author: Gilbert, J.:

text:
    ALEXANDER BARTOW, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
    Embezzlement— what justifies a conviction, of, under chapter 207 of 1874.
    The plaintiff in error, Bartow, was the treasurer of the Fishkill Savings Institute, and also cashier of the National Bank of Fishkill, which latter bank x'eceived all deposits to be made in the Savings Institute, the business of the Institute being transacted at the office of the bank. February 1, 1877, Bartow, while starting for New York with ¡£3,000 in bills belonging to the Bank, received §1,500 in bills belonging to the Savings Institute, both of which amounts, less five dollars, were deposited in a bank in New York to the credit of the Fishkill bank. The §1,500 was never credited in the books of the Fishkill bank to the Savings Institute, and on the books of the Fishkill bank the New York bank was charged with only §3,000 instead of with §4,495, the amount actually deposited. The whole sum deposited was thereafter drawn out by the FishkilL bank, which subsequently failed.

      Held, that the plaintiff in error was properly convicted of embezzlement under chapter 207 of 1874.

      Writ of error to review the conviction of the plaintiff in error of embezzlement, and his sentence thereon.

      B. F. Tracy, for the plaintiff in error.

      Wm. JR. Woodm, district-attorney, and II. A. Nelson, for the defendants in error.
   Gilbert, J.:

Bartow, the plaintiff in error, has been convicted of embezzlement, and prosecutes a writ of error to reverse that conviction. There is no conflict in the evidence. The question is whether there was sufficient evidence to warrant that conviction.

He was the treasurer of a corporation known as the Fishkill Savings Institute, and also the cashier of an incorporated bank known as the National Bank of Fishkill. The office of the bank was also the office for transacting the business of, and for receiving moneys deposited in, the Savings Institute. All moneys of the Institute, before investment, were required to be deposited in the bank. On the 1st of February, 1877, Bartow received, on the street in Fishkill, just as ho was starting for New York, a package containing $1,500 in bank bills belonging to the Savings Institute, which had been sent to him by McFowley, of Poughkeepsie, an attorney of the Savings Institute. The sum so received was never deposited in the National Bank of Fishkill, nor was the Savings Institute ever credited by the bank with that sum, or any part thereof, nor has it in any maimer been applied to its use. The actual disposition of the money appears to have been this : Bartow proceeded to New York, having in his possession $3,000 in bank bills belonging to the National Bank of Fishkill. and the aforesaid sum of $1,500 belonging to the Savings Institute, and on the 2nd of, February, 1877, he deposited both sums, lacking five dollars, to the credit of the National Bank of Fishkill in the Merchants’ Exchange Bank of New Y ork. The latter bank was the redeeming agent of the National Bank of Fishkill. The Merchants’ Exchange Bank was charged on the books of the National Bank of Fishkill with only the sum of $3,000, instead of $4,495 actually deposited, and it appeared that the whole sum deposited was afterwards drawn out by the National Bank of Fishkill. Shortly afterwards that bank failed.

The statute under which the prisoner was indicted is an amendment of the Revised Statutes. (2 R. S., 678, § 59.) It provides that if any officer, etc., of a corporation converts to his own use, or, without the consent of his master or employer, takes, makes way with, or secretes with the intent to convert to his own use, or to the use of another, or withholds or appropriates, or otherwise fraudulently applies or makes use of any money, etc., belonging to another, and which may have come into his possession or under his care by virtue of such employment or office, he shall be adjudged guilty of embezzlement. (Laws of 1874, chap. 207.)

The meaning of this amendment is plain, and the intention of the Legislature in enacting it seems to me to be quite evident. By the Revised Statutes conversion to the use of the accused, or an intent to convert to his own use, was an essential ingredient of the crime. Under that definition of the crime breaches of trust of the most flagrant .character, and which involved the moral guilt of embezzlement, escaped punishment. The amend-atory act remedies that defect to a great extent, by making the intent to convert to the use of another, and the fraudulent withholding, or appropriation or ajjplication of money criminal. This was a step in advance, and it was not taken a moment too soon. The question which we have to decide is, whether the evidence is sufficient to warrant the conclusion that Bartow was guilty of the crime of fraudulently withholding from the Savings Institute, of which he was treasurer, the sum of $1,500 which has been mentioned, or of a fraudulent misapplication thereof. The argument that because he did, in effect, deliver the money to the National Bank of Fishkill, by depositing it to the credit of that bank in the Merchants’ Exchange Bank, he did not withhold it from the Savings Institute is not destitute of plausibility. But the answer, as it seems to me, is that the very act relied on may have been a mere contrivance to withhold the money from the Savings Institute, and to make a fraudulent application of it to the National Bank of Fishkill. Having received the money there were only two ways by which Bartow could withhold it from the Savings Institute, namely, by crediting it to some other person or corporation, or by omitting to credit it altogether. If he adopted .the latter course he would be exposed to immediate detection, unless be also omitted to charge the money to the Merchants’ Exchange Bank, for the reason that the charge against the Merchants’ Exchange Bank would not bo balanced by a corresponding credit. Hence it would be necessary to make no charge against the Merchants’ Exchange Bank for that sum. Accordingly we find the remarkable coincidence occurring, of an omission tó charge the Merchants’ Exchange Bank and to credit the Savings Institute with the money deposited with the former. The money was appropriated to the use of the National Bank of Eishkill without any entry of the transaction on the books of that bank. An application of the money, to the use of the National Bank of Eish-kill, would become the equivalent of a deposit thereof in. that bank, only upon credit thei'efor being given to the depositor. Depositing in a bank ex vi termini means doing the act in the mode adopted by the bank for passing the sum deposited into the account of the depositor. It was the duty of Bartow to make the proper entries. No explanation of his omission to make them has been given. What is the just inference to be drawn from those facts ? I think it is that the money was fraudulently withhold from the Savings Institute, and fraudulently appropriated to the use of the bank of Eishkill. The duty and obligation of that bank was that of a mere depository. The first act in the performance of that duty and obligation, after receiving the money, was to place the sum received to the credit of the Savings Institute. When that should be done the money would become the property of the bank. Until that was done, in some way, it remained the property of the Savings Institute. The delivery of the-money to Bartow out of the bank worked no change in the title thereto for two reasons, ■ first: Because such a delivery was not a delivery to the bank. Second. Because Bartow must be deemed to have received it in his capacity of treasurer of the Savings Institute. If the money had been lost, while Bartow was on his journey to New York, the' loss would have fallen on the Savings Institute, and not upon the National Bank of Eishkill. While the money was in Bartow’s possession, it was the property of the Savings Institute, upon the same principle that the money of a depositor continues to be his property until actually deposited in the bank. A levy under an attachment or execution against the depositor while he was in the act of depositing the money, or before it had passed into the actual possession of the bank, would bo valid and effectual. So in this case, the Savings Institute or its creditors might have caused the money to be seized at any time before Bartow deposited it in the Merchants’ Exchange Bank. Up to that moment it continued to be the property of the Savings Institute. The same instant it ceased to be the property of the Savings Institute it became the property of the Merchants’ Exchange Bank. It never became the property of the National Bank of Eishkill. That bank never had possession of the money, and it has been wholly lost to the Savings Institute. The deposit of it in the Merchants’ Exchange Bank was nothing more than an appropriation of the property of the Savings Institute to the use of the National Bank of Fishkill. Such act of Bartow, coupled with an intentional omission on his part to give the Savings Institute credit for the money, constitutes in my judgment a fraudulent withholding of the money from the one, and a fraudulent misappropriation of it by the other.

Nor does the subsequent acknowledgment given by Bartow to Mr. Eowler, of the’receipt of the money by the National Bank of Eishkill, relieve the transaction of its criminal character. On the contrary such acknowledgment, taken in connection with the suppression of the usual entries of the money received on the books of the bank to the debit of the Merchants’ Exchange Bank, and to the credit of the Savings Institute, under the circumstances, is some evidence that the transaction was deliberately and intentionally screened for the fraudulent purpose of withholding and misappropriating the money of the Savings Institute. Even if the acknowledgment to Mr. Eowler should bo sufficient to establish indirectly the liability of the National Bank of Fishkill for the money, it cannot be deemed an equivalent of a regular entry on the books of the bank. It was intended as a voucher to Mr. Eowler, and not the Savings Institute. Indeed the rule seems to be that the inference that a prisoner has embezzled property may be drawn from the fact that he has not accounted for it, or from the fact that he has falsely accounted for it. (Stevens’ Dig. Criminal Law, 248.)

The acknowledgment to Eowler was not an acccounting to the Savings Institute. It was the province of the jury to draw proper inferences from the acts and conduct of Bartow, and I think that they did so.

I am of opinion that the conviction was just, and should be affirmed.

DtiqiaN, J., concurred; Barnard, P. J., not sitting.

Conviction affirmed.


source: Caselaw Access Project

author: GILBERT, J. :

license: Public Domain

text:
    ELMIRA L. DOLAN, Appellant, v. WILLIAM E. MERRITT, as Executor, etc., of ELMIRA L. BEAVER, Deceased, Respondent.

