text:
    ERASTUS F. BROWN and another, Resp’ts, v. ENOCH C. BELL, App’lt.
    Costs—Title—Burden of establishing.
    Appeal from judgment entered on report of referee, .

      E. K. Brown, for app’lt.
   Per Curiam.

The validity of the title in this case depended upon adverse-possession in the plaintiffs, and the defendants were justified under the authorities (see Kip v. Hirsch, 53 N. Y. Supr. Ct. Rep. 1 and 9), in exacting a-judgment on the subject, of a court of competent jurisdiction. As was suggested by the appellant’s counsel, there was practically a consent that the title would be accepted, though founded upon adverse possession, if it could be properly established. It seems to have been properly established, but the appeal herein rests chiefly upon the impropriety of charging the appellant with the costs of the action,, which was regarded as necessary to quiet all questions, as to title. Consequently the only questions which we consider and pass upon relate to the costs.

We think under the circumstances disclosed by the record, that the burden of establishing the title rested upon the respondents, and that the costs incurred in that process should not be charged upon the appellant. In equity and justice the imposition of costs seems to be erroneous.

For that reason the judgment appealed from is reversed as to costs and. affirmed as to the remainder, without costs to either party upon this appeal.


source: Caselaw Access Project

author: Per Curiam

license: Public Domain

text:
    UNION HARDWARE CO Resp’t, v. ALBERT FLAGLER, Impleaded, ETC Appl’t.
    Account—Of what should consist—Code Civ Pro . § 531.
    Appeal from order denying motion for further account.

      A. R. Robertson, for app’lt: Larned & Curtis for resp’t.
   Per Curiam

This action was brought to recover a balance and the defendants demanded a copy of the account as authorized by section 531 of the Code. An account is defined to be a detailed statement of the mutual demands in the nature of debit and credit between the parties arising out of contracts or some fiduciary relation. Bouvier Law Dictionary and cases cited.

The account furnished by the plaintiff is not a detailed statement such as is. contemplated by the definition just given; but is a statement of the debit side of the account only. It does not show that the balance assented to be due is correct even on the plaintiff’s theory If the plaintiff had given the debits and credits the accuracy of the balance stated would at once appear from their account, however it may be contested by the defendant in any subsequent investigation.

For these reasons we think that the order appealed from should be reversed, and that the plaintiff be required to furnish, in addition to the account already given, all the items of credit which affect the account in any way and all other: items necessary to make the account a perfect account of the transactions, between the parties.

Costs of appeal and disbursements to abide the event.


author: Daniels, J.

text:
    JOSEPH HORNTHAL and others, Resp’ts, v. SAMUEL HENDERSON AND ANOTHER, APP’LTS.
    Tender of payment—Sufficiency of.
    Appeal from a judgment recovered on a verdict of a jury, directed by the court.

      William J. Gaynor, for appl’ts; F. A Burnham, for resp’ts.
   Daniels, J.

The verdict was recovered for a balance of an account amounting to the sum of $124.75 and interest thereon The defense made to the action was that the defendants had tendered payment of it before the comencement of the action and that the plaintiffs were not entitled to interest. To support the defense it was proved that on the 17th of October, 1885, the defendants executed and delivered their check to the plaintiffs for the balance of the account. This check was retained by them until the second or third of November, when it was returned with a copy of the summons and complaint in this action. There was no dispute of the right of the defendants to draw the check for this amount on the Mechanics’ bank And it was made to appear by the evidence of one of them that their account was good and had. continued so for the amount.

Before it was drawn on the 5th of October, 1885, the plaintiffs sent to the defendants for a check for this amount, for the balance of their account, and informed the defendants that they expected the check before the eighth, or they would then sue them without further notice,

No suit was however commenced before the service of a copy of a summons and complaint at the time already stated and no objection was returned by the plaintiffs to the defendants to receiving and accepting the check until the check was returned with a copy of the summons and complaint.

These facts supply evidence from which it might have been concluded if the case had been submitted to the jury, that when the check was received by the plaintiffs they accepted and retained it as a compliance with their demand designing to avail themselves of it, by obtaining upon it the payment of their debt, and if they did that, then they had no right afterwards to disaffirm the transaction, as the check was good, and return it to the defendants

The case was consequently one to be submitted to and decided by the jury, and upon the propriety of the direction given to them to return a verdict in favor of the plaintiffs for the amount of the balance of the account, the defendants are entitled to the benefit of all inferences or presumptions, which the jury might have drawn from the evidence and facts in the case. An exception to the direction was taken by the defendants. That exception is-supported by the evidence which was given in the case That the answer presented the defense as a tender, which had been kept good by the deposit of the money in court was not such a variance as deprived the defendants of the defense arising upon the facts proved by the evidence. For no question whatever was raised upon the trial as to the admissibility of the evidence received in the case

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Van Brunt, P. J., and Brady, J., concur.


author: Per Curiam.

text:
    THE PEOPLE ex rel. ALEXANDER H. REAVEY v. THOMAS P. WALSH, Warden, etc.
    Appeal from order dismissing writ of habeas corpus,

      A. Suydam, for app’lt; McKenzie Semple, for resp’t.
   Per Curiam.

Without expressing any opinion as to whether the city prison is virtually a part of the penitentiary under the provisions of the consolidation act, for the reasons stated in the opinion of the learned justice who heard the motion in the court below, namely that the prisoner has never begun to serve his term under the judgment of the court of general sessions, all proceedings under such judgment having been stayed, and the prisoner having been only m a place of detention, pending appeals taken by himself upon which he has obtained stays of proceedings, the order appealed from should be affirmed.


text:
    EASTERN DISTILLING CO., App’lt, v. LONG ISLAND R. R. CO., Resp’t
    Negligence—When complaint properly dismissed—Duty or person as TO CROSSING RAILROAD TRACK.
    Appeal from judgment at circuit dismissing complaint.

      C. B. Smith, for app’lt; E. E. Sprague, for resp’t
   Per Curiam.

We entertain no doubt that the dismissal of the complaint was a proper exercise of judicial power. In the case of Adolph v. C. P. N. E. R. Co. (76 N. Y , 535), the court of last resort expressed the obligation or duty of a traveller approaching a railroad track, and that is to keep off the track at all points save the crossing, and there to exercise all his powers that he may not get in the way of a coming train. He must be as sure as he may be from sight and hearing that it is prudent to cross at that moment, and then he must hasten over. There are other cases bearing upon the same subject (Cordell v. N. Y. C., 75 N. Y., 330; Hayes v. 42 St., 97 N. Y. 259).

The plaintiff’s driver did not exercise the caution which a prudent man would have observed, and there seems but little doubt that the injury to the plaintiff’s property resulted from that circumstance.

The motion to dismiss the complaint was based on the ground that the driver did not take reasonable and proper precautions to protect the plaintiff’s property before crossing the track. And this was regarded as sufficient to justify the result declared by which the complaint was dismissed. We are of the opinion, nevertheless, that it should not have been dismissed upon the merits, inasmuch as the effect of that, if it remained undisturbed, would be to prevent any further investigation of the claim asserted in this case.

We think that those words therefore should be stricken from the judgment so that it remains simply as a dismissal of the complaint, and thus preserve to the plaintiff all that it may now enjoy under the law.

The judgment as thus modified should be affirmed without costs to either party.


text:
    JANE McKENZIE and another v CHARLES HARRISON et al

    Exceptions ordered to be heard in the first instance at the general term.

      F. W. Foster, for pl’ffs, T. J McKee, for def’ts.
   Per Curiam.

The case of Coe v. Hobby (7 Hun, 157, affirmed 72 N Y., 141), disposes of the motion for new trial in this case adversely to the defendant.

It must be denied, and judgment ordered on the verdict for plaintiffs.


text:
    IN THE MATTER OF MARY McMULKIN, Deceased.
    Practice—Suppression or commission.
    Appeal from order of the surrogate denying motion to suppress commission.

      Henry Hoyt, for app’lt, Lemuel H. Arnold, Jr., for resp’t.
   Per Curiam.

It would appear from the examination of the papers which were before the surrogate in the matter of this commission, that the contestants might have been adjudged to be in default, and that the motion to suppress the commission which had been issued might have been absolutely denied, without granting any relief whatever. But it appears that the learned surrogate, in the consideration of the motion, also considered the objections which the proponent had made to the interrogatories attached to the commission, and also allowed the cross-interrogatories propounded by the contestant. The contestant thus obtained all that he was entitled to, and perhaps more, and has no ground to complain of the action of the surrogate.

The order appealed from should be affirmed, with ten dollars costs and disbursements.


text:
    NATIONAL BROADWAY BANK, App’lt, v. PHILO P. HOTCHKISS Resp’t.
    Appeal from order denying motion to punish defendant for contempt.

      Kelly & Macrae, for app’lt; Hamilton Wallis, for resp’t.
   Per Curiam.

It appeared before the court that if the creditor is entitled to payment of his judgment out of money on deposit with the bank, that a sufficient amount still remained to discharge this obligation.

It also appeared to be money in the nature of trust funds which the appellant established no authority for applying to the payment of the judgment.

The case was correctly disposed of by the order, and it should be affirmed, with ten dollars costs and disbursements.


text:
    HORACE M. TEETS, App’lt, v. JOB THROCKMORTON, Resp’t.
    Practice—Reply—When will not be stricken out.
    Appeal from order denying motion to strike out a reply.

      D. M. Porter, for app’lt; R. A. Pryor, for resp’t.
   Per Curiam.

By the conclusion of the answer the defendant demanded a recovery of a sum of money in his favor, and that supported the inference which might very well be drawn that the answer was intended to contain a counterclaim requiring a reply. The plaintiff adopted the safer course, even if such a construction should not be placed upon the answer. It was judicious in this condition of the pleadings to reply, and to put the allegations of the answer in issue from which the defendant claimed this relief. •

Even though the reply might not be necessary it was of no possible injury to the plaintiffs, and there was no ground for striking it out.

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


text:
    THE PEOPLE, Etc., Resp’ts, v. WILLIAM N. SAVAGE, App’lt.
    Appeal from judgment of general sessions.

      A. Suydam, for app’lt; McKenzie Semple, for resp’ts.
   Per Curiam.

It is conceded upon the argument of this appeal by the learned district-attorney that the motion in arrest of judgment should have been granted.

We have no reason to differ from that view upon an examination of the case, and the judgment should therfore be reversed and the prisoner be discharged in this case.


text:
    JOSEPHINE H. BLACK et al., App’lts, v. HOMŒOPATHIC MUTUAL INSURANCE CO., Resp’t
    Attachment—When properly vacated.
    Appeal from order of special term vacating a .achment.

