text:
    IRENA M. WARNER, Administratrix, etc., of JOEL B WARNER, Deceased, Appellant, v. MARIA MILLER Respondent.

      Bspavrs to boat — liability of own&r for — when wedit gimen to captain.

    Plaintiff’s intestate made repairs upon a canal boat owned by tlie defendant, in pursuance of orders received from the captain of the boat. Subsequently, the captain paid to the plaintiff a portion of the bill, and gave his note for the balance. The plaintiff, without returning the note, brought this action after its maturity against the defendant.

      Held, that the acceptance of the note of the captain, without explanation, was sufficient to show that the credit was given to him, and not to the owner, and that plaintiff could not recover.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.

      S. W. Dada, for the appellant.

      Pardee <& Piper, for the respondent.
   Mullin, P. J.:

In August, 1874, the defendant was owner of the canal boat “E.' S. Pardee,” of Fulton. Jerofne E. Miller, the defendant’s husband, was the master of said boat. By the direction of the captain, plaintiff’s intestate made repairs on said boat to the amount of seventy dollars and sixty-three cents.

In December, 1874, the captain paid to the plaintiff, the administratrix of the estate of her late husband, twenty-five dollars upon said bill and gave his note for forty-five dollars and sixty-three cents, the balance of said bill, payable eight- months after date with interest. Plaintiff held said note at the time of the trial and no part of it has been paid.

This action is brought to recover of the defendant the amount of the unpaid balance of the repairs. The cause was tried by the court, without a jury, who found the foregoing facts and ordered judgment in favor of the defendant dismissing plaintiff’s complaint. From tbe judgment entered pursuant to tbe direction of tbe court tbe plaintiff appeals.

Tbe defendant was owner of tbe boat and as sucb was liable for repairs made upon ber by direction of tbe captain. (Abbott on Shipping, 132 and notes, and cases cited.) When it is shown, however, that tbe repairs were made on tbe credit of tbe captain alone tbe owner is not liable. (Cox v. Reid, 12 E. C. L., 342; Baker v. Buckle, 17 id., 515; Jennings v. Griffiths, 21 id., 700; James v. Bixby, 11 Mass., 34.) And taking tbe note of the' captain for tbe amount of tbe repairs is sufficient evidence of that fact. (Abbott on Shipping, 133, note 111, and cases cited.) Tbe note in sucb case is not considered as payment of tbe debt so as thereby to discharge tbe owner, but solely as evidence that tbe work was not done on tbe credit of tbe owner.

Tbe judgment must be affirmed.

Present — Mullet, P. J., Talcott and Smith, JJ.

Judgment affirmed.


source: Caselaw Access Project

author: Mullin, P. J.:

license: Public Domain

text:
    HIRAM LOSSEE, Appellant, v. HALSEY ELLIS and others, Respondents.

      Action to foreclose mortgage— costs —error of referee as to— how corrected.

    In an action to foreclose a mortgage the costs are in the discretion of the court. Where a referee in such a case decides that the plaintiff is only entitled to certain costs, his error, if any, can only he corrected hy an appeal from the judgment, and not upon a motion.
    Appeal by tbe plaintiff from two orders made at a Special Term of this court, one of which denied plaintiff’s motion for a retaxation and further allowance of costs in said action, and tbe other of which granted defendants’ motion for a retaxation and reduction of costs.

      F. W. Hubbarrd, for tbe appellant.

      W. F. Ford, for tbe respondents.
   Mullin, P. J.:

Tbe plaintiff brought an action to foreclose a mortgage; tbe defendants, or some of them, appeared and answered.

Tbe issues were referred for trial to a referee, wbo, after hearing the proofs and allegations of the parties, ordered judgment of foreclosure and sale in favor of the plaintiff, with costs from the time one of the defendants was brought in, which was after the issue was joined as to the other defendants.

The plaintiff’s counsel made out and served a full bill of costs in behalf of the plaintiff and presented it to the clerk of Jefferson county for adjustment.

The defendants’ counsel appeared on the taxation and objected to the allowance of the following items in said bill, viz.:

Allowance under section 308 of the Code in force prior to September 1, 1877.............................$47 93

Term fees, April and June........................... 20 00

Drawing interrogatories to annex to commission.......... 10 00

$77 93

By the moving affidavit, it appears that defendants’ counsel objected to these items as not admissible under the decision of the referee, and the clerk rejected them on that ground.

The plaintiff’s counsel then moved, at a Special Term, for a readjustment of said costs and the allowance of the items thus rejected. The motion was denied and plaintiff appeals.

At the taxation, the clerk allowed to the plaintiff the following items charged in plaintiff’s bill of costs, viz.:

Costs before notice of trial........................... $25 00

Costs after notice of trial............................. 15 00

Three additional defendants served..................... 6 00

$46 00

The defendants’ counsel moved, at Special Term, for a readjustment and disallowance of these items, on the ground they were not allowable under the judgment of the referee.

After hearing the counsel for the parties the court ordered a readjustment of the costs and the disallowance to plaintiff of fifteen dollars, being the amount charged as costs after notice of trial. From both these orders plaintiff appeals.

It bas been repeatedly held tbat in actions for tbe foreclosure of mortgages tbe costs are in tbe discretion of tbe court. (Morris v. Wheeler, 45 N. Y., 708; Pratt v. Ramsdell, 16 How. Pr., 59; Bartow v. Cleveland, 16 How., 364; Code, § 306.)

Tbe counsel for tbe plaintiff refers us to Hunt v. Chapman (51 N. Y., 555) as overruling tbis proposition, and bolding tbe plaintiff, if be recovers a judgment, entitled to costs and tbat they are not in tbe discretion of tbe court. I do not understand tbe case as deciding any sucb proposition. Had. it been tbe intention of tbe Court of Appeals to overturn a rule of law tbat bas been in force for so long a time and so uniformly acted upon it would bave been quite 'likely to bave said so in unequivocal terms. Tbe question in tbe case cited was wbetber tbe defendant was entitled to bave a counter-claim allowed in an action for foreclosure, and it was held tbat it could be, as an action of foreclosure was an action on a contract within section 150 of the Code. Tbis comes far short of bolding tbat in sucb an action tbe plaintiff, if be recovers, is entitled to costs as a matter of course.

If these costs are in tbe discretion of tbe court tbe referee, in tbe exercise of it, held and decided tbat tbe plaintiff was not entitled to them until after one of tbe defendants was brought in, and tbat was after tbe trial was commenced at Special Term. Tbe clerk was bound 'to conform to tbe judgment in tbe adjustment of tbe costs in tbe cause, and having refused to do it, tbe judge at Special Term was right in setting it aside and disallowing costs not in conformity to tbe judgment.

If tbe plaintiff was right in bis position tbat be was entitled to tbe whole costs in tbe cause, notwithstanding tbe decision of tbe referee, tbe error could not be corrected by motion. Tbe costs were part of tbe relief granted in tbe cause, and any error in tbe relief could only be reached by appeal from tbe judgment. (Clarke v. City of Rochester, 34 N. Y., 355; McGregor v. McGregor, 32 id., 479.)

Tbe orders of tbe Special Term are affirmed, with ten dollars costs, and disbursements in one appeal only.

Present — Mullin, P. J., Talcott and Smith, JJ.

Orders of Special Term affirmed, with ten dollars costs, and disbursements in one appeal only.


author: MoxliN, P. J.:

text:
    EDWARD DRAKE, Respondent, v. WILFRED W. PORTER and THOMAS C. BASSETT, Appellants.

      Undertaking — by continuing pa/rtner to secwre payment of Jw'm liability — what covered, by — what constitutes a payment.

    The plaintiff, upon dissolving a partnership, conveyed all the assets to the continuing partner, Thompson, who, having agreed to pay and discharge all firm liability, gave to the plaintiff a bond, signed by himself and the defendants, as sureties, conditioned to pay all the debts and liabilities owing by the firm, due or to become due, and to save plaintiff harmless from the payment of any and all firm debts and liabilities, of every name and nature, then owing by them. Subsequently, actions were commenced against the plaintiff and Thompson upon certain notes given by the firm. The summons was served upon Thompson alone, who engaged an attorney to appear for both, and who suffered judgment to go by default. Plaintiff, having obtained leave to open the judgment, defended the action and procured the complaint to be dismissed. This action was brought to recover the amount paid to plaintiff’s attorneys for their services in defending the action, plaintiff having given his promissory note to them for the amount, which was accepted by them in payment thereof. Held,, that the attorneys having accepted plaintiff’s notes in payment of their bill, he was entitled to recover the amount as money actually paid by him; That the amount so paid was within the condition of the bond, and that the sureties were liable therefor.
    Appeal from judgment in favor of the plaintiff entered on the report of a referee.
    On the 8th January, 1810, the plaintiff and Mark V. Thompson became copartners in the city of Syracuse in the stove business. This firm succeeded that of Drake & Wells who had previously carried on business at the same place, Thompson taking the place and assuming the responsibilities of Wells, who retired from the business.
    In 1812 a disagreement arose between Drake and Thompson, in reference to their partnership matters, and one Bassett was appointed receiver of the property and effects of said firm.
    On the 28th of April, 18Y2, an agreement in writing was entered into between said Drake and Thompson, whereby it was, amongst other things, stipulated and agreed that an inventory should be made of the property of said firm at cost price, and that whichever should offer most for tbe property of said firm should have it, and the other party should sell to him his interest in said property. It was further agreed in and by said written agreement, that the partner who purchased should assume all the partnership debts and release the retiring partner therefrom.
    An inventory had been made by the receiver of the property oi said firm in March, 1872, and on the twenty-eighth of April it was agreed that the inventory thus taken should be accepted in place of the one agreed to be made in the contract of the twenth-eighth of April above mentioned, and that any consideration of over or under estimate in the March inventory, or in transactions subsequent to said inventory, should be covered by the offers of said partners, according to the terms of said contract for the retention and disposal of their respective interest in the concern.
    Thompson subsequently became the owner of the partnership effects at a price mutually agreed upon, and he agreed with Drake to give him, in consideration of such purchase, a bond of indemnity under the hands and seals of the defendants, dated 26th day of April, 1872, with a condition that if said Thompson, his heirs and assigns, etc., should pay or cause to be paid all the firm debts and liabilities of every name and nature then owing by the firm of Drake & Thompson on their partnership accounts due or to become due, or in any wise connected with the business of said firm, and save Drake harmless from the payment of any and all firm debts and liabilities of every name and nature then owing by them in any manner whatever, then the said obligation to be void, otherwise to remain in force.
    During the existence of said firm of Drake & Thompson they, purchased of one Hinman an interest in a patent-right, for which they gave five notes of said firm of $100 each, dated 23d July, 1870, and payable in six, nine, twelve, eighteen and twenty-four months from date. At the time of the purchase by Thompson of Drake’s interest in the copartnership assets, and at the time the bond was given by the defendants to Drake, these notes wer.e held by said Hinman; nothing had then been paid on them. These notes were not included amongst the liabilities of the firm, because the partners believed that they were not valid obligations against said firm, as the patent proved to be worthless,

