred to, whát the legislature did provide for, shortly after the amended Constitution of 1816 was adopted. There is, therefore, no force whatever in the suggestion that because county judges and separate officers,” under section 15 of article 6, have a term of office fixed by that provision, the office of surrogate in New York is regulated by it.

¥e are therefore of opinion that the present surrogate of the city was legally elected to fill the vacancy caused by the death of Mr. Yan Sehaick, as it appears was intended by the voters, and that it was the duty of the respondent to have given notice of an election of a successor to that office.

The motion should have been granted, and the order of the court below is therefore reversed and an order entered directing the issuing of such writ.

No costs are awarded to either party.

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

So ordered.


author: Davis, P. J.: “ Yan Brunt, J.:

text:
    WILLIAM M. SMILLIE, as Trustee for FREDERICK W. TETENS, Respondent, v. DENIS QUINN, as Receiver, etc., of MARY ANN TETENS, Appellant, Impleaded with the Equitable Life Assurance Society of the United States, and Others

      Policy upon the life of a husband for the benefit of his wife — the creditors of the latter cannot attach an assignment of it, made by her in trust for her children.

    In March, 1878, Mrs. Tetens assigned to the plaintiff in trust for all the children of herself and hushand, two policies of insurance issued upon the life of her husband payable to her in case she survived, and to his children in case she did not survive him. All the premiums upon the policies had been paid by the husband. Upon the husband’s death, subsequently, in March, 1879, the amount due upon the policies was paid into court. In May, 1879, an execution was issued upon a judgment for a deficiency, entered against Mrs. Tetens after the date of the assignment, in an action brought to foreclose a bond and mortgage given by her prior thereto, and thereafter a receiver of her property was duly appointed.
    In an action to determine the rights of the parties to the insurance moneys:

      Held, that Mrs. Tetens’ creditors could not claim that the assignment of the policies was void because of Mrs. Tetens inability to assign them; that the right to avoid the assignment, if such right existed, was personal to her.
    That the creditors had no such legal or equitable right to Mrs. Tetens’ interest in the policies as to render her assignment to the trustee fraudulent as to them.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe trial of tbis action at Special Term.
    AT. H. Clement, for the appellant.

      Thomas G. Shearman, for tbe respondent.
   Davis, P. J.:

On the trial of tbis action before Mr. Justice Yan Brunt, at "the Special Term, be pronounced the following opinion and statement of tbe case:

“ Two policies of insurance were issued by tbe Equitable Life Assurance Society on tbe life of Louis Tetens, in favor of Mrs. Mary Ann Tetens, bis wife, if she survived him, and of bis children, in case she did not survive him. All the premiums on these policies down to March, 1878, were paid by Louis Tetens out of bis own moneys. In March, 1878, the husband still living, these policies were assigned by Mrs. Tetens to the plaintiff, in trust for all the children of herself and husband.

“ Before this assignment was made, Mrs. Tetens had executed a bond and mortgage to Messrs. Burke, upon which suit had been brought against her, and shortly after the assignment was made, final judgment was rendered against Mrs. Tetens in the foreclosure proceedings.

“ In March, 1879, Louis Tetens died, and the insurance company paid the amount of these policies into court in this action.

“In May, 1879, an execution was issued to the sheriff of New York upon the judgment for deficiency in the foreclosure action against Mrs. Tetens, and such proceedings were subsequently had that the defendant, Denis Quinn, Esq., was appointed receiver of the property of Mrs. Tetens.

“In August, 1879, Mrs. Tetens executed a confirmatory assignment of these policies.

“ This action is brought to determine the rights of the parties to the proceeds of the policies.

“ Yan Brunt, J.:

“ In respect to the question as to whether or not a policy of insurance of the kind involved in this action is assignable, it may well be doubted that anybody can raise that question except the beneficiaries under it. The courts have held these policies to be not assignable, for the protection of the widow and orphan when asked by them to exercise their power, but it is difficult to see how an entire stranger to a contract can claim it to have been void because of the disability of one off the contracting parties.

“ The right to avoid such an assignment is entirely personal, and no one except the parties resting under the disability can avail themselves of it to avoid their contract.

“ Therefore, it seems to me that the creditors of Mrs. Tetens cannot reach the proceeds of this policy because she had no power to assign it.

“ The question then remaining is, can the assignment be set aside as a fraud upon the creditors of Mrs. Tetens ?

“ The ground upon which transfers of property are set aside as fraudulent is that the creditors are equitably entitled to have the debtor’s property applied to the payment of their debts, and any transfer by the debtor of his property to avoid such application is a fraud upon the rights of the creditor.

“ It must be seen that no such equity exists in a case like the present. “ The husband, pursuant to law, seeks to make provision after his death for his widow and his children, and the legislature has exempted from the claims of his creditors a considerable sum to enable him to make' this provision, and the courts, in carrying out the legislative intent, have thrown around such a provision all the safeguards which it was possible to do. Can the creditors of the wife, who become such before widowhood, have any equitable claim upon policies of this character, which the creditors of the husband have not 2 It was his money which created the fund, not hers, and if the claim of the defendant is sustained, the creditors of the husband are to be deprived of part of his estate, in order to create a fund for the benefit of the creditors of the wife.