      R. J. Moses, for app’lts; W. H. Arnoux, for resp’t.
   Per Curiam.

Assuming that the plaintiffs herein have stated a cause of action which will, by a stretch of the most exuberant imagination, be indulged in, the case contains no evidence whatever of any intention on the part of the defendant to dispose of its property with the intent to defraud its creditors, and as the attachment was granted upon that ground without any evidence to support it, it was properly vacated and the order expressive of that result was proper and should be affirmed, with ten dollars costs and disbursements.


author: Brady, J.

text:
    EASTERN DISTILLING CO., App’lt, v. MEYER GOLDSMITH et al. Resp’ts.

      O. Bambridge Smith, for app’lt; Morgan J. O’Brien, for resp’t.
    Appeal fiom a judgment on trial at circuit without a jury.
   Brady, J.

This action was commenced to enforce a claim for stabling and feeding cattle and whether the plaintiff should recover or not involved a question of fact which was disposed of on conflicting evidence. The defendants had agreed to locate in the plaintiff’s stalls on the 15th of December, 1884, a certain number of cattle which were to be provided for, for the period of six months and from the day mentioned whether the number named were placed or not.

Some of the cattle were received in November and cared for until the fifteenth of December and following that date for the time agreed upon by the contract. The defendants contended at the trial that it was agreed 'also-that for the cattle received prior to the fifteenth of December, no charge was to be made, the defendants having been given two weeks or the time prior to the fifteenth of December to get their cattle into the stalls which were to be prepared for them. They proved by oral evidence that this was the agreement and that when the bjll for the prior period was presented by the plaintiffs, on their protest against it, the plaintiffs officer said “well, let it go,” thus admitting that it had no validity. They also relied upon a letter which may be construed either for or against the defendants considered alone and without other evidence. It may be said, perhaps, that unaided by proof, the construction would necessarily be in the plaintiffs favor, but it did not stand alone, parol testimony having been given pro and con as to the agreement of which the letter was only an item. The defendants wanted the "contract put in writing, but tlie plaintiffs objected, asserting that the word was just as good and binding We cannot say that the learned justice misconstrued the evidence therefore, or that he misunderstood it or that there is a clear preponderance in favor of the plaintiff. It would seem to be improvident for the plaintiff to provide for the cattle that might arrive before the fifteenth of December, and yet that, might have been held out as an inducement to the defendants to make the contract to pay for all the cattle named for six months whether present or not, and indeed as a consideration for an agreement equally improvident. If the question be asked, why should the plaintiff take care of the cattle that might arrive before the fifteenth of December without compensation, the answer may be made interrogatively why should the defendants pay for all the stalls to be occupied for six months, the full price to be given whether cattle were in them or not.

The multitudious transactions of men present so many varieties of barter that nothing seems strange or fanciful, and the most extraordinary are sometimes the most impressive. When they are made and rest upon oral statements, they naturally give rise to misunderstandings which the defendants in this case seem to have forseen in as much as they requested the contract to he put in black and white.

We cannot on any principle applicable here disturb the judgment for the reasons given, and it must be affirmed, therefore, with costs.

Van Brunt, P. J., and Daniels, J., concur.


text:
    MYER S. ISAACS, Resp’t, v. EMMA BENRIMO, App’lt.

      A. L. Sanger, for resp’t; G. W. Carr, for app’lt.
   Reargument ordered.


text:
    MARGARETHA FINNERN v. JULIUS HINZ.

      Chas. Miehling, for pl’ff; Kaufman & Saunders, for def’t.
   Motion denied.


text:
    WILLIAM A. PARKE v. FRANCO-AMERICAN TRADING CO.

      Stickney & Shepard, for pl’ff; Seligman & Seligman, for def’t.
   Motion denied, with ten dollars costs.


text:
    PHINNEY AYRES v. SARAH J. DOYING.

      Foster & Stephens, for pl'ff; J. G. Shaw, for def’t.
   Motion granted, and order amended by granting leave to withdraw demurrer on payment of costs of appeal and of the demurrer.


text:
    IN THE MATTER OF DAVID McMASTER.

      Alex. Thain; R. Foster.

   Motion granted upon giving undertaking prescribed by sections 2679, 2580 of the Code.


text:
    PEOPLE ex rel. F. S. HEISER v. THOMAS B ASTEN, Etc.

      H. M. Whitehead, for relator, D. J. Dean, for def’t.
   Reargument ordered.


text:
    JOHN H. HANKISON v. WILLIAM R. PAGE.

      Lewis Sanders, for pl’ff; A. R. Page, for deft.
   Judgment affirmed on opinion of Beach, J.


text:
    FRANCES L. CARPENTER v. WILLIAM L. ADAMS.

      F. M. Wheeler, for pl’ff; Thos. Thacher, for deft.
   Judgment affirmed on the opinion of the referee.


text:
    IN THE MATTER OF CECILIA L. BOOTH.

      A. T. Ackert; B. F. Watson.

   The motion for judgment and motion for new trial on the case should be heard at the same time.


text:
    IN THE MATTER OF TIMOTHY H. PORTER.

      R. E. Beers; S. L. Woodford.

   Order affirmed upon opinion of court below with costs.

Daniels, J., not sitting.


text:
    CRANE v. GREENWALD.
   Judgment affirmed with costs on opinion of court below.


text:
    NATHANIEL HOOPER et al., v. CHARLES McC. BEECHER.
   Motion for reargument denied with costs; motion to resettle order of affirmance granted by making costs a charge on fund.


text:
    WILLIAM SULZBACHER, Resp’t, v. ABRAHAM GOLDSTEIN, App’lt.
   Judgment affirmed on opinion of referee.


author: Barnard, P. J.

text:
    SECOND DEPARTMENT, GENERAL TERM.
    Filed May 9, 1887.
    SAMUEL H. KISSAM el al., App’lts, v. WILLIAM COCKROFT, Resp’t.
    Broker—Authority to sell stock.
    Appeal from a judgment dismissing the complaint entered upon the report of a referee.

      Alvin Burt, for app’lts; Henry D, Loder, for resp’t.
   Barnard, P. J.

In May 1881 the plaintiffs bought, at the request of the defendant, and for him, one thousand shares of the New York Central and Hudson River Railroad Company. The defendant made a deposit or margin of ten thousand dollars. The price paid was a trifle over §150 per share of stock. Other deposits or additions to this margin were made during the year, and dividends were credited on the stock as often as collected by the plaintiffs up to January 28, 1882, when the plaintiffs sold the stock on account of defendant, at §130,000 about, realizing a loss to defendant of about §20,000. It was made a serious question of fact upon the trial whether this sale’was authorized. The defendant testified that it was not. The plaintiffs claimed that it was, and Mr. Washburn, one of the partners, testified that the defendant left it to the firm to sell at any time in the discretion of the plaintiffs, when they deemed it advisable to make a “ turn,” so called, which is explained to mean a right to sell at pleasure of the plaintiffs and without notice. The referee has found that the sale was authorized. The plaintiffs also, as part of the arrangement, claimed the right to buy other stocks, as a right given in the authority to make a “turn,” and they aver future purchases with the proceeds of the sale of the plaintiff’s stock. On the first of February, 1882, being the next day after the sale, the plaintiff bought the same amount of stock in the same company for $130,000. The referee has found that this right to turn was not proven, and as a consequence of this finding that the purchase of stock after the unauthorized sale was without the plaintiffs order or direction in any way. The finding of the referee is supported by the evidence. The defendant testifies that he had no knowledge of the sale and gave no power to the plaintiffs to sell at their discretion. As the question depended mainly upon the testimony of Washburn, upon the part of the plaintiff and of the defendant himself, no case is made for an appellate court to reverse for error of fact.

The finding is in accordance with prudence in business and with the legal rule if there was no special agreement to vary it. The “turn” seems purposeless except for the broker’s commission. The old stock sold for enough to buy the new and pay the broker. The case is substantially reduced to this 1,000 shares of stock, for although there was another purchase of stock in defendant’s name, it was upon a limit of loss, to the margin, $5,000.

The plaintiffs accepted the employment and no case is made by the evidence to cast any additional loss upon the defendant. The remaining question is whether the plaintiffs kept the 1,000 shares purchased in May, 1881, until January 31, 1882, for the question of intent depends upon the fact being found in favor of the plaintiffs.

It is not so claimed by the plaintiffs. If they had scrip equal to the 1,000 shares in their hands which was not pledged as security for loans made upon it to the plaintiffs, the evidence does no show it.

It even shows the contrary, but the referee has only found that it was unproven and that is sufficient to defeat a claim based upon the fact that the plaintiffs always had the stock or an equal amount on hand or under their control ready for delivery to the defendant.

If they loaned the defendant’s scrip, sold it, borrowed money on it, it was a conversion unless they had an equal amount on hand ready for delivery on call at all times.

The basis of an interest charge as upon an advance of money for this stock fails. Markham v. Jaudon, 41 H. Y., 235; Taussig v. Mart, 58 id., 425.

There has been no ratification of any unauthorized act, except that of the January, 1881, sale.

The defendant testifies that he did not know what the items representing new purchases meant until the action was commenced and that he did not understand the figures which it is now claimed show a new purchase in the place of the first one.

A ratification must be upon a full knowledge of the facts and no proof is returned in the casé showing that fact so as to reverse a finding that the defendant did not ratify the unauthorized act.

The judgment should therefore be affirmed, with costs.

Pratt and Dykeman, JJ., concur.


author: Pratt, J.

text:
    BEZALEEL H. DUPIGNAC, App’lt, v. MARGARETTA DUPIGNAC et al., Resp’ts.
    Jurisdiction of court to consolidate actions.
    Appeal from an order consolidating certain actions.

      Wm. L. Clark and Louis C. Waehner, for app’lt; James Troy and H. E. Strickland, for resp’dt.
   Pratt, J.

The plaintiff placed himself within the jurisdiction of the court by commencing this action, and is amenable to its orders. We think the whole controversy can be and should be settled in one action, and find no technical obstacles in the way of so doing.

There can be no doubt of the power of a court which has jurisdiction of the person of a plaintiff, to so control his proceedings in other jurisdictions as to forbid vexatious litigation.

As the obnoxious proceeding is a suit instituted in this court, a motion to consolidate was properly granted.

Had it been in some foreign jurisdiction we might have granted an injunction against its further prosecution.

Order affirmed, with costs.

Barnard, P. J., concurs; Dykeman, J., not sitting.


author: Dykman, J.

text:
    JOHN BURRILL, App’lt, v. AUGUST A. C. KRETSCHMAR, Resp’t.
    Yebdict of juby on question of fact—When not set aside.
    Appeal from a judgment entered upon the verdict of a jury in favor of defendant.