      On or about tbe 1st September, 1872, Hinman commenced an action on said notes against tbe members of- said firm, the summons being served on Thompson aloné, who employed an attorney to appear and defend for both. Tbe attorney did appear and defend tbe said action for both.
    A judgment was taken by default against both for tbe whole of said notes, together with tbe interest thereon and tbe costs of tbe action. Drake, after tbe recovery of tbe judgment, caused notice of tbe levy of the execution on said judgment upon bis property to be served on tbe sureties in said bond, and that be would bold them responsible upon said bond for such sum as be should be required to pay upon said judgment. Tbe sureties paid no attention to said notice. Drake thereupon moved to be let in to defend said action, and tbe motion was granted and be thereupon put in an answer, and tbe cause was tried in June, 1874, and tbe complaint was dismissed, with costs.
    Tbe attorneys employed to obtain leave to defend said action, and who defended it, brought in a bill against Drake for their services for $318.93, and for which Drake gave tbe said attorneys bis note, which was taken in payment of said indebtedness before this action was commenced.
    This action was brought to recover the amount so paid as aforesaid to tbe. attorneys for tbe defense of said action, with another claim that was rejected by tbe referee, and as to which no question arises on this appeal. Tbe defendants, Porter and Bassett, appeared; tbe defendant Thompson did not appear.
    Tbe answer contained, first, a general denial of tbe allegations in tbe complaint; second, that before tbe defendants executed said bond, tbe plaintiff represented to them that tbe inventory of their liabilities contained a full and complete statement of all debts due by tbe said firm of Drake & Thompson, and that there was no claim against said firm upon said notes given for tbe patent-right, and that defendants, relying on said statement, executed said bond, and insist that tbe plaintiff is estopped from setting up any claim not contained in said inventory; third, that tbe representation- by Drake that tbe inventory contained all the liabilities of said firm was false and fraudulent and made with a view to deceive and defraud said defendants, and that they have sustained damages, by reason of sncb false and fraudulent representations, to tbe amount of $500, wbicb tbej insist upon by way of 'recoupment against tbe claim of said plaintiff.
    Tbe referee found tbe facts as hereinbefore stated, and ordered judgment in favor of tbe plaintiff for tbe sum of $355.27, together with tbe costs of tbe action.

      Q-eorge N. Kermecl/y, for tbe appellants.

      Irving G. Vcmn, for the respondent.
   MoxliN, P. J.:

Tbe bond on wbicb this action is brought is dated tbe 26th April, 1872. Tbe plaintiff did not give bis note for tbe costs, wbicb be seeks to recover of tbe defendants, until just before this action was commenced, wbicb was in April, 1875. It follows that tbe claims in suit accrued subsequent to tbe execution of tbe bond.

Tbe condition of'the bond is, that tbe obligors should pay, or cause to be paid, all tbe firm debts or liabilities now (that is on tbe 26th April, 1872) owing by Drake & Thompson on their joint partnership accounts, due or to become due, or in anywise connected with tbe business of said firm, and save Drake harmless from tbe payment of any and all firm debts and liabilities, of every name and nature, now owing by them in any manner whatever.

"Without stopping to inquire whether tbe defendants are liable on tbe clause of tbe condition by wbicb they agree to pay tbe debts due and owing by tbe firm of Drake & Thompson, I propose to consider tbe question of their liability on tbe indemnity clause of tbe condition. Tbe costs,of Puller & Yann, tbe attorneys who procured tbe order of tbe court allowing the plaintiff to appear and answer in tbe action after judgment bad been entered against both tbe partners on tbe patent-right notes, and who subsequently defended tbe action and nonsuited tbe plaintiff, were not a debt due by tbe -firm of Drake & Thompson at tbe time tbe bond was given, but it became a debt due by them when tbe judgment of nonsuit was entered on tbe 16th June, 1871. To entitle tbe obligee in an indemnity bond to recover costs of actions brought against bim for the recovery of copartnership liabilities, he must show that he has paid them, or been in some way damnified thereby.

In Churchill v. Hunt (3 Den., 321), it was held that, upon a bond conditioned to save harmless and indemnify the obligee against his liability as maker of a note held by a third person, and to pay the same or cause it to be paid, the obligee may, without having paid any thing, recover the amount of the notes against the obligor upon his failure to pay the holder, but he cannot recover the costs of a judgment obtained against him on the notes when he has not paid them.

The costs of Fuller & Yann were due from the firm, and if the plaintiff has paid it, he is entitled to recover.

In the following cases it has been held that the obligee in an indemnity bond was entitled to recover on the bond when he had given to a creditor of the firm a promissory note for the demand, which the creditor agreed to receive in payment of his claim against the firm of which the plaintiff was a partner: Witherby v. Mann, (11 Johns., 518); Rodman, v. Hedden (10 Wend., 498); Howe v. Buffalo, New York and Erie Railroad Company (37 N. Y., 297); Doolittle v. Dwight (2 Met., 561); Lee v. Clark (1 Hill, 56).

The referee was right in holding that plaintiff had paid the costs so as to entitle him to recover.

The appellants’ counsel moved for a nonsuit at the Circuit, and asks for a reversal of the judgment by this court on the ground that the costs sought to be recovered were not a debt against the firm at the time the bond was given. The bond does, in terms, provide that the obligors shall pay the debts of the firm now (at the date of the bond) due or to become due.

If the obligors had paid the debts claimed to be due from the firm, the bill of costs in controversy would never have accrued; and it comes with a bad grace from the defendants to refuse to pay the costs occasioned by their own breach of the conditions of the bond. It is true the partners, by defending the action, defeated a recovery on the patent-right notes, and they should the inore cheerfully pay the costs incurred in the defense of the action.

The referee was right in holding that plaintiff was not chargeable with fraud in telling, at or before they signed the bond, that the patent-right notes were not a valid claim against the firm. He declared to tbem tbe facts relating to tbe notes, and tbe action brought to enforce tbem, and gaye it as bis opinion that tbe firm was not liable on tbe notes.

Tbe defendants bad tbe same means that plaintiff bad to determine tbe question of liability, and was as competent to form an opinion as to tbe legal liability of those who should become sureties on tbe bond.

Tbe judgment must be affirmed.

Present- — -MulliN, P. J., Talcott and SMITH, JJ.

Judgment affirmed.


author: Mullin, P. J.;

text:
    JOSEPH PRATT, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Pwpresíw'e — order laying out highway — reeoi'd of, how invpeached — The survey — must be incorporated into the order.

    The plaintiff in error was indicted in tbe Jefferson county Oyer and Terminer for unlawfully obstructing a public highway, or street, in the Tillage of Carthage in said county. Having been convicted, and sentenced in the Court of Sessions, to which the indictment was sent, he sued out a writ of error and removed the record into this court.
    The highway in question commenced' in the margin of Furnace street, in said village, near the terminus of Water street, and after crossing a pond that separated an island in the Black river on which a saw-mill, now owned by the plaintiff in error, and a grist and sawmill of one Gnyot stood, from the main land it extended to a point near the grist-mill of said G-uyot; a bridge was constructed by the commissioner of highways of the town of Wilna, in which said village of Carthage is located, over said pond.
    The plaintiff in error erected an office and barn within the limits of the said highway and piled logs and lumber therein, and these constituted the obstructions in the highway for which the indictment was found.
    To prove that the locus in quo was a public highway the district attorney proved that in August, 1858, Sanford Lewis, Wm. D. Levis and Charles Sarvoy were commissioners of highways of the town of Wilna, and that a paper produced had been taken from the office of tbe town clerk of said town and that the signatures to said paper were in the handwriting of said commissioners.
    The paper thus produced is marked as filed February 1, 1859, in the handwriting of the then town clerk of said town. The following is a copy of the contents of said paper, viz.:
    “A survey of a road or street from Furnace street to G-uyots & Davis Mills, beginning at a hub on the northerly margin of Furnace St. 25 links easterly from the point where the easterly margin of Water street intersects with the northerly margin of Furnace street, thence in a direct line towards the S. Ely corner of Guyot’s gristmill N. 45^ west 2 chs 21 Iks to a hub 57 Iks S. 45J E. from said S. Ely corner of said grist-mill as surveyed by A. Brown, August 30th, 1858.
    The above street is to be three rods wide.
    (Signed.) SANFORD LEWIS,
    WM. D. LEYIS,
    CHARLES SARYOY,