“ It seems to me clear, therefore, that the creditors of the wife have no equitable right to have the proceeds of this policy devoted to the payment of their debts.

“ The Court of Appeals have held that the provision of the act of 1840 authorizing such insurance was special and peculiar, and looked to a provision for the state of widowhood and orphanage, and because of this they have held that it would be a violation of the spirit of the act to allow the wife to sell or traffic with her policy as though it were realized personal property, or an ordinary security for money, but they have nowhere held that any stranger can possibly acquire any interest in the policy or its proceeds through the wife until it is realized personal property.

Any act of the widow, therefore, which would tend to secure a policy of this description as a provision for orphanage, would seem to be entirely within the spirit of the enactment of the legislature, and no creditor of the wife could be allowed to intervene and divert the fund from the purpose for which it was created.

“ I am of the opinion, therefore, that the defendant, the receiver, has no claim which he can enforce against the proceeds of these policies.

Judgment accordingly.”

Our examination of the case has led us to the same conclusions expressed by the learned justice before whom the case was tried, and we therefore adopt his opinion as sufficiently expressive of our views of the case.

It seems to iis very clear, under the decisions of the Court of Appeals, that at the time Mrs. Tetens made the assignment to the trustee for the benefit of her children, her creditors, now represented by the receiver defendant, had no present interest in the policy, nor any claim or lien, either at law or in equity, which they could have enforced in any court. She was under no legal or moral obligation to keep possession of her ownership of or interest in the policy for their benefit until, upon the possible death of her husband prior to her own, her beneficial interest in the policy might ripen into a possession in her own right of the money which would then become payable upon it. According to the spirit of the decision of the Court of Appeals in Eadie v. Slimmon (26 N. Y., 9) and Barry v. The Equitable Society (59 id., 587), she alone could challenge the validity of the assignment, even if it had been made directly to her creditors, on the ground that it frustrated the scheme of the statute made for her benefit. In making over her contingent interest in the policy to the trustee for her children, she disposed of nothing that her creditors could reach, unless it cari be held that they had a right to intervene and pay the accruing premiums, and thereby keep the policy alive till, by the death of her husband, she might become entitled to receive the amount of the insurance for their benefit, to be handed over to them or the receiver of her property, and applied to her indebtedness. Such a right cannot be maintained. It would thwart the scheme of the statute as developed by the decisions of our courts. Her assignment was not a departure from the spirit of the statutory provisions, which look to the protection of both widowhood and orphanage, and for that purpose have declared the non-assignability of the policy to her husband’s creditors or her own. It is not important to determine whether she herself could attack and avoid her assignment to the trustee of her children, on the ground of want of power in herself to make it. It is enough to us to see that if she does not, no one else can question its validity.

The judgment should, therefore, be affirmed, but, under the circumstances, and in consideration of its novelty, we think without costs.

Brady and Daniels, JJ., concurred.

Judgment affirmed, without costs.


author: Brady, J.:

text:
    JOSEPH ROSENTHAL and ADOLPH STRAUSS, Appellants, v. JAMES N. PLUMB, Respondent, etc., Impleaded with ANDREW M. FANNING.

      Statute of limitations — running of, stopped during pendency of bankrupt proceedings — when it is not necessm'y to show that the bmikrupt court had jurisdiction.

    Under section 21 of the bankrupt act of 1867, and section 5105 of the United States Revised Statutes, no creditor who had proved his debt could commence or maintain any suit at law or in equity against the bankrupt until the question of his discharge had been determined, and, under section 105 of the old Code, the time during which the creditor was so prevented from maintaining any suit, was not to be counted as a part of the time limited for the commence ment of an action.

      TJhl v. Neubergher (11 Weekly Digest, 296), distinguished.
    Where the pendency of the proceedings in bankruptcy are set up as an answer to the defense of the statute of limitations, it is not necessary to show that the Bankruptcy Court had jurisdiction of the proceedings^ but it is sufficient to show that the court entertained the proceedings, and that the bankrupt himself made an application for his discharge, and required the court to pass upon the question of his right to obtain it.
    Appeal from a judgment, entered on the trial of this action before the court without a jury, dismissing the complaint on the merits, with costs.
    This action was brought by the plaintiffs, who are copartners under the firm name and style of J. Rosenthal & Co., against the defendants, who, at the time of the commencement of this action, were the surviving partners of the firm of J. M. & J. N. Plumb & Go., upon two causes of action set forth in the complaint; the first upon a promissory note for $2,975.80 made by the said firm of J. M. & J. N. Plumb & Go., and the second upon an account for goods sold and delivered by the plaintiffs to the said firm of J. M. & J. N. Plumb & Go., amounting to the sum of $248. The fact of the making of the note arid the sale of the goods is found in the findings of facts. The note bears date the 24th December, 1867, was payable five months after date, and became due on the 27th May, 1868. The goods were sold and delivered prior to the 28th November, 1867. On the 29th Frebruary, 1868, the defendant, James X.Plumb, filed in the office of the clerk of the District Court of the United States for the southern district of New York, a petition in bankruptcy, and he was adjudged a bankrupt on the 16th March, 1868. Subsequently he applied for his discharge in bankruptcy, Avhich was refused on the 11th January, 187*8. The plaintiffs proved their debt in bankruptcy against the defendant, James N. Plumb, on the 15th May, 1868.
    Between the 13th April, 1870, and the 25th April, 18(77, the defendant Plumb was absent from the State of New York on five' different occasions, as set forth in the sixth finding of facts of the court.
    This action was commenced on the 3d day of October, 1878, by the delivery of the summons and complaint therein to the sheriff of the county of Suffolk, which summons and complaint were served on the defendant Plumb on the 7th October, 1878.
    The only defense litigated on the trial was the defense of the statute of limitations.
    The defendant Fanning has not been served with process in the action.