      Daniel B. Thompson, for app’lt; Fernando Solinger, for resp’t.
   Dykman, J.

The plaintiff is a real estate agent, and when the defendant sold his property this action was brought for the recovery of commissions upon the sale.

There was testimony on the part of the plaintiff upon the trial tending to show a right of recovery, but the testimony on the part of the defendant tended strongly in the opposite direction.

Unfortunately for the plaintiff the jury failed to award credibility to his testimony and took up the testimony of his adversary as the guide for a verdict. So it must be assumed now that the proof of the defendant furnished the truth and, therefore, the verdict was in accordance with the facts.

The determination of the case depended entirely upon questions of fact, and as their determination dictated the verdict. Those questions o.f fact were in warm dispute, and the jury was the tribunal for their determination, and there is no room or demand for the interference of an appellate tribunal.

The judgment and order denying the motion for a new trial should be affirmed, w.th costs.

Barnard, P. J., and Pratt, J., concur.


text:
    SADIE TILLEY, App’lt, v. WILLIAM W. GOODRICH, Resp’t.
    Motion for re-argument or liberty to go to the court of appeals.

      James W. Culver with J. K. Shoudy, for app’lt; Goodrich, Deady & Goodrich, for resp’t.
   Dykman, J.

There has been no misapprehension of this case, and the litigation has been full and prolonged.

The question involved is insufficient to justify the allowance of an appeal to the court of appeals, and the motion for a re-argument should, therefore, be denied, but without costs.

Barnard, P. J., and Pratt, J., concur.


text:
    THE TOWN OF NORTH HEMPSTEAD, Resp’t, v. JOHN THOMPSON, App’lt.
    PlSHEBY—GBANT OF EXCLUSIVE BIGHT OF FISHING.
    Appeal from a judgment entered in accordance with a verdict of a jury at the Queens county circuit.

      Benjamin W. Downing and James L. Baxter, for app’lt.
   Pratt, J.

Under the decisions (60 N. Y., 60; 91 id., 98, and 93 id., 88), it seems to be clear that the plaintiffs are entitled to an exclusive right of fishery within the limits of their grant.

No question was made at the trial but that the land in litigation was covered by the grants.

The decision in 34 Barb., relied on by appellants, .is overruled by the late cases in the court of appeals, in which the questions are so fully treated that any long discussion here would not be profitable.

The arguments of defendant’s counsel are able and interesting, but we are controlled by authority, and are compelled to direct that judgment be affirmed, with costs.

Babnabd, P. J,, and Dykman, J., concur.


text:
    MICHAEL H. CONNOLLY, an Infant, Resp’t, v. THE KNICKERBOCKER ICE CO., App’lt.
    Negligence—Oontbibutoby Negligence.
    Appeal from a judgment entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    P. & D. Mitchell, for resp’t; Maclay & Forest, for app’lt.
   Dykman, J.

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff, and from the order denying a motion for a new trial upon the minutes of the court.

The plaintiff is a boy about seven years of age, and the action is for damages sustained in consequence of a collision between a wagon of the defendant and a horse car upon which the plaintiff was standing.

The plaintiff was thrown from the car by the clashing of the vehicles, and the wagon passed over his leg, lacerating the tissues and producing a double fracture of the bones.

The struggle usually incident to the trial in actions for negligence ensued in this case. The plaintiff introduced testimony tending to show negligent driving of the defendant’s wagon, and the absence of negligence on his part, and the defendant introduced testimony tending to show careful driving of the wagon and the absence of negligence.

So the questions of fact were contested, and they were laid before the jury carefully and properly, and the verdict was rendered for the plaintiff.

There is no error presented and we cannot interfere

The judgment should be affirmed with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    JOHN SOLLY, Resp’t, v. WILBER H. WHITLOCK, App’lt.
    Search warrant—Affidavit to support.
    Appeal from a judgment entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the judges minutes.

      W. T. B. Milliken, for app’lt; H. B. Davis, for resp't.
   Dykman, J.

The defendant in this action procured the issuance of a search warrant and the officer made a search of the plaintiff’s house in pursuance of its mandate, and this action was brought to recover damages for the entry upon the premises upon the theory that it was not justified by the process and therefore wrongful.

Upon the trial the affidavit upon which the search warrant was issued and the warrant were introduced in evidence and found to he defective and insufficient, and the trial judge decided that they were so, and that the affidavit failed to state facts sufficient to justify the issuance of the warrant, and that both were void.

The defendant was thus left before the jury as a naked trespasser, and a verdict was rendered for the plaintiff for two hundred and fifty dollars.

No error was committed upon the trial, and we cannot say the verdict was excessive.

The judgment and order denying a new trial should be affirmed.

Barnard, P. J., and Pratt, J., concur.


author: Barnard, P. J. Dykeman, J.

text:
    IN THE MATTER OF THE JUDICIAL SETTLEMENT OF THE ACCOUNTS OF GILBERT R. SPRAGUE et al. AS ADMINISTRATORS OF FREEMAN SPRAGUE, deceased.
    Statute of limitations—Claim for value of service rendered to decedent—Rejection of same.
    Appeal from that part of the decree in the above entitled matter which rejected and disallowed the claim made by Gilbert R. Sprague, for compensation for services alleged to have been performed for decedent in his lifetime.

      Geo. E. Anderson, for app’lt; Abram J. Miller, for resp’ts; Hackett & Williams, for Margaret Lewis.
   Barnard, P. J.

The part of the claim which is before 1876 is barred by the statute of limitations. Assuming an employment which is between members of a family would justify a recovery, there is no implication that the statute of limitations fails to operate from year to year. (Davis v. Cortland, adm’r, 16 N. Y., 255).

The part of the claim subsequent to 1976 is without merit or foundation. The deceased owned a large farm, well stocked, from 1876 to the time of his death. He was weak in body and mind, and for the last four years of his life was entirely incompetent. The claimant had the entire management, received and disbursed all tne proceeds of tne farm, and he furnishes no account. He cannot even tell the amount of the proceeds. Connot tell the amount of grass or cattle sold, or of the milk sold. Under the state of the evidence the claim was properly rejected.

Judgment affirmed, with costs.

Pratt, J., concurs.

Dykeman, J.

(dissenting). This is an appeal from the decree of the surrogate of Putnam county upon the final settlement of the accounts of the administration of Freeman Sprague, deceased.

The appeal was taken by Gilbert R. Sprague, one of the administrators, and the objection lodged against the decree has reference to the objection of the claim of the appellant against the estate for his personal services rendered and performed in the lifetime of the deceased, who was the father of the claimant.

The proof introduced before the surrogate in substantiation of the claims, establishes for it a substantial foundation.

The performance of labor and the rendition of services by the claimant upon the farm of the deceased for many years prior to his death was fully established by proof which remained without contradiction, and it was also shown by abundant testimony that the claimant assumed the personal care of his father during his last illness which continued through several years and watched by him at night in the performance of necessary and unpleasant duties.

There was also proof sufficient to show an expectation and an undertaking on the part of the deceased to compensate the claimant for the services he so performed.

The opposition to the claim is quite inapprehensible. It seems to be founded upon the thrift of the claimant, and upon the fact that in some unexplained manner he has put money in his purse and accumulated a little money.

And so without proof of the misappropriation of any of his father’s money or property, and in the face of testimony tending to show the appropriation of all the farm productions to the expenses incident to its management and the support of the family, it seems to have been assumed that the claimant, while engaged in the management of his father’s farm, had misappropriated and retained sufficient money and property to pay him for all the services he performed.

AVe think the assumption was erroneous because it is baseless.

The testimony contained in the record presented to us on this appeal is sufficient to establish a claim in favor of the appellant against the estate, and required the surrogate to find the value of the services, and make an allowance to the claimant accordingly.

The decree should be reversed and the case should be remitted to the surrogate for further action in accordance with the views expressed in this opinion, costs to appellant to abide the event and be paid from the estate.


author: Pratt, S.

text:
    ELIZA DELAFIELD, Resp’t, v. FRANCIS C. BARLOW as Executor and Trustee, etc., et al., App’lts.
    Practice—New parties.
    Appeal from an order denying a motion to make Louisa S. Barlow, an infant, and others parties defendant in this partition suit.

      De Groot, Rawson & Stafford, for pl’ff; Charles C. Wetmore, for app’lt.
   Pratt, S.

We think the case of Morse v. Morse (85 N. Y.), cited by the judge at special term, is decisive in this case, and that the application to bring in new parties was properly denied.

It follows that the judgment and order appealed from should be affirmed. No costs.

Barnard, P. J., and Dykeman, J., concur.


author: Pratt, J

text:
    PHILIP KOCH AND MORRIS MOLTASCH, Resp’ts, v. THE WESTCOTT EXPRESS CO., App’lt.
    Common carrier—Non-delivery op parcel—When not liable.
    Appeal from a judgment of the couniy court of Kings county, affirming a judgment rendered in justices’ court in favor of plaintiffs.

      Frank Obernier, for resp’ts; A T. Payne, for app’lt.
   Pratt, J

We think this recovery cannot be sustained. Plaintiffs employed defendant to deliver a parcel of garments at the store of one Friedman, in. Greenpoint. They asked him to take the parcel on Friday, December 19,1885, and were told that it could not be delivered on that day. Defendant, however, took the parcel on Saturday, twentieth, under an agreement to deliver it that day,, and sent it to Bowrou’s express on the same day for that purpose. Bowrou’s driver testified that on the same day it was received he took the parcel to Friedman’s store about five p. m., and tendered it to a lady there in charge, who refused to receive it or pay the charges. Friedman said there were ladies, employed at his store, and that in his absence his employees received goods for him. He was not at the store until about five p. m., and says the parcel was not delivered to him. The ladies were not called to deny the driver’s testimony. Friedman expressly said that he would not contradict the driver Under those circumstances a tender of the goods to the consignee on Saturday was fairly shown, and unless the goods were thereafter injured while in the expressman’s custody, the defendant Tras not liable. The plaintiff examined the goods some days later, and said there was no injury to them. This was not disputed. They stood solely on failure to deliver on Saturday, December twentieth.

We think for reasons above expressed that tha„ ground was not tenable.

Judgment reversed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    IN THE MATTER OF THE PROVING OF THE WILL OF JOHN THOMPSON, Deceased.
    Will—Proof of execution—Testamentary capacity.
    Appeal from a decree made by the surrogate’s court of Suffolk county, admitting the will of John Thompson, deceased, to probate.

      David Tim, for Julia Boell, app’lt; Thomas F. Lisgood, for resp’ts.
   Pratt, J.