      Findings of fact inarefereés report — when further-findings will not be compelled,,

    It is the duty of a referee to find and set forth in his report the facts upon which his conclusions of law are based; but he is not required to set forth or explain the means or processes by which he arrived at such findings of fact.
    Appeal from an order made at Special Term, sending back a report to a referee, with directions to make further findings of fact.
    The action was upon a promissory note for $5,000, made by the testatrix, payable to the order of the plaintiff, her daughter. The defence was a want of consideration. The plaintiff gave evidence tending to show a money consideration to the extent of fifty cents, and also to establish a consideration from two other sources — the one, money advanced, and the other, money received under the will of Charles Avery, on the promise to pay it to the plaintiff.
    The referee found, among other’ things : “That there was no consideration paid by the plaintiff, except the sum of fity cents, which she paid therefor to the said Elmira L. Beaver, at the time she gave the note to plaintiff.
    “ That said Elmira L. Beaver, prior to the giving of said note, received from her brother Charles Avery the sum of $5,000, upon a trust that she should pay over the same, at her death, to plaintiff, and that the aforesaid note was given to plaintiff' to secure the payment of such money.”
    The court ordered “ that the report of the referee, in this case, be sent back to the referee, with instructions and directions to find, on the question of fact, whether the sum of $5,000, found by the said report to have been received by the said Elmira L. Beaver, from her brother Charles Avery, upon trust that she should pay over the same at her death to the plaintiff, was the sum of $5,000 given to the said Elmira L. Beaver, by the will of Charles Avery, which was in evidence in this case, or in what other way the said Elmira L. Beaver received the same from her brother.”

      Win. F. Purdy, for the appellant.

      M. L. Gobi\ for the respondent.
   GILBERT, J. :

I think the order appealed from, if allowed ■ to stand, would make a very undesirable change in the practice of the court. It is the duty, of a referee to find facts, not to sot forth the elements from which the conclusion of fact was deduced ; in other words, to decide the disputed fact, without a statement of the evidence which governed him in doing so. Such is the statutory requirement, as the same has been uniformly interpreted. (Code of Civil Procedure, § 1022.) A referee is required to report upon the issues only, and not upon the evidence; and having reported his conclusions as to a fact, he is not called upon to find or explain the means or processes by which he arrived at such conclusions. (Van Slyke v. Hyatt, 46 N. Y., 263; 3 Wait’s Pr., 307.) The rule is clearly and accurately stated in the case cited, namely, that the report should show the dispositions made by the referee of the specific issues in the cause. In the case before us the issue was whether the note was made upon a sufficient consideration. The referee found that it was so made, and also found the facts which proved the consideration thereof, namely, the sum of $5,000, which the defendant received upon a parol trust to pay to the decedent. No further finding is necessary or proper; for an exception to the decision of the referee will, on an appeal from the judgment, bring up tbe whole evidence for review.- Exceptions to findings of fact are useless. (Roe v. Roe, 14 Hun, 613.) If tbe evidence be insufficient to sustain the decision of the referee, the judgment will be reversed, otherwise it' will and ought to be affirmed. The referee was not required to find whether the consideration of the note sprang from a legacy to the defendant, the amount of which she received upon a parol trust to transmit to the decedent, or from another sum of money delivered to the defendant upon a parol trust for the same purpose, because the same question would be presented by proof of either of those facts.

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

Barnard, P. J., concurred; Dykman, J., not sitting.

Order reversed, with costs and disbursements.


text:
    EDWARD D. BAKER AND PHILENA D. CORNELL, Appellants, v. THOMAS L. DISBROW AND LIVINGSTON DISBROW, Executors of PHILENA DISBROW, Deceased, Respondents.
    Trustees— liability of, for improper investments.

    Where a trustee lias made improper investments the cestui que trust has an election to take the original fund and legal interest thereon, or to take the fund as invested at the time of the accounting, and all legal profits realized by the trustee thereon. In the latter case, however, in determining the profits realized by the trustee, the whole period during which he has held the fund is to be considered. The cestui que trust cannot take profits for one period and interest for another.
    Appeal from a decree by the surrogate of the county of West-chester, entered upon the final settlement of the accounts of the respondents, as executors of Philcna Disbrow, deceased.

      Josejph R. Balcer and Treadwell Cleveland, for the appellants.

      Martin J. Keogh, for the respondents.
   GILBERT, J. :

A breach of trust having been shown, the only question before us is in what way the trustees and executors are to be charged. It appears that up to October, 1871, the unauthorized dealings with the trust funds had produced large profits, but that in consequence of similar dealings, after that date, all of those profits and some of the principal of the fund had been lost. The trust was “ to invest on good bond and mortgage, or in or upon other good and sufficient security." No particular mode of investment, except upon bond and mortgage, was prescribed. The trustees invested in the purchase of real estate. ' In such a case the rule seems to be that the cestui que trust has his election to take the fund and legal interest thereon, or the fund and all the profits that have been made upon the fund. If the cestui que trust elects to take the profits he must take them during the whole period, subject to all the losses of the business ; he cannot take profits for one period and interest for another. (Ilill on Trusts [2d Am. ed.], 534; Perry on Trusts, §§ 470-472, and cases cited; Heathcote v. Hulme, 1 J. & W., 122.) The trustee cannot be charged with a greater amount of profits than he has actually received. (Jones v. Foxall, 15 Beav., 388-395; Utica Ins. Co. v. Lynch, 11 Pai., 523, et seq.) The principle is that, in the management of a trust, the trustee may lose but cannot gain. If by any improper use of the fund profits have been realized, they must be accounted for, and if no profits have been made he is to be charged with the fund and interest thereon. The profits which may have accrued at any particular time are a mere accretion to the fund, and the trustee can be charged with them only upon the ground that he has appropriated them to his own use. If upon an accounting, in respect to the fund during the entire period of the trust, it appears that no profits have been made, the trustee is chargeable with interest only. The improper investment is considered as against the trustee himself, as equivalent to no investment. But in favor of the cestui que trust it gives an option to claim either the investment made, or the replacement of the -original fund, with interest, according as the one or the other may be most for his benefit. (Lane v. Dighton, Amb., 409; Marsh v. Hunter, 6 Mad., 295; Robinson v. Robinson, 1 DeG., M. & G., 256; Docker v. Somes, 2 M. & K., 655; supra, cases cited.)

The surrogate appears to have been governed by the rule stated, and liis decree should be affirmed, with costs to be paid out of the estate.

Barnard, P. J., and DyemaN, J., concurred.

Decree of surrogate affirmed, with costs.


author: Gilbeut, J.:

text:
    JACOB F. COCK, Appellant, v. CORNELIUS MOORE, Respondent.

      Statute of frauds — when a promise is not one to answer for the debt of another.

    The plaintiff was employed toy one Stanstonry, who was building a lionse for the defendant, to do certain work thereon, for which there became due to him ¡¡j>156.80. Stansbury abandoned the work, -with defendant’s consent, leaving in his hands sufficient money to pay the claim of the plaintiff, which claim defendant verbally promised both Stansbury and plaintiff that he would pay.
    In an action to recover the said amount, held, that the promise was not void under the statute of frauds, as being one to answer for the default or miscarriage of another, and that the plaintiff was entitled to recover.
    Appeal from a judgment of the County Court of Queens county, dismissing the complaint herein.
    One Theodore Stansbury, a contractor, was building a house at Pearsalls, in Queens county, for Cornelius Moore, the respondent. The contractor employed Jacob E. Cock,.the appellant, to do certain work upon the house, viz.: Tinning, roofing, putting in leaders and a pump. The work was done by the plaintiff and the price to be paid therefor was $156.80. The plaintiff has not been paid for the work done. Before the house upon which this work was done was entirely completed, the contractor, with the consent of the defendant, gave up the work. When the contract was thus given up the contractor left $750 or $800 in the hands of the defendant, and furnished him with a statement of the outstanding debts. The money left in bis bands was enough to pay tbe outstanding debts, among which was plaintiff’s, and defendant said he -would pay these debts ; subsequently, and in answer to plaintiff’s demand on the defendant for the money the defendant wrote to plaintiff requesting him not to put a lien on the house, and promising payment. In an action to recover the amount the County Court ruled that, therC being no agreement in writing, on the part of the defendant to pay' the debt, there could be no recovery, and dismissed the complaint.

      John Fleming, for the appellant.

      George A. Mott, for the respondent.
   Gilbeut, J.:

I think the County Court erred in dismissing the complaint. The defendant did not undertake or promise for Stansbury, but for himself. Nor was the promise one that Stansbury should pay out of the money due to him from the defendant, but that the defendant would do so. Consequently Stansbury never had assumed, nor had he put himself in a position to become liable in the first instance to do that which the defendant undertook and promised to do. Stansbury left in the defendant’s hands sufficient funds to pay the plaintiff’s claim, and directed the defendant to make such application. The defendant promised Stansbury that he would do so. Subsequently the same promise was made to the plaintiff. The case I think is not within the statute of frauds but rather falls under the third class of promises stated by Comstock, J., in Mallory v. Gillett (21 N. Y., 433), namely, “Where, although the debt remains, the promise is founded on a new consideration which moves to the promisor. This consideration may come from the debtor, as where he puts a fund in the hands of the promisee, either by absolute transfer or upon a trust to pay the debt,” etc. (Lippincott v. Ashfield, 4 Sand., 611.) From the facts proved in this case the law would imply a liability to apply the fund in the defendant’s hands in the manner Stansbury directed him, and he undertook to do. (Barker v. Bucklin, 2 Den., 45; Lawrence v. Fox, 20 N. Y., 268; Barlow v. Myers, 64 id., 41.) When the law will imply a debt or duty against any man, his express promise to pay tlie same debt or perform tbe same duty must in its nature be original. (21 N. Y., 430.)

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

DykmaN, J., concurred.

Present- — Barnard, P. J., Gilbert and Dyicman, JJ.

Judgment of County Court reversed and new trial granted, costs to abide event.


author: Gilbert, J. :

text:
    PETER NICHOLS, Appellant, v. PETER VOORHIS and others, Respondents.

      Chapter 670 of 1871 —deeds of commissioners appointed wider — not pi’esumptive evidence of the regularity of the proceedings.