      Commissioners of Hiqhwa/ysP

    The signatures are not on the same paper as the survey, but upon a piece of somewhat different color and of inferior quality and annexed to the survey by three wafers.
    Upon the trial two of the commissioners were called and gave evidence tending to show that they had never signed the paper when attached to the survey, and had never authorized it to be so attached, and that no meeting had ever been called to lay out the highway, and that in fact it never had been laid out. Plaintiff’s counsel claimed that their testimony in connection with the appearance of the paper was sufficient to impeach it as a record, and that there was, therefore, no evidence to show that the loous in quo was a public highway. The trial court held the paper sufficient to show that the highway had been laid out.
    The court at General Term said: “Assuming that the paper found on the files of the town clerk was presumptive evidence of the laying out of the highway in question, it was but presumptive evidence and it was competent for-any person interested to prove that it was not legally laid out and thus overcome the presumption.
    First. The appearance of the paper was some evidence against its genuineness. Tbe names of tbe commissioners were signed, not upon tbe same paper on wbicb tbe survey was written, altbongb there was ample room on tbe back of it for tbe names of tbe commissioners. Tbe paper on wbicb tbe names were written was of a somewhat different color from that on wbicb tbe survey was written, and was of an inferior quality and was annexed to tbe survey with wafers.
    Second. One of tbe commissioners swears positively that be never saw or beard of tbe survey until tbe day before tbe trial of tbe plaintiff in error upon tbe indictment, and'that, although bis signature to tbe paper is genuine, be never signed it connected with tbe survey, and never attended a meeting of tbe commissioners when an order for laying out tbe highway was made.
    Another of tbe commissioners cannot swear positively that be did not sign tbe paper when annexed to tbe survey, but has no recollection of ever signing it, and bis recollection is that he did not. Tbe third commissioner was not sworn, and we do not know what bis recollection in regard to signing it is. But upon the evidence given on tbe trial it seems to me that tbe presumption is entirely overcome, and tbe finding of tbe jury that tbe paper relied upon was an order laying out tbe highway was without evidence to support it.
    Tbe only question remaining to be considered is whether tbe paper, Exhibit A, was a valid order for laying out tbe road.
    If I am right in bolding that tbe verdict finding the exhibit to have been properly made and filed was not only not supported by tbe evidence but against it, tbe invalidity of tbe order is conclusively established. But if I am wrong in this I am of opinion that it is invalid as not being made in compliance with section 70, 2 Revised Statutes(5th ed.), 394, wbicb section is in tbe words following, viz.:
    ‘ Whenever tbe commissioners of highways shall lay out, alter or discontinue any road, either upon application to them or otherwise, they shall cause a survey to be made of such road, and shall incorporate such survey in an order to be signed by them and to be filed and recorded in tbe office of tbe town clerk, who shall note tbe time of recording tbe same.’
    Tbe survey was not incorporated in an order signed by tbe commissioners, and hence tbe requirement of tbe statute has never been complied with. Tbe proper protection of tbe public as well as of tbe owners or occupants of tbe land over wbicb a highway is laid out requires that tbe commissionérs should clearly designate tbe route of tbe road, its width and tbe determination that the road be laid out. Tbe legislature, therefore, required a survey and an order signed by the commissioners, and that it be bled and made a matter of record so as to enable those interested to establish tbe existence of tbe road by tbe highest evidence tbe subject-matter was capable of being established by. If tbe order might be omitted so might tbe survey, and thus tbe public left to ascertain the existence of tbe road by tbe evidence of persons cognizant of the action of tbe commissioners in reference to tbe road. I entertain no doubt but that tbe omission to incorporate tbe survey in an order was fatal to tbe laying out of tbe road.

      We have been referred to tbe case of Tucker v. BamJcvn, (15 Barb., 471) in wbicb it was held that a survey of a road signed by tbe commissioners was a valid order laying out tbe road. Tbe case arose in tbe seventh judicial district, and tbe appeal was beard and decided in tbe General Term of tbe district. One of tbe judges sitting in tbe General Term dissented from tbe conclusion at wbicb tbe majority arrived as to tbe validity of tbe order, together with other questions. Tbe dissenting opinion of JohN-soN, J., is, to my mind, conclusive against tbe validity of tbe order. Tbe decision of tbe case operates as a virtual judicial repeal of tbe most important clause of tbe section cited, and is not only mischievous in its effects upon tbe public but fatal to tbe action of tbe public authorities in their efforts to lay out and protect tbe roads of their towns and tbe streets of their villages and cities. Although I entertain the most profound respect for tbe learning and ability of tbe judges who decided tbe case cited, I cannot concur with them in tbe conclusion at wbicb they arrived and am constrained to disregard it.
    AlleN, J., when sitting in tbe General Term in tbe fifth district in -the case of Stewart v. Wallis (30 Barb., 348), referring to one of the propositions decided in Tucker v. Bcmkin, says ‘ the reasons for the judgment in the former case {Fitch v. Comrs. of Fwklcmd, 22 "Wend., 132) are more satisfactory to me than those of the able judge pronouncing the opinion of the court in the latter (Tucker v. Rankin), and, therefore, I prefer to follow the first decision.’
    Porter, J., in The People v. Williams (36 N. Y., M3), referring to the case of Tucker v. Rankin, says the decision is in conflict with previous and subsequent adjudications of the court in which it was pronounced, and it has since been substantially overruled in this court.
    There are other cases in which the rulings in Tucker v. Rankin have been repudiated, but not upon the specific point now under consideration. It seems to me that the case cannot be considered as binding authority upon any of the questions considered by the majority of the judges.
    The conviction should be reversed, and as an order laying out the road cannot now be supplied the prisoner should be discharged.”

      Stephen R. Pratt, for the plaintiff in error. Watson M. Rogers, for the defendant in error.
   Opinion by

Mullin, P. J.;

Talcott and Smith, JJ., concurred on the ground that the record of the highway was impeached.

Conviction reversed and proceedings remitted to General Sessions of Jefferson county with directions for a new trial.


author: Smith, J.;

text:
    FRANKLIN FITCH, Appellant, v. THE BUFFALO, NEW YORK AND PHILADELPHIA RAILROAD COMPANY, Respondent.

      Negligence — turning cows on to Mghma/y crossed by railroad track.

    Appeal from a judgment of the Cattaraugus County Court reversing a judgment in favor of plaintiff, rendered in a Justice’s Court.
    The action was brought to recover damages for negligently killing plaintiff’s cows at a highway crossing.
    It appeared by the uncontradicted evidence of the plaintiff’s witness, his hired man, Hale, that after the cows were milked in the evening he turned them (forty-nine in number) into the highway leading across defendant’s track to the pasture, and allowed them to go at large in the highway, unattended; that it was his business to drive them to the pasture; that half an hour afterwards he started after them, and, soon hearing a train pass, found three of them killed.
    The court at General Term said: “ Voluntarily turning the cows into the highway, and permitting them to go on to the railroad without any person to take care of them, was clear negligence on the part of the servant, which prevents the plaintiff from recovering, or rather it brings him within the principle vohmti non fit imyuria. (Gorwi/n v. The JT. T. and Erie R. R. Go., 3 Kern., 42, per Marvin, J., p. 49.) ”

      Alfred Spring, for the appellant. G. S. Qa/ry, for the respondent.
   Opinion by

Smith, J.;

Mullin, P. J., and Talcott, J., concurred.

Judgment of the County Court affirmed.


text:
    NELLIE RIDER, Respondent, v. JAMES FULLER, Appellant.

      False imprisonment — confining person supposed to Time small-pox — delivery of, to hospital ambulance — in/jw'y subsequently received, in ambulance and hospital— evidence of, not admissible on question of damages in action for the prior confinement.

    Appeal from a judgment entered on a verdict rendered at the Onondaga Circuit, and also from an' order denying a motion .for a .new trial on the minutes.
    The action was brought to recover damages for false imprisonment, and a verdict was rendered for plaintiff for $500.
    The plaintiff testified that she went to defendant’s office to be examined, and that after she had been examined by the defendant and two other physicians, the defendant pronounced her case one of small-pox, and told her she must stay in the office until the ambulance wagon came to take her to the hospital, and that if she left before it came they would lock her up. The court, at General Term, after commenting upon the evidence, and stating that, in view of all the evidence bearing upon the main question, the verdict would have been more satisfactory if it had been for the defendant, but that it was not prepared to say that it was so clearly and decidedly against the weight of evidence as that it should be set aside for that reason, proceed:
    “We are of the opinion, however, that the judge fell into an error in admitting testimony against the defendant’s objection and exception, tending to show that the driver of the ambulance, instead of going directly to the hospital, deviated from his course, and took in a colored man affected with the smal'l-pox, and carried him with the plaintiff to the hospital, and also evidence tending to show that when the plaintiff left the hospital, part of her clothing was detained there by some jserson in charge. The testimony was probably received upon the question of damages, and it is to be presumed from the amount of the verdict that it had an effect upon the jury. The facts which the testimony tended to establish were not the legal and natural consequences arising from the tort. The defendant was not responsible for the tortious acts of the driver of the ambulance, or of the keepers of the hospital, against each of whom the plaintiff has a cause of action for any injury which they wrongfully caused her. The driver and the hospital keeper were not the servants of the defendant. If the driver, by his negligence, had upset the ambulance, whereby the plaintiff’s bones had been broken, or if the keeper of the pest-house had beaten her, no one will contend that the defendant would have been liable therefor. The injuries supposed differ only in degree from those which the plaintiff was allowed to prove in aggravation of damages. The damages must proceed wholly and exclusively from the injury complained of. (Viecurs v. Wileoelcs, 8 East, 1; Lóele v. Ashton, 12 Ad. & El. [N. S.], 871; Grown v. Petrie, 6 Hill, 522.) There is no evidence that the defendant acted maliciously; on the contrary, it is apparent that his only motive was to prevent a spread of the contagious disease with which he believed the plaintiff was attacked, and to put her in the way of being properly treated and cared for. Not having pleaded a justification, he was not permitted to show that he acted by authority, and he. was therefore technically liable, but he should not be held to any thing more than compensation for the legal and proximate consequences of his own acts, so long as he acted in good faith.”

      I. T. Vann, for the appellant. Z>. Pratt, for the respondent.
   Opinion by

Smith, J.;

Mullin, P. J., and Talcott, J., concurred.

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


author: Taxcott, P. J.

text:
    WILLIAM SMITH, Respondent, v. WILLIAM TIFFANY, Impleaded, etc., Appellant.