The evidence of the subscribing witnesses proved the execution of the will. The instructions were given by the testator, and there is no reason to doubt that they were his deliberate wishes. The subscribing witnesses and two attending physicians agree that testator was in sound mind and full possession of his faculties.

There is nothing in the provisions of the will to excite doubt of the justice and reasonableness of its provisions. The library, which is not shown to have any pecuniary value, is divided between two grandsons. The household fur niture and money in bank was equitably divided between testator’s two children. As this comprises all the property shown to have any value, it is not easy to see any motive for contesting the will.

Decree of surrogate affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    JOHN RABER, App’lt, v. JOHN LAUGHRAN, as Assignee of JOHN RABER, for the benefit of creditors, Resp’t.
    Assignment for the benefit of creditors—Liability of assignee.
    Appeal from an order confirming the report of a referee and releasing the sureties of an assignee.

      James Troy, for appl’t; Jackson & Burr, for resp’t.
   Pratt, J.

The principal objection is that the assignee is not charged with the sum of §50,000 bidden by Mr. Cross for the brewery on Scholes and Lorimer. The inventory filed by the appellant when he made his assignment states, the value of this property to be §80,000 subject to mortgages to the amount of $70,0C0 with accrued interest,

By referring to the terms of sale under which Cross made his bids we discover a recital therein that the premises are subject to the dower of Mrs. Baber and other liens, and that in case the dower were not released the right to withdraw the bid is reserved to the bidder. The releases were not obtained and the bidder withdrew his hid ‘

It is apparent that the premises being mortgaged to near the full value, the action of the assignee could not have prejudiced the estate to the amount of $50,000, and the exception is not sustained.

We have examined the other exceptions filed by the appellant and are of opinion that none of them are well taken.

Decree affirmed with costs.

Barnard and Dykman, JJ., concur.


text:
    WILLIAM H OAKLEY, App’lt, v CHARLES E. DAVIS, as Executor of BENJAMIN HORTON, deceased.

      Peter Dorland, for app’lt; Allison Butts, for resp’t.
   Appeal withdrawn.


text:
    FRANK ABBOTT, Resp’t, v . NEW YORK, LAKE ERIE AND WESTERN R. R. CO., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887).

    Practice—Appeal—Code Civ. Pro., § 1316.
    An appeal cannot he taken under Code Civ. Pro., § 1316, from a final judgment so as to bring up for review an intermediate order which has already been reviewed by the general term upon a separate appeal.

      T. J. & J. W. Lyon, for resp’t; L. E. Carr, for app’lt.
   Pratt, J.

Section 1316 of the Code of Civil Procedure provides that “An appeal taken from a final judgment brings up for review an interlocutory judgment or intermediate order * * * which has not already been reviewed upon a separate appeal therefrom by the court to which the appeal is taken.

The appeal sought to he dismissed upon this motion has already been reviewed by this court upon a separate appeal, and therefore section 1316 does not authorize another appeal to this court as it is embraced within the exception.

Whether the defendant may review the determinations of the general term in affirming the order when he comes to appeal to the court of appeals from a final judgment in case one is entered against him, it is not necessary to determine upon this motion. Section 1350 of Code; Raynor v. Raynor et al., 94 N. Y , 248.

If the defendant succeeds in reversing the judgment before the general term there is no occasion to go to the court of appeals, and if he fails, the granting of this motion puts him in no worse position upon the record with respect to a review of the whole case.

I know of no provision of law requiring a general term to hear two appeals by the same party upon the same subject matter.

Motion granted with ten dollars costs.

Barnard, P. J., and Dykman, J., concur.


text:
    MATTER OF APPLICATION OF NEW YORK CITY AND NORTHERN R. R. CO.
    Application to acquire title .to certain lands in Westchester county.

      F. & H. L. Morris, for commissioner; Bliss & Schley, for receiver.
   Order affirmed, with costs and disbursements.


text:
    AUGUSTUS F. FERRIS, App’lt, v. JOHN F. PLUMMER, Resp’t.
    Rearg-ument—When allowed.
    Appeal from a judgment dismissing the complaint.

      B. F. Tracy, for app’lt; Booraem & Hamilton, for resp’t
   Pratt, J.

It seemed to be conceded upon the argument of this case, that the validity of the title depended upon the question' of service of summons, and that was the question considered by the court.

The question whether the subsequent purchasers and mortgagees were not bound by the Us rendens and judgment was not discussed.

It seems to me there is enough in it to warrant the granting of a reargument, and I so vote.


text:
    CAROLINE F. ENO, Resp’t, v WILLIAM V. HILLIARD, Executor, etc., of Mary Pritchard, Deceased, App’lt.
    Evidence—Admissible under Code Civ Pro.. § 829.
    Appeal from a judgment entered upon the report of a referee upon a proceeding to enforce a claim against a decedent’s estate.

      William V. Hillard, for apip’lt; Charles J. Patterson, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon the report of a referee in a proceeding to enforce a claim against the estate of a person deceased.

We think the practice pursued at special term was correct under the authority of Young v. Cuddy (23 Hun, 249). In that case the question is fully discussed in the opinion of Mr. Justice Gilbert, and the principles there laid down must be regarded as binding until they are overruled by the court of appeals.

The objection to the testimony of Mrs. Eno was not sufficiently specific to raise the question whether the witness was incompetent to testify under section 829 of the Code of Procedure. It does not appear that the attention of the referee was in any way called to the point that the witness, being interested, was incompetent to testify to personal transactions with the deceased.

The objection as made can only be considered as relating to the materiality ■and competency of the evidence, and not to the competency of the witness to testify on the subject. Stevens v. Brennan, 79 N. Y., 254.

The 'defendant, not having specifically raised the point upon the trial, is precluded of raising it upon appeal. Clark v. Bruce, 12 Hun, 272; Somerville v. Crook, 9 id., 664.

There was sufficient evidence of the services rendered to sustain the report upon this point, and we see no valid objection to the method of proving the value.

It is quite clear that a professional nurse is the proper person to speak as to. the value of such services and it is always competent to ask such a witness hypothetical questions based upon evidence already in the case.

Neither was the objection to the proof of the lease well taken. Laws of 1883, chap. 195, p. 200.

The proof is abundant to sustain the report, and we find no error committed upon the trial sufficient to warrant the setting aside of the judgment.

Judgment affirmed with costs

Barnard, P. J., and Dykman, J., concur.


text:
    JOHN POWERS, Resp’t, v. THE CITY OF YONKERS, impleaded with others, App’lts.
    Liability of city for work done—When failure to perform work WITHIN TIME FIXED EXCUSED.
    Appeal from a judgment in favor of plaintiff entered at the Westchester special term.

      Joseph F. Daly, for app’lts; R. E. & A. J. Prime & Burns, for resp’t.
   Barnard, P. J.

The agreement upon th'e part of the contractor to complete the work within the fixed time is fully explained. There were difficulties in the way of a speedy execution of the agreement in consequence of claims made that the proposed work interfered with private rights, and the time was extended not only by actual permission but by the giving of certificates for' work long after the time to complete had passed.

The answer set up no improper execution beyond the fact that the work was not actively continued. The city rescinded the contract only upon the ground that the work did not progress to a speedy completion. The proof fails to sustain this as there was only some $60 worth of work to be done, and this was allowed to the city out of the contract price. There was no issue made as to the existence of the money with which to pay the contractor in the city treasury. Neither could the city avoid payment when it appeared that the methods provided for raising the money had not been used. There was no averment of defective work or materials in the answer.

The evidence tending to show defects was properly stricken out, as not within the issue made.

The judgment should therefore be affirmed with costs.

Pratt, J., concurs; Dykman, J., not sitting.


text:
    WILLIAM EVANS, Resp’t, v. THE UNITED STATES LIFE INSURANCE CO., App’lt.

      H. C. Willcox, for resp’t; Jay Candler, for app’lt.
   Reargument ordered.


text:
    CASSIUS M. SMITH, Resp’t, v. FLORA A. SMITH, Impleaded, with another.

      Wm. R. Woodin, for resp’t; Herrick & Losey, for app’lt.
   Reargument ordered.


text:
    PEOPLE OF THE STATE OF NEW YORK, Resp’t, v. SAMUEL G. STORM, App’lt.
    Selling adulterated milk—Laws 1885, chap. 183.
    Appeal from a judgment for $319.17 damages and costs, rendered on the verdict of a jury at the circuit in Kings county, and from an order denying a motion for k new trial.
    The action was brought to recover a penalty of $100, under section 19 of chapter 183 of the Laws of 1885, entitled “ An act to prevent deception in the sale of dairy products and to preserve the public health,” being supplemental to and in aid of chapter 303 of the Laws of 1884, entitled “An act to prevent deception in sales of dairy products.”
    The complaint alleged the sale by defendant on July 33, 1885, of adulterated milk, which allegation was denied by the answer.
    It appeared that on the day mentioned in the complaint, one of the experts in the employ of the dairy commit sioner met a man at Sheepshead Bay, Kings county, driving one of defendant’s wagcns and peddling milk. The expert took a sample of the article, which he delivered to the chemist. An analysis showed:
    Water.................................................... 88.74 per cent.
    Fat........ 3.73 “
    Solids not fat.............................. 8.54 “
    Total solids.............................................. 11.36 “
    Ash .....................................................68

      James Troy, for app’lt; Risley, Quin & Perry, for resp’t; A. C. Salmon, of counsel.
   Judgment affirmed, with costs.


text:
    COURT OF APPEALS.
    Filed April 19, 1887.
    WALTER JENNERY, App’lt, v. AARON B. OLMSTEAD et al., Resp’t.

      Mathew Hale and, E. F. Bullard, for app’lt; E. T. Brackett, for resp’t.
   Judgment affirmed on opinion below, with costs.


text:
    LATHAM Y. AVERY, App’lt, v. PEOPLE OF THE STATE OF NEW YORK, Resp’ts.

      Cornelius E. Stevens, for app’lt; Denis O’Brien, Att’y-Gen., for the People.
   Judgment reversed, and new trial ordered, costs to abide the event, on authority of Heacock v. State, 7 N. Y. S. R., 353.


text:
    LUKE COLLINS, App’lt, v. PEOPLE OF THE STATE OF NEW YORK, Resp'ts.

      C. L. Stone, for app’lt; Denis O'Brien, Att’y-Gen., for the People.
   Judgment reversed, and new trial ordered, costs to abide the event, on authority of Peacock v. State, 7 N. Y. S. R., 353.


text:
    PETER J. SAND, App,lt, v. PEOPLE OF THE STATE OF NEW YORK, Resp’ts.

      Levi H. Brown, for app’lt; Denis O'Brien, Att’y-Gen., for the People.
   Award affirmed, with costs.


text:
    EVAN JONES, App’lt, v. HENRY McCADDIN, Jr., Resp’t.

      Nathaniel C Moak, for app’lt; Jacob F. Miller, for resp’t.
   Judgment affirmed, with costs.


text:
    THOMAS W. HARRIS, as Assignee, etc., App’lt, v. LAVINIA TAYLOR, Impleaded, etc., Resp’t.

      Edward S. Hatch, for app’lt; Josiah T. Marean, for resp’t.
   Judgment affirmed, with costs.


text:
    PEOPLE ex rel. DENNIS LOUGHLIN, App’lt, v. FIRE COMMISSIONERS OF BROOKLYN, Resp’ts.

      Esek Cowen, for app’lt; William Gilbert, for resp’ts.
   Judgment affirmed, with costs.


text:
    SUSANNAH L. DORLAND, Administratrix, etc., App’lt, v. MAYOR, etc., OF NEW YORK et al., Resp’ts.

      Culver & Betts, for app’lt; D. J. Dean, for resp’ts.
   Judgment affirmed, with costs.


text:
    ARTHUR QUINN, Resp’t, v. LONG ISLAND R. R. CO., App’lt.

      Edward E. Sprague, for app’lt; William G. Cooke, for resp’t.
   Judgment affirmed, with costs


text:
    MARY GROWTAGE, Resp’t, v. JOSEPH YORK, App’lt.

      Jerry A. Wernberg, for app’lt; F. P. Bellamy, for resp’t.
   Judgment affirmed, with costs.


text:
    ALEXANDER M. LOWRY, Resp’t., v. LANCASHIRE INSURANCE COMPANY OF ENGLAND, App’lt.

      Satterlee & Yeoman, for app’lt; A Hazeltine, for resp’t.
   Order affirmed and judgment absolute ordered for plaintiff on stipulation, with costs. .


text:
    IDA S. BUSH, Resp’t, v. WILLIAM P. POST, Executor, etc., App’lt.

      Calvin D. Vanname, for app’lt; Benjamin Patterson, for resp’t.
   Appeal dismissed, with costs.


text:
    ELLEN REARDON, Infant, etc., App’lt, v. NEW YORK CONSOLIDATED CARD CO., Resp’t.

      John D. Townsend, for app’lt, Geoige Zabriskie, for resp’t.
   Appeal dismissed, with cos's.


text:
    FRED GAYLORD, Infant, etc., Resp’t., v. SYRACUSE, BINGHAMTON AND NEW YORK R. R. CO., App’lt.

      Louis Marshall, for app’lt; R. H Duell, for resp’t.
   Judgment affirmed, with costs.


text:
    EMMA A. FISH, App’lt. v. MARTIN F. LINSLEY, Sheriff, etc Resp’t.

      George W. Daggett, for app’lt; James Wood for resp’t.
   Judgment affirmed, and judgment absolute ordered on stipulation for de' fendant, with costs.


text:
    JOHN F HENRY. et al. App’lts, v. EDWIN J DUNNING, Jr , Resp’t.

      Thorndike Saunders, for app’lts; M. W. Divine for resp't.
   Judgment affirmed, with costs.


text:
    EDWARD MADDEN, Resp’t v CHARLES B BENEDICT, App’t.

      Filed, April 26, 1887

      P A. Matteson, for app’lt; L. W. & L. L. Thayer, for resp’t
   Judgment affirmed, with costs.


text:
    MUTUAL LIFE INSURANCE COMPANY OF NEW YORK v. THOMAS H. ANTHONY, Impleaded etc., Resp’t, and NATIONAL BANK AND LOAN COMPANY, App’lt.

      John Lansing, for appl’t Elon R. Brown, for resp’t.
   Motion for reargument denied, without costs.

See 6 N. Y State Rep., 436.


text:
    JACOB H. CONKLING et al., Trustees, App’lts, v. GARRETT Z. SNIDER, Executor, etc., Resp’t.

      W. J. Hardy, for app’lts; Irving Browne, for resp’t.
   Motion for reargument denied, with costs.

See 5 N. Y. State Rep., 556.


text:
    GEORGE R. ALEXANDER, App’lt, v SAMUEL G. ALEXANDER, Resp’t.

      Josiah T. Marean for app’lt; David F. Manning, for resp’t.
   Motion to modify decision denied, with costs.

See 5 N. Y. State Rep., 499.


text:
    PEOPLE OF THE STATE OF NEW YORK v. KURTZ.
   Motion to dismiss granted, without costs.


text:
    Filed May 3, 1887.
    WILLIAM BUTLER, App’lt, v. JAMES McGOVERN, Res’pt.

      Homer A. Nelson, for app’lt; Francis Larkin, for resp’t.
   Judgment affirmed, with costs on case of Lichtenberg v. Herdtfelder, 3 N. Y. State Rep., 91.


text:
    ANASTATIA BRITT, Administratrix, Resp’t v. FRANCIS ALEXANDRE, et al., Appl’ts.

      Alexander Thain, for app’lts; W. G. Traphagen, for resp’t
   Appeal dismissed, with cost.


text:
    RE APPLICATION OF JOSEPH MOORE FOR MANDAMUS, App'lt, v. EDWARD V. LOEW, as Comptroller of New York City, Resp’t.

      Alexander Thain, for app’lt; D. J. Dean, for resp’t.
   Order affirmed, with costs.


text:
    BENJAMIN FOSTER, on Behalf, etc., App’lt, v. INDIANAPOLIS, CINCINNATI AND LAFAYETTE R. R. CO. et al., Resp’ts.

      Frederick, Allis, for app’lt; H. H. Anderson for resp’ts.
   Appeal dismissed, with costs.


text:
    THOMAS R. A. HALL et al., v JOHN J. MacDONALD et al., App’lts, and MAURICE FITZGERALD et al., Resp’ts.

      Samuel Untermyer, for app’lts; David Gerber, for resp’ts.
   Order affirmed, with costs.


text:
    RE PETITION OF JAMES DEERING, App’lt, to Vacate Assessment.

      James A. Deering. for app’lt; D J Dean, for resp’t.
   Order affirmed, with costs.


text:
    RE PETITION OF ANNA E. BROWNE, App’lt, to Vacate Assessment.

      James A. Deering, for app’lt; E. Henry Lacombe, for resp’t.
   Order affirmed, with costs.


text:
    Filed May 10, 1887.
    THEODORE BRECKON, Resp’t, v BUFFALO, NEW YORK AND PHILADELPHIA R. CO., App’lt.

      John G. Milburn, for app’lt; James F. Gluck, for resp’t.
   Judgement affirmed, with costs


text:
    MELISSA A. CLOYES, Resp’t, v. NORMAN S. CLOYES, App’lt.

      William Kernan, for appl’t; Edward A. Brown, for resp’t.
   Judgment affirmed, with costs.


text:
    BERNHARDT MULLER, App’lt, v. CITY OF NEWBURGH, Resp’t.

      Howard Thornton, for app’lt; James G. Graham, for resp’t.
   Judgment affirmed, with costs.


text:
    PEOPLE, ex rel. BOARD OF SUPERVISORS OF CHENANGO COUNTY, Appl’ts v. BOARD OF STATE ASSESSORS et al., Respts.

      James W. Glover, for appl’ts; Isaac S. Newton, for resp’ts.
   Judgment affirmed, with costs.


text:
    MOSES MAY, App’lt, v. JOSEPH M. OHMEIS et al., Resp’ts.

      Ira Leo Bamberger, for appl’t; Benjamin M. Stilwell, for resp’ts.
   Judgment affirmed, with costs.


text:
    SAMUEL COY, Resp’t, v. JOHN J. HART, Appl’t.

      Francis E. Hamilton for app’lt, D. P. Lester, for resp’t
   Judgment affirmed, with costs.


text:
    BERNARD REILLY, Late Sheriff, etc., Resp’t, v. JOHN MOFFAT et al., Impleaded, etc., App’lts.

      P. W. Ostrander, for app’lts; Henry Thompson, for resp’t
   Judgment affirmed with costs.


text:
    AUGUSTUS W. KINGSBERY, Assignee in Bankruptcy, etc., App’lt, v. WILLIAM W. THOMAS, et el., Resp’ts.

      M. M. Waters, for app’lt; William Allen Butler, for resp’ts.
   Judgment affirmed with costs.


text:
    Filed May 13. 1887.
    JOHN McBRIDE, Resp’t, v. RICHARD M. HOE et al., App’lts.

      Clark Brooks and James L. Bishop, for app’lts; Charles Steckler, for resp’t.
   Judgment affirmed with costs.


text:
    GEORGE COOK, Resp't, v. SIDNEY G. POOLE et al., App’lts.

      Charles A. Poole, for app’lts, H. C. Day, for resp’t.
   Judgment affirmed, with costs.


text:
    LOUIS ABRAMS, Infant, etc., Resp’t, v. VAN BRUNT STREET AND ERIE BASIN R. R. CO., App’lt.

      Samuel D. Morris, for app’lt; William B. Ellison, for resp’t.
   Judgment affirmed, with costs.


text:
    RE PETITION OF JOSHUA L. WADLEY, for Leave, etc., Resp’t, v. JOSEPH H. DAVIS et al., App’lts.

      William Tiffany, for app’lts; Cyrus Whitney, for resp’t.
   Order affirmed, with costs.


text:
    WILLIAM CLARK, Jr., Executor, etc., Resp’t, v. GEORGE CLARKE, Impleaded, etc., App’lt.

      Sayles, Jenkins & Devereux, for app’lt; Weller & Moore, for resp’t.
   Appeal dismissed, with costts.


text:
    CHARLES F. HINCK et al., Resp’ts., v. ADOLPH DESSAR et al., App’lts.

      Stern & Myers, for app’lts; Blumenstiel & Hirsch, for resp’ts.
   Appeal dismissed, with costs.


text:
    RE APPLICATION OF L. E. CHITTENDEN, to compel payment, etc.

      Moody B. Smith, for app’lt; Chittenden, Townsend & Chittenden, for resp’t.
   Order affirmed, with costs.


text:
    JOHN HAYES v. CATHARINE E. RABOLD.

      Samuel J. Crooks, for app’lt; George W. Carr, for resp’t.
   Order affirmed, with costs.


text:
    RICHARD W. HURLBUT, App’lt, v. MARGARET J. COMAN, Resp’t.

      William W. Goodrich, for app’lt; Samuel Untermyer, for resp’t.
   Order affirmed, with costs.


text:
    JEREMIAH EIGHMIE, Resp’t, v. EDGAR B. TAYLOR, Administrator, etc., App’lt.