      William A. Ooursen, for the appellants

      J. K. Ilayward, for the respondent Plumb.
   Brady, J.:

It is quite apparent from the preceding statement of facts that the statute of limitations is not a bar to the maintenance of this action, if its commencement was stayed by statutory prohibition.

The Code of Procedure, in existence at the time this suit was begun, by section 105, declared that where the commencement of an action may be stayed by statutory prohibition, the time of the continuance of the prohibition should not be a part of the time limited for the commencement of the action.

The bankrupt act of March 2, 1867, enacted, by section 21, as follows:

“ That no creditor proving his debt or claim shall be allowed to maintain any suit at law or in equity therefor against the bankrupt, but shall be deemed to have waived all right of action and suit against the bankrupt; and all proceedings already commenced, or unsatisfied judgments already obtained thereon, shall be deemed to be discharged and surrendered thereby.

“ And no creditor whose debt is provable under this act shall be allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt, until the question of the debtor’s discharge shall have been determined.

“ And any such suit or proceeding shall, upon the application of the bankrupt, be stayed to await the determination of the court in bankruptcy on the question of the discharge.”

And this section was replaced in the Revised Statutes of the United States by two sections numbered 5105 and 5106. The former section was a substitute for the first paragraph of the original section 21, and is as follows:

“No creditor proving his debt or claim shall be allowed to maintain any suit at law or in equity therefor against the bankrupt, but shall be deemed to have waived all right of action against him; and all proceedings already commenced or unsatisfied judgments already obtained thereon against the bankrupt shall be deemed to be discharged and surrendered thereby. But a creditor proving his debt or claim shall not be held to have waived his right of action or suit against the bankrupt where a discharge has been refused or the proceedings have been determined without a discharge.”

Section 5106, which was a substitute for the second and third paragraphs of section 21, provides as follows:

“No creditor whose debt is provable shall be allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt until the question of the debtor's diseharge shall have leen determined; and any such suit or proceedings shall, upon the application of the bankrupt, be stayed to await the determination of the court in bankruptcy on the question of the discharge.”

It has been justly said that there are two classes of cases provided for by these sections: The first is where the creditor has proven his debt in bankruptcy, and the second where the debt is provable but has not been proved. The course to be adopted by the bankrupt for his protection is different in the two cases. In the first if an action is brought against him directly in face of the bankruptcy proceeding, he may plead the pendency of his proceeding, or the proving of the debt by the creditor, while in the second he must apply to the court in bankruptcy for an order staying the suit to await the determination of his application.

The object of these sections was to prevent the prosecution of a claim against the bankrupt which was provable, whether the debt was proved or not. The plaintiffs having proved their debt, waived their present right of action against him and subjected themselves to the operation of the statute under which they had proceeded in the Bankruptcy Court, and which, as we have seen, expressly declared that a creditor proving his debt should be deemed to have waived all right of action against the bankrupt until the proceedings commenced by the latter resulted in the refusal of a discharge or the determination of the proceedings without a discharge. This is undoubtedly the effect of section 5105, to which reference has already been made. In other words, the act of the creditor, in proving his debt, had the effect of creating a waiver of his right of action until the proceedings in bankruptcy were determined either by a discharge or a refusal to grant it on application. This was expressly decided in the case of Wood v. Hazen (10 Hun, 362), and this view, though not directly declared as a judgment, is decidedly expressed in the Ansonia Brass and Copper Company v. The New Lamp Chimney Company (53 N. Y., 122), and Shellington v. Howland (53 N. Y., 371); see, also, Bump on Bankruptcy (10 Ed., 113).

Of course the plaintiffs controlled by the rule declared, after having proved their debt in bankruptcy, were precluded not only from prosecuting, but from commencing an action against the defendant Plumb. It is supposed that in the case of Uhl v. Neubergher, decided in the Court of Common Pleas, and reported in 11 Weekly Digest, 296, a different view was taken of .these statutes. That case was unlike this, it would seem, because it does not appear that the plaintiff proved his debt. In the opinion of the court it is said that it was evident, when the case was begun, that the plaintiff was not aware that the defendant was in bankruptcy, or that he did not suppose that he was prohibited from bringing the suit. The sections of the statute which have been recited, show that there is a difference between creditors who have proved their debts and those who have debts provable. In that case the court also stated that the intent of the bankruptcy act seemed to be that, unless the creditor was enjoined, he could bring his action, and that the mere adjudication in bankruptcy was not of itself an injunction against the bringing of an action. This view may be entertained with reference to sucli a case, where the debt was not proven in bankruptcy, but provable only. This decision, therefore, is not regarded as controlling, or, indeed, decidedly in point, the plaintiff here having proved his debt, and the question being whether the bankrupt can avail himself of the statute of limitations, which he has created by his own acts. In Wood v. Hazen {supra), this court decided that the mere adjudication of bankruptcy was of itself an injunction against the bringing of an action. And in the case of Shellington v. Howland {supra), the court said: “ After the proceedings in bankruptcy against the corporation commenced by the defendant, it was unlawful for the plaintiff to prosecute his action, and any further proceeding would have been fruitless. * -* * The sup; was terminated as well by the operation and effect of the bankrupt law, as by the direct and active interposition of the defendant in enforcing the law by the positive sanction of a court of competent and jiaramount jurisdiction. The action was in fact terminated, and a compliance with the condition precedent, imposed by the statute, rendered impossible by the paramount law of the United States put in operation by the defendant.”