    Section 12 of chapter 670 of 1871, authorizing- the construction of an avenue in Rockland county, provides that in case the assessments imposed thereunder remain unpaid for the time therein specified, the commissioners are authorized to sell the lands so assessed, “in the same manner as the comptroller of the State is authorized to sell lands for non-payment of taxes.”

      Held, that it was not the intention of the Legislature to create the same presumption in favor of the regularity of sales had under this act, that exists in the case of sales by the comptroller, and that the deeds given by the commissioners were not presumptive evidence of the regularity of the proceedings prior to, and including the sale, in pursuance of which they wei'e given.

      Semble, that even the deeds of the comptroller are not prcsunrptive evidence of the regularity of the proceedings had prior to the assessment.
    Reargtbient of an appeal from a judgment, entered upon an order sustaining a demurrer to the complaint herein.
    The action was brought to vacate an assessment imposed upon lands of the plaintiff, under the provisions of chapter 670 of 1871, authorizing commissioners to lay out Rockland avenue, and to restrain the commissioners, and their successors, from collecting or enforcing the same.

      The appeal was argued in 1876, and decided at a General Term held in December of that year, being reported in 9 Hun, at page 171. The judgment was then reversed.
    Subsequently an appeal was taken to the Court of Appeals, where such appeal was dismissed. Thereafter the counsel for the respondents moved for a reargument at the General Term, which was granted.

      O. P. Hoffman, for the appellant.

      8. J. Croolcs, for the respondents.
   Gilbert, J. :

These rules have been as fully established in this State as any other, viz. : 1. That the equitable power of the court cannot be invoked for the purpose of reviewing the proceedings of boards or officers, such as the commissioners whose acts are assailed in this case. That has always been a matter of legal, and never a matter of equitable, cognizance. 2. That a party is not entitled to equitable relief because his property has been illegally assessed for a public improvement, and such assessment is an apparent lien thereon. To authorize the court to interpose to remove such lien as a cloud upon title, it must appear that the irregularities or defects which render the assessment void do not appear on the face of the proceedings, and that a claimant under such lien would not, by the proof he would be obliged to give in order to maintain a right or title based thereon, develop such irregularities or defects. (Guest v. The City of Brooklyn, 69 N. Y., 506, and cases cited.) Assuming, therefore, that the proceedings preliminary to, and including the assessment in controversy, are void, the plaintiff is not entitled to relief, for the reason that in any suit or proceeding to enforce the assessment, the matters which make it void would necessarily appear in the proof which the claimant would be required to give. The burden would rest upon him of showing that the provisions of the statute under which the assessment was levied had been strictly pursued. If the allegations of the complaint be true, he would necessarily fail in proving a compliance with the statute. Hence the apprehension of the plaintiff that futui’e injury may accrue to him, by means of the assessment, is not well founded.

It is urged that a conveyance of the property assessed, in execution of a sale thereof for the non-payment of the sum assessed, would be presumptive evidence of the validity of the proceedings to levy the assessment. I think that is a mistake. The statute under which the proceedings were had merely authorizes, 1. A sale of the land assessed in the same manner (with certain specified exceptions, not material) as the comptroller of the State is authorized to sell lands for the non-payment of assessments for taxes ; 2. A conveyance thereof; and 3. The doing of each and «very act and thing that the said comptroller is authorized to do on sales for non-payment of taxes. (Laws 1871, ch. 670, §12.) Not a word is contained in the act of 1871 which invests the conveyance authorized to be made by the commissioners therein named, with any force or effect as evidence. An authority to sell and convey, and to do the acts and things which the comptroller is authorized to do, is by its terms limited to the acts themselves. But a conveyance under a statutory power to sell is not eyidence of a due execution of the power, unless expressly given that effect by statute. The provision of the act of 1855 (chap. 427, § 65), as amended by chapter 209, Laws 1860, making all conveyances of the comptroller presumptive evidence of regularity, is an independent provision, and not in any sense an incident of any act which he is authorized to do. The statute of 1871, under which the plaintiff’s land was assessed, did not adopt the provision of the act of 1855 referred to. Any conveyance made under the statute of 1871, therefore, will have no effect, unless all the provisions of that statute have been strictly pursued. And, as before stated, the burden will rest upon the grantee to prove such compliance with the statute.

It may be added that section sixty-five of the act of 1855 makes conveyances by the comptroller presumptive evidence only, that the sale and all proceedings prior thereto, from and including the assessment, and some subsequent proceedings, were regular. Proceedings prior to the assessment are unaffected by that section. In the case before us the latter proceedings would be the most important on the question of the validity of a conveyance, pursuant to a sale for the non-payment of the assessment. A suit in equity to prevent a, sale of personal property, under process which is illegal, and therefore void, cannot be maintained, for the reason that a perfect legal remedy exists by action to recover possession of the property sold, or to recover damages for the illegal seizure or conversion thereof. (Mutual Life Insurance Co. v. Supervisors, 3 Keyes, 182.)

The judgment should be affirmed, with costs.

Dykman, J., concurred; Baknakd, P. J"., not sitting.

Judgment affirmed, with costs.


author: DyioiaN, J.:

text:
    THE ATLANTIC STATE BANK, in the City of Brooklyn, Plaintiff, v. WILLIAM SAVERY, WILLIAM E. SAVERY, GEORGE W. MASON AND GEORGE W. VAN SCHAACK, Impleaded with ALEXANDER LAW, Defendants.

      Firm paper used to pay the individual debt of one partner — his creditor cannot enforce it — rights of a bona fide pwehaser of such paper — Knowledge of the director of a corporation not imputed to it— Power to discount, includes power to purchase.

    This action was brought upon a note made by Charles 37. Parker & Co., payable to their own order indorsed by them, by A. Law, and by the firm of John Savery’s Sons. The defendant Law, who was a member of both firms, indorsed thenameoflhelatterfirm, without authority, and delivered the note to a firm of brokers to whom he was indebted, who sold the note to the plaintiff and applied the proceeds upon Law’s account. One of the firm of brokers who negotiated the sale of the note was a director of the plaintiff.

      Held, that the brokers, knowing that Law was using firm paper to discharge an individual indebtedness, could not enforce the same as against the defendants, John Savery’s Sons.
    That the plaintiff, having purchased the note in good faith, the knowledge of its director was not to be imputed to it, and that it was entitled to recover.
    That the plaintiff, a bank organized under the State law, was authorized to purchase the note, the power to purchase being included in the power to discount.

      MotioN for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict directed in favor of the plaintiff.

      Wm. II. Ilornblower, for the plaintiff.
    The fact that a note made in the name of the firm is payable to the order of one of the partners, is not any indication that the paper was not drawn on partnership account and in the usual course of business of the firm. (Parsons on Partnership, *202, note c; Hcildeman v. Banlc of Middletown, 28 Penn. St., 440; Ihmsen v. Negley, 25 id., 297; Smith v. Lusher, 5 Cow., 688; Smyth v. Strader, 4 How. [U. S.], 404; Babcock-¶. Stone, 3 McL., 172.) The mere fact that a director of a corporation has knowledge of a fact does not charge the corporation with notice. (National Bk. v. Norton, 1 Hill, 572; Fulton Bk. v. New York and Sharon Canal. Co., 4 Paige, 127; Miller v. III. Cent. It. B. Co., 24 Barb., 312; Pres., etc., of Westfield Bank v. Cornen, 37 N. Y., 320; Parrel Foundry v. Bart, 26 Conn., 376; General Ins. Co. v. U. S. Ins. Co., 10 Md., 517; Terrel v. Branch Bank of Mobile, 12 Ala., 502; U. S. Ins. Co. v. Shriver, 3 Md. Ch., 381; Custer v. Tompkins Co. Bank, 9 Barr [Penn.], 27; Seneca Co. Bank v. Neass, 5 Denio, 329; Pres., etc., of City Bank v. Barnard, 1 Hall, 70; Commercial Bk. v. Cunningham, 24 Pick., 270; Fanners and Citizens' Bank v. Payne, 25 Conn., 444; Winchester v. Baltimore and Susquehanna R. R. Co., 4 Md., 231; Barnes v. Trenton Gas Light Co., 12 C. E. Gr. [N. J. Ch.], 33; In re European Bank, L. R. [5 Ch. Ap.], 358; In re Marseilles Extension Railway Co., 7 id., 161.) An association, organized under the general banking act of 1838, has all the powers incident to a banking business, even though not specifically and in express terms conferred by the act, and may purchase as well as discount paper. (Curtis v. Leavitt, 15 N. Y., 9; Leavitt v. Blatchford, 17 id., 522; Barnes v. Ontario Bank, 19 id., 152; Yerkes v. National Bank of Port Jervis, 60 id., 382; Leach v. Hile, 30 Iowa, 69; Van Leuven v. First National Bank, 54 N. Y., 671; People v. Metropolitan Bank, 7 How., 144; Pape v. Capitol Bank of Topeka, 20 Kan., 457; Tracy v. Talmage, 18 Barb., 456; First National Bank v. Harris, 118 Mass., 516; Smith v. Exchange Ban)k.pf Pittsburg, 26 Ohio. SL, 141; National Pemberton Bank v. Porter, Sup. Ct. Mass., 7 Cent. [L. J.], 324.)