      Frank B. Lown, for app’lt; N. C. Marvin, for resp’t.
   Appeal dismissed, with costs.


text:
    GEORGE S. WHEELER, App’lt, v. THEODORE F. JACKSON, Registrar of Arrears, Brooklyn, Resp’t.

      John J. Townsend, for app’lt; Almet F. Jenks and Richard B. Greenwood, for resp’t.
   Judgment affirmed, with costs.


text:
    WILLIAM M. McFARLANE, App’lt, v. THEODORE F. JACKSON, Registrar of Arrears, Brooklkn, Resp’t.

      John J. Townsend, for app’lt; Almet F. Jenks and Richard B. Greenwood, for resp’t.
   Judgment affirmed, with costs.


text:
    PEOPLE ex rel. JOHN ANDREWS, Resp’t, v. THEODORE F. JACKSON, Registrar of Arrears, Brooklyn, App’lt.

      Almet F. Jenks, for app’lt. John Andrews, for resp’t.
   Order affirmed, with costs.


text:
    PEOPLE ex rel. BENJAMIN ANDREWS, App’lts, v. AARON BRINKERHOFF, Comptroller of the City of Brooklyn, Resp’t.

      John Andrews, for app’lts; Almet F. Jenks, for resp’t.
   Order affirmed, with costs.


text:
    WILLIAM BROISTEDT v. HENRY BRESLIN.

      B. F. Edsall, for William R. Potts, judgment creditor, app’lt; Albert G. McDonald, for executors of William Broistedt, deceased, resp’ts.
   Order affirmed, with costs.


text:
    RE PETITION OF JACOB LORILLARD, Resp’t, v. HORACE BARNARD, App’lt.

      Horace Barnard, for app’lt; R. L. Sweezy, for resp’t.
   Order affirmed, with costs.


text:
    Filed June 7, 1887.
    JOSHUA J. TOWLE, Resp’t, v. SPRINGFIELD F. & M. INSURANCE CO., App’lt.

      C. D. Murray, for app’lt; Walter L. Sessions, for resp’t.
   Judgment affirmed, with costs.


text:
    MARGURITE SELVI, Resp’t., v. LOUIS HARRISON et al., App’ts.

      Albert Hessberg, for app’lt; Benjamin M. Stilwell, for resp’t.
   Judgment affirmed, with costs.


text:
    JACOB ROMBERG, App’lt, v. MINNIE TOBIAS et al., Adm’rs, etc. Resp’ts.

      Henry Wehle, for appellant; Nathaniel C. Moak, for resp’ts.
   Appeal dismissed, with costs.


text:
    Filed June 14, 1887.
    PEOPLE ex rel. FAIRCHILD, App’lts, v. COMMISSIONERS OF DEPARTMENT OF FIRE AND BUILDINGS OF BROOKLYN, Resp’s.

      Edward F. O’Dwyer, for app’lts; Almet F. Jenks, for resp’ts.
   Orders of the supreme court at general and special terms and proceedings of ■commissioners appealed from reversed, with costs to relator in all courts, on ■case of People, ex rel. Peck v. Com’rs of Brooklyn, 8 N Y. State Rep., 664.


text:
    THOMAS CANARY, Resp’t, v. EDWIN KNOWLES et al , App’ts.

      George W. Wingate, for appl’ts; W. Bourks Cochran, for resp’t.
   Appeal dismissed, with costs.


text:
    IRA LEO BAMBERGER, Resp’t, v. HERRMAN SUDEN, App’lt.

      Blumenstiel & Hirsch, for app’lt; Ira Leo Bamberger, for resp’t
   Appeal dismissed, with costs.


text:
    GEORGE S. WHEELER, App’lt, v. THEODORE F. JACKSON, Registrar of Arrears of City of Brooklyn, Resp’t.

      John J. Townsend, for app’lt; Almet F. Jenks, for resp’t.
   Motion for reargument denied, with costs.


text:
    WILLIAM M. McFARLANE, App’lt, v. THEORORE F. JACKSON, Registrar of Arrears, Brooklyn, Resp’t.

      John J. Townsend, for app’lt; Almet F. Jenks, for resp’t.
   Motion for reargument denied, with costs.


text:
    PEOPLE OF THE STATE OF NEW YORK, App’lts., v. GEORGE W. EVANS, Resp’t.

      McKenzie Semple, for app’lts; Howe & Hummel, for resp’t.
   Motion to dismiss appeal granted.


text:
    RE PETITION OF E. H. AND D. M. CAVIN, Resp’ts., v. JOHN B. GLEASON, Assignee, App’lt.

      J. B. Gleason, for app’lt, Johnson & Kemp, for respts.
   Motion to amend remittitur; granted by making it read “without costs in any court.” See 7 N. Y. State Rep., 13.


text:
    FRANCIS E BURROWS, Resp’t, v. CHARLES M. DICKENSON, Appl’t.

      Abram Kling, for motion; D. S. Richards, against motion.
   Motion to dismiss appeal, denied, with costs.


text:
    Filed June 21, 1887.
    WILLIAM CURRY, Resp’t, v. ELIZA HENRY et al., App’lts.

      F. E. Dana, for appl’ts; Thomas J. Tilney, for resp’t.
   Judgment affirme'd, with costs.


text:
    THOMAS HARRISON, App’lt., v. PHILIP VAN VOLKENBURGH et al., Resp’ts.

      Nathaniel C. Moak, for app’lt; Edward C. James, for resp’ts.
   Judgment affirmed, with costs.


text:
    PAUL CUSHMAN, Trustee, etc., Resp’t v. CHARLES E. LELAND, Trustee, etc., Resp’t, and JENNIE E. RICHARDSON et al., App’lts

      J. H Clute, for app’lts; Nathaniel C. Moak, for resp’t, Cushman.
   Judgment affirmed, with costs to plaintiff and respondent Leland.


text:
    JAMES A. DEERING, Resp’t, v. THOMAS J. MacCAHILL, App’lt.

      Dewitt C. Brown, for app’lt; D. J. Dean, for resp’t.
   Judgment affirmed, with costs.


text:
    Filed June 28, 1887.
    REBECCA B. MARTIN, Resp’t, v. WILLIAM F. GARRISON, App’lt.

      Joseph A. Burr, for app’lt; Isaac A. Catlin, for resp’t.
   Judgment affirmed, with costs.


text:
    DAVID A. SCOTT et al., Resp’ts, v. AUGUSTUS L. CASE et al., App’lts.

      William H. Harris, for app’lt; Henry Bacon, for resp’ts.
   Judgment affirmed, with costs.


text:
    JOHN ROBISON, Resp’t, v. OTTO HUBER, App’lt.

      A. Simis, Jr , for app’lt, F. L. Backus, for resp’t
   Judgment affirmed, with costs.


text:
    JOSEPHINE MYERS, Resp’t, v. GEORGE S. RILEY, App’lt

      F. L. Durand, for app’lt; Thomas Durand, for resp’t.
   Judgment and order affirmed, on opinion in Reilly v. Delaware and Hudson Canal Co., 2 N. Y. State R p., 219, with costs.


text:
    ADDISON R. BALDWIN, App’lt, v. ELMENDORF ROOD, Resp’t.
   Motion to dismiss appeal; granted, with costs.


text:
    CHARLES F. WILLIS, App’lt, v. AMOS M. BELLAMY, Resp’t.
   Motion to have appeal stricken from calendar; granted.


text:
    Filed July 1. 1887
    MARY M. BAMPTON, Resp’t, v. BROOKLYN CROSSTOWN R. R. CO., Appl’t.

      James C. Bergen, for app’lt; William N. Cohen, for resp’t.
   Judgment affirmed, with costs.


text:
    J. MARCUS BOORMAN, App’lt, v. SIMEON BALDWIN et al., Resp'ts.

      J. M. Boorman, for app’lt; Frank L. Ball, for resp’ts.
   Judgment affirmed, with costs.


text:
    METROPOLITAN TRUST CO., OF CITY OF NEW YORK, Appl’t, v. TONAWANDA VALLEY AND CUBA R. R. CO FARMERS’ LOAN AND TRUST CO., Imp., Resp’t.

      O. P. Buel, for appl’t; Herbert P. Turner, for resp’t.
   Judgment affirmed on opinion below, with costs.


author: Van Brunt, P. J. Daniels, J. (dissenting).

text:
    Adelia L. Otis, Executor, etc., Appl’t, v. Eustace Conway, as temporary committee, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Landlord and tenant—Rent—Right to—Legatee—Construction op stipulation.
    These plaintiffs were the owners of premises which they leased to a party who was subsequently declared a lunatic while in possession. The committee of the lunatic attempted to surrender the possession to the landlord, who refused to accept it, claiming that the committee as such were liable for the amount of rent reserved in the lease. After this, the committee refused to have anything to do with the premises, and the landlord neither took possession of the same or accepted the surrender, but insisted upon the payment of the rent by the committee, and instituted proceedings for the collection of the same. Pending such action, stipulations were entered into between the parties by which the premises were rented, and the rent was agreed to be paid by a certified check, payable to the order of plaintiff’s attorney and the committee jointly By further stipulation, the checks were to be deposited until the determination of the controversy, the assent of the parties to this agreement in no respect altered their legal position, and on the settlement of the question at issue both parties should join in transferring them to the party held to be in possession of the premises. It was adjudged that the claim made by the plaintiff for rent, was merely one against the estate of the lunatic, which must be paid with the other claims of that nature, and was not such a one as the committee were required to satisfy A demand having been made upon the committee to endorse and transfer such checks, which was refused, this action was brought to compel compliance with such demand, and to restrain the committee from attempting to collect any rents due from the sub-tenants in this building. Held, The committee having, as it claimed, never been in the possession of the premises, the landlord was under the language of the stipulation presumed to be in possession, and entitled to the rent. Daniels, J. dissenting.
    Appeal from judgment entered on decision of the court in favor of the defendant.