It is not necessary to consider the proposition that the court in bankruptcy had no jurisdiction of the application made by the defendant. It is enough that the court entertained the proceeding, and that the bankrupt himself persisted in its continuance, making his application for a discharge, and demanding that the court should pass upon the question of his right to obtain it. This was done by Justice Blatohford, who, for reasons assigned by him, to which it is not necessary to refer particularly, declined to give him his discharge. But, as an abstract proposition, it must be held that the question of jurisdiction cannot to permitted to interfere with the operation of the statute, inasmuch as it expressly prohibits any proceeding against the bankrupt other than in the bankruptcy proceedings, until the discharge has been refused, or the proceedings determined without a discharge. As long, therefore, as the bankrupt maintained his proceeding the prohibition continued, and continued by his own act. In this case it continued until 1878, when his application for a discharge was finally decided against' him. Without reference to the particular facts in the case of Uhl v. Neubergher, and assuming that case to have decided the question in favor of the respondent, we nevertheless feel bound to follow the decision of this court in Wood v. Hazen, sustained as it is thought to be by the Court of Appeals in the other cases to which reference has been made.

For these reasons we think the judgment should be reversed and a new trial ordered.

Davis, P. J., and Daniels, J., concurred.

J udgment reversed, new trial ordered, with costs to abide event.

       See amendment, section 7, chapter 890 of 1874.— [Kef.


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

text:
    EDWARD L. LIVERMORE, Appellant, v. ELIZABETH WORTMAN and Others, Respondents.

      Collector of an estate ■— must deposit the moneys with a trust company — with what interest he should be chcwged for failing to do so —1864, chap. 71.
    The appellant was appointed collector of an estate pending a contest, relative to the probate of a will in which he was named as executor. Instead, of depositing the moneys received by him in an incorporated trust company, as ' required by chapter 71 of 1864, he deposited them first in an account kept by a firm of which he was a member, and afterwards in his individual account.
    It did not appear that the moneys were used either by the firm or by him, or that he derived any profit from the deposits. Upon his accounting the surrogate charged him with interest upon such moneys at the rate of seven per cent.

      Held, that he should have been charged with only so much interest as would have been received from the deposit if it had been made with the trust company, as required by the statute. (Davis, P. J., dissenting.)

      Appeal from a decree of the surrogate of tbe county of New York, settling the accounts of tbe appellant as collector of tbe state of James Mairs, deceased.

      Alfred Roe and John J. MacKUn, for tbe appellant.

      8. Jones, for tbe guardian ad litem.

      John H. Bird, for tbe other respondents.
   Daniels, J.:

Tbe appeal has been taken from so much of the decree as charged tbe appellant with interest at tbe rate of seven per cent upon moneys received by him while he acted as collector of tbe estate. He was appointed for that purpose pending a contest relative to tbe proof of a will, in which be was nominated executor, and complete authority for that purpose was conferred by statute upon the surrogate. (3 R. S. [5th ed.], 160, 161, §§ 38-43.)

As such collector, by tbe terms of chapter 71, Laws 1864, it became bis duty, when moneys belonging to tbe estate wrere received by him, to deposit them in a trust company incorporated under the laws of tbe State, and having its principal office or place of business in the city of New York. This was a plain and unqualified obligation clearly defined by the terms of the statute. (Laws 1864, p. 107, § 1.)

The appellant failed to observe • the duty so enjoined upon him, probably because of some mistake or misapprehension as to its nature. But as the duty was clearly created, that circumstance, even if it existed, cannot relieve him from the consequences of a failure to observe it. Tbe policy of tbe law was to require moneys so received to be placed where some income or interest could be derived from them for tbe benefit of the estate, and this was, in tbe present instance, defeated. Instead of making tbe deposit required by tbe terms of tbe statute, tbe moneys received were at first placed in tbe bank account of a partnership in which tbe collector was a' member. Soon after that, a different deposit was made of them, in which they were credited in bis individual account. It does not appear that they were used either by him or by bis firm for any of the purposes of their business, or that any profit was derived by him from that deposit of the money. But the absence of this circumstance will not relieve the collector from the obligation prescribed for him by the terms of the statute, nor from the consequence of omitting to do what the law in such a case has required. On the contrary, by taking this obligation upon himself, he became liable to make good to the estate all the advantages which he would have derived from the literal observance of this statutory obligation. (Baskin v. Baskin, 4 Lans., 90.)

The moneys so held by him were in his hands as a trust, and he was bound to conform his conduct to such a management of them as the law has for that purpose prescribed.