      John A. Mages, for the defendants.
    Any obligations given by one partner in the name of the firm, in payment of his own private indebtedness, or for his own individual benefit, or for any matter unconnected with the business of the firm, are void as against the other members of the firm, in the hands of any person, who took the same with notice of such fact, unless the assent of the other members is proven. (Livingston v. Roosevelt, 4 Johns., 25 L; Dubois v. Livingston, id., 261,. n; Gansevoori v. Williams; 14 Wend., 133; Livingston v. Hastie, 2 Caines, 246; PHliot v. Dudley, 19 Barb., 326; Chitty on Bills, 29-33, and cases there cited; Edwards on Bills and Notes [m. p.j, 103; Parsons on Partnership [3d ed.], *216; Foot v. Babin, 19 Johns., 154; Boydv. Plumb, 7 Wend., 309; Andrews v. Planters’ Bk., 7 Smedes & M., 192; Rollins v. Stevens, 32 Me., 454; Selden v. Bk. Commerce, 3 Minn., 166; Laverty v. Burr, 1 Wend., 529; Bk. of Rochester v. Bowen, 7 id., 158; Stall v. Catshill Bk., 18 id., 466; Williams v. Walbridge, 3 id., 415; N. Y. Fireman’s Ins. Co. V. Bennett, 5' Conn., 574; Gansevoort v. Williams, 14 Wend., 139; Joyce v. Williams, id., 141; Parsons on Bills and Notes, 140, 141; Story on Part., § 127; Parsons on Part. [3d cd.], *216; Colyer on Part., § 421; Daniels on Neg. Inst.,p. 272, § 365.) The possession and presentation for discount or sale of a note or other commercial paper, by one who is liable thereon, as drawer, maker, acceptor or indorser, is in itself notice to the party taking it from him, that all indorsements subsequent to his are for accommodation. (Stall v. Catshill Bk., 18 "Wend., 466; Bk. of Vergennes v. Cameron, 7 Barb., 143; Fielden v. Lahens, 2 Abb. Ct. .App* Dec., Ill; N. Y. Fireman’s Ins. Co. v. Bennett, 5 Conn., 574; Bk. of Tennessee v. Safferins, 3 Humph., 597; Tanner v. Hall, 1 Penn. St., 417; Mauldin v. Branch Bk. Mobile, 2 Ala. [N. S.], 513; Tompkins v. Woodyard, 5 W. Va., 216; Daniels on Neg. Inst., § 365; Wallace v. Branch Bk. Mobile, 1 Ala. [N. S.], 565; Saltmarshv. Planters' Bk., 14 id., ,668; Carlisle v. Hül, 16 id., 405; Overton v. Harden, 6 Coldwell [Tenn.], 376; Brown y. Baber, 5 Wend., 566; Hendrie v. Berko-

      witz, 37 Cal., 113; Le Moine v. JBlc. North America, 3 Dillon, 44; Howe Machine Go. v. Hadden, The Reporter, yol. 6, p. 136; Palmer v. Whitney, 21 Iud., 58.) The plaintiff stands chargeable with the same notice of the character of the indorsement, which Mr. Leonard, one of its directors, had. (Bank of U B. y. Davis, 2 Hill, 451; North Diver Bank v. Aymar, 3 id., 274; Nat. Security Bank v. Cushman, 121 Mass., 490; Verona Central Cheese Co. v. Murtagh, 50 N. Y., 316.) The plaintiff had no power or authority to purchase the note in suit, and such purchase conferred upon it no title which could be enforced as against these defendants. (Roy. Stat. [Banks, 6th ed.], vol. 2, p. 334, § 199 [old sec. 18]; American Life Ins. Co. v. Dobbin, Lalors Sup. to H. A D., 255, 256; N. Y. Fireman's Ins. Co. v. Fly, 2 Cow., 699; N. Y. Trust and Loan Co. y. Helmer, 19 S. C. It., 35; Farmers and Mechanics’ Bank y. Baldwin, 23 Minn., 198; First National Bank v. Pierson, 16 Alb. L. J., 319; Niagara Co. Bank Y. Baker, 15 Ohio St., 68.) No action can be maintained by a corporation upon securities taken in violation of their oi’ganic act. (Seneca Co. Bank v. Lamb, 26 Barb., 598; Bank of U. S. y. Owens, 2 Peters, 257; Utica Ins. Co. v. Scott, 19 Johns., 1; Tal-ma ge v. Pell, 3 Seld., 328; Fxparte Dysler, 2 Rose, 351 [Lord Eldox] ; Watts y. Brooks, 3 Yes. Jr., 612; Crocker v. Whitney, 71 N. Y., 16; Swift v. Beers, 3 Denio, 70.)
   DyioiaN, J.:

This action is against the members of the late firm of John Savory’s Sous on a promissory note for $3,000, dated Boston, February 27, 1877, made by Charles E. Parker & Co., payable to their own order, four months after date, at 97 Beekman street, Now York, and indorsed by Charies E. Parker & Co., Alexander Law and John Savery’s Sons. The note never came to the possession of John Savory’s Sons, and the firm had no interest in it, and. knew nothing about it, and in no way participated in its proceeds. Alexander Law was a member of both firms, and also had private dealings with Leonard, Sheldon & Co., bankers and brokers and stock dealers, in New York, being indebted to them in the sum of about $10,000. He delivered the note to them and they sold it to the plaintiff, and gave Law credit on his account with them for tbe proceeds. The indorsement of John Savery’s Sons was in the handwriting of Law. The note was purchased by the president of the plaintiff on the 4th of April, 1877, at nine per cent discount, and a bill of sale given by Leonard, Sheldon & Co. instead of their indorsement.

The defendants claim that the indorsement of their firm on the back of the note by Law was unauthorized and fraudulent, and imposed no liability upon them, and this question must be first examined.

Within the scope of the partnership each partner, by virtue of the relation, is invested with a general agency to buy and sell, pay and receive and borrow money, and draw, indorse and negotiate bills, notes and checks. The capital and stock in trade is brought into community, and the partners may enter into any engagement, usual in the ordinary course of trade. But their power is limited to the ordinary business of the firm, and if one partner assumes to act in a manner not within the scope of the partnership, the intendment of law will be that he is acting on his private account, and the use of the partnership name in such a transaction is fraudulent and void, when so used with the knowledge of the creditor. It is not important here to speak of acts apparently within the business of the firm, but in fact beyond it, because Sheldon & Co. knew that the proceeds of the note was to be applied in reduction of the individual liability of Law to them, in which the firm of John Savery’s Sons had no interest. Sheldon &- Co. did not receive the note as their paper. They never bought it and never owned it. They received it from Law and sold it for him and gave him credit for the proceeds. Beyond all dispute the good faith of Sheldon & Co. is impeached in the transaction, and no recovery could have been sustained in their favor against the defendants on this paper. Does the plaintiff occupy a more advantageous position ? William Leonard, of the firm of Leonard, Sheldon & Co., was a director of the plaintiff at the time of the purchase of the note by its president, and it is claimed that his knowledge that the indorsement of the defendants was not in the ordinary course of their business, and was a fraud upon them, is the knowledge of the bank, and must be imputed to it. To this, however, it must be answered that what knowledge he possessed was not received by him, as director or officer of the plaintiff, and he never acted upon the matter for the plaintiff in any official capacity. At the meeting- of the board of directors, next after the purchase of the note, the president and Mr. Leonard were present, but no quorum was obtained and no action was taken. The plaintiff is a bona fids holder for value, unless it is chargeable with the notice of the infirmity in the indorsement of the defendants, by reason of the knowledge possessed by Leonard; as has been already stated that knowledge was not acquired officially, or while acting in that capacity, and there is no testimony to implant the fraud of Law into the plaintiff’s title. The unofficial knowledge or acts of a director are no more operative on the plaintiff than those of a stranger. (National Bank v. Norton. 1 Hill, 579; Westfield Bank v. Cornen, 37 N. Y., 320; Seneca Co. Bank v. Neass, 5 Denio, 329.)

It is also claimed that no recovery can be had, for the reason that the plaintiff had no power to purchase the note in suit. The plaintiff is a State Bank, as contradistinguished from a National Bank, and has power to carry on the business of banking by discounting bills of exchange, notes and other evidence of debt, and by exercising such incidental powers as shall be necessary to carry on such business. (Laws of 1838, chap. 260, § 118.) In the technical sense in which the word discount is commonly used, it signifies the taking of interest in advance. The bank has the power and the right to loan money on commercial paper and take interest in advance on the loan, instead of waiting for the application to be made therefor at its counting-room.

What difference can there be between an application by the president of a bank for permission to take a promissory note and advance the money on it, retaining the interest, and doing the same thing on the application of the holder at the bank. In principle there is none, and no evil against which the Legislature intended to guard, by restricting the power of banks, can arise in one transaction more than in the other. A power to discount includes the power to purchase, and every piece of commercial paper discounted, is purchased, and paid for, and owned. “Now to discount includes to buy, for discounting in most cases is but another term for buying at a discount.” (Tracy v. Talmage, 18 Barb., 462.)

We bare already intimated our view that the promissory note in question had no legal inception until it came to the plaintiff, and as it was purchased at a discount greater than the legal rate, that fact would have been an important one on the question of usury if that defence had been interposed.

Its only effect, however, would have been to reduce the amount of the recovery, as a usurious loan by a State bank is not now void, ancl only subjects the bank to a forfeiture of the interest. (Farmers and Mechanics' National Bank v. Dearing, 91 U. S., 29; Hintermister v. First National Bank, 64 N. Y., 212.)

The defendants' exception should bo overruled, motion for a new trial denied, and judgment ordered for the plaintiff on the verdict, with costs.

Barnard, P. <T., concurred; Gilbert. J., not sitting..

Exceptions overruled, and judgment for plaintiff upon the verdict.


author: DyicmaN, J. :

text:
    In the Matter of the Petition of JOHN B. HASKIN, Respondent, to Compel HENRY FERRIS (Appellant), an Attorney, etc., to Pay over Certain Moneys.

      Order requiring an attorney to pay over money — only 'maae as between attorney aná client.