      Receiver of rents, etc., of mortgaged premises — what persons in possession mag object to his appointment.

    Appeal from an order of the Special Term of Lewis county appointing a receiver in a foreclosure suit.
    The defendant Tiffany alone resisted the motion, which was made after a judgment had been rendered in a foreclosure suit, from which judgment the defendant Tiffany had appealed without giving any security to stay the proceedings.
    After overruling certain objections raised by Tiffany, the court at G-eneral Term proceeded: “ Tiffany also objects to the appoint • ment of a receiver, on the ground that he is not in the possession of the mortgaged premises, and that those in possession were not notified of the application for a receiver, and were not parties to the suit.
    In his affidavit containing this allegation he wholly omits to mention the names of any such persons, or to set forth the title under which they claim, or to describe the portion of the mortgaged premises of which they are in possession, and the whole allegation is upon information and belief. The premises consist of one lot in the outskirts of the city of Oswego, fifty feet front, and 130 feet deep. Tiffany’s affidavit was made in Oswego, and admits that some part of the mortgaged premises is in the possession of the other parties, defendants, who have made default,, and therefore require no notice. Under the circumstances, the omission to mention the names of the other parties in possession, or to disclose the title or rights they claim, the objection cannot be considered as setting up any valid reason for not granting the motion.

      The premises are admitted to be an inadequate security for the money due on the mortgage, and Tiffany insolvent. The mortgage debt is all due. In such cases it is an equitable right of the mortgagee to have a receiver of the rents and profits of the mortgaged premises, even after a decree. (Astor v. Turner, 11 Paige, 136.)
    In that case a receiver was appointed after decree and sale, but where the purchaser could not, by the practice of the court, obtain possession till after the lapse of time to have the sale confirmed. (See, also, Syracuse Bank v. Tollman et al., 31 Barb., 201.)
    If any persons, not parties to the suit, are in possession, who have not come in since the filing of notice of Us pendens, they are, if they have any rights at all, presumptively the tenants of defendant Tiffany, the owner of the equity of redemption, and may be required to attorn and pay rent to the receiver; or may be heard at the Special Term for the purpose of obtaining a modification of the order appointing a receiver, upon disclosing any right or title which would show that the receiver ought not to be permitted to deprive them of their possession. (Sea Ins. Co. v. Stebbins and others, 8 Paige, 565.) ”

      Wm. Tiff amp, appellant, in person. W. O. Prescott, for the respondent.
   Opinion by

Taxcott, P. J.

Present — Taxcott, P. J., Smith and Hardin, JJ.

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


author: Ingalls, J.:

text:
    HIRAM MARSH, Appellant, v. JOHN WOOLSEY, Respondent.

      Examination of party as vAtness — must be in county of Ms residence, or in which tie carries on business — Code of Civil Procedure, § 886 — Failure to pay costs of motion — what proceedings not stayed by — Code of Civil Procedure, § 779.
    The provision of section 886 of the Code of Civil Procedure, directing that a party to be examined as a witness before trial shall not, if a resident of this: State, be required to attend in any county other than that in which he resides: or where he has an office for the regular transaction of business in person, is peremptory, and will be enforced by the courts.
    Section 779, providing that when the costs of a motion directed to be paid are not . paid as therein prescribed, all proceedings on the part of the party required to pay them are stayed without further direction of the court, does not apply to a motion to vacate the order imposing the costs, on the ground of irregularity.
    Appeal from an order of the Special Term, vacating orders requiring defendant to appear and be examined as a witness before trial.

      James Henderson, for the appellant.

      Philip 8. CrooJc. for the respondent.
   Ingalls, J.:

This is an appeal from an order of the Special Term vacating two orders previously granted — one granted by a justice of this court, requiring the defendant to appear and be examined as a witness pursuant to section 870 and succeeding sections of the Code of Civil Procedure; the other an order of the Special Term directing the defendant to appear and be examined before the refereé named in the original order, and to pay ten dollars costs of the motion. The defendant did not appear, nor has ho paid the ten dpllars. The orders were vacated upon the ground that the defendant was not a resident of the city and county of New York, wh :e he was by the order required to appear and be examined, but was, at the time the order for his examination was made, and for a long time previous thereto had been, and still is, a resident of Flatbush, in the county of Kings; and had not an office for the regular transaction of business personally in the city and county of New York. Section 886 provides: “Where a person to be examined, as prescribed in this article, is a resident of the State, he shall not 'be required to attend in any county other than that in which he resides or where he has an office for the regular transaction of business in person.” This statute is peremptory, and obviously intended to prevent one party to ‘an action from compelling his adversary or a witness to attend, for ■ the purpose of such an examination, out of the county where he resides, or actually transacts business personally, thereby subje ■- ing such party or witness to the inconvenience and expense consequent upon going abroad for such purpose. This is a right secured to a party and witness in such a. proceeding, of which neither should or can be deprived. The provision is salutary and just, and should be enforced by the courts. It would be an intolerable burden for parties or witnesses to be compelled to travel from one end of the State to another, to be examined in such a proceeding. This case furnishes an illustration. The party sought to be examined is seventy years of age, and an invalid, and should not be compelled to leave his home on such an errand. The judge who granted the original order very properly, upon a presentation of the facts, granted the order to show cause at the Special Term why his order should not be vacated. Upon the return of that order the parties were fully heard, and the order appealed from made, which was eminently proper, and .accords with the letter and spirit of the statute referred to.

It is further insisted that the motion could not be made until the defendant had paid the costs imposed by the Special Term. Section 779 provides: “ Where costs of. a motion directed by an order to be paid are not paid within the time fixed for that purpose by the order, or if no time is so fixed, within ten days after service of a copy of the order, all proceedings on the part of the party required to pay them are stayed, without further direction of the court, until payment thereof.” This provision does not apply to a motion to set aside the order imposing' costs, on the ground of irregularity, but to other proceedings in the action. It would be an unwarrantable construction to hold that a party must submit to the terms of an order, in part at least, before he can move to vacate it for irregularity.

The order should be affirmed with costs.

Brady, J., concurred. Davis, P. J., not acting.

Order affirmed, with costs.


text:
    JAMES BAILEY, Appellant, v. HENRY HILTON and others, Respondents.

      Suirogate — power of to vacate decree, for mistake or fraud — Probate of will — «- when revoked.

    A surrogate has power to open or vacate a decree which has been procured through mistake, accident or fraud.
    Where a will presented by t-he widow of the testator, in which she was named executrix, was admitted to probate, the application stating and the decree reciting that the surrogate had ascertained by satisfactory evidence, that the deceased left him surviving neither father, mother, brother, sister, nor descendants of any or either of them, nor any descendants of his, nor any relative or next of kin, held, that it rested in the. discretion of the surrogate to grant or deny an application to revoke or vacate the probate of the will, made by persons not cited to be present at the former hearing, who claimed to be interested in the real estate of the deceased as his collateral relatives.

      Appeal from an brcler of the surrogate of the county of New York, dismissing the petition of the appellant to vacate the decree admitting to probate the last will and testament of Alexander T. Stewart, deceased.
    Alexander Turney Stewart, a citizen of the United States and a resident of the city and county of New York, died in that city on the 10th day of April, 1876.
    On the 13th day of April, 1876, Mrs. Cornelia M. Stewart, his widow, presented to the surrogate of the city and county of New York, certain papers purporting to be the last will and testament-of Mr. Stewart and two codicils thereto, with her petition praying* that these papers be admitted to probate as a -will of real and personal estate. The petition stated that the deceased left him surviving neither father, mother, brother or sister, nor descendants of any or either of them, nor any descendants of his, nor any relative or next of kin. To this petition was annexed the affidavit of Mrs. Stewart that- the matters of fact stated therein were true.
    The surrogate being satisfied by this proof, on the same day took full proof by the subscribing witnesses thereto, of the execution of said will and codicils and endorsed thereon a certificate of such proof, signed by the surrogate and attested by his seal of office. The will was proved ás a will of real and personal estate, and letters testamentary were duly issued thereon.
    The petitioner, James Bailey, on or about the 31st day of May, 1876, presented a petition to the surrogate of the county of New Yoi’k, stating that he and others therein named were “ collateral relatives of the full blood and (saving any question of mutual precedence or exclusion) heirs-at-law and next of kin of said Alexander T. Stewart,” and that they had not been cited to attend the probate of the will. The petition did not state how the petitioner or the other persons named 'were related to Mr. Stewart or became such relatives. The affidavit of verification to the petition stated that the petitioner’s mother was a sister of Mr. Stewart’s father.
    Upon this petition the surrogate granted an order to show cause why the probate of the will should not be set aside. Upon the return day of this order it was conceded by the petitioner that his claimed relationship did not make him next of kin to cut off the widow under the statute of distribution, and tlie motion, so far as affecting the probate of the will as a will of personal estate, was denied, without objection on the part of petitioner’s counsel.
    A motion was then made on the part of the executors under the will to dismiss the petition.
    First. On the ground that the surrogate had no power o revoke the probate of a will of real estate.
    Second. Upon all the papers before the surrogate upon the ground that, if he had the power, such motion was addressed to his discretion, and that in the exercise of that discretion the proceeding should be dismissed.
    After consideration, the surrogate granted the motion and dismissed the proceeding.

      Elihu Root, for appellant.

      Henry L. Clinton and Henry E. Davies, for respondent.
   Ingalls, J.:

This appeal is material only as it affects the real estate of which Alexander T. Stewart died seized, as in no probable event can the appellant participate in the personal estate. The testator died on the ,10th day of April, 1876, leaving said will. On the 18th day of the same month, his widow, Mrs. Cornelia M. Stewart, presented a petition, duly verified, to the surrogate of said county, praying that such last will and testament might be admitted to probate. Such petition alleged “thatthe said deceased left him' surviving neither father, mother, brother or sister, or descendant of any or either of them, or any descendants of his, or any relative, or next of kin of said deceased.”