      J. L. Cadwalader, for app’lt; Eustace Conway, committee in person, resp’t.
   Van Brunt, P. J.

The defendant in this action was appointed committee of the estate of one Oscar Strasburger, a lunatic, which estate was insolvent. The plaintiffs were the owners of the property Nos. 443 and 445 Broadway, which they had leased to the said Strasburger, from December, 1880, until January 1st, 1886, and said Strasburger was in possession of said premises at the time that he was declared a lunatic. The committee attempted to surrender the possession of the premises to the landlord, but the landlord refused to accept such surrender, claiming that the amount of rent reserved in the lease to Strasburger was a claim against the committee as such, and should be paid in full. The committee after such attempted surrender refused to have anything to do with the premises, and the landlord did not take possession of the same or accept the surrender, and claimed the rent from the committee and took legal proceedings to collect the same. Pending these legal proceedings, evidently for the purpose of lessening the damage which would be sustained, stipulations were entered-into between the parties, by which the premises were rented, and the rent was agreed to be paid by a certified check, payable to the order of the plaintiff’s attorney and the committee, jointly. It was further stipulated that the same should be deposited in the American Loan and Trust Company until the final determination of the controversy, and that the assent of either party to this agreement should not in any respect alter their legal position, and that on the determination of the questions at difference between the parties, both parties should join in transferring to the party held to be in possession of the premises. The result of the litigations was that the claim for rent by the plaintiffs was held not to be a disbursement which the committee was required to make, but that it was simply a claim against the lunatic’s estate which must be paid pro rata with the other claims against his estate. A demand having been made upon the committee to endorse and transfer the said checks, and that demand being refused, this action was brought to. compel an endorsement of said checks and a transfer of the money to the plaintiff, the landlord, and to restrain the defendant from attempting to collect any rents due from the sub-tenants in said building.

It appears clearly from the record in this case that the defendant claimed that he had never been in possession or control of the premises, and that therefore he was not hable for the rent to the landlord. If the committee was not in possession of the premises he certainly has no claim for any rents which accrued subsequent to the time of the abandonment of possession by him or by his. predecessor. The terms of the stipulation provide that this rent shall be paid over to the party held to be in possession of the premises. This language undoubtedly referred to the contest which existed between the committee and the landlord; the landlord claiming that the attempted surrender by the committee not having been accepted, he was to be held as still in possession of the premisses, and the tenant claiming that being out of possession he was not liable for the rent. If therefore the result of the contest was a holding that the committee was not in possession and not liable for the rent, the landlord, was under the language of the stipulation presumed to be held to be in possession and entitled to the rent. If this is not the construction to be placed upon this stipulation, this curious result follows that the committee not being in possession and therefore not hable for rent is allowed to collect rents of tenants in possession of the premises upon the theory that he is the landlord of such tenants. If the committee was not in possession either actual or constructive, then the persons in occupation cannot be his tenants, and the only party entitled to the possession of the premises under those circumstances being the landlord, such persons must necessarily be presumed to be the tenants of the landlord. It therefore follows that within the spirit of the stipulation referred to the landlord is entitled to collect the rent from those sub-tenants, and that the committee being relieved from the burden imposed by the lease because of not having taken possession cannot be allowed to reap the benefits which could only accrue to the assertion of a right of possession.

The judgment appealed from must therefore be reversed and a new trial ordered, with costs to appellant to abide the event.

Brady, J., concurs.

Daniels, J. (dissenting).

The contest in this suit related to the right to the rents collected of sub-tenants of the premises known as 443 and 445 Broadway. These rents accrued and have been collected during the term for which the premises were leased to Oscar Strasburger, a lunatic, for whom the defendant was appointed temporary committee. As to other rents claimed, the case has been before this court on two preceding occasions. Matter of Otis, 34 Hun, 542; Same, 38 id., 597.

In the first of these cases it was held that the landlord was entitled to be paid the rent, for the reason that the commit - tee had taken the actual possession and had the use of the property for the storage and sale of the goods of the lunatic; while in the latter it was held that the lessor was not entitled to the rents, for the reason that the temporary committee had declined to take possession of the property and had offered to surrender it to the lessors and that offer had been refused. The case was thereupon appealed from this last decision to the court of appeals, where it was affirmed, and during the pendency of the litigation action, the lessors and the temporary committee entered into agreements concerning the renting and use of the property under which the plaintiff in this action claimed to be entitled to receive the rents. Four of the agreements which were entered into are in the same form, and by each of them it was agreed and declared that—

Whereas, certain differences exist between Adelia L. Otis and others, and Eustace Conway, temporary committee of the estate of Oscar Strasburger, a lunatic, as to the payment of rent reserved in a lease made to said Oscar Strasburger & Co., of the premises Nos. 443 and 445 Broadway, and said premises being now vacant, and Messrs. Underhill & Scudder offering the sum of $300 for the right to occupy said premises for the month of July, 1885—

It is agreed between the lessors and their representatives and the estate of said Oscar Strasburger, and Eustace Conway, as temporary committee of the estate, that the said Underhill & Scudder may so occupy at the said rent for the benefit of whom it may concern, and the payment by Messrs. Underhill & Scudder for said occupation be made by certified check payable to the order of Strong & Cadwalader and Eustace Conway, temporary committee, jointly; and that the same shall be deposited in the American Loan and Trust Company until the final determination of the said controversy, and that the assent by any party to this agreement shall in no respect alter their legal positions the one towards the other; and that at the determination of .the questions at difference between the parties both parties shall join in endorsing to the party held to be in possession of the said premises.

Dated New York, June 30, 1885.
OSCAR STRASBURGER & CO., EUSTACE CONWAY.
Temporary .Committee.

These agreement it will be seem secured in the end the right to the rents to be collected from the under-tenants, to the person in the possession of the premises. And it was agreed that both the parties to the controversy should join m indorsing to the party holding possession, the checks received by way of payment for the rent.

As a matter of fact the temporary committee was not in possession for he utterly refused to take or hold such possession. The plaintiffs were not in possession, for they as absolutely refused to accept a surrender of the property, and they at no time took any proceedings to obtain the possession. The result consequently is that the lessee himself under the lease was the legal person in the possession of the property, and that is conformable to the opinion delivered in the decision of the case by the court of appeals, where it was-held that the committee took no title to the real or personal estate, and was no more than a bailiff to take charge of the property of the lunatic, and to administer it subject to the direction of the court. It was further added that “it follows as a necessary consequence from the nature of his office and the fact that the title to the lunatic’s property is not divested by the appointment of the committee, that the occupation by the latter under a lease to the lunatic, is in the character of a servant, agent, or bailiff, and creates no privity of estate between him and the lessor.”

It is quite possible that the parties may have designed by the agreements entered into, to have disposed of the rents by giving them to the plaintiffs, if they proved unsucccessful in the proceedings then pending. But they have expressed no such design in the agreements which they made, and the court has no authority to change these agreements from the form and effect given to them by these parties. They have agreed that the rents paid by the sub-tenants should go the party in the possession of the premises. The lunatic, or lessee, is that party. If not, it is the committee himself. It surely is not the plaintiffs, who have at all times refused „to accept the possession of the property.

The first agreement may not unreasonably be subjected to a different construction, for that provided that the rent received from William A. Topping should be deposited in a trust company and finally paid over to the party ultimately entitled thereto. The lunatic’s estate was insolvent, and under the authorities the plaintiffs may be held entitled equitably to the recovery of this rent. As to this particular sum they have not otherwise agreed upon its disposition than in the manner already mentioned. And equitably the plaintiffs are entitled to the amount of this rent to be disposed of under this agreement including no more than that paid by this one of the sub-tenants. 1 Story Eq. Jur., § 687; Taylor on Landlord and Tenant (7th ed.), § 659; Peck v. Ingersoll, 3 Seld., 528; Riggs v. Whitney, 15 Abb., 388.

The judgment should be reversed and a new trial ordered with costs to abide the event, unless the parties stipulate for the entry of a judgment in the plaintiff’s favor for the amount of the rent paid by William A. Topping, and mentioned in their agreement of the 25th of May, with interest thereon. If such a stipulation be entered into, then the judgment should be modified directing the recovery of that amount, without costs of this appeal.


text:
    People of the State of New York, App’lts, v. Nathaniel Waterbury, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Oleomargarine—Penalty for selling—Recovery of—Hot necessary TO SHOW A CONVICTION ON AN INDICTMENT—LAWS 1885, CHAPS. 185 and 458.
    In an action brought to recover the penalty of $500, given by Laws 1885,

      chapter 185, section 19, for violating section 7 of the same act, as after ward amended by chapter 458 of the Laws of the same year, said Laws being enacted to prevent the sale of oleomargarine, etc., Held, that the prosecution and punishment of the defendant by indictment has not been required to precede an action for the recovery of the penalty, that the proceedings under said statutes, if not convenient, are entirely independent, and one can he prosecuted without resort to the other.
    2. Laws 1885 chapters 185 and 458 constitutional.
    Laws 1885, chapters 185 and 458, are constitutional. Following People v. Aremberg, 6 if. Y. State Rep., 789.
    Appeal from a judgment dismissing the plaintiffs complaint at the circuit.

      Edward B. Thomas, for app’lts; William G. Chóate, for resp’t.
   Daniels, J.

The action was brought to recover the penalty of $500, given by section 19 of chapter 183 of the Laws of 1885, for violating section 7 of that act, as it was after-wards amended by chapter 458 of the Laws of the same year.

In the opening of the case by the plaintiffs counsel a state of facts was proposed to be proved which would establish a violation of section 7 of chapter 458 of the Laws of 1885, by the defendant. This violation was stated to consist in the fact that the defendant had in his possession a number of pounds of an article, substance, product, manufacture and compound which was not butter, the product of the dairy, and was not butter made from unadulterated milk or cream, but was a manufactured oleagenous substance, not produced from pure unadulterated milk or cream, or from milk or cream that the same had been made, rendered and manufactured out of some animal fats or animal or vegetable oils not produced from unadulterated milk or cream from the same in imitation and semblance of natural butter produced from pure unadulterated milk and cream of the same, and by mixing compounding with and adding to a small quantity and proportion of milk, cream or butter, some animal fat or animal or vegetable oils not produced from milk or cream, with design and intent to render, make and produce an article, substance and human food in imitation and semblance of .natural butter; and that such article had been and was colored with some coloring matter whereby such article, substance, product, manufacture and compound was made to resemble butter, the product of the dairy, and was so colorable thereby in semblance of and to resemble butter.

We shall prove that the sarrie was an imitation and had the semblence of and resembled natural butter, the product of the dairy, and natural -butter produced from pure, unadulterated milk or cream of the same, and was not in process of manufacture on April 30, 1885, the date of the passage of chapter 183 of the Laws of 1885, nor on June 9, 1885, the date of the passage of chapter 458 of the Laws of 1885, which amends such chapter 183, and had not been manufactured on June 9, 1885.

We shall also prove that the defendant, at the time of having the same in his possession, well knew that it had been and was so manufactured, rendered and colored, and all the facts I have before stated; and that the defendant on said 22d day of July, 1885, at such store and building in said city, county and state, in violation of such statutes, kept the said quantity of said article, substance, product, manufacture and compound for sale, and offered it and a number of pounds thereof for sale to one Thomas 0. Du Bois, of this city, and to other persons, and sold fifty-seven pounds thereof to Mr. Du Bois, and a number of pounds to other persons.