    The petitioner alleged that he was retained aa counsel by the appellant, wno acted as attorney ior the commissioners appointed to open a street; that it was agreed that the petitioner’s fees and charges should be §500; that they were taxed and certified at that amount; that the appellant undertook to, and did, collect that amount, but neglected and refused to pay it over, and the petitioner applied for an order that the attorney pay the money over to him. The attorney filed an answer denying all the allegations of the petition. This appeal was taken from an order appointing a referee to take proof as to the facts.

      Held, that the facts alleged showed that the relation existing between the parties was not that of attorney and client, but that of debtor and creditor, and that the controversy between them should be settled in an action, and not on a summary application to the court.
    Appeal by Henry Ferris from an order appointing a referee to take proof of the facts set forth in the petition herein.

      Coudert Brothers and Paul Fuller, for the appellant.

      Abel Crook, for the petitioner.
   DyicmaN, J. :

The petition, which is at the foundation of' this proceeding, states that Ferris was the attorney for the commissioners appointed to make and grade the Fordham and Pelham avenue, and the petitioner was the counsel retained in the same matter, and advised with the attorney. That shortly before the taxation of the expenses of the improvement, the petitioner agreed with the attorney that 1ns, the petitioner’s, fees and charges ought to be $500 ; that they were taxed and certified at that sum, and the attorney undertook to collect the money and pay it over to the petitioner ; that he did collect it, and refuses to pay it over on request, and the court is asked to make an order for the summary payment of the money by the attorney.

The attorney filed an answer denying that he retained the petitioner as counsel; that he ever agreed that his charges ought to be $500, and that he ever undertook to collect that sum for him. Thereupon a referee was appointed to take proof in relation to the facts set up in the petition, and an appeal is taken from that order.

If the facts stated in the petition do not make a case which, calls for the .summary interposition of the court in behalf of the petitioner, for the collection of his claim, then the order of reference ought not to have been made. It is not every debt due from a lawyer that can bo collected by order of the court. Attorneys have the same right to have their liabilities established in the ordinary channels of the law as other persons, except where the claim is for money received for their clients. In such cases the courts deal with them as their own officers, and compel a proper discharge of the duties they owe to their clients.

In this proceeding it will be observed that the petition does does show the relation of attorney and client between Ferris and the petitioner. On the contrary, it plainly shows that that relation did not exist, but that Ferris was the attorney, and. the petitioner the counsel for the same clients. Then the statement is, that the attorney undertook to collect the fee of the counsel, and pay it over to him, and that he has collected it and refuses to pay it over. This statement establishes the relation of debtor and creditor, and no other. It shows that the attorney has collected money for the counsel in the same proceeding, at his request, and • has failed to pay it over. There is here no reason connected with the dignity of the court, or the proper conduct of its attorneys, calling for the exercise of any jurisdiction which the court has over them as its own officers.

Especially in view of the fact that the principal allegations in the petition are denied in the answer, the controversy should bo settled in the manner of all disputed claims.

The record shows that but one sum of $500 was allowed for fees of attorney and counsel to the commissioners, and Mr. Perris claims that belonged to him, and not to the petitioner. Whether it did or not can be most satisfactorily determined by an action in the ordinary mode of trial.

The order appealed from should be reversed, with costs and disbursements.

Barnard, P. J., and Gilbert, J., concurred.

Order reversed, with costs and disbursements.


author: DykjiaN, J.:

text:
    THE EATON, COLE AND BURNHAM COMPANY, Respondent, v. ROBERT AVERY, Appellant.

      False representations nuade to a mercantile agency —• one 'making them, liable in an action for deceit to one thereby induced to sell goods to him.

    Dun, Barlow & Co., a mercantile agency, whose.businessit was to collect information respecting the property and standing of business men, and furnish the same to other merchants, in August, 1875, sent an.employee to the defendant, then carrying on business, and took from him a statement in which he said, among other things, that he had $20,000 of his own means in the business. This statement was inserted in the books of Dun, Barlow & Co. In Septem-Tber, the defendant having applied to the plaintiff to purchase goods on credit, the latter sent to the agency for a report, and received a copy of the defendant’s statement, and in reliance thereon sold the goods, as requested. The statement was untrue, and the hill for the goods was never paid.

      Held, that the defendant was liable to the plaintiff, in an action for deceit, for obtaining goods by false and fraudulent representations.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an órder denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      James A. Hudson, for the appellant.

      John L. Hill, for the respondent.
   DykjiaN, J.:

This is an action for deceit, founded on the fraudulent misrepresentation of the financial ability of the defendant.

Dun, Barlow & Co. conducted a mercantile agency in Now York, and their business was to collect information respecting the property and standing of persons doing business, to be furnished to merchants and others, of whom credit might be asked, and in August, 1875, they sent a person to the defendant, who was then in busiuess with one Riggins, and took from him a statement in which he said, among other things, that ho had $20,000 of his own means in the business. The statement was spread on the books of the agency, and in the September following, the defendant applied to the plaintiff to buy a bill of goods on credit, proposing to pay cash in thirty days. Eaton sent to the agency for a report on the defendant and his partner, and received a copy of the defendant’s statement, which was satisfactory, and induced the credit desired. The statement was untrue, and the plaintiff’s bill was never paid.

The principal contest on the trial was in relation to the making of the statement to the mercantile agency by the defendant, which was denied by him. If it was made, it was plainly false, and made with the evident intent to perpetrate a fraud, because the defendant knew the use that would be made of it. The jury was instructed by the charge that before they could give a verdict for the plaiutiii', they must find that the defendant made the statement to the agency; that it was false, and known by him to bo so, and that he made the same with the intent that it should be communicated to and believed by persons interested in his jiecuniary responsibility, and induce credit and defraud them ; that such statement was communicated to the plaintiff and believed, and the sale alleged procured thereby. This rule was certainly as favorable for the defendant as he could ask to have prescribed, and all these facts must have been found by the jury, as the verdict was for the plaintiff. This action is analogous to actions for the fale representation of the credit of a purchaser, and the first difficulty suggesting itself is, whether there can be a recovery where the fraudulent representations are not,made to the plaintiff by the defendant, but ■come through an intervening hand. The defendant knew the use that would be made of his statement, and intentionally placed it where it might reach and influence the plaintiff or any other party. It is not essential that the representation should be addressed directly to the plaintiff, if it were made with the intent of its influencing every one to whom it might be communicated, or who might read or hear of it. The latter class of persons would be in the same position as those to whom it was directly communicated. (Cazeaux v. Mali, 25 Barb., 583.) “A statement made to the public, and designed to influence the public, is designed to influence every individual who is interested in its subject-matter.” (Newbery v. Garland, 31 Barb., 129.)

This case, it is true, is not precisely like those referred to, but the similarity is so great that we think the same principle must govern.z

The questions of fact involved wore all found in favor of the plaintiff, and but one exception to the charge was taken, and that is immaterial.

The judgment must bo affirmed, with costs.

Barkard, P. J., and Gilbert, J., concurred.

Judgment and order denying new trial affirmed, with costs.


author: Dyeman, J.:

text:
    WILLIAM ALLEN BUTLER, Sole Surviving Executor of, etc., of ALEXANDER C. MARSHALL, Deceased, Plaintiff, v. THE GLEN COVE STARCH MANUFACTURING COMPANY, Defendant.

      Negotiable certificates for surplus profits issued to a stockholder— the stockholder may recover the amount thereof on giving security, though the certificate be lost.

    ■Where a company has declared an extra dividend, and issued negotiable certificates therefor to its various shareholders, such certificates being payable at a time fixed therein, or sooner, at the option of the company, and the company subsequently determines to redeem the same, before the time fixed for their payment, it cannot refuse to pay the amount of a certificate so issued to a stockholder, because he has lost the certificate and is unable to surrender it for cancellation, he company must pay the certificate and protect itself by exacting full indemnity, in analogy to the practice in the case of lost commercial paper.
    Controversy submitted upon an agreed statement of facts, in pursuance of section 1279 of the Code of Civil Procedure.

      Henry O. Ohesebro and William Arnold, for the plaintiff.

      O. If. Payne, for the defendant.
   Dyeman, J.:

On the first day of January, 1865, the defendant declared an extra dividend, upon all the shares of its capital stock, of twenty-five per cent, and issued certificates that the persons named in them, or bearer, was entitled to an extra dividend of twenty-five per cent on the capital stock ($200,000) of the defendant, amounting to-dollars, said dividend being a portion of the surplus earnings of the company to January 1, 1865, redeemable April 1, 1870, or sooner, in full or in part, at the discretion of the board of trustees, with interest at seven per cent, payable April first and October first of each year, on presentation of this certificate at the office of the treasurer. This is substantially the form of the certificates which were issued, and filled up with the name of the stockholder to whom they were issued, and with the amount of dividend to which he was entitled, dated and signed by the proper officers of the company, and delivered to the stockholder for whom they were intended.

Alexander C. Marshall, the plaintiff’s testator, was a stockholder in said company, at the time of his death, in December, 1859, and one of these certificates was issued to him, or to his executor, as the case states it, which was numbered fifty-five, and dated January 1, 1865, and certified that he was, or they were, entitled for such dividend to the sum of $500, upon the terms already mentioned. This certificate was delivered and retained until the first day of April, 1870, when it was redeemed and canceled, and a new certificate of like form, for the sum of $500, numbered forty-three, and dated April 1, 1870, was issued in its stead, and delivered to C. A. Marshall, who was then one of the acting executors of Alexander C. Marshall. lie is now dead and the plaintiff is the only acting executor. Interest was paid on this new certificate down to October 1, 1872.

In April, 1875, the company resolved to redeem this new certificate, with others, by paying the full amount for which they ■were issued, but this one is lost, and the company declines to pay it for that reason, although the plaintiff has offered to secure the company against loss by reason of its so doing.

This is a submission without action, and we aro called itpon to decide whether the plaintiff can recover against the defendant on the facts agreed to. We think ho can. The physical production of the scrip to the company is not a condition precedent to the right to a recovery. The certificate is not the debt, but only the evidence of it. The liability to pay was created by the resolution to make the extra dividend, in the first instance, and afterwards, the resolve to redeem the same, and the issuing and delivery of certificate number forty-three in its place and stead. The liability of the company to pay exists; one proof of it is gone, but there yet exists abundant evidence of the fact, and the responsibility is not denied. Auy rule that would exempt the defendant from payment, in this case, would give immunity to the maker of a promissory note without the physical production of the instrument. Such a result from the loss of an instrument cannot be allowed. It is not required in the interest of justice and would itself work great injustice. In the great multiplicity of papers introduced into business transactions in modern times, it must sometimes happen that some will become mislaid and lost, and it would be most startling to the business and commercial world if the courts should bold that such loss terminated all rights under the instrument.

It is true this scrip was negotiable by delivery, and it may, by possibility, come to the hands of an honest holder ; but, in view of the lapse of time since its existence was known in October, 1872, that result is quite improbable. At the same time the company ought to protect itself against the worst, and that can be done by exacting full indemnity in analogy to the common practice in cases of lost commei’cial paper.

The plaintiff is entitled to judgment on the submission.

Baenaed, P. J., and Gilbert, J., concurred.

Judgment for plaintiff on submitted case, with costs.


author: BrKMAN, J.:

text:
    JOHN J. CORBETT. Appellant, v. HORATIO G. GIBSON, Respondent. SAME v. SAME.

      Address of plaintiff — attorney may be required to furnish it.

    The court may, in a proper case, make an order requiring the attorney for the plaintiff to furnish the defendant with the plaintiff’s residence and address.
    Appeal from an order made at Special Term, requiring the attorney for the plaintiff to furnish the defendant with the residence and address of the plaintiff, and also from an order denying a motion to vacate the first order, and staying all proceedings until the determination of an appeal taken therefrom.
    The action was brought by the plaintiff, a private soldier stationed at Port Wadsworth, to recover damages for an alleged libelous publication by the defendant, the commanding officer thereof.
    The action was brought on March 13, 1878. On March 11, 1878, the plaintiff was discharged from the service, and his present whereabouts is unknown to the defendant. The application for information as to his residence and address was made on the ground, among others, that defendant desired to examine the plaintiff before trial.
    The order directed “that the plaintiff’s counsel furnish the defendant’s counsel with a sworn statement of the residence, occupation and present address of the plaintiff’ herein, showing the State, county, town or village where said plaintiff resides, and if said plaintiff lives in a city, the street and street number in said city at which the said plaintiff lives.”

      Fred. A. Ward, for the appellant.

      Ooudert Brothers, for the respondent.
    A defendant is entitled to know the residence and temporary address of the plaintiff who is suing him. (Johnson v. Birley, 5 Bar & Aid., 540; Wortenr. Smith, 6 J. B. Moore, 110; Ninety-nine Plaintiffs v. Vanderbilt, 1 Abb. Pr., 200.)
   BrKMAN, J.:

The order requiring the disclosure of the residence and address of the plaintiff was made in the reasonable exercise of the discretion and power of the court. The moving affidavit of the defendant disclosed facts tending to show that the action was being prosecuted without the knowledge or desire of the plaintiff, and in that view alone it was proper enough to afford an opportunity for his examination. Besides this, it was the right of the defendant to examine the plaintiff before trial, and to that end to be •informed of his whereabouts.

The order must be affirmed, with costs and disbursements, and it follows that the other order appealed from must take the same • course.

Baekard, P. J., concurred; Gilbert, J., not sitting.

Order directing statement of plaintiff’s residence, etc., affirmed, with costs and disbursements.

Order refusing to set aside order directing statement of plaintiff’s residence, etc., affirmed, with costs and disbursements-


author: Dykman, J.:

text:
    ANDREW J. POST AND WILLIAM H. McCORD, Plaintiffs and Respondents, v. GEORGE W. CAMPBELL AND MARY CAMPBELL, his wife, and GEORGE A. THAYER AND JANE THAYER, his wife, Appellants, and PATRICK H. MURRAY and others, Defendants and Respondents.

      Mechanics’ lien filed by a sub-contractor — when, the owner will be allowed payments made to the contractor, in advance of the terins of the contract— chap. 478 of 1862.
    In an action by a sub-contractor to enforce a lien claimed to have been acquired under chapter 478 of 1862, providing a mechanics’ lien law for the counties of Kings and Queens, the owner is entitled to be allowed for all payments made to the contractor, although made in advance of the terms prescribed by the contract, if made without fraud or collusion, and before notice of the filing of a lien under said act.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Thomas M. Tyng, for the appellants, Campbell and Thayer.

      William G. Wilson, for the plaintiffs and respondents.

      L. Laflin Kellogg, for the defendant and respondent, P. H. Murray.
   Dykman, J.:

This is an action by sub-contractors for the foreclosure of a lien, under the mechanics’ lien law applicable to Kings and Queens counties (chapter 478 of Laws of 1862). Before the commencement of the action, and before the filing of the plaintiffs’ notice of lien, the owners had paid to the original contractor the full amount of his contract, and it is expressly found by the referee, who tried and decided the cause, that the owners did not pay any money on the contract, by collusion, for the purpose of evading the provisions of the act, or with any fraudulent intent, but on the contrary thereof each and all of the payments were made by them in entire good faith.

By the terms of the contract the owners were to pay the last installment thereon when the building was entirely completed and' had been accepted by them, and the referee has found that it was paid before the building had been completed or accepted. Thereupon the referee held that merely because this payment was in advance of the terms of the contract, it was prohibited by the law and the plaintiffs could recover, and that is the question we have now to examine.

Section one of the act provides that the owner shall no bet obliged to pay for his building, in consideration of all the liens thereby authorized to be created, any greater sum than the price stipulated in the contract, unless he shall make payments by collusion for the purpose of avoiding the provisions of the act, or in advance of the terms of the contract. Section three provides that the owners shall not be protected in any payment made after the filing and service of a notice of lien.

The legal effect of these provisions is to subrogate sub-contractors and persons furnishing materials pro tanto to the rights of the contractor under the contract, and except in cases of collusive payments, for the purpose of avoiding the provisions of the act, or in advance of the terms of the contract, or payments made after the service of notice of lien, they can obtain no other or greater relief than would be accorded to him. They claim through him. His rights are, by the law, transferred to them, and greater rights than his they cannot acquire, except in the cases specified, and these exceptions are made in the interest of honesty and fair dealing. Payments made after notice of lien, or to perpetrate a fraud on others, ought not to be protected ; while, on the other hand, all payments honestly made, by all means, should be. The owner deals with his contractor only, and for the mutual interest and benefit of both should be at liberty to make advance payments to him in the progress of the work, or to modify the agreement between them in any other way, so long as no rights of other parties intervene, or are brought to notice. These laws should be administered upon broad principles of equity, and one of the very first of these is, that the owner cannot be compelled to pay for the completion of his building any greater sum than he has agreed to pay, always executing, of course, cases of fraud and collusion.

It is quite true that the effect of an advance payment, upon a sub-contractor, may be tbe same as a fraudulent payment, but that proves nothing. There is no privity between him and the owner, and to him the latter is under no obligations.

The provisions of the different mechanics’ lien law in this State are quite dissimilar, and therefore the oases involving the construction of one of them are not authority in cases arising under any other. At the same time an examination of these cases shows that payments honestly made by the owner before notice of lien filed, and without fraud or collusion, are invariably allowed.

While these lien laws were enacted for the protection of mechanics and others, they were not intended for the oppression of owners, and they should receive such construction as will protect all within just and equitable principles, and if the owner pays his contractor in good faith, up to the full requirement of his agreement, nothing more should be demanded of him.

We think the judgment should be reversed, with costs.

Baexaed, P. J., and Gilbeet, J.

Judgment reversed and new trial granted at Special Term, costs to abide event.


author: DykmaN, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. FRANK RIEDMAN, v. ALEX McCUE, one of the Judges of the City Court of Brooklyn.

      Code of Civil Procedure, § 111 —in a case where the judgment is recovered by the defendant — on failure of the attorney to pay, the sheriff must discharge the prisoner.

    Section 111 of the Code of Civil Procedure, provides that when, in the county of Kings, the sheriff has actually confined in jail a prisoner arrested "by virtue of an execution, issued upon a judgment recovered in a court of record, he shall notify the attorney for the plaintiff, and the latter shall, within the time therein prescribed, pay to the sheriff the sum of twenty-five dollars for his support during the first twenty days, and that “ if a payment required by this section be not made, the prisoner must be discharged.”

      Held, that this provision included the case of an execution issued in favor of a defendant as well as that of one issued in favor of a plaintiff.
    That upon the failure of the attorney to make the required payment, the sheriff must at once discharge the prisoner, and that no order of the court was necessary to authoi'ize him so to do.
    Certiorari to reyiew proceedings bad before a justice of the City Court of Brooklyn, upon an application for the discharge of the relator on habeas corpus.

      George W. Roderick, for the relator.

      Moms & Pearsall, for the sheriff.

      Tracy & Gatlin, for Philro Mullen.
   DykmaN, J.:

Prank Riedman was arrested by the sheriff of Kings county on an execution against his person. It issued out of the City Court, of the city of Brooklyn, upon a judgment against him in an action in which he was plaintiff. He was confined in the common jail ■ of that county. Thereupon the sheriff served on the attorneys for the defendant, in whose favor the judgment was, the written notice prescribed and required by section 111 of the Code of Civil Procedure. They did not pay any money in pursuance thereof. Riedman then applied to one of the judges of the City Court, of the city of Brooklyn, for his discharge upon a writ of habeas corpus, which wus refused, and now the proceedings are all brought into the General Term lor review.

Section 111 of the Code of Civil Procedure provides that when in Kings county the sheriff has a prisoner actually confined in jail, by virtue of an order of arrest in a civil action, or of an execution on a judgment in a court of record, or surrendered in exoneration of his bail, he must serve upon the plaintiff’s attorney a written notice, stating that he has so confined the prisoner, and that the plaintiff is required to pay to the sheriff the sum of twenty-five dollars within three days after personal service of the notice, or six days after service by mail, for the support of the prisoner for the first twenty days after his actual confinement in jail, unless, in the meantime, he is discharged or admitted to the liberties of the jail, in default whereof the prisoner will be discharged. At or before the expiration of each subsequent period of twenty days, during which the prisoner has been so confined, the plaintiff must pay a like sum to the sheriff for the support of the prisoner during the ensuing twenty days. Then occurs this clause. If a payment required by this section is not made the prisoner must be discharged. It will be observed that the language of this section applies to an execution issued in favor of a plaintiff, but it was intended to, and in spirit does, include the case of an execution issued in favor of a' defendant, as in this case.

This legislation was induced by public consideration to prevent the long imprisonment of persons on civil process at the expense of the county. It was, doubtless, found that abuses had grown up in that respect, and that persons had been kept in long confinement without the ability to give bail, or give a bond for the liberties of the jail without any adequate benefit to the person in whoso behalf the process for their imprisonment had been issued. The remedy provided for this evil is to compel the party, in whose interest the process is issued, to pay for the support of the prisoner whose confinement ho secures, and the penalty for his failure is the discharge of the prisoner.

Such discharge cannot be refused because the prisoner fails to procure his admission to the liberties of the jail, for section 149 of the Code of Civil Procedure makes a provision for that, entirely separate and distinct from this, that a person in the custody of the sheriff, -by virtue of an order of arrest, or of an execution in a civil action, or in consequence of a surrender in exoneration of bail, is entitled to be admitted to the liberties of the jail upon executing a bond to the sheriff as prescribed. The only prerequisite to the discharge of a prisoner under the section is the failure of the party, at whose instance he is imprisoned, to pay the sums of money required by the notice. The emphatic language is, if a payment required by the section is not made the prisoner must be discharged.

No application to a court or judge is necessary for his discharge, but it must be made by the sheriff in whose custody he remains. The prisoner must not be subjected to the expense and delay of a legal proceeding to procure bis liberty. By tbis section be is entitled to that at once on a failure of tbe party, at whose instance he is confined, to make tbe payment required, and it would frustrate the intentions of tbe law to require an order from a court or judge before be can obtain his freedom.

Such are our views in respect to tbe construction this statute must receive, and they lead to tbe conclusion that tbe order refusing tbe discharge of tbe relator should be reversed, and an order entered of bis discharge.

Barnard, P. J., and Gilbert, J., concurred.

Order reversed, and order to be entered directing discharge.

I


author: Dykman, J. :

text:
    FREDERICK M. WILSON AND ADRIAN WILSON, Respondents, v. GEORGE W. LAWRENCE AND CHARLES F. PETTY, Impleaded, etc., Appellants.

      Chapter 482 of 1862 — what is not a maritime contract.

    Where a vessel has been launched, before completion, and thereafter, and while she is lying in tide-waters, a contract is made for furnishing her with sails, such contract is not a maritime contract, and the party making the same may obtain and enforce a lien upon the vessel for the amount due thereon, by proceedings under chapter 482 of the Laws of 1862.
    Appeal from a judgment in favor of tbe plaintiffs, entered upon the trial of tbis action by tbe court, without a jury.

      Edward Seymour, for tbe appellants.

      Benedict, Taft & Benedict, for tbe respondents
   Dykman, J. :

During tbe summer of 1877, Frederick Beach was engaged in the construction of tbe schooner La Ninfa, at Port Jefferson, in Suffolk comity, Long Island, and on tbe 18th day of September, 1877, she was launched without any sails, and incomplete in other respects, and remained at the same port. On the second day of October, Beach made a contract with the plaintiffs to furnish new sails for the vessel, and while they were being made the vessel was again put on the ways to be finished, and while she was there the sails were furnished. After her completion she was again launched and taken to New York. About the middle of November, within twelve days after the vessel left Port Jefferson, the plaintiffs filed in the office of the county clerk of Suffolk county specification for a lien, in pursuance of the act of the Legislature of this State, passed April 24, 1862. On the 28th day of November, 1877, the plaintiffs obtained a warrant under the same law for the enforcement of their lien, and the vessel was seized under it by the sheriff of the county of New York. Thereupon, to procure her discharge from the seizure, the bond was given upon which this action is brought.

No defects in the proceedings for the enforcement of the lien, claimed by the plaintiffs are disclosed, and the execution and delivery of the bond in suit must be held to be a waiver of such irregularities, if any existed. (Franklin v. Pendleton, 3 Sandf., 572.) Neither is there any doubt but that the amount claimed by the plaintiffs is honestly due. If, therefore, they had a subsisting lien upon the vessel for the sum claimed, they were entitled to recover in this action, and the judgment in their favor must be affirmed. (Laws of 1862, chapter 482, § 13.)

Whether the plaintiffs acquired a lien by virtue of their proceedings under the statute of 1862, their regularity being assumed, will be determined by ascertaining whether or not their claim arises under a maritime contract, because the federal Constitution declares that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction. This was followed by the judiciary act of Congress of 1789, vesting in the district courts exclusive cognizance of all civil causes of admiralty and maritime jurisdiction. If, therefore, the statute of 1862 assumes to confer on the State courts a remedy on a marine contract, by a proceeding in rein, it is void for being in conflict with the Constitution and the laws of the United States. (The Hine v. Trevor, 4 Wallace, 555.)

To take any benefit from their proceedings under the statute, therefore, they must have been under a contract made on the land, to be there performed.

In respect to claims against the owners of vessels, not in their nature maritime, the jurisdiction of the State remains complete, and it may prescribe forms and modes for its enforcement. (Brookman v. Hamill, 43 N. Y., 554.) It has been decided by the Court of Appeals that so far as the statute of 1862 can be applied to demands for supplies to a domestic vessel, in her home port, it is in conflict with the Constitution and laws of the United States, and therefore void. In re Steamboat Josephine (39 N. Y., 19), as explained and limited in the subsequent case of Brookman v. Hamill (43 N. Y., 555), this decision has only that extent. The distinction is between maritime contracts and those not maritime. Instances of the former are contracts for repairing, supplying, and navigating ships and vessels, and instances of the latter are contracts for work and materials in the construction of a new vessel. As to the latter class, it is held that this statute is valid, and not in conflict with admiralty jurisdiction. (King v. Greenway, 71 N. Y., 413, and cited Poole v. Kermit, 59 id., 554.)

In the case of Roach v. Chapman (22 How. [U. S.], 129), a person who furnished boilers and engines for a steamboat, libeled the vessel in admiralty, and it was held that the contract for supplying the engines was not a maritime contract and the admiralty courts had no jurisdiction. The same court held, in the case of The People's Ferry Company v. Beers (20 How. [U. S.], 393), that the admiralty jurisdiction of the courts of the United States does not extend to cases where a lien is claimed by the builders of a vessel for work and material found in its construction. It seems to follow, therefore, that if the claim of the plaintiffs was for material furnished for the construction of a new vessel, then they did acquire a lien by their proceedings, and their recovery must be sustained. The position of the defendant, that the proceedings of the plaintiffs was under a maritime contract, rests upon the fact that the vessel was on tide-water at the time it was made, and that it related in some way to the voyage on which the vessel was about to enter. It is quite true that contracts connected with navigation are classed as maritime contracts, but the simple fact that an unfinished vessel has been let into the water, when a com tract in relation to her completion is made, by no means deter* mines its character. She may be there to receive her sails, or he! machinery, in pursuance of a contract made long before. While the admiralty courts have exclusive jurisdiction over contracts purely maritime, and relating to commerce and navigation, they have no jurisdiction over contracts for the construction of vessels, or for furnishing materials for that purpose. (20 How. [U. S.], 393.) Now, if machinery and boilers are materials for the construction of a vessel, why are not the sails also. Both are necessary to its completion, and neither are in any proper sense connected with navigation or commerce. Material for a tiller to a new vessel would fall in the same class, and yet that might be furnished after launching.

The judgment should be affirmed, with costs.

BabNakd, P. J., and Gilbert, J., concurred.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ABRAM H. DAILEY, and the said ABRAM H. DAILEY, Respondents, v. WALTER L. LIVINGSTON, Appellant.

      Section 13 of chapter 575 of 1872 — ballots preserved under, are admissible in evidence in an action of quo warranto — ejfset of a failure to comply with the terms of the statute as to the presentation of such ballots.