The will by its terms disposed of the real and personal estate of which the testator died seized, and was proved and recorded as a will of real and personal estate. It is very evident that the petitioner believed the statements contained in the petition when she presented the same to the surrogate. The Revised Statutes, vol. 3, page 146, section 50 [5th edition], provides, section 50, on application to the surrogate he shall ascertain by satisfactory evidence the following facts; omitting the first and second subdivisions of the section:

3d. If the will relate to both real and personal estate, the names and places of residence of the heirs, widow and next of kin of the testator, or that upon diligent inquiry the same cannot be ascertained.

The record made by the surrogate, in regard to the probate of said will, contained the following: “ Be it remembered that heretofore, to wit, on the 13th day of April, in the year one thousand eight hundred and seventy-six, Cornelia M. Stewart, the executrix named in the last will and testament of Alexander T. Stewart, late of the county of New York, deceased, appeared in open court before Delano C. Calvin, surrogate of the county of New York, and made application to have the last will and testament, and codicils thereto, which relate both to real and personal estate proved. And on such application the surrogate did ascertain by satisfactory evidence, that said applicant was the widow of said deceased. And that said deceased left him surviving neither father, mother, brother, sister, nor descendants of any or either of them, nor any descendants of his, or any relative or next of kin. Such applicant being of full age, and on that day no one appearing to oppose the probate of the said will, such proceedings were thereupon had afterwards that said surrogate took the proofs of said will, and codicils thereto, hereinafter set forth. And upon this 13th day of April, in the year one thousand eight hundred and seventy-six, he adjudged said will and codicils thereto, to be a valid will of real and personal estate, and the proofs thereof to be sufficient, etc.” The surrogate acted upon competent proof, which,' in our judgment, was sufficient to justify his determination. The decision of the surrogate, refusing to vacate the probate of the will, was placed upon the ground of discretion, and not, that he had not the power, if he chose to exercise it. He deemed it injudicious under all the circumstances which were presented to him to grant the prayer of the petition. It can hardly be doubted, but that a surrogate possesses the authority to open or vacate a decree which has been procured through mistake, accident, or fraud. (Pew v. Hastings, 1 Barb. Chy., 452; Sipperly v. Baucus, 24 N. Y., 46; Campbell v. Logan, 2 Bradf., 92; The Public Administrator v. Peters, 1 id., 100; Skidmore v. Davies, 10 Paige [Chy. Rep.], 316; Vreedenburgh v. Calf, 9 id., 127; Gibson v. Martin, 8 id., 480.) The probate of a will, before the surrogate, is conclusive in regard to the personal estate, unless reversed. But in reference to the real estate, it is only prima facie evidence in regard to its validity or due execution. In the matter of Kellnm (50 N. Y., 298, Laws 1853, chap. 238; Jackson ex dem. Woodhull v. Ramsey, 3 John. Cases, 234; Vanderpool v. Van Valkenburg, 6 N. Y., 100).

It is quite apparent that the surrogate decided this application after mature reflection and upon thorough examination, and we are not prepared to say that such discretion was not wisely and justly exercised.

The appellant can not be seriously prejudiced by the determination of the surrogate, as he can institute an action in the Supreme Court and contest the validity of the will, with very slight if any embarrassment arising from such proceedings before the surrogate, while the estate, so vast in amount, and embracing so many and important interests, might be very seriously injured by the delay necessarily consequent upon a contest in regard to the probate of the will. If it should be established that the probate of a will is to be vacated whenever an heir at law is discovered, the proceedings might be rendered interminable, and produce serious consequences to estates. We conclude that the exercise of discretion, in this particular, is very properly lodged with the surrogate, and should not be interfered with, unless the facts of a particular case show a clear abuse of such discretion. When the exercise of discretion is devolved upon an officer or court by law, the appellate tribunal is properly reluctant to interfere, and refrains unless there is shown to have been fraud, improper influence, or. clear misconception of facts. (Moore v. Moore, 14 Barb., 27; Mount v. Mitchell, 31 N. Y., 356; Marvin v. Marvin, 11 Abb. [N. S.], 99.) We are convinced that the facts of this case will not justify a reversal of the decision of the surrogate.

The proceeding before the suiTogate was not conducted in violation of the provision of 3 R. S., p. 465, § 1 (5th ed.), which is as follows: “ The sittings of every court within this State shall be public, and every citizen may freely attend the same.” Every statute is entitled to a reasonable interpretation, with reference to the object to be attained or the evil prevented. ■

The order of the surrogate should be affirmed with costs.

Davis, P. J., and Bradv, J, concurred.

Order affirmed with costs.


author: Ingalls, J.;

text:
    In The Matter of the Petition of JULIUS LE BLANC.

      Hu/nd for payment of dividends — when regarded as a trust fund — lien of stockholder upon it.

    September 2d, 187A, the Erie Railway declared a dividend of one per cent, upon its stock, and deposited the money to pay the same with Dnncan, Sherman & Co. On December 10th, 1874, the money then remaining with the said firm was withdrawn by the company, and subsequently passed, with its other property, to a receiver of the road. This application was made by the petitioner, who, at the time the dividend was declared, was and still is a stockholder of the said road, to compel the receiver to pay to him the amount of his dividend.

      Held, that the fund deposited with Duncan, Sherman & Co., should be regarded as specifically appropriated for the payment of the dividend, anddhat the stockholders acquired in equity a lien upon such fund to the extent of the amount to which they were respectively entitled, and that such -lien followed the fund in the hands of the receiver.
    That a stockholder might apply on petition for such dividend, and was not obliged to bring an action therefor.
    Appeal from an order of the Special Term, directing the receiver of the Erie Railway Company to pay to the petitioner $500, the amount of a dividend upon the stock of said company owned by him.

      W. W. McFarlane, for the appellant, the receiver.

      S. W. JSTolcome, for the respondent, the petitioner.
   Ingalls, J.;

The Erie Railway Company, on or about the 2d day of September, 1878, declared a dividend of one per centum upon its common stock, payable on and after the first day of October then following. The petitioner was, at the time, and has since continued to be, the owner of 500 shares of the stock of said company, of the par value of $ 100 each. The Company deposited with Duncan, Sherman & Co., a sum sufficient to pay, and for the purpose expressly of paying the dividend thus declared. On the 10th day of December, 1874, there remained of such sum in the hands of Duncan, Sherman & Co., $4,918.85, -which was withdrawn by said Erie Railway Company. Hugh J. Jewett was appointed receiver of the Erie Railway Company, and as such assumed control of the funds in the possession of such company including the amount withdrawn from Duncan, Sherman & Co. The respondent having been absent, neglected to draw his dividend while the fund was in the hands of Duncan, Sherman & Co.

lie presented his petition to the Supreme Court, at Special Term, and obtained an order directing the receiver to pay to said petitioner $500, the amount of his dividend, and the receiver appeals from such order.

We conclude that the fund deposited with Duncan, Sherman & Co., should be regarded as specially appropriated for the payment of the dividend made by the company, and that the stockholders acquired in equity a lien upon such fund to the extent of the amount to which they were respectively entitled. That such lien' followed the fund in the hands of the receiver, who holds the same as trustee for the benefit of such stockholders. (Le Roy v. The Globe Ins. Co., 2 Edw. Chy. Rep., 656; Lowene v. The American Fire Ins. Co., 6 Paige, Chy. 484. In the case The Attorney General v. The Continental Life Ins. Co., In re Betsey A. Merrill, which has been very recently decided by the Court of Appeals, while that court reversed the decision of the Supreme Court upon the facts of that case; yet the reasoning contained in the opinion of Judge Church, decidedly confirms the right of the petitioner in this case, upon the facts hero presented, and furnishes in our judgment, an authority in support of the order appealed from. The appellant further insists that the respondent should have proceeded by action instead of by petition. No such question was raised before the Special Term. Again, we perceive no substantial reason why, in a case like the present, a petition is not proper. The parties should not be subjected, unnecessarily to the delay and expense of an action, when it is clear that the rights of all partios can be protected in this form of proceeding. Nothing is shown which induces us to doubt the propriety of the application by petition.

The order should be affirmed, but without costs, as the appellant is an officer of this court.

Davis, P. J., and Brady, J., concurred.

Order affirmed without costs.


author: Ingalls, J: Davis, P. J.:

text:
    DANIEL SCHRUMPF, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Indictment — defects in after judgment — hoto considered.

    The plaintiff in error was convicted of keeping and exposing- for sale impure and unwholesome milk. The indictment commenced in the usual manner, and was in all respects regular to the first count, which was preceded by the words, “It was then and there presented as follows, that is to say, city and county of New York, ss: The jurors of the people of the State of New York, in and for the body of the city and county of New York, upon their oath present.” Then followed the first count and then the second, which latter count was not directly preceded by any words showing it had been presented by the grand jury. Upon a writ of error to review the conviction, this omission was claimed to be a fatal defect.
    Held, that as the indictment had not been demurred to nor any motion made to vacate it, and as the defect was not' pointed out until after judgment, and as the omission was in no degree prejudicial to the prisoner, that the objection should be overruled.
    The count alleged that the .prisoner unlawfully held, kept, and offered for sale, the impure milk “ ag¡)¡i.nst and. in violation of the provisions of the sanitary Code.”
    Held, that it was not necessary to set out the particular ordinance alleged to have been violated, especially as the objection was not taken until after judgment.
    Writ of error to the court of General Sessions of the city and county of New York, to review the conviction of the plaintiff in error, of the offense of keeping and offering for sale, at his store in the city and county of New York, impure and unwholesome milk.

      Frank R. Lawrence <& L. C. Waehner, for plaintiff in error.
    The first count in the indictment was for a separate and distinct offence, for which a specific penalty is provided by statute. (Chap. 544, Laws of 1864.) The “Second count” was for an alleged violation of the Sanitary Code, the punishment for which is also specially provided for. (See Laws of 1873, § 82, City Charter.) It is elementary that an indictment must show that it was found by the jurors upon their oaths. (Bishop Cr. Pro., Yol. 1, § 131.) Therefore it is necessary that the “Second count” should have been preceded by appropriate language, showing it to be a further and separate finding by the grand jury upon their oaths. (2 Colby, page 116, 117; Bishop Cr. Pro., Yol. 1, § 426, 429; 26 Maine, 374; Stark Cr., page 272; 8 How. [Miss.], 250; 2 Cram C. G, 630; Holt, 687; 4 St. Tri., 686; 6 St. Tri. App., 56; Chitty Cr. Law, 5 Am. Ed., Yol. 1, page 202.) This defect is not cured by the statute of jeofails. (People v. Campbell, 4 Park, 386.) In pleading an act, in violation of a by-law or ordinance tvhereof the court cannot take judicial cognizance, it is necessary that the by-law or ordinance should be set forth, so as to enable the court to see whether the acts charged are contrary to its provisions. (Kneib v. The People, 6 Hun, 238; Dillon on Munic. Corp., § 265, and cases cited; Harper v. The Mayor, 17 Wench, 199; Reed v. The People, 1 Park. Cr. R., 481; Feltmalcer v. Davis, 1 B. 4 P., 98; 40 Yt., 450; 3 Pick., 462; 1 Doug., 149; 47 Maine, 481; 1 Paley, page 522; Lynch v. The People, Gen. Term, 1st Dept., May, 1877.)

      William P. Prentice, for defendant in error.
   Ingalls, J:

No question is here presented in regard- to the sufficiency of the evidence to sustain the conviction, nor is this court called upon to review any of the rulings made on the trial. The questions raised relate exclusively to the sufficiency of the indictment, and are raised for the first time after the trial and conviction. The plaintiff in error was indicted, tried and convicted in the court of General Sessions of the peace, held in and for the county of New York, for keeping and offering for sale at his store in the city and county of New York, impure and unwhole some milk. The indictment contained two counts. Upon tlie first an acquittal was directed by the court. The prisoner was convicted under the second count, which is as follows:

“ Second Count- — That Daniel Schrumpf, late of the seventeenth ward of the city of New York aforesaid, on the day of August, in the year of our Lord one thousand eight and seventy-six, at the ward, city, and county aforesaid, at the store and place -of business of the said Daniel Schrumpf, being premises known as number 206 Avenue B, in the ward, city, and county aforesaid, and the said premises being then and there a place "where milk was kept for sale, unlawfully did then and there keep, have and offer for sale ton quarts of impure and unwholesome milk which had been, and was then and there watered, adulterated, reduced and changed by the addition of water or other substance, and that such impure, unwholesome, watered, adulterated, reduced, and changed milk was then and there, by the said Daniel Schrumpf, unlawfully held, kept and offered for sale against and in violation of the provisions of the sanitary code, and of such sanitary code then and there, and at all times thereafter in force and operation, and against the form of the statute in such case made and provided, and against the peace of the people of the state -of New York and their dignity.”

It is contended by the counsel for the plaintiff in error, that this -count- of the indictment is fatally defective in not containing words showing that it was presented by the grand jury. There is no pretense, but that the indictment is formal and sufficient in all respects until we reach the statement of the offense in the first count thereof.

The first count is immediately preceded by these words:

It was then and there presented as follows, that is to say, city •and county of New York, ss: The jurors of the people of the State of New York, in and for the body of the city and county of Yew York, upon their oath present.” Then follows a statement of the offence in the first count, which is followed by the second count, in the form given above. We arc of the opinion, that by relation to the statement which precedes the first count, which is given above and is very general, the second count is rendered substantially good and formal. This indictment is not assailed by demurrer or motion to quash. But after judgment, when every intendment possible is to be indulged in support thereof, we are now to deal with matters of substance, not form. (Dawson v. The People, 25 N. Y., 400; The People v. Bennett, 37 N. Y., 117; Wagner v. The People, 2 Keyes, 684; The People v. Graves, 5 Park., 134.) These cases show very clearly how defects of this nature are regarded by the courts.

The Revised Statutes, vol. 2, page 728, § 52, provides as follows: “No indictment shall be deemed invalid. * * * By reason of any other defect or imperfection in matters of form ■which shall not tend to the prejudice of the defendant.”

It can not be pretended that the omission complained of in this, case tended in any degree to the actual prejudice .of the .prisoner, the absence of such formal statement did not render the allegation of the offence less certain or more difficult to be comprehended. (The People v. Graves, supra; Goodrich v. The People, 19 N. Y., 574.) It is further objected that this count of the indictment is also defective in not setting out the ordinance claimed to have been violated; we do not deem this objection sound.

The reference to the sanitary code was sufficient to render such count sufficient, at least so far as matter of substance was concerned. (The People v. McCann, 67 N. Y., 507; Nellis v. N. Y. C. R. R. Co., 30 N. Y., 505; Polinsky v. The People, 11 Hun, 390; The People ex rel. Cox, v. Special Sessions, 7 Hun, 214.)

The laws of 1873, chap. 335, § 82, recognizes by name the “ sanitary code,” and declares that any violation thereof shall be treated and punished as a misdemeanor. Again, § 721 of the Code of Civil Procedure is sufficiently broad to embrace and cure almost every conceivable defect in process or pleading after verdict and judgment.

We conclude that the conviction must be sustained.

Davis, P. J.:

Assuming that the proper proof was made on the trial in relation to the existence and proper enactment and publication of the sanitary code, as it is our duty to do, I concur with my brother Ingalls in affirming the conviction.

Beady, J., concurred.

Judgment affirmed.


text:
    In the Matter of the Petition of ABRAHAM SCHOLLE to vacate an Assessment.

      Assessments in New York — valuation of property — when fixed.

    Section 7 of chapter 326 of 1840 provides that no assessments in the city of New York shall exceed one-half the value of the house or lot as assessed by 'the ward assessors. By the laws of that city, the books of assessors’ valuation for each year are open for inspection and correction from the second Monday of January until the first day of May in that year. In levying this assessment, which was confirmed before May 1st, 1873, the valuations made by the 'assessors for 1873 were used. Held, that this was error; that those valuations were still, at the time of the confirmation, unfixed, and that the valuation of 1872 should have been used.
    Appeal from an order of the Special Term refusing to vacate the assessment in the above matter.

      A. B. Johnson, for Appellant.

      J. A. Beal, for Respondent.
   Ingalls, J.:

We are satisfield that an erroneous basis was adopted in making this assessment. The statute of 1840, chap. 326 § 7, provides “commissioners or assessors for making estimates and assessments for any improvement authorized by law to be assessed upon the owners or occupants of houses and lots, or improved or unimproved lands shall in no case assess any house, lot, improved, or unimproved lands more than one-half the value of such house, lot, improved or unimproved lands, as valued by the assessors of the •wardin ivhich the same shall be situated.” The laws of 1859, chap. 302 provides for the valuation of the property real and personal in the city of* New York. The seventh section of said act provides that the deputy tax commissioners shall commence to assess real and personal estate on the first Monday of September of each and every year.

Section eight provides that the books shall be open for examination and correction from the second Monday of January until the first day of May in each and every year. That on said last mentionecl day the books shall be closed to enable the commissioners to prepare assessment rolls, of the several wards. Section 10 provides that during the time the books are thus open for inspection any person considering himself aggrieved by the assessed valuation of the property may apply to have the same corrected. Thus it appears that the assessment does not become complete until the 1st- day of May, for until that period the estimated value may be changed, and hence no reliable basis is established until that date.

It is obvious that great injustice might be done to parties, by acting upon such an incomplete and fluctuating basis, which would unavoidably produce inequality in the assessments for improvements. The assessment in question was based upon the valuation of 1873 and was confirmed previous to the 1st of May of that year and therefore before tlio. valuation of the property had become fixed by lapse of time. We think this was a substantial error, and the subject of complaint by those interested.

The order of the Special Term should be so far modified, that that court shall correct the assessment by adopting as a basis the assessed valuation of 1872. We perceive no practical difficulty in such manner correcting the error as the Special Term can have before it all the facts essential to such adjustment. The appellant should have costs of this appeal.

Davis, P. J., I concur except as to costs. The appellant succeeds only in part and neither party should have costs.

Beady, J, concurred with Davis, P. J.

Order modified as directed in opinion, without costs to either party.


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    WILCOX and GIBBS SEWING MACHINE COMPANY, Respondent, v. MARY L. ELLIOTT, Appellant.

      Mamed women — ratification of acts of agent.

    Where a married woman carries on business through the agency of her husband, to whom she has given a power of attorney, she may ratify and adopt any act of his in the business, even though such act was not within the letter of the power of attorney.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury.

      William O. Oox, for the aupellant.

      Stephen A. 11 alker, for the respondent.
   Ingalls, J.:

The firm of Elliott and Allardice were engaged in business at Auburn, New York, as booksellers and stationers, and failed. Subsequently the defendant, Mary L. Elliott, commenced the same kind of business, at the same place, and by a power of attorney appointed her husband, William C. Elliott, her agent to take charge of the business. Such power of attorney provides, among other things, as follows: “do make, constitute and appoint William L. Elliott, of Auburn, aforesaid, my true and lawful attorney for me and in my name, place and stead, to carry on the business of retail dealer in books, stationery, and fancy articles, to use and sign my name to all notes, receipts and other papers which the said business may require.” The plaintiff, through its agent, sold several sewing machines to William L. Elliott, who assumed to act for his wife, and in her name executed a promissory note to the plaintiff”therefor, which is the note in suit, and is as follows:

“Auburn, N. Y., June 23, 1875.
$227.30. Six months after date I promise to pay to the order of Wilcox & Gibbs, Sewing Machine Company, two hundred and twenty-seven and 30-100 dollars at Auburn City National Bank. Value received. MARY L. ELLIOTT.”