But simply because he failed to do so he did not incur any greater liability to the estate than is necessary to indemnify it against the loss sustained by reason of his failure to observe this duty. If the money had been used, either in his own business or that of the firm, or the rate of interest charged against him had in any other manner been obtained by him, this portion of the decree would have been entirely proper. But neither of these facts was made to appear in the case. It was simply an instance in which the money was retained in the collector’s hands, which resulted in no other loss to the estate than the interest or income which might have been derived from the deposit if it had been made with the trust company, as that was directed by the statute. It is well known that upon such a deposit the rate of interest allowed by the surrogate could not have been obtained. It would have been much less than that, and probably not exceeding from three and a-half to four per cent in any event. To that extent alone has this estate been involved in loss; and for that reason, as no intentional misconduct has been established, the appellant should have been no further held accountable. (Harrington v. Libby, 6 Daly, 259.) A similar liability was there considered and it was deemed proper to subject it to this limitation. And a like doctrine was sanctioned by the disposition which was made of King v. Talbot (40 N. Y., 76) where the rate of interest was placed at what the trustee would probably have derived from the investment of the moneys in his hands, which it was held it was his duty to have made. The decree in this ease should accordingly be modified by reducing the interest to such a sum as would have been obtained by the appellant if he had made his deposits as the statute required that to be done, instead of retaining the moneys received by him in the bank selected by himself. And as so modified the decree should be affirmed, without costs to either party.

Brady, J., concurred.

Davis, P. J.:

It appears in the case that- the appellant deposited the money received by him to the credit of the firm or to his personal credit. Upon such facts the presumption is that he had the benefit and use of the funds, and he is chargeable with the legal rate of interest unless he establishes satisfactorily that he did not have any use or benefit of and from the same. Until that be shown he is properly and equitably to be charged with the full rate of lawful interest. The appellant did not show that his mode of disposing of the moneys was the result of inadvertence or misapprehension of his duties, and that in point of fact he or his firm did not make use of or have the benefit of the moneys in their business in any wise, and hence I think the order of the surrogate was right and should be affirmed.

Order as modified affirmed, without costs.


author: Davis, P. J..

text:
    FRANCES JANE JESTER, Appellant, v. JOHN W. STERLING, Respondent, and NATHAN KELLOGG, Appellant.

      Assumption of a mortgage by a grantee — when the mortgagor is released by an extension of the time of payment — provisions as to payment of the interest, not affected by an extension as to the time of payment of the principal.

    In 1871, one Sterling executed to the plaintiff his bond and mortgage, providing for the payment of $6,'000 on the 10th day of April, 1876, with interest thereon payable semi-annually on the 10th days of October and April, and that in case any default should be made in the payment of the semi-annual interest, which should continue for twenty days, then the whole of the principal should become due. Thereafter Sterling sold the premises to Mrs. Kellogg, subject to the mortgage, which she covenanted in and by the conveyance to assume and pay. On April 11, 1876, the plaintiff, on applying to L. Kellogg, a son of Mrs. Kellogg, for the interest then falling due, was, told hy him that his mother could not pay it, hut that he would pay it if the plaintiff would agree, in writing, to extend the time of payment of the principal until after six months’ notice should he given in writing. The plaintiff, knowing of the sale to, and of the assumption of the mortgage by Mrs. Kellogg, executed the written agreement and received the money. Thereafter, an installment of interest having remained unpaid for more than twenty days after it fell due, this action was brought to foreclose the mortgage.

      Held, that as, after the conveyance of the land, Sterling stood in the position of a surety for Mrs. Kellogg, he was, by the agreement for the extension of the time of payment, released from all personal liability to the plaintiff.
    That the agreement for the extension of the time of payment of the principal had no effect upon the piovisions of the mortgage respecting the payment of the interest and the consequences of any default therein.
    Appeal from a judgment, entered at Special Term, directing a sale of mortgaged premises to pay an installment of interest due upon the mortgage, and dismissing the complaint as to the defendant Sterling, against whom a personal judgment was asked. The action was brought to foreclose a mortgage, and for a judgment in personam against the defendants for any deficiency that might arise upon a sale.

      Wilson M. Powell, for the plaintiff appellant.

      Shearman c& Sterling, for respondent Sterling.

      Arthur II. Smith and George W. Van Slyolc, for appellant Kellogg.
   Davis, P. J..

The respondent, John W. Sterling, in the year 1871, executed to the appellant his bond and mortgage to secure the payment of $6,000, the principal of which was payable on the 10th day of April, 1876, and the interest thereon semi-annually on the tenth days of October and,April of-each year. The instruments con-' tained provisions that in case default should be made in the payment of the semi-annual interest, and such default continue for twenty days, then the whole of the principal should become due. After executing the bond and mortgage, the respondent Sterling sold and conveyed the premises covered by the mortgage to the respondent Helen M. Kellogg, subject to the mortgage which, in and by the conveyance to her, she covenanted to assume and pay as part of the consideration for the sale and conveyance. On the 11th day of April, 1876, the appellant went to the office of one L. Laflin Kellogg, a son of Helen Kellogg, to collect the interest which fell due on the day before (she having annually received her interest through him), and was then told by said Laflin that his mother was unable to pay the interest, but that he would himself advance and pay it if the appellant would extend the term of the mortgage until six months’ notice was given in writing. The appellant agreed to this proposition, and Laflin then paid to her the six months’ interest then due, and she signed and delivered to him the following instrument:

“Received, New York, April 11th, 1876, fromL. Laflin Kellogg, two hundred and ten dollars, in full ¡payment of interest to date on my mortgage of $6,000 on 327 "West 42d street, I hereby agreeing to extend the term of said mortgage until after six months’ notice in writing from me.

FRANCIS JANE JESTER.”

The appellant knew of the sale and conveyance of the house and lot to Mrs. Kellogg, and of her assumption of the mortgage. The respondent, John W. Sterling, had no knowledge of the execution and delivery of the above instrument to L. Laflin Kellogg, and never assented thereto.

The court below held that the respondent Sterling, after his conveyance of the premises to Mrs. Kellogg, and her assumption of the mortgage and covenant to pay the same as part of the purchase-price of the land, stood in the relation, in equity, of surety for Mrs. Kellogg, and that the agreement with L. Laflin Kellogg to extend the time for the payment of such mortgage, with knowledge of the relation of the several parties thereto, and without the knowledge or assent of Sterling, operated to discharge the personal liability of said Sterling, and dismissed the complaint as to him, with costs.

After the execution of the instrument made by appellant to L. Laflin Kellogg a subsequent installment of interest fell due and was not paid, and the same remained unpaid for more than twenty days after it became due. Upon this default the appellant claimed that the principal of the bond and mortgage were due by the terms of those instruments and that she was entitled to judgment of foreclosure for such principal and the unpaid installment, notwithstanding no six months’ notice had been given under the agreement with L. Laflin Kellogg. The court held, in substance, that she was entitled only to foreclose for the unpaid interest and gave judgment accordingly. From this judgment as well as from judgment dismissing the complaint as against the respondent Sterling she brings this appeal.

The relation of Sterling under the circumstance of this case was undoubtedly, in equity, that of surety and his rights were to be respected and treated accordingly. (Comstock v. Drohan, 71 N. Y., 9; Flower v. Lance, 59 id., 603; Paine v. Jones, 14 Hun, 577; Marsh v. Pike, 10 Paige, 595.)

A valid agreement upon a valuable consideration made by appellant with the principal debtor to extend the time of payment without the consent of the surety would discharge the personal liability of the latter. (Ducker v. Rapp, 67 N. Y., 464, and cases there cited.)

The only question presented by the appeal from that part of the judgment which dismissed the complaint as to Sterling is whether the agreement made by the appellant with L. Laflin Kellogg was based upon sufficient consideration, and whether the agreement enured to the benefit of Mrs. Kellogg.

It is clear that the appellant received nothing more than was actually due and owing to her for interest on the bond and mortgage. If the agreement had been made, therefore, between Mrs. Kellogg herself and the appellant, the consideration would be insufficient to uphold it. (Philpot v. Briant, 4 Bing., 717; Halliday v. Hart, 30 N. Y., 474; Gahn v. Niemcewicz, 11 Wend., 319; Gibson v. Renne, 19 id., 389; Parmelee v. Thompson, 45 N. Y., 58.) And these cases go far to show that the payment of such a sum only, though made out of the private income of an executrix who was under no other liability than that of representative of the testator, or by a note of the debtor with a third person as surety, or, in snort, in any mode that gave to the creditor no more than his present due, would be an insufficient consideration to uphold the extension and accordingly the surety would not be discharged.

Bat in Ducker v. Rapp (67 N. Y., 464) the Court of Appeals seem to have held that the agreement of extension made between the principal debtor and the creditor for an extension will operate to discharge a surety of the debtor if the debtor give an additional security for the debt. In that case unpaid rents were assigned and that fact was held to vitalize the agreement.

In the case before us the agreement was not made, nor was the consideration of it paid by the debtor, unless her son be considered as her agent, in which case the agency would operate to make the agreement her own, and consequently ineffective for want of consideration. Upon the facts found in this case the son was simply a volunteer, paying “out of his own pocket” the interest past due, in consideration of the appellant’s agreement with him to extend the time of payment of the principal sum secured by the mortgage till a period of which six months’ notice in writing shall have been given. Between the son and the appellant the agreement was based upon a valuable consideration, for the former paid his own money to extinguish an indebtedness due and owing by and from another, but not by or from himself. A breach of the agreement might entitle him to damages for any injury it should be to him, and if he could enforce it by enjoining an immediate foreclosure, it would, of course, operate to prevent the respondent Sterling from taking up the mortgage and immediately foreclosing it himself for his own benefit. The test by which the question of the discharge of a surety is determinable, is whether the creditor of his principal has made any agreement which, in law or equity, prevents his exercising the rights that belong to his relation of surety for his own prompt and effective protection. Without discussing the question whether the agreement with the volunteer in this case was for the benefit of the person who was the real debtor, and could ,be enforced within the principle of the cases cited by the counsel for the resjoondent, it is probably enough to see that a valid agreement, upon sufficient consideration, was made by the creditor with some person which prevented the surety from enforcing the mortgage, without delay, for his own protection. Within the ruling in Grinnan, v. Platt (31 Barb.. 328), that seems to have been the case. The judgment, in eo far as it dismisses the complaint against Sterling, should be affirmed.

But we are of opinion that the agreement made between the appellant and L. Laflin Kellogg operated only to extend the time for the payment of the principal of the mortgage. It was not intended to have, and did not have, any effect whatever, upon the payment of interest on such principal, nor to change the provisions of the mortgage in respect of the stipulated consequences of default in the payment of the interest. They remained in full force and vigor. Under those provisions a default for twenty days in the payment of the semi-annual interest made the whole of the principal immediately due. The provision of the agreement extending the principal till after six months’ notice, was entirely consistent with the obligations contained in the mortgage for the payment of the semi-annual interest, and with the consequential effect upon the principal of a default in paying the inlerest for twenty days after its maturity should occur. If the bond and mortgage had been originally written, that the principal should lie payable only after six months’ written notice, there would have been no inconsistency between that provision and those relating to the payment of interest and the consequences of a default of such payment. It was error, therefore, to hold that the default in payment of interest for more than twrenty days after it fell due did not entitle the appellant to elect to treat the principal as wholly due, and foreclose accordingly. So much of the judgment as denied that right should be reversed, and the judgment be modified to declare that appellant was and is entitled to foreclose for the whole amount of principal and unpaid interest. A new trial will not be requisite for that purpose, as we think this court has power to modify the judgment- to enforce the legal rights of the plaintiff upon the facts found by the court below.

The judgment as to the respondent Sterling must be affirmed, with costs of the appeal to him. The judgment in respect of the plaintiff’s right to enforce the mortgage for both principal and interest should be reversed and judgment entered as suggested, with costs of the appeal to tlie appellant.

Brady and Daniels, JJ., concurred.

Judgment reversed; judgment entered as directed, with costs.


author: Bradt, J. : Davis, P. J.:

text:
    HENRY M. ISAACSON, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Common ca/rrier— when not liable for injv/ry to baggage occasioned by a connecting carrier’s negligence.

    The plaintiff, a resident of the city of New Orleans, purchased tickets for himself and family to Niagara Falls, and for their return to New Orleans over what was called the Mobile route. From Niagara Falls he purchased .tickets to New York city and for his return to the Falls over the defendant’s road. When about to leave New York he went to the baggage room in the defendant’s depot in that city, showed his return tickets and asked for checks for his baggage over the route indicated upon them for New Orleans. The baggage master, after having examined the tickets, delivered to the plaintiff two checks, which the latter, upon returning to the hotel, gave to his wife for safe keeping. Neither the plaintiff nor his wife examined the checks until after their arrival in New Orleans, when it was found that the baggage master had checked the trunks for transportation over a route from Niagara Falls to New Orleans different from that indicated on the plaintiff’s tickets. The trunks and their contents were found, upon their arrival at New Orleans, to have been greatly damaged by reason of an accident which had occurred in Mississippi upon one of the roads forming the route over which they had been earned.
    In an action brought by the plaintiff against the defendant to recover the damages he had sustained:

      Held, that he was not entitled to recover.
    Appeal from a judgment in favor of the defendant, entered upon a dismissal of the complaint ordered at the circuit.

      Horace E. Demi/ng, for the appellant.

      Eramli Loomis, for the respondent.
   Bradt, J. :

This action was brought to recover damages for the loss of the plaintiff’s baggage. It appears that he was a resident of New Orleans, in the State of Louisiana, and on or about July 1, 1876, left New Orleans for a journey to the north and east. At that city he purchased for himself and family tickets to Niagara Falls, in this State, and to return, on what was known as the “ Mobile route,” which seems to have been by wray of Montgomery, Nashville, Louisville, Cincinnati, Cleveland and Buffalo, aHjjl' at Niagara Falls he bought tickets to the city of New York and to return, over the New York Central and Hudson River Railroad. Hpon the route thus indicated the plaintiff and his family traveled from New Orleans to New York. On the 17th of August, 1876, the plaintiff, who was in the city of New York and about to return with his family to New Orleans, called at the baggage room of the defendant at the Grand Central Depot in this city and, showing the return tickets already mentioned, asked for checks for his baggage over the route indicated on those tickets to New Orleans. The baggage consisted of two trunks containing the wearing apparel of the plaintiff and his family. The baggage master of the defendant asked to see the plaintiff’s tickets, examined them, and inquired when the baggage would be ready and was told that it was then ready, whereupon he gave the plaintiff two checks for his trunks from New York to New Orleans. The plaintiff placed the checks in his pocket without examining them, and, on returning to his hotel, handed them to his wife for safe keeping. The plaintiff and family on the same day commenced their return journey from New York' to New Orleans. They traveled by the ticketed route, and their return tickets were accepted as good for their passage by the train conductors on the lines already mentioned. Prior to the arrival of the train at New Orleans, the checks (which in the meantime had remained under the control of the plaintiff’s wife, and had not been examined by either her or the plaintiff) were handed to the agent of the New Orleans Transfer Company with directions to deliver the baggage at the plaintiff’s residence. The next day the plaintiff was sent for from the railway station to identify two trunks which were in a damaged condition, and were supposed to be his property, and which were recognized by him as his own. They were then opened, and their contents carefully examined; they were found to be utterly worthless, and the damage was appraised. .

The trunks, it appears, were checked by the defendant’s baggage master for conveyance over a route beyond Buffalo different from the one indicated on the plaintiff’s return ticket, namely, over the Great "Western, Michigan Central, Chicago, St. Louis and New Orleans Railroad, and while in transit over the latter road had been damaged, as already mentioned, and by an accident near Tugaloo, Mississippi.

Upon these facts being disclosed, which constituted the plaintiff’s case, a motion was made to dismiss the complaint, and it was granted. The grounds upon which the dismissal was asked were as follows:

First. That no delivery of the baggage in question to the defendant had been proven.

Second. That it does not appear that any act of the defendant’s was the cause of the loss or injury to the articles in suit. .

Third. That the defendant’s agent had no right to check, or undertake to check the plaintiff’s baggage beyond the point to which the plaintiff had tickets purchased of defendant, and the act of defendant’s agent in that respect was gratuitous and unauthorized.

Fowrth. That the negligence of the plaintiff contributed to the miscarriage and injury to his baggage.

It appears that the defendant received a compensation for the carriage of the plaintiff’s family and baggageover their road from Niagara Falls and back again, and none for their carriage beyond the terminus of their own line; and it also appears that the plaintiff had secured his return tickets from Niagara Falls by the “Mobile route,” already described. No special contract was made with the defendant to carry the plaintiff and his family or their baggage beyond the terminus of their own line. No contract, indeed, at that time would seem to have been necessary, because the plaintiff had already selected his route, and secured his means of transportion. The plaintiff’s application at the Grand Central Depot to the man in charge of the baggage room was to have his baggage checked to New Orleans, according to the tickets that he had, which was done, but not over the roads indicated by them. The checks which were given to him, and which he failed to examine, expressly stated that they wei’e by way of the Great "Western Railway of Canada to Detroit, and thence over intermediate lines to the city of New Orleans. The defendant, according to the evidence in the case, was under no obligations to check his baggage beyond its own terminus, in the absence of a special agreement to that effect, or proof o'f a partnership existing between it and the other lines, which would impose such a duty upon it, and incurred no obligation therefor, under the circumstances, by checking them over the route indicated by the check. It was the plaintiff’s duty to examine the checks and thus to advise himself of their character, and to ascertain whether the baggage was to be carried over the routes indicated by the tickets which he says he exhibited to the baggage master. In the absence of any proof of custom or contract requiring that performance, the checking -would seem to have been a matter of curtesy. It is very clear that it was not founded on any moneyed consideration, according to the evidence disclosed, the plaintiff having secured his passage by payment to the defendant only for transportation over its line.

It is true that the baggage master, according to the testimony of the plaintiff, selected a route other than that mentioned by the latter, but as no duty rested on the defendant, as already suggested, to check the baggage to any point beyond that for which the defendant had issued tickets, and there being no evidence to show that the baggage master had any authority to give checks beyond its lines, his act of checking beyond it must be regarded as one of curtesy only to save the plaintiff the inconvenience of rechecking liis baggage at Niagara Falls, at which point the duties of the defendant under their contract ceased.

It is a well established rule in this State that, in the absence of a special contract or of a partnership existing between connecting lines, the carrier is only responsible to the extent of his own route, and for safe delivery to the next connecting carrier. In such a case the carrier is a forwarder merely from the terminus of his own line, and is, therefore, bound to deliver only at the terminus of his own line according to the established usage of the business in which he is engaged. (Root v. The Great Western Railroad Company, 45 N. Y., 530; Condict v. The G. T. R. R. Co., 54 id., 500; Sherman v. H. R. R. R. Co., 64 id., 260; Faulkner et al. v. Hart et al., 82 id., 422.)

As said in Sherman v. The Hudson River Railroad Company, in the case of transportation of property over several railroads constituting a continuous line, none of the railroads can be said to be agents of the owner, each is exercising an independent employment and is a contractor with the owner, the contract 'being either expressed, or such as the law implies, and each is responsible for his own negligence.

According to these rules the defendants could be held responsible only for damage caused by their own negligence, and none is charged upon them in this case.

If the delivery of the checks, under the circumstances disclosed by the baggage-master of the defendants, can be regarded as an obligation' of any kind beyond their route, it is that they would deliver the baggage to the connecting line indicated upon them, inasmuch as the plaintiff received the checks without objection, and is, therefore, chargeable with notice of their contents, and is bound by their terms. (Hill v. Syr., Bing. and N. Y. R. R. Co., 73 N. Y., 351.) The plaintiff’s remedy would seem, therefore, to be against the company through whose negligence his baggage was destroyed.

For these reasons the judgment should be affirmed.

Davis, P. J.:

The contract of defendant with plaintiff, as shown by the tickets, was to transport him and his family to Niagara Falls. The contract shown by the checks was to transport the baggage to Niagara Falls and then deliver it to the connecting line of the route to New Orleans indicated on the checks. These contracts were performed, and the baggage, when delivered under the latter, was uninjured. The railroad companies constituting the route, on receiving the baggage, respectively became responsible to plaintiff, as carriers, for its safe carriage.

No responsibility for their performance of their contract rested upon the defendant. The injury that happened was not occasioned by any fault' or negligence of defendant, nor by any failure on its part to perform its contract as expressed on the checks. Under the settled authorities of this State, no right of action exists in this case against the defendant, and the question of plaintiff’s negligence in not examining his check is not of any practical importance.

I concur, therefore, in the affirmance of the judgment.

Daniels, J., concurred.

J"udgment affirmed.