We shall also prové that the said article, substance, product, manufacure and compound was so had by this defendant in his possession, kept for sale, offered for sale and- sold as I have before stated.

When this proposed proof was in this manner offered to to be made upon the trial, the objection was taken on behalf of the defendant that the action could not be maintained because he had not first been convicted in a criminal action before this suit had been instituted. It was thereupon conceded on behalf of the plaintiff that the defendant had not been tried or convicted in a criminal action for the violation of the statute mentioned in the complaint, and the court upon that concession dismissed the complaint, to which the plaintiff’s counsel excepted. This dismissal was considered to be justified by the construction held to be proper for sections 7 and 19 of chapter 183 of the Laws of 1885. By the earlier of these sections it has been provided that whoever should violate its provisions should be guilty of a misdemeanor, and be punished by a fine of not less than $100 nor more than $500, or not less than six months or more than one years imprisonment, for the first offense, and by imprisonment for one year for each subsequent offense. It was further provided by section 19, that if any person shall, by himself or another, violate any of the provisions of sections 1, 2, 3, 4 or 5 of this act, or knowingly suffer a violation thereof by his agent, or in any building or room occupied by him, he shall, in addition to the fines and punishments therein prescribed for each offense, forfeit and pay a fixed penalty of $100. If any person, by himself or another, shall violate any of the provisions of section 6, 7 or 8 of this act, he shall, in addition to the fines and penalties herein prescribed for each offense, forfeit and pay a fixed penalty of $500. Such penalties shall be recovered, with costs, in any court of this state having jurisdiction thereof, in an action to be prosecuted by the dairy commissioner or any of his assistants, in the name of the people of the state of New York.”

But neither this nor the preceding section contains anything rendering an action for the penalty prescribed dependent upon the fact that the defendant shall have been indicted, convicted and punished for a misdemeanor before the action for its recovery can legally be commenced. The law contains no evidence of the existence of any such intention,. but it has provided for the prosecution and punishment of the offender by indictment, and in addition to that liability it has been declared that he shall forfeit and pay a fixed penalty of $500. These punishments are entirely separate and distinct. • The appropriate proceedings to carry the provisions relating to them into effect are entirely independent of each other.

One is to be by indictment, the other by an action for the sum .of money in the name of the people, and the prosecution of neither is made in any respect dependent or conditional upon its being preceded by the other. And there is nothing contained in the act which would justify the imposition of such a restriction upon the remedies provided for its violation. But, on the contrary, the prosecutor is left at. liberty to bring the one or the other, as may be most consistent with the circumstances expected to be proved.

This has been the course of proceeding which, without question as to its legal propriety, has been followed in the enforcement of the provisions of other acts of the legislature framed in a similar manner. Such actions have been brought and prosecuted without a doubt being intimated as to the regularity of either, and without a suggestion that one should have been preceded by the other. People v. Stevens, 13 Wend., 341; Bellows v. Elmendorf, 7 Lans., 462; Amerman v. Kall, 34 Hun, 126; Bellam v. People, 17 N. Y., 516.

The proceedings under such statute, if not concurrent, are entirely independent, and one may be prosecuted without resorting to the other.

In further support of the ruling at the trial, it has been maintained by the counsel that the acts providing for this, liability are themselves violation of the constitution of the state, and People v. Marx (99 N. Y., 377), is referred to as authority supporting this view. But that it does not sustain the argument is now established by the decision made in People v. Arensbergh (6 N. Y. State Rep., 789), more recently made by the court of appeals. This constitutional argument has been very fully discussed and answered by the opinions m that case, and establish the constitutionality of this legislation. The object of it has been to punish the fraudulent simulation of the article manufactured out of animal fat, or animal or vegetable oils for butter manufactured from unadulterated milk or cream, and for adding to it such coloring matter as will enable dealers in it to deceive the public by selling it for a genuine when in fact it is a spurious article. The offer of proof made by the plaintiff was ample to bring this case within restraint created by the statute. And as the prosecution and punishment of the defendant by indictment has not been required to precede an action for the recovery of the penalty, the suit should not have been dismissed as it was on the opening of the counsel, and the judgment should be reversed and a new trial ordered.

Van Brunt, P. J., and Brady, J,, concur.


text:
    Henry Prouse Cooper & Co., Resp’ts, v. Daniel Wandel. et al., Appl’ts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Pleading—Answer—What is sham and frivolous
    In an action against the sureties upon an undertaking given on behalf of one who was arrested in an action brought against him. and prosecuted to judgment, it was set up as a defense that th y were released from their liability on the undertaking, because of an extension of time granted to their principal. The only evidence adduced to substantiate this claim was that contained in a stipulation, by which the argument of a motion to open a judgment obtained by default was adjourned, and it was agreed that during the time covered by such adjournment, no execution should be issued against the person of the defendant By the stipulation, the execution against the property which had not been returned was not stayed, but was in full force. Held, That no proceeding against the principal was delayed, as the execution against the person could not issue until return of that against the property, and that the answer containing. such matter as a defense was sham and frivolous
    Appeal from a judgment entered upon a decision that the answer interposed was sham and frivolous.

      George Gallagher, for appl’ts; PecJoham & Tyler, for resp’t.
   Brady, J.

The defendants were sureties upon an undertaking given on behalf of one Alexander D. Findlay, who was arrested in an action brought against him, and which proceeded duly to judgment. This action was in due time and upon all necessary facts to establish the defendants’ liability commenced, and after much delay an answer was served which upon application duly made, was declared to be sham and frivolous, was' stricken out and judgment ordered for the plaintiff. The defense set up was as follows :

Third. For a defense in this action the defendants allege, upon information and belief, that after the recovery of the judgment mentioned in the fifth paragraph of said complaint, and before the issuing of the execution against the person of the said Alexander D. Findlay, the attorneys for the plaintiff in the action in which said judgment was recovered and said undertaking given, did make and enter into a written stipulation to and with the attorney of the said Alexander D Findlay, the defendant in said action and the principal in said undertaking named, wherein and whereby they stipulated and agreed to delay issuing execution against the person of the said Alexander D. Findlay, and to delay the arrest of the said Alexander D. Findlay under such an execution, and did extend the time for making such arrest and the time of issuing such an execution, and that by reason thereof, these defendants became and were released and discharged from all liability, obligation and indebtedness arising from their execution of said undertaking. And this rested upon the following communication, which is the only stipulation made, and is the one relied upon on the answer:

Law Office of
Sutherland Tenney, 11 Pine Street.
New York, December 26, 1885.
To Messrs. PecJcham & Tyler, 111 Broadway, New York:
Gentlemen—Your favor of the 24th is received. I shall be vere glad to adjourn the motion as you request.
I assume, of course, that no movement will be made to arrest defendant or to sue his bondsmen pending the adjournment. If you will prepare a stipulation to this effect I will sign it; I would suggest Tuesday, January 5th, as the adjourned day. Yours very respectfully,
(Signed) SUTHERLAND TENNEY.
Motion is adjourned on above conditions to January 5, 1886, same hour and place.
(Signed) PEOEHAM & TYLER.

The motion referred to was one pending in the superior court of this city and on the action .brought against Find-lay, in which the undertaking was signed by the defendants. It was to open a default taken in that action but after judgment and the issuing of the execution The adjournment was asked for by the plaintiff’s attorneys and granted on the assumption or condition that no process against Findlay should be issued or suit against the defend ants be commenced m the meantime. Aside from this it appears that the execution against the property of Findlay had not been returned when the stipulation was signed and was not returned for some time after the adjourned day. Until that event took place the process against the person could not be issued. It will have been perceived that the execution against the property was not stayed but was in full force, the time during which it was to run, sixty days, yet going on.

When these facts are understood the character of the defense is at once revealed. Even if any rule could be invoked to shield the defendants on account of delays extended to their principal, it could have no application to delay which they imposed as a condition. It was their suggestion made through their attorney or representative that no action should be brought against them and if any emergency existed demanding it, it was for their benefit. If this view be erroneous for the reason that Mr. Tenney was not the representative of the defendants, then the result is equally fatal. No procording against the principal defendant was suspended or delayed. The plaintiff was not in a position to issue an execution againt his person, the execution against his property not having been returned. The stipulation therefore, was of no effect.

The case of Ross v. Ferris (18 Hun, 210), upon which the defendants chiefly rely to sustain the answer herein, is not analogous to the case on hand. The sureties in that case had signed an undertaking on an appeal from a justice’s judgment. Subsequently the parties stipulated that a judgment of affirmance should be entered on the condition that no execution should be issued for six months. This was held to operate as an extension of time, and to release the sureties. The court, however, recognized the distinction between such an agreement and one in the course of the action. “We do not mean,” the court said after allusion to the effect of a valid extension of time given by the creditor to the principal debtor, “by this that the ordinary extensions of time in actions, or the putting a case over from one time to another would discharge such sureties as the defendants are.” It may be added here that the adjournment asked for and obtained was one which a court would readily have granted, especially on such terms as were imposed. It was a mere incident in the progress fo the action or affecting it, initiated, not by the plaintiff, but by the principal defendant or his sureties, to vacate the judgment, and, therefore to remove for a time, at least, the basis of the defendants’ liability. There are, however, several cases which strike at and destroy any such doctrine as that contended for by the defendants predicated of the facts and circumstances disclosed herein. The reason of the rule discharging sureties is that the agreement with their principal prevents them during the extended time from proceeding against him. Billington v. Wagoner, 33 N. Y., 33. If the indulgence granted may be obtained in the ordinary progress of the cause, or time be given which would have elapsed had a suit been brought and prosecuted with due diligence, the sureties are not discharged. Bower v. Herman, 3 Denio, 379; Sizer v. Heacock, 23 Wend., 81; Hallett v. Holmes, 18 Johns., 28; Fullam v Valentine, 11 Peck., 156, Stevenson v. Roche, 9 Barn. & Cress.. 711; Johnson v Boyer, 3 Watts., 378.

The answer to the indulgence is, therefore, not only sham,, but frivolous, and if not sham, clearly frivolous. . The denial of any knowledge or information sufficient to form a belief that the plaintiff was a corporation, created no-issue. Bengston v. Thingvalla Steamship Co., 3 N. Y. Civ. Pro., 204; The Crucible Co. v. The Steel Works, 9 Abb. N. S., 195; Concordia Savings Bank and Aid Association v. Read, 93 N. Y. Rep., 474.

We see no reason to interfere with the order considered. The appeal from the order denying a motion to adjourn cannot be sustained. The object of the delay was to establish the stipulation just considered, and that was valueless.

The judgment and order must, for the reasons given, be affirmed, with costs on the judgment appeal only, and disbursements on that from the order.

Van Brunt, Ch. J., and Daniels, J., concur.'