This action is brought upon the said note, and also a trifling account for wares sold and delivered. The answer admits that the plaintiff is a corporation, but denies each and every other material allegation of the complaint. The power of attorney is not sufficiently broad to authorize the husband acting as the agent of the defendant, to execute the note in question, as the sewing machines were neither books, stationery or fancy articles. The plaintiff could only recover upon the ground that the defendant adopted and affirmed the purchase, which was the ground upon which the judge at circuit allowed the plaintiff to recover. The husband testified that the defendant knew that the sewing machines were placed in the store' and knew of the note after its execution.

J. H. Cook, a witness for the plaintiff testified: “ I called at Mr. Elliott’s store, and had some conversation with him; I learned our agent had been there and sold him some of our machines; talked with him about the business generally, and after a time went out; when I came back Mrs. Elliott was in the store; she had driven up with a lady in a carriage; the carriage was in front of the store; she talked to me about the business, and she never thought her husband would go into the sewing machine business, but she thought he might make a little; that her business was very dull, and that they had taken two of those sewing machines ; I asked her if she owned the business, and she said she did." This witness testified that he Avas connected Avith the company. The defendant Avas a Avitness at the trial, but did not deny the conversation testified to by Cook. The defendant having embarked in trade, transacting the business through the agency of her husband, AAras competent to ratify and adopt any act of his in the business even though the transaction-Avas not within the strict letter of the poAver of attorney. When she availed herself of the privilege of conducting business she assumed the responsibilities of an unmarried person, so far as such business Avas concerned, and should be so regarded in determining whether she became liable upon the note in question. It is not the duty of the courts by judicial, construction to destroy the practical effect of the statute which allows married women to embark in trade. With the propriety or wisdom of making such a law they have nothing to do, and in giving effect to the statute should be careful to see that the rights of par-tics who contract with married women who are in business are protected. This is obviously one of a class of cases, where the husband fails in business, and undertakes to revive in the name of the wife; there is no proof that she provided any capital, or that she gave the business her personal attention. She executed this power of attorney, and left the business to the management of her husband, and his acts under such circumstances should not be construed to the prejudice of parties who have negotiated with the husband, especially so when there is evidence of her acquiesence in and adoption of his act. Under all the circumstances we conclude that the court was justified in submitting the case to the jury upon the question of ratification, and their determination is not unsupported by evidence.

The judgment should be affirmed with costs.

Davis, P. J., concurred. Beady, J., the contract having been ratified, I concur.

Judgment affirmed with costs.


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    JOHN A. GRAY, Respondent, v. SAMUEL W. GREEN and others, Appellants.

      Special Tenn — power of, to stay proceedings upon and modify a judgment of the General Term,

    A judgment was entered in this action upon a decision of the General Term, allowing the plaintiff to redeem a certain contract therein described, upon payment of the sum of $15,000, within sixty days from the entry of such judgment, with interest from September 10th, 1874, and costs. Subsequently, upon plaintiff’s application, an order was made at Special Term staying all proceedings on the part of the defendants under the judgment until the hearing and decision by the Court of Appeals of an appeal by the plaintiff, and extending the time to redeem until sixty days after such decision of the Court of Appeals. ■
    Upon an appeal from this order, held, that the Special Term had uower to make it, and that it should be affirmed.
    Appeal from an order of the Special Term granting a stay ot proceedings upon a judgment, made at General Term in this action, until the decision of the Court of Appeals on an appeal from such judgment. The decision of the General Term in this case will be found in 12 Hun, at page 598.

      Jno. A. Burr ill, for appellant.

      Mr. Dickerson, for respondent.
   Ingalls, J.:

The order appealed from provides: “ It is ordered that all proceedings on the part of the defendants herein, under and upon the aforesaid judgment be and the same are hereby stayed until the hearing and decision of the Court of Appeals upon the plaintiff's appeal to that court from the judgment herein. And that the time for the said plaintiff to redeem the contract and judgment m said General Term judgment, and to pay the money thereby required to be paid on and for such redemption be, and the same is, hereby extended until sixty days after such decision of said Court of Appeals upon said appeal, provided that said appeal be taken and perfected within twenty days after this order and the entry of judgment herein.” The judgment entered pursuant to the decision of the General Term allowed the plaintiff to redeem the said contract on the payment within sixty days from the entry ■of such judgment, of the sum of $15,000, with interest from the 10th day of September, 1874, and the costs.

The plaintiff perfected his appeal within the period specified in the order, but will be unable to procure the decision of the Court of Appeals within the time allowed by the judgment for such redemption. We are of the opinion that the special term had the power to make the order in question. The General and Special Term each constitute a department of the same court. Yet in some particulars the jurisdiction is concurrent, and it is a little difficult to define the exact boundary between the two jurisdictions. The following decisions, we think, sustain the position that the special term possessed the authority to make the order. (Ayres v. Covill, 9 How., 573.) In that'case the court at Special Term set aside a judgment of the General Term entered upon default, and the order was approved. (See also Disbro v. Dis- bro, 37 How., 147; In the opening of Seventh avenue, 29 How., 180; Tracy v. Talmadge, 1 Abb., 461; Hart v. The Mayor of Albany, 3 Paige Chy., 381; Sherwood v. Hooker, 1 Barb. Chy. Rep., 650; Sixth av. H. R. Co. v. Gilbert E. R. R. Co., 3 Abb., N. C., 53.) The decisions to which reference is made apply to cases both before and since the adoption of the Code.

The exercise of this authority by the Special Term should be restrained within proper limits, to preserve the harmony of the j udicial system. The Special Term should not be allowed to review a decision of the General Term upon a question upon which the latter court had pronounced absolute judgment. As the Supreme Court is at present constituted, there is little danger to be apprehended in that particular, as a sense of propriety and respect for the due administration of justice, is quite sufficient to deter a judge at Special Term, from attempting to interfere, improperly, with the proceedings of the General Term. The only enquiry which remains is, whether the order in question must be considered as necessarily involving a review of any material portion of the judgment of the General Term, so as to be obnoxious to the objection made in this respect by the respondent.

Upon the argument, my first impression was, that the order was objectionable, but further reflection has removed that impression. The judgment remains unchanged in regard to the amount to be paid, and the specified time within which payment is required to be made. The only effect of the order is to stay the running of that time until the decision of the Court of Appeals. In other words, it is a mere stay of proceedings during that period, granted upon a motion where all parties have been heard and when Avithout such stay the right of review Avould be Avithout any practical benefit to the plaintiff, or at least Avould greatly endanger all his rights under the judgment. Suppose a judgment of the General Term directs the delivery of the possession of premises Avithin a specified period to a party, and an appeal 'is taken therefrom, or some other proceeding is instituted to obtain relief, can it be doubted but that, upon motion, a Special Term wnuld, independent of any statute, have poAver to grant a stay of proceedings and thereby prevent such delivery of possession. The exercise of such authority, at times, becomes absolutely indispensible to preserve material interests, before a General Term could be reached. We do not perceive wherein any material injury will accrue to the defendants by the delay; while to the plaintiff it is very essential to enable him to review the judgment. Such right of review should be facilitated rather than obstructed.

If any reasonable doubt exists in regard to the order of the Special Term, we would favor a modification of the judgment, so as to fix the time within which such redemption shall be made, at sixty days after the decision of the Court of Appeals. Such modification is within the power of this court to make upon this appeal. We conclude, however, that the order should be affirmed for the reasons assigned.

Brady, J., concurred; Davis, P. J., concurred, but without costs.

Order affirmed without costs.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. BENJAMIN K. PHELPS v. THE COURT OF OYER AND TERMINER OF THE COUNTY OF NEW YORK.

      Habeas corpus — Qhap 663 of 1878 — does not enlarge the number of cases in which the writ of habeas corpus may issue.

    Chap 663 of 1873, which amended the acts relating to writs of habeas corpus, by-providing that where proceedings commenced under such acts are removed into the Supreme Court, or whenever an appeal may be taken by the prisoner to the Court of Appeals “ and the offence with which such prisoner stands charged is one for which such prisoner may be admitted to bail by the laws of this State,” the coux-t may admit him to bail, simply x-endex-s mox-e coxxiplete and effective the review of those cases in which the wx-it could be lawfxxlly prosecuted under the provisions of the Revised Statutes already in force. It was not intended to enlai’ge the number of cases in which bail might be taken, nor the cases which might be reviewed upon habeas corpus.

    The act relating to writs of habeas corpus does not apply to cases in which the px-isoner is held by vix-tue of a judgment or decree of a competent tx-ibunal having jurisdiction to pi'onounce the same, or by virtue of an execution issued thpi-eon.
    Writ of certiorari to the Court of Oyer and Terminer of the county of New York.

      The facts are these: Loring M. Black was indicted, in the Court of General Sessions for unlawfully keeping and exhibiting a gambling table and apparatus in a certain building, with intent to use the same for gambling purposes. On the 26th of October, 1877, he pleaded guilty to the indictment, and was sentenced to six months’ imprisonment and a fine of $250.
    Upon the 20th of November, Black, by his counsel, procured a writ of habeas corpus, directed to. the keeper of the penitentiary, to produce the prisoner before Mr. Justice Donohue, with the cause of Iris detention. The warden produced the prisoner and the commitment, in obedience to the writ. Hearing was directed to take place before the Oyer and Terminer, then in session, Mr. Justice Davis presiding, and upon that hearing the prisoner was remanded to the penitentiary and the writ dismissed.
    A writ of certiorari was then procured to review the decision of the Oyer and Terminer, and thereupon application was made to' admit the prisoner to bail pending the last mentioned certiorari, which was claimed by the prisoner as of strict right under chapter 603, of 1873.
    And it is to review this last decision that this proceeding is now had.
   Ingalls, J.:

We are satisfied that the order admitting Loring M. Black to bail cannot be sustained. The statute of 1873, chap. 663, was not intended to accomplish what is claimed for it by the respondent. Justice Daniels has discussed this question in an opinion which we subjoin, and we entirely agree with him in the views which he therein expresses. We deem it unnecessary to further discuss the question in this proceeding. The opinion of Justice Daniels is as follows:

In the matter of Cosgrove et al. Daniels, J. It has been further urged in behalf of the relator that even though he may have been lawfully indicted and sentenced, he may still contest the validity of the proceedings by means of the writ of habeas corjms and by appeal from the decision refusing his discharge, and in the meantime as .a matter of strict right be at large on bail. The position has been taken under chap. 663, of the laws of 1873, and it is in terms so provided in the cases affected by it. But that act was an amendment only to the habeas corpus act of the State, and was limited in its effect to proceedings which could be commenced under the article amended by it; that article, .however, does not provide for the review of a final conviction either of a misdemeanor or felony, by means of the. writ of habeas corpus, and it never was held to allow that in any case since this statute has been in force, except in that of Tweed v. Liscomb (60 N. Y., 559.) But that case can have no effect upon the one now under consideration, for the reason that it is entirely clear that the indictment and conviction were sanctioned by the full authority of law, and in that class of cases certainly the article amended by chap. 663, of the laws of 1873, has forbidden the use of the writ of habeas corpus. Its language is that: ‘ The following persons shall not be entitled to prosecute such writ. * * * Subdivison 2, 1 Persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree.’ And the petition for the writ, in order to prevent it from being used in such a case, has been required to contain the sworn statement that the applicant for it is not committed or detained by virtue of any such judgment, decree or execution. (3 R. S., 5th ed., 883, and 4, §§ 36 and 39.)

Where, in violation of these restraints upon the use of haoeas corpus, it may yet have been issued, a statute has further declared that it shall be the duty of such court or officer forthwith to remand such party, if it shall appear that he is detained in custody by virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree, ibid., 887, § 55. In civil cases this provision has been so far qualified as not to include cases of excess of jurisdiction in the tribunal pronouncing"!ha judgment or decree, ibid., § 56. But criminal cases have not been included even in that qualification. In them it was the policy of the law not to interfere by means of the writ of habeas corpus with the prompt and efficient execution of the criminal sentence, but to confine the parties to another and different mode of redress.

The return of the sheriff to the writ issued in this case shows that the relator is detained in custody by virtue of a writ issued upon a judgment of the Court of General Sessions, convicting him upon his own confession, of the commission of a misdemeanor. That presents a case directly within the prohibition of the habeas corpus act, which declares that when that shall appear tlio applicant for the writ shall be forthwith remanded to the custody of the officer. This positive mandate was in no respect changed by chap. 663 of the laws of 1873. That was an addition only to the article of the Revised Statutes containing this positive direction. It in no way superceded or impaired the -preceding provisions, but its object was to render them still more effectual in cases where the writ of habeas corpus could be lawfully prosecuted, and it was limited to those cases. This is further evident from the provision made by it that the applicant shall be bailed only when the offence for which he has been charged is one for which he may be admitted to bail by the laws of this State. The cases in which this may be done have been in no respect enlarged, but for the purpose of defining and ascertaining them this general reference has been made to the laws of the State on this subject, and they only allow bail to be received after a trial and final conviction, when a writ of error may bo taken for the purpose of reviewing the judgment. Another significant term supporting the same construction is the word “charged,” made use of for the purpose of classifying cases it was intended to affect; that appropriately includes only cases untried as distinguished from those in which a conviction has alreadybeen had.

The act of 1873 was evidently enacted to render a review' more complete of decisions made upon a writ of habeas corpus, only where the writ can be properly issued under the terms of the habeas corpus act. A different construction would exceed the bounds of any proper legislative intention, for it would permit every person in every respect lawfully convicted of crime in any portion of the State, to secure his discharge on bail, until a hearing of his case on habeas corpus could be had through all the appellate courts of the State. For the time it would suspend the execution of the entire body of the criminal laws, which no one could for a moment suppose was a result intended to be accomplished by the enactment of this law.

It .was suggested that Mr. J ustice Brady had reached a different conclusion in the case of The People v. Black. But from a conference had with him on this subject, that proves to be a misapprehension. On the contrary he considers the statute of 1873 liable to no such construction as that insisted upon in favor of the application made by the relator, and such must be the decision in this case.

The order should be reversed and the prisoner remanded to prison.

Davis, P. J., concurred, Brady, J., not sitting.

Order reversed, prisoner remanded.


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    ROBERT G. RICHARDS, Plaintiff, v. PIERRE T. C. RICHARDS and others, Defendants.

      Sale in partition — fees of referee

    Upon a sale of lands in an action for partition, the referee conducting the same is entitled to receive for his services a commission not exceeding in any case §500.
    This is an appeal from an order of the Special Term confirming the report of a referee, in regard to the compensation of B. C. Chetwood, Esq., as referee, upon the sale of land in partition.

      Alfred Roe, for the defendants Richards and Moore, appellants.

      Edward Bartlett, for the referee Chetwood, respondent.
   Ingalls, J.:

We deem it a hopeless task, from the various statutes to which we have been referred, in regard to the compensation of referees upon the sale of land in an action for partition, to ascertain with entire satisfaction, the intention of the legislature in regard to the compensation of referees in such causes. The statutes are so conflicting, that they cannot be reconciled; and, in some instances even the provisions of the same statute are not in harmony. Wo conclude, however, that it is fairly inferable from all the statutes, that in actions for partition, the referee, upon the sale, is entitled to a commission not exceeding in any cause, five hundred dollars. The referee, to whom this matter was referred, and whose report had been confirmed by the Special Term, has in. his opinion, which accompanies the papers, given a very good reason for the conclusion at which he arrives. We think the order of the Special Term should be affirmed; but without costs of this appeal.

Davis, P. J., and Brady, J., concurred.

Order affirmed, without costs.

The following is the opinion of the referee referred to in the opinion of Ingalls, J.:

“ The question in this case is whether there is any statute fixing the fees of referees in partition, and if so, at what rate the same should be computed.
Chapter 569, Laws 1869, vol. 2, p. 1377, was passed for the purpose of settling questions of this description.
It is entitled an act in relation to the fees of the sheriff of the city and county of New York, and to the fees of referees in sales on partition cases; and enacts:
I. That all sales in New York under judgments or decrees, except in cases of partition, etc., shall be made solely by the sheriff.
II. In cases of sales on foreclosure, the sheriff shall receive the following fees:
For receiving order and posting notice of sale, - - $10
For attending sale, ..... . iq
Drawing each deed, .... .... 5
Adjourning sale (three times),.....3
Report of sale,........5
Paying over surplus,....... 3 ■besides disbursements.
III.That commitments by police justices should be directed to the sheriff.
IV. That in case of sales in actions in partition by referees, they shall receive the same fees and disbursements as are allowed by section two to the sheriff, and in addition a commission on all moneys received and paid out by them, at the same rate as executors; such commission not to exceed $500.
This action was held unconstitutional, upon the ground that the two subjects, of the fees of the sheriff and of referees, provided for in sections two and four, were alone referred to in the title, the subjects of the exclusive power of the sheriff to make sales, and of the police justices to make commitments, not being referred to therein.
That the act was a local act, ■ embracing more than one subject, and that the exclusive right of the sheriff to sell was not expressed m the title, and that the act was therefore unconstitutional, so that a sale by a referee was valid. (Gaskin v. Meek, 42 N. Y., 186-188.)
By chap. 192, Laws 1874, section one of this act was amended so as to read as follows:
§ 1. “ Sales of real estate hereafter made in the city and county of New York under the decree or judgment of any court, may be made by the sheriff of said city and county, or by a referee, # * * but when any ‘sale is made by any officer other than the sheriff, no greater sum shall be charged or allowed as fees than as. prescribed in section two of this act,” and section three was repealed.
As section four, prescribing the fees of referees in partition was not amended, the legal presumption is that it was intended to remain law.
It conflicts, however, absolutely, with section one as to the fees of officers other than the sheriff, unless it should be held that they relate to different subjects. And as the legislature cannot be considered to have intended a flat contradiction in the same act, it is but fair to presume that section one was intended to cover sales by referees in other than partition cases, which would be the same cases as those where the sheriff would sell (i. e., foreclosure, etc.).
This is further demonstrated from the fact that section one, as originally passed, did not include partition cases, and section two refers only to sheriff’s fees in foreclosures. (See Innes v. Purcell, 2 Sup. Ct. Rep. [T. & C.], 543.)
The declaration by the Court of Appeals that the statute of 1869 was unconstitutional, on account of section one and three referring to subjects not alluded to in the title, did not avoid the entire act. (People ex rel. Lee v. Suprs. Chautauqua, 43 N. Y., 10; Town of Fishkill v. F. & B. Plk. R. Co., 22 Barb., 643; People v. Lawrence, 36 id., 190-191; affi’d in Ct. of App., 41 N. Y., 137; and see cases as to tax levies, 2 Abb. Dig., 140.)
This is particularly the case, inasmuch as the provision as to the fees of referees in partition cases was not a local but a general law applicable to the entire State.
The placing of a general law in a private bill saves the general law by making the act public. (People ex rel. Lee v. Sup’rs Chautauqua, 43 N. Y., 10; People v. McCann, 16 N. Y., 58, 60; Williams v. The People, 24 id., 405, 406.)
This view is in opposition to that expressed by the revisers of the new statutes; but, on the other hand, it is sustained by Hoffman on Referees, 285.
I am, therefore, of the opinion that the referee is entitled to receive, in addition to his disbursements, (about -which there is no dispute, before me) the same commissions as an executor, on the purchase price, $20,600, viz:
5 per cent, on $1,000, .... $50 00
2-| “ 9,000, - - - 225 00
1 “ 10,600, . - - 106 00
$381 00
Receiving order and posting notice of sale, - - 10 00
Posting notice of re-sale,......10 00
Attending sale, - - - - - 10 00
Drawing four deeds at $5, - - - - 20 00
Drawing report of sale, - - - - 5 00
Paying over surplus, - - - - 3 00
$439 00
N. Y., Nov. 9, 1875. :-=-
GEO. W. WINGATE, Referee.”