    Section 13 of chapter 575 of 1872, regulating elections in the city of Brooklyn, provides that after the canvass the ballots shall be placed in the ballot boxea from which they were respectively taken; that the canvassers shall securely seal the boxes and deposit them with the department of police, and that they “ shall there be kept undisturbed and inviolate until they are needed at the next election, unless required as evidence in any court of record.” Held,

    (1.) That this law was applicable to the ballots cast for State and county, as well as for city officers.
    (2.) That in case of a contest as to the i'vtle to an office, the boxes might be produced in court and the ballots cfl Anted

      (3.) That the certificate of the canvassers might be impeached by the result arrived at on such count.
    4.) That the facts that the sealing and depositing of the boxes did not, in all respects conform to the requirements of the said statute, did not render the ballots inadmissible in evidence, but only tended to diminish the credit to be given to them.
    Appeal from a judgment in favor of the plaintifF, entered upon the verdict of a jury, and from an order denying a motion on the minutes for a new trial.
    The action was one of quo warranto to have the defendant ousted from the office of surrogate of the county of Kings, and to have the relator declared elected thereto.

      Nathaniel II. Gletnenf and Walter L. Livingston, for the appellant.

      Augustus SchoonmaTcer, Jr., attorney-general, B. N. Tracy and Calvin Frost, for the respondents.
   DyicmaN, J. :

The relator and the defendant wTere candidates for the office of surrogate in Kings county at the November election in 1876. The defendant was declared elected by the board of canvassers by a majority of 288, received the certificate of election, and was exercising his official functions when this action was commenced to try his title to the office. By a special law passed May 7,1872 (chap. 5 75), and having its application only to the city of Brooklyn, the ballots voted at elections are required to be replaced in the boxes and kept undisturbed and inviolate until they are needed at the next election, unless required as evidence in any court of record. Those boxes from many of the ward districts, containing the ballots voted at the election, were brought into court on the trial of this action, and the ballots were counted in the presence of the jury, and the result given in evidence.

It was conceded on the trial that an error was made in the returns of 240 votes in three districts against the relator, and the count of the ballots developed a majority in favor of the relator, and he had the verdict.

It is also substantially conceded now that if the decision of the trial court, permitting the recount,' is to be sustained, then the defendant’s majority is wiped out, and the relator is elected.

Tbe provisions of section thirteen of the law must now be adverted to. They are, that at least fifteen minutes before the closing of the poll, the board of canvassers shall meet and organize, and receive the key of the boxes from the police, and the ballot boxes, poll lists and registers of election from the inspectors of election, and as soon as the poll is closed shall canvass and count the votes. That the canvass shall be public and not adjourned or postponed until fully completed, and that the canvass shall be commenced, conducted and completed and the result stated in the manner now provided by law. That the ballots, immediately after they shall be canvassed and counted, shall be placed again by the canvassers in the ballot boxes from whence they were respectively taken, excepting such as are attached to the returns of the election, and the canvassers shall place in the ballot boxes with the ballots a certificate stating the number of votes cast, and the number of them attached to the returns, and each ballot box, after the tickets shall be so replaced, shall be securely sealed up by the canvassers, and? they shall then be deposited by them in the department of police, and shall there be kept undisturbed and inviolate until they are needed at the next election, unless required as evidence in any court of record. This exception to the repose of the ballots discloses the legislative intent in providing for their preservation, which was that they might be used during the year as evidence in any court of record. Their competency is, therefore, established, and the objections raised against their admissibility goes only to their credibility.

These objections were principally that the ballot boxes, instead of being deposited by the canvassers in the department of police, were carried to the station houses by policemen, where they remained for some days on the floor of the muster room, and that some of them remained in the- cellar of the station house until the trial. That the boxes could be unlocked with keys other than those belonging to them, and that one key would open more than one box, and that the only part of the boxes that was sealed was the aperture in the lid through which the tickets were deposited. That such sealing did not interfere with the opening of the boxes, and that the boxes were not sealed by the canvassers, but that the Seals, such as they were, had been put on by the inspectors at the close of the polls before delivering the boxes to the canvassers. Most, if not all, of these objections, have a foundation in the facts disclosed on the trial, and yet they cannot be allowed the effect claimed for them by the defendant.

Let it be conceded that all the officers have been remiss in the performance of their duties under the law in the manner claimed, if no abuse is disclosed as the result of such neglience, faith and credit must be given to the ballots. It matters but little how these ballots are kept, whether in pursuance of the provisions of a law requiring their preservation or in violation of such provisions, or without any law at all. If the ballots voted at any election are produced on the trial of a cause like this, they are the very best evidence of the result of the- election ; of course the jury must be satisfied of their inviolate preservation, otherwise they will receive no credence, but that does not effect their competency.

It is not denied by the defendant that the language of this law makes the ballots cast for city officers admissible m evidence when kept in pursuance of its provisions, but it is claimed that the office of surrogate, being a county office, is not within the intention of the statute, the law has therefore no application to this case. There is nothing in the law to justify a limitation of its operation to city 'Officers only, but on the contrary it must be given application to all officers voted for in the city, including both state and county.

The request by the defendant, to charge the jury that they should disregard the count of the ballots which disagreed with the returns, was properly denied upon the principles already enumerated in this opinion.

The objections against the constitutionality of this law are not well taken. There is but one subject dealt with in the law.

The result of this case is evidently in accordance with the will of the electors, and it would be a very narrow view of the subject that would disfranchise the voters because certain officers have failed to comply strictly with the provisions of a statute, which is only directory. A literal compliance with a statute prescribing the duties of a public officer is never essential to the validity of the proceedings under them, unless so declared in the statute itself.

The groat burden of the argument of the defendant is, that inasmuch as the ballot boxes were not securely sealed and consigned to tbe care of the proper custodian, it was possible for some unauthorized person to meddle with them and perpetrate a fraud. We must, of course, yield to this argument sufficient to admit that it was possible for these boxes to be opened and ballots removed therefrom, and replaced by others, but there was no proof of a single circumstance of suspicion in that direction, and certainly all the presumptions of the law are against fraud and abuse and wrong. All the persons shown to have exercised any control over these boxes have been sworn public officers, and are entitled to the presumption that they have discharged their duties. Their transactions were unfolded before the jury by testimony coming from themselves, and subject to scrutiny from those interested to overthrow them, and yet nothing like fraud or misfeasance was brought to light. We cannot presume either, but contrary wise, honesty and official purity and integrity.

The judgment should be affirmed, with costs.

BakNAkd, P. J., and (xilbekt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


author: Barxard, P. J. ;

text:
    GEORGE A. SEAMAN and others, Executors of JOHN B. SEAMAN, Appellants, v. G. IRVINE WHITEHEAD, Respondent.

      Attachment as fen' a contempt — a smrogate cannot issue it to enforce payment by executors of a sum of money directed to be paid by them, by a dewee made on a fmal accounting.

    Appeal from an order, made by the surrogate of the county of Dutchess, directing an attachment to issue against the appel lants, as executors, for a failure to pay to the respondent the sum of $163.65, as required by a decree, made upon their final accounting, entered May 31, 1878, and denying a motion by the executors to open the said decree, and for a rehearing.
    With reference to the attachment, the court at General Term said: “We think the learned surrogate erred in ordering an attachment to issue against the executors for the non-payment of the sum ordered by the decree, on final accounting, to be paid to the respondent Whitehead. The case of Watson v. Nelson (69 N. Y., 536) seems decisive upon this point. The surrogate could only enforce a final decree, or an interlocutory order for the payment of money by an execution against the person, or if the debt ordered paid was founded upon contract, by an execution against the property. This result is arrived at by the Court of Appeals after a very full examination of the statutes. The case of Seaman v. Duryea (11 N. Y.,' 324), which seems to favor the view that an attachment could issue as for a contempt, upon non-payment of moneys by a guardian, under a surrogate's order, is considered in the biter case of Watson v. Nelson. The court say that the question whether the proper process was a commitment, as for a contempt, or a precept or execution, was not discussed or considered in Seaman v. Duryea. That part of the order, therefore, which directs the attachment to issue as for a contempt should be reversed.”

      Albert Slichney and Edward M. Shepard, for the appellants. W. I. Thorn, for the respondent.
   Opinion by

Barxard, P. J. ;

DykmaN, J., concurred.

Gilbert, J., concurred as to the attachment, but thought the decree should have been opened and corrected as to allowance.

Order modified in accordance with opinion of Justice BaeNard, and order to be settled by him.


author: BarNAKd, P. J.,

text:
    JOHN McKEON, Respondent, v. PETER HAGAN AND MARY HAGAN, Appellants, Impleaded with BELLA McQUADE.

      Married woman — to be liable on a bond secured by a mortgage on tier separate estate and given for a debt of h&r husband, she must expressly charge hep separate estate.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury, and from an order denying a motion to set aside said judgment and for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to foreclose a mortgage executed by the defendants. The bond and mortgage were given to secure the repayment to the plaintiff of the amount he had paid in taking up a note of the defendant Peter Hagan.
    The court at General Term said : “ He paid the note at the request of Peter Hagan, and Peter Hagan and his wife executed a bond to plaintiff for the amount of this payment, which was accompanied by a mortgage executed by Mary Hagan upon her separate estate. It ivas competent for Mrs. Hagan to execute a mortgage on her property to pay her husband's debt. ( Corn Exchange BJe. v, BabeocJe, 42 N. Y., 613.) The decree erroneously provided for the entry of a judgment for deficiency against Mary Hagan. The bond was not given for her debt. She did not have the money on the note. The bond does not, by its terms, charge the wife’s separate property. The case of Payne v. Burnham (62 N. Y., 74) seems to decide that she is not liable, except so far as the mortgage covers her separate property.’.’

      Richard Busteed, for the appellants. Edgar M. Cullen, for the respondent.
   Opinion by

BarNAKd, P. J.,

Gilbert and DtkmaN, JJ., concurred.

Judgment and order denying new trial modified, by striking out clause permitting judgment against Mary Hagan for deficiency, and affirmed in other respects, without costs to either party on this appeal.