author: Peckham, J.

text:
    In the Matter of the Application of The People ex rel William C. Daley et al., Resp’ts, v. The State Board of Canvassers, App’lts.

      (Court of Appeals,

      Filed December 29, 1891.)

    1. Elections—Certificate of county canvassers—Duty of county CLERK.
    The duty of the county clerk in relation to the election returns is purely ministerial. If the statement of the hoard of county canvassers correctly sets forth the action of the board it is wholly immaterial to the county clerk acting as the secretary of the board whether it has done its duty in a valid way or not, and it is his duty to certify thereto and record it in his office.
    2. Same—Remedy for clerk refusing to sign.
    The remedy is not confined to mandamus to compel the secretary of the board to sign. If the clerk and his deputy fail to appear, the board has power to appoint a secretary in their place, or if the clerk appears and refuses to act, the' board may designate one of their number to attest the proceedings.
    3. Same.
    Where the secretary appointed by the board attested the statement and sent copies to the state officers, and a further statement certified by the chairman was delivered by the secretary pro tern, to the county clerk, it is the duty of the latter to attest, certify to it and forward certified copies to the state officers.
    4. Same.
    The failure of the county clerk to so forward certified copies does not prevent the state canvassing hoard from canvassing the vote, but it may proceed upon the returns attested and forwarded by the secretary pro iem.

    5. Same.
    Where the return before the state board is proper and valid on its face, but allegations are made that it is based on improper and illegal action of the board of county canvassers in transposing the votes cast, and thus enlarging the plurality of one candidate so as to change the result of the election, which allegations are unoontradicted, Held, that the court should not permit the state board to canvass such return. If another return should be duly sent to the board, properly authenticated and containing the result of the legal action of the board of county canvassers, the state board could canvass it.
    Appeal from order of the supreme court, general term, third department, affirming order granting a mandamus restraining the state board of canvassers from canvassing a return from Dutchess county.

      I. H. Maynard and Delos McCurdy, for app’lts; Wm. A. Sutherland, Matthew Hale and Joseph H. Choate, for resp’ts.
   Peckham, J.

We are of the opinion that the relators had a sufficient interest in the matter before us to make the application, if it had been made to the general term as the proper tribunal. It is a matter in which the public has an interest quite as "great, perhaps, as the individual; and in such event any citizen has the right to invoke the proper judicial tribunal to compel the performance by a public officer of a public duty. It is alleged" in the moving papers in this case that the paper on file in the secretary of state’s office, purporting to be a certificate of the county canvassers of the county of Dutchess of the result of the election for senator in that county, is erroneous, defective and invalid.

Several grounds are alleged in proof of such statement. The first is that the certificate is not signed or certified to by the county clerk of Dutchess county, acting as secretary of the board of county canvassers, nor was it certified and transmitted by such county clerk by mail to the governor, the secretary of state, or to the comptroller, any or either of them.

Hence the relators claim the paper was not a valid statement certified to as required by law and sent to the officers above named, and that the board of state canvassers had no authority in law to canvass the paper on that ground. But other allegations are made in the papers attacking the correctness of the return. In the relators’ papers it is alleged that the board of county canvassers threw out votes that had been counted for Mr. Deane for senator by the inspectors of election, and that they had also transposed votes canvassed by such inspectors, so that votes counted by inspectors for Mr. Deane'were given to Mr. Osborn,'and those counted for Mr. Osborn were given to Mr. Deane, and as a result of their improper and illegal acts it was charged that they had enlarged the plurality for Mr. Osborn from ninety-two, which appeared upon the face and as a result of the certificates of the inspectors of election from all the county, to one hundred and ninety-four, and such result would elect Mr. Osborn senator by fourteen plurality, instead of Mr. Deane.

In regard to the first objection to the certificate on file with the secretary of state, I do not think it valid. The county clerk acting as the secretary of the board of county canvassers, of which board he is not a member, assumed to sit in judgment upon the action of that body. His duty is purely ministerial. If the statement correctly sets forth the action of the board, such statement is to be certified as correct and attested by the chairman and secretary of the board, and a copy thus certified and attached is to be delivered to the county clerk to be recorded in his office. It is wholly immaterial to the secretary whether the board has done its duty in a valid way or not. The board takes that responsibility, and the secretary is simply to attest the action which the board has in fact taken. In this case it is alleged by the relators that the board threw out votes it ought not to have thrown out, and counted votes it had no right to count, and hence the county clerk was justified in his refusal to certify. This is a great mistake. The statute does not call for the views of the county clerk acting as secretary of the board as to the validity or invalidity of its action. The statements which the board actually makes it is the duty of the secretary to attest and the law casts upon him neither the obligation nor the responsibility of seeing that the board'has discharged its duty in a manner consistent with his views of the law.

The question arises as to what course may be validly taken in case a secretary of the board refuses to perform his duty ? Is the only remedy by mandamus to compel him so to do ? And until he does so sign the statement can nothing further be done in the way of completing the canvass in the county where such secretary resides ?

In a word, does the secretary ex officio control the situation, and has he the power to prevent the further execution of the election scheme as provided by law.? Suppose he and his deputy both absent themselves from the meetings of the board, is the board powerless to proceed, or, having proceeded as far as counting the votes and writing out the statements, are they then stricken with paralysis, which nothing can cure but the appearance or the signature of one or the other of these officials ?

I have no doubt as to the answer to be given each of these questions.

The remedy is not confined to mandamus to compel the secretary to sign. If his signature be absolutely necessary, his refusal to sign, and a temporary absence from the state, so that process could not be served upon him, would paralyze the whole election machinery from that time. Upon the contention of the relators such an outcome is by no means fanciful. The secretary assumes a supervision over the action of the board of canvassers, and if in any respect it be in his opinion illegal or improper, he refuses to attest the statement of the result of such action, and, in order to be entirely safe, absents himself from the office, or goes where he cannot be found, or steps into another state, and the result would be that nothing further can be done. I am quite clear nothing of this kind results from the wording of the statute providing that the county clerk shall act as secretary of the board, and that the statements shall be certified as correct, and attested by the chairman and secretary, and a "copy thus certified and attested shall be delivered to the county clerk to be recorded. The statute, so far as concerns this part, must be complied with as far as it can be under the facts.

If the county clerk do not appear, and if his deputy be also-absent, I have no doubt of the power of the board to appoint a secretary in their place to perform the duties which appertain to that office. And if the secretary appear, but refuse to perform his legal duty as secretary (a mere clerk of the body for which he is appointed), I think the body has power to designate one of its own members as a proper officer to attest, under its direction, the correctness of the statements it has caused to be made. It is for purposes of identification that these signatures are required. The object is to secure incontestable evidence that the paper to be acted upon officially by any public body thereafter is the paper or a true copy of the paper which was actually before the board and that it truly embodies the result of the action of such board.

Ordinarily this purpose is accomplished by the signature of the chairman and of the secretary ex officio, but if the latter unlawfully refuse to certify, the certificate may be made by the secretary appointed by the board pro tem. The unlawful refusal stands as an abdication of the functions of secretary, the result of which should not be the necessary resort to the dilatory process of mandamus to compel the performance of a simple ministerial, yet at the same time public and important duty. The delays incident to legal proceedings might rob the remedy of all possible efficiency, and thereby cause a failure of justice. Even a summary removal of the incumbent would have to be preceded by service of some kind of notice upon him giving him an opportunity to be heard, and if his whereabouts were unknown the same could not be made.

An immediate appointment of one of its own body to attest the correctness should be regarded as within the power of the board, and the attestation of such a secretary should be regarded as sufficient because the best that could under the circumstances be done. In such eases the power to appoint exists as an inherent power of the board to canvass and certify the work. To be effective the statute would have to use explicit language taking such power away.

The same reasoning applies to the subsequent steps.

The secretary appointed by the board attested the statements, together with the chairman, and sent one each to the secretary of state, the comptroller and the governor. A further statement certified by the chairman was delivered to the county clerk to be by him recorded as commanded by statute. This statement was not certified by the secretary pro tem., but it was attested by the chairman and delivered by the secretary pro tem. to the county clerk. It was the duty of the latter as we have seen to attest and certify to it, and if he did not this might defer the right to demand its record in his office until it was certified or attested by the secretary pro tem. ' The statute makes it the duty of the county clerk within five days of the adjournment of the board of county canvassers to deposit in the nearest post office, directed to the governor, the secretary of state and the comptroller, each, one of the certified copies of the statement and certificate of votes prepared by him.

It is further made the duty of the secretary of state to file in his office the certified statements received by him from a county clerk and to obtain from the governor and comptroller every such certified statement. It is the duty of the secretary of state to send for this certified statement if it have not been forwarded within the time prescribed by statute, and the county clerk is directed to deliver such statement to the messenger on demand. The secretary of state sent such a messenger to the clerk of Dutchess county and demanded a return but it was refused or at any rate not delivered. The state board is directed by the statute to proceed to make a statement and canvass the result upon the certified copies of the statements made by the boards of county canvassers.

Thus the whole scheme of the statute clearly shows that it was enacted so as to secure before the board of state canvassers the physical presence of accurate copies of the papers which were in truth acted on by the boards of county canvassers, and to this end is directed all the machinery of certificates and attestations by chairmen, secretaries and county clerks and the forwarding of duplicate certified statements to the state officers named in the statute. If these various attesting officers do their duty as provided for by law, doubtless their certificates and signatures are the only proper evidence of the verity of the papers they certify to.

The question in this case is whether the refusal of the county clerk to sign as secretary of the board of county canvassers, and his refusal to send to the state officers properly certified statements as required by law, shall prevent the state board from making any canvass. Upon the refusal of the county clerk, the proper statements, attested as stated, were sent by the secretary pro tem to the state officials. There is no question that this statement in the office of the secretary of state is one that was certified by the chairman and secretary pro tem and there -is -none that it truly embodies the action of the board of canvassers, but it is further urged that inasmuch as the county clerk has not sent the return to the office here as county clerk, no action can be taken upon it and no canvass can be made. This is, as we think, an erroneous view. When these officials refuse to perform their duty they cannot thereby prevent the further proceeding towards a completion of the canvass. This is a question where time is of the utmost-importance and any delay which might last for thirty days might have the most disastrous result upon the whole administration of the state government. In truth it might actually paralyze it or it might change the personnel of every state office. The county clerks have by law until the last day of November in which ■ to send their certified statements. If not then received, the secretary of state sends for them. If then refused and legal proceedings alone can be resorted to, delays naturally occurring and lasting for thirty days bring the time to the commencement of the New Year and the canvass may perhaps have gone on without the particular statement and an entirely different result secured than otherwise would have been. ' Or if the canvassers are to await the arrival of all the returns, their own term of office may expire by the first of the year, and their successors be unable to take possession or do an official act without a certificate or at least without questions and complications that ought not to exist

The real statements or the actual and honest copies thereof sent-to the state officers are the important thing to be considered, and when these .ministerial officials refuse the performance of their duties, the next best way to authenticate and prove the truth and genuineness of the .statements can in our judgment be taken, and in this case we think that under all the facts the steps taken to certify and authenticate the statements were valid, and the proceedings by which they were sent to, and received by the secretary of state and the other state officers were sufficient to entitle them to be filed and considered by the board of state canvassers as the properly certified result of the- canvass of the board of county canvassers.

The other ground for directing the state canvassers to omit to canvass this return remains to be considered.

The papers in substance allege that the board of county canvassers illegally canvassed the result of the returns from the inspectors of election in the whole county and made up its own canvass in opposition to such returns, and as a result gave ninety-two more plurality to Osborn than by the returns of the inspectors he was entitled to, and resulting in an apparent plurality of fourteen votes in the senatorial district in favor of Mr. Osborn. These allegations are nowhere denied in the papers used in opposition to the application for a mandamus. Mr. Mylod simply gives a history of the events as to the refusal of the secretary to sign and what then took place. The statement of the canvass as actually made is attached to the papers in opposition, but there is no explanation or contradiction as to the manner of arriving at the actual result as alleged in the moving papers. The whole case stands on that return as a legal and valid one. Treating the paper on file in the office of the secretary of state in the same way as if it were certified by the county clerk and sent from his office and duly received and filed in the office of the secretary of state, the question presents itself as to the proper course in such case.

We would then have a return which was on its face proper and valid, but in regard to which allegations were made that it was the result of an illegal action on the part of the county canvassing-board by which that board departed from its appropriate sphere as a ministerial body and in excess of its jurisdiction proceeded to make an invalid canvass, and the return on file embodied the result of such illegal canvass. Upon these facts standing uncontradicted, we think the court below in its proper branch would have the power to command the state canvassers to canvass without regard to such a return. As it contained the result of an illegal and erroneous canvass by the board of county canvassers in excess of its jurisdiction, and which thereby would alter the result of an election, the court should not permit it to be canvassed. 'As to the allegations of the manner of the making of the return by the county board, the state board could not itself inquire into them.

If another return should be duly sent to the board properly .authenticated and containing the result of the legal action of the board of county canvassers, the state board could canvass it

We think as a result that the order for the writ and the writ itself should be modified by striking out the provisions requiring a return to be certified by, and to come from the county clerk of Dutchess county and issued under his seal, and as so modified the order is affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Court of Appeals.
    Filed December 1, 1891.
    George Munro, App’lt, v. Ormond G. Smith et al., Resp’ts.

      Roger Foster, for app’lt.
   Judgment affirmed, with costs. All concur, except Ruger, Ch. J., not voting.

Affirming 36 St. Rep., 841.


text:
    Mayer Altmayer, Resp’t, v. The New York El. R. R. Co. et al., App’lts.

      Henry G. Atwater, for resp’t; Julien T. Davies, for app’lts.
   Judgment affirmed, with costs. All concur, except Earl, J., not voting.

Affirming 38 St. Rep., 530.


text:
    Michael O’Brien, Resp’t, v. Robert J. Smith, App’lt.

      Edward W. S. Johnston, for resp’t; S. W. Rosendale, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 37 St. Rep., 41.


text:
    Joseph Woerman, Resp’t, v. Berend Baas, Ind. and as Ex’r, App’lt.

      Frederick W. Holls, for resp’t; Benj. G. Hitchings, for app’lt.
   Appeal dismissed, with costs. All concur.

See 39 St. Rep., 922.


text:
    The People, Resp’ts, v. The N. Y. City Underground R. Co., App’lt; The New York Underground R. Co., Resp’t.

      David J. Dean, for resp’ts; Edward Winslow Paige, for app’lt.
   Appeal dismissed, with costs. All concur.

See 39 St. Rep., 425, 571.


text:
    Charles J. Quinby, Resp’t, v. John Claflin et al., App’lts.

      Minott M. Silliman, for resp’t; Henry Thompson, for app’lts.
   Order affirmed, with costs. All concur.

Affirming 39 St. Rep., 793.


text:
    John C. Provost, App'lt, v. Louis C. Roediger et al., Resp’ts.

      A. N. Weller, for app’lt; Geo. A. Stearns, for resp’ts.
   Appeal dismissed, with costs. All concur.

See 32 St. Rep., 1101.


text:
    Sebastian Duncan, Jr., Resp’t, v. The Preferred Mut. Accident Ass’n of N. Y., App’lt.

      David D. Duncan, for resp’t; Austen G. Fox and George W. Sill, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 36 St. Rep., 928.


text:
    Washington H. Taylor, App’lt, v. Catherine Taylor, Resp’t.

      Charles Wehle, for app’lt; Benjamin Scharfs, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 35 St. Rep., 622.


text:
    Abram M. Roos, App’lt, v. Henrietta Tremper Resp’t.

      W. F. O'Neill, for app’lt; B. R. Champion, for resp’t.
   Judgment affirmed, and judgment absolute ordered for defendant on stipulation, with costs. All concur.

Affirming 37 St. Rep., 182.


text:
    Ira Porter, Resp’t, v. The N. Y., L. E. & W. R. R. Co., App’lt.

      W. F. O’Neill, for resp’t; Lewis E. Carr, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 36 St. Rep., 315.


text:
    Harrison Mills, Resp’t, v. Jas. M. Mills et al., App’lts.

      J. W. Gott, for resp’t; W. F. O’Neill, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep., 165.


text:
    Mary S. Eldridge, Resp’t, v. Chas. B. Kenning, App’lt.

      Theodore Bacon, for resp’t; F. L. & J. E. Durand, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 35 St. Rep., 190.


text:
    Milo Howell, Resp’t, v. The Joseph Edwards Dredging Co., App’lt.

      Hatch & Warren, for resp’t; Alfred Jaretzki, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 36 St. Rep., 803.


text:
    David S. Randall, Resp’t, v. The State, App’lt.

      Melvine F. Stephens, for resp’t; Chas. F. Tabor, att’y-gen’l, for app’lt.
   Award' affirmed, with costs. All concur.


text:
    Charles Lippe, Resp’t, v. The Metropolitan R. Co. et al., App’lts.

      Charles Gibson Bennett, for resp’t; Brainard Tolles, for app’lts.
   Judgment affirmed on the Kernochan case, 41 St. Rep., 266, with costs. All concur, except Earl, J., not voting.

Affirming 33 St. Rep., 418.


text:
    Thomas O’Reilly et al., Resp’ts, v. The New York El. R. R. Co. et al., App’lts.

      Charles Gibson Bennett, for resp’ts; Julian T. Davies and Samuel Blythe Rogers, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 38 St. Rep., 1024.


text:
    The People, App’lts, v. Seth Bird et al., Resp’ts.

      E. T. Lovatt, for app’lts; Henry C. Griffin, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep., 156.


text:
    Alfred Lawrence et al., App’lts, v. Nicholas H. Freeland et al., Resp’ts.

      E. T. Lovatt, for app’lts; Henry C. Griffin, for resp’ts.
   Appeal dismissed on authority of case of Wood v. Lary, 124 N. Y., 83; 35 St. Rep., 53, with costs. All concur.

See 29 St. Rep., 284.


text:
    Daniel Mahoney, Resp’t, v. Louis Ungrich et al., Impl’d, App’lts.

      Wm. Arrowsmith, for resp’t; Edward W. S. Johnston, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 39 St. Rep., 189.


text:
    Christian D’Oro, Resp’t, v. The Atlantic Ave. R. R. Co., App’lt.

      A. H. Dailey, for resp’t; A. B. Boardman, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 37 St. Rep., 411.


text:
    Enoch P. Hincks et al., Resp’ts, v. Aaron Field et al., App’lts.

      Wm. J. Fanning, for resp’ts; Edward P. Lyon, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 37 St. Rep., 724.


text:
    Filed December 8, 1891.
    Burr Mattice, Resp’t, v. Henry Wilcox, App’lt.

      Douglas W. Miller, for resp’t; F. R. Gilbert, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 36 St. Rep., 914.


text:
    The Citizen’s Bank of Perry, N. Y., v. Helen A. Williams et al. The Same v. The Same. The Same v. The Same.
   No papers.

Mot on to return remittitur, etc.

Motion of plaintiff denied, with ten dollars costs. Motion of defendants for a return of the remittitur in each case granted, with ten dollars costs.

See 38 St. Rep., 834.


text:
    L. H. Carpenter et al. v. C. A. Carpenter et al.

   No papers.

Motion that appeals he heard together granted, without costs.

See 35 St. Rep., 512.


text:
    Hiram Gilmore v. The City of Utica et al.

   No papers.

Motion to add to calendar granted; cause added to the present calendar and placed at the foot.

See 40 St. Rep., 7.


text:
    Alex M. Hunter, Resp’t, v. Clara L. Walter et al., App’lts.
   No papers.

Motion for re-argument denied, with costs.

See 40 St. Rep., 979.


text:
    The People ex rel. John Andrews v. John C. McGuire.
   No papers, .

Motion for re-argument denied, with ten dollars co

See 38 St. Rep., 444.


text:
    Alex T. Compton, App’lt, v. The Chelsea, Resp’t.
   No papers.

Motion for re argument denied, with costs.

See 40 St. Rep., 606.


text:
    Filed December 15, 1891.
    John P. Magovern et al., Resp’ts, v. Evolin B. Robertson et al., App’lts.

      Wm. H. Henderson, for resp’ts; A. C. Pickard, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 37 St. Rep., 441.


text:
    Michael Bergman, Resp’t, v. The Manhattan R. Co. et al., App’lts.

      Chas. A. B. Pratt, Jr., for resp’t; Samuel Blythe Rogers, for app’lts.
   Judgment affirmed on the authority of decisions in cases of Kernochan, 41 St. Rep., 266, and Lynch, 41 St. Rep., 541, against these defendants, with costs. All'concur.

Affirming 39 St. Rep., 150.


text:
    The People ex rel. Roswell P. Flower, App’lt, v. Fred’k W. Bleckwenn Treasurer, Resp’t.

      Eliphalet Nott Anable, for app’lt; George W. Stephens, for resp’t.
   Order affirmed, with costs. All concur.

Affirming 27 St. Rep , 593.


text:
    The People ex rel. William E. Demarest, App’lt, v. John J. Gorman, Sheriff, et al., Resp’ts.

      Rufus M. Williams, for app’lt; Wales F. Severance, for resp’ts.
   Order affirmed, with costs. All concur.

Affirming 38 St. Rep., 891.


text:
    The People ex rel. Chas. V. Morgan, Resp’t, v. The Board of Supervisors of Westchester County, App’lt.

      Henry W. Bates, for resp’t; William Romer, for app’lt.
   Appeal dismissed, with costs. All concur.

See 39 St. Rep., 798.


text:
    Charles A. Clegg, Resp’t, v. The N. Y. Newspaper Union et al., App’lts.

      Wm. B. Hornblower, for resp’t; Horace Russell, for app’lts.
   Order affirmed as to all the defendants, except Beals, Foster & Rowell, with costs, and as to them reversed, with costs. All concur.

Affirming 35 St. Rep., 998.


text:
    David Miller, Resp't, v. Benj. Wright et al., App’lts.

      Samuel Keeler and F. P. Bellamy, for resp’t; Norton Chase, for app’lts.
   Order affirmed, with costs. All concur.

Affirming 39 St. Rep., 44.


text:
    The People ex rel. Charles J. Clinch et al., App’lts, v. Harrison S. Moore et al., Resp’ts.

      Thomas Young, for app’lts; James S. Allen and Alfred A. Gardner, for resp’ts.
   Order affirmed, with costs. All concur.

Affirming 39 St. Rep., 881.


text:
    Eunice A. Bigelow v. Sarah A. Doying et al., Impl’d, Resp’ts; The Bloomingdale Stone, etc., Co., App’lt.

      James P. Campbell, for resp’ts; John C. Shaw, for app’lt.
   Appeal dismissed on ground of order appealed from not being final, with costs. All concur.

See 36 St. Rep., 636.


text:
    Filed December 22, 1891.
    The Mayor, etc., of N. Y., App’lt, v. Tradesmen’s Nat. Bk. of N. Y., Resp’t.

      Simon Sterne, for app’lt; Thomas Allison, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 31 St. Rep., 726.


text:
    Fred’k C. Linde et al., Resp’ts, v. Hugh J. Grant, Sheriff, App’lt.

      John E. Parsons, for resp’ts; A. Blumenstiel, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 37 St. Rep., 60.


text:
    Anna W. Brown, Resp’t, v. Austin Corbin, Rec’r, App’lt.

      E. Francis Hyde, for resp’t; E. B. Hinsdale, for app’lt.
   Judgment affirmed, with costs. All concur.


text:
    Wm. P. Titus, Resp’t, v. John E. Haynes et al., App’lts.

      Reuben H. Underhill, for resp’t; Moore & Moore, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 31 St. Rep., 409.


text:
    Clara Isabelle Curtis et al., App’lts, v. Ann Murphy et al., Resp’ts.

      John Townshend, for app’lts; John F. Dillon, for resp’ts.
   Judgment affirmed on case of Townshend v. Frommer, 125 N. Y., 446 ; 36 St. Rep., 153, with costs. All concur.

Affirming 33 St. Rep., 799.


text:
    Timothy Dolan, App’lt, v. The City of Brooklyn, Resp’t.

      F. A. McCloskey, for app’lt; Almet F. Jenks, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 29 St. Rep., 196.


text:
    George J. Axt et al., Resp’ts, v. John P. Shankey, App’lt.

      Franks Comesky, for resp’ts; George W. Weiant, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 37 St. Rep., 897.


text:
    The United States Nat. Bank, Resp’t, v. The Nat. Park Bank of N. Y., App’lt.

      James G. Janeway, for resp’t; Peter A. Hendrick, for app’lt.
   Judgment affirmed on opinion of general term, with costs. All concur.

Affirming 37 St. Rep., 35.


text:
    Gates Thalheimer, App’lt, x. Felix C. Klapetzky et al., Resp’ts.

      Thomas Hgan, for app’lt; C. G. Baldwin, for resp’ts.
   Affirmed on authority of Manning v. Beck, 41 St. Rep., 199, with costs. All concur.

Affirming 36 St. Rep., 116.


text:
    David Sears et al., Resp’ts, v. The Metropolitan El. R. Co. et al., App’lts.

      G. Willett Van Nest, for resp’ts; Samuel Blythe Rogers, for app’lts.
   Judgment affirmed, with costs, on case of Lynch v. Same Defendants, 41 St. Rep., 541. All concur.

Affirming 38 St. Rep., 353.


text:
    Max S. Korn, Resp’t, v. The Metropolitan El. R. Co. et al., App’lts.

      George Zabriskie, for resp’t; Brainard Tolles, for app’lts.
   Judgment affirmed, with costs. All concur, except Gray, J., not voting.

Affirming 37 St. Rep., 597.


text:
    Max S. Korn, Resp’t, v. The New York El. R. R. Co. et al., App’lts.

      George Zabriskie, for resp’t; Brainard Tolles, for app’lts.
   Same as last above.

Affirming 37 St. Rep., 597.


text:
    John Messenger, Resp’t, v. The Manhattan R. Co. et al., App’lts.

      Lewis L. Delafield, for resp’t; Samuel Blythe Rogers, for app’lts.
   Judgment reversed and new trial ordered, costs to abide event, on authority of Roberts v. Same defendants, 128 N. Y., 455; 40 St. Rep., 454. All concur.

Reversing 36 St. Rep., 1024.


text:
    Edward Jacoby, Resp’t, v. Henry A. Ockerhausen, App’lt.

      Clarence M. Smith. for resp’t; Frederick E. Anderson, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 37 St. Rep., 710.


text:
    Chas. C. Leary, Adm’r, App’lt, v. Henrietta Hutton et al., Resp’ts.

      Wm. H. Harris, for app’lt; John L. Cadwalader, for resp’ts.
   Judgment affirmed on opinion ‘below, with costs. All concur.

Affirming 35 St. Rep., 773.


text:
    Andrew Gilhooly, Resp’t, v. Adolph Tannenbaum et al., App’lts.
   No papers.

Appeal dismissed, with costs.

See 39 St. Rep., 71.


text:
    Filed December 23, 1891.
    Thomas Taylor, App’lt, v. The Village of Mt. Vernon, Resp’t.

      Eugene Archer, for app’lt; Joseph S. Wood, for resp’t.
   Judgment affirmed and judgment absolute ordered for defendant, on the stipulation, with costs. All concur.

Affirming 34 St. Rep., 640.


text:
    Frank Work et al., App’lts, v. Miles Beach, Resp’t.

      Henry S. Bennett, for app’lts: Augustus C. Brown, for resp’t.
   Judgment affirmed on opinions below, with costs. All concur.

Affirming 37 St. Rep , 547.


text:
    Filed December 29, 1891.
    The People ex rel. Patrick Ryan, Resp’t, v. The Board of County Canvassers of Onondaga County et al., App’lts.

      Joseph H. Choate, Wm. A. Sutherland, Matthew Hale, J. F. Parkhurst and Eugene Burlingame and Wm. Nottingham, for app’lts; Louis Marshall, for resp’t.
   Order affirmed, without costs. All concur, except Andrews, Finch and Peckham, JJ., dissenting.


text:
    In the Matter of the Application of The People ex rel. Rufus T. Peck, Resp’t, v. The State Board of Canvassers, App’lt.

      Joseph H. Choate, Wm. A. Sutherland and Matthew Hale, for resp’t; I. H. Maynard and Delos McCurdy, for app’lt.
   Orders of general and special terms reversed, and application for mandamus denied, without costs. All concur, except Andrews, Finch and Peckham, JJ., dissenting.


text:
    The Same, Resp’t, v. The County Board of Canvassers of Onondaga County, App’lt.
   Same as last above.


text:
    Second Division.
    Filed December 1, 1891.
    Annie F. Darragh, Resp’t, v. Reuben Ross, App’lt.

      S. E. Fairfield, for resp’t; James M. Hunt, for app’lt.
   Judgment affirmed, with costs. All concur, except Brown, J., not sitting.

Affirming 28 St. Rep., 632.


text:
    John Hourney, Resp’t, v. The Brooklyn City R. R. Co., App’lt.

      Isaac M. Kapper, for resp’t; Samuel D. Morris, for app'lt.
   Judgment affirmed, with costs. All concur, except Follett, Ch. J., and Parker, J., who dissent.

Affirming 27 St. Rep., 49.


text:
    Robert J. Howe, Resp’t, v. Joseph J. Morehouse et al., App’lts.

      James M. Hunt, for resp’t; A. M. & G. Card, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 27 St. Rep., 896.


text:
    Victoria A. Jones et al., App’lts, v. William Slocum, Resp’t.

      John C. Hulbert, for app’lts; Matthew Hale, for resp’t.
   Judgment affirmed, with costs. All concur, except Parker, J., absent.

Affirming 21 St. Rep., 934.


text:
    Charles H. Smith, Resp’t, v. Joseph Ryan, App’lt.

      James D. Bell, for resp’t; Horace Graves, for app’lt.
   Judgment affirmed, with costs. All concur, except Parker, J., absent.

Affirming 29 St. Rep., 672.


text:
    Julius A. Kohn, App’lt, v. Malcolm Henderson, Resp’t.

      Nathan Bijur, for app’lt; Moore & Moore, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep., 374.


text:
    Courtland L. Hungerford, Resp’t, v. Hannah M. Bent, App’lt.

      John J. Ryan, for resp’t; Edmund L. Pitts, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 28 St. Rep., 191.


text:
    Mary Duffy, Resp’t, v. Catherine Duffy, Impl’d, App’lt. Susan Daly et al., Resp’ts.

      Sidney H. Stuart, for resp’t; Rufus M. Williams, for app'lt; Wm. Irwin and Delos McCurdy, for Daly et al., resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 19 St. Rep., 228.


text:
    Nicola Lofrano, Resp’t, v. The N. Y. & Mt. Vernon Water Co., App’lt.

      Joseph S. Wood, for resp’t; Isaac N. Mills, for app’lt.
   Judgment affirmed, with costs. All concur, except Follett, Ch. J., not voting.

Affirming 29 St. Rep., 557.


text:
    Rose N. Hanrahan, App’lt, v. The Manhattan R. Co., Resp’t.

      Charles Strauss, for app’lt; Samuel Blythe Rogers, for resp’t.
   Order affirmed, and judgment absolute rendered against appellant, with costs. All concur, except Follett, Ch. J., not voting.

Affirming 24 St. Rep., 790.


text:
    Filed December 8, 1891.
    George H. Tilden, Resp’t, v. Andrew H. Green et al., App’lts.

      Joseph H. Choate, Delos McCurdy and E. Countryman, opposed; James C. Carter, for motion.
   Motion for re-argument denied. All concur, except Bradley and Vann, JJ., dissenting.

Motion to amend remittitur denied, without costs. All concur, except Potter, J.. not voting.

See 40 State Rep., 512.


text:
    Elizabeth C. Bartlett, Resp’t, v. The N. Y. & South Brooklyn Ferry & Steam Trans. Co., App’lt.

      Thos. E. Rochfort, for resp’t; George Zabriskie, for app’lt.
   Judgment affirmed, with costs. All concur, except Parker, J., not voting.

Affirming 29 St. Rep., 357.


text:
    Abijah Weston et al., Resp’ts, v. Lorenz Reich, App’lt.

      F. P. Bellamy, for resp’ts; Abram Kling, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 28 St. Rep., 81.


text:
    Cyrus D. Angell, Resp’t, v. William Van Schaick et al., App’lts.
   No papers.

Motion to remit return to the supreme court granted, without costs.

See 30 St. Rep., 714.


text:
    Filed December 15, 1891.
    Enoch H. Gurney, Resp’t, v. The Union Transfer & Storage Co., App’lt.

      A. C. Fransioli, for resp’t; Sumner C. Chandler for app’lt.
   Judgment affirmed, with costs. Order affirmed, without costs. All concur.

Affirming 29 St. Rep., 274.


text:
    The Lidgerwood Mfg. Co., App’lt, v. John C. Rogers et al., Resp’ts.

      Harriman & Fessenden, for app’lt; E. T. Lovatt, for resp’ts.
   Appeal dismissed, with costs. All concur, except Potter, J., not voting.

See 21 St. Rep., 452.


text:
    Isabella Crosier, Resp’t, v. David Craig, App’lt.

      Edwin D. Wagner, for resp’t; W. H. Johnson, for app’lt.
   Judgment affirmed, with costs. All concur, except Follett, Ch. J., not sitting, and Potter, J., not voting.

Affirming 13 St. Rep., 208.


text:
    Adelbert G. Richmond, Resp’t, v. John F. Diefendorf, App’lt.
    No appearance for resp’t; Z. S. Westbrook, for app’lt.
   Judgment reversed, new trial granted, costs to abide event, on authority of Vosburgh v. Diefendorf, 119 N. Y., 357; 29 St. Rep., 448. All concur.

Reversing 28 St. Rep., 984.


text:
    Filed December 22, 1891.
    Daniel J. Sprague, App’lt, v. The Bartholdi Hotel Co., Resp’t.

      David Keane, for app’lt; Nathaniel Myers, for resp’t.
   Judgment affirmed, with costs. All concur.


text:
    Charles H. Hunter, Resp’t, v. The New York, Ont. & W. R. R. Co., App’lt.

      M. H. Hirschberg, for resp’t; William Vanamee, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 32 St. Rep., 713.


text:
    George Hotis, App’lt, v. The N. Y. C. & H. R. R. R. Co., Resp’t.

      E. Countryman, for app’lt; Hamilton Harris, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 25 St. Rep., 525.


text:
    The Trustees of Village of Geneva, App’lts, v. The Brush Electric Co. of Cleveland, Ohio, Resp’t.

      Arthur P. Rose, for app’lts; Wm. E. Cushing, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 28 St. Rep., 284.


text:
    Jacob P. Stocksdale, Resp’t, v. Walter G. Schuyler, Surv’r, App’lt.

      Stephen B. Jacobs, for resp’t; DeWitt C. Brown, for app’lt.
   Judgment affirmed, with costs. All concur. ,

Affirming 29 St. Rep., 380.


text:
    Charles A. Post, Resp’t, v. William A. Simmons et al., App’lts.

      J. Langdon Ward, for resp’t; Evarts, Choate & Beaman, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep., 339.


text:
    Filed December 23, 1891.
    Charles H. Wilson, Resp’t, v. The Brooklyn El. R. R. Co., App’lt.

      M. L. Towns, for resp’t; Edward H. Rand, Jr., for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep., 240


text:
    Hannah C. Brink, Resp’t, v. The Guaranty Mutual Accident Association, App’lt.

      Wm. F. O’Neill, for resp’t; R. J. Moses, Jr., for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 28 St. Rep., 921.


text:
    Frank B. Hodgkins, Resp’t, v. Sarah F. Mead, App’lt.

      Henri Pressprich, for resp’t; F. E. Dana, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 29 St. Rep., 671.


text:
    James G. Tinsley et al., Resp’ts, v. Paul Weidinger, App’lt.

      Michael H. Cardozo, for resp’ts; Edward W. S. Johnston, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 29 St. Rep., 140.


text:
    Christopher B. Keogh et al., App’lts, v. Ferdinand R. Minrath, Impl’d, Resp’t.

      E. J. Myers, for app’lts; F. R. Minrath, for resp’t.
   Judgment affirmed, with costs, on the opinion of the court below. All concur.

Affirming 30 St. Rep., 129.


text:
    Albert J. Riss, Resp’t, v. Daniel Messmore, App’lt.

      Chas. S. Miller, for resp’t; Moody B. Smith, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep., 250.


text:
    Spencer Kellogg et al., Resp’ts, v. George Farquhar, Jr., et al., App’lts.

      Spencer Clinton, for resp’ts; Backus W. Huntington, for app’lts.
   Judgment affirmed, with costs. All concur, except Haight, J., absent.

Affirming 28 St. Rep., 914.


text:
    Wm. H. Hussey, Resp’t, v. Weeks W. Culver and Benjamin Wright, App’lts.

      Geo. C. Lay, for resp’t; D. Edgar Anthony, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep., 836.


text:
    Supreme Court—General Term—First Department.
    Filed November 13, 1891.
    Albert Jean Tauziede, v. Francois Henry Jumel et al.

   Motion for re-argument denied, with ten dollars costs.


text:
    Louis Youngling et al., Resp’ts, v. John E. Brada, App’lt.
   Motion denied, with ten dollars costs.


text:
    People ex rel. Charles Putzel v. John Simonson et al.

   Motion granted.


text:
    William H. Geary et al. v. Eliza A. Melvin et al.

   Upon payment of ten dollars costs of the previous motion to dismiss, and ten dollars costs of the present motion, this motion will be denied.


text:
    In the Matter of the Judicial Settlement of Account of Henry S. Myers, Adm'r of Jacob Charles Myers, Dec’d.
   The delay in serving order upon previous motion was so great that this motion should be denied.


text:
    The Norfolk & New Brunswick Hosiery Co. v. Anna M. Arnold.
   Motion granted, with ten dollars costs.


text:
    Neil McLeod Keating, App’lt, v. Adeline F. Keating, Resp’t.
   Motion denied.


text:
    George F. Hodgman v. Stephen T. Barker.
   Motion granted, with ten dollars costs.


text:
    Filed November 30, 1891.
    William P. Walton v. Albert P. Stewart.
   Motion granted.


author: Mayham, J.

text:
    General Term—Third Department.
    Filed November 30, 1891.
    James Smith, Executor, App’lt, v. Frank Pelott, Resp’t.
    P. R. Chapman, for app’lt; H. D. Bailey, for resp’t.
   Mayham, J.

Motion for re-argument of this appeal. At the last general term of this court, the judgment in this action was affirmed on the argument without any written opinion by the court. The appellant now moves for a re-argument on the ground that the judgment appealed from was in the nature of a judgment of nonsuit by the referee, and that there is some evidence on the part of the plaintiff raising a question of fact, and that the case should, therefore, have been considered upon the merits by the referee.

Without passing upon the merits of the case, we think, within the case of Forbes v. Chichester, 125 N. Y., 769 ; 36 St. Rep., 248, and upon the facts appearing upon this motion, there should be a re-argument of this appeal. Judgment of affirmance vacated.

Re-argument allowed with ten dollars costs of this motion to abide the event of the appeal.

Learned, P. J., and Landon, J., concur.


text:
    Alexander H. Kerr, Resp’t, v. Mary Hammer, App’lt.
   Motion for a re-argument, and to go to the court of appeals, denied.


text:
    Minnie O’Neil, by guardian, Resp’t, v. Fred C. Battle, App’lt.
   Order modified, so as to charge defendant only in his representative capacity.


text:
    The People ex rel. The Glens Falls Insurance Company, Resp’t, v. John E. Landon et al., App’lts.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    In the Matter of the Dissolution of The Whitehall Lithographic Co.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Orlando P. Dexter, App’lt, v. Warren Joseph Alfred, Resp’t.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Orlando F. Heath, App’lt, v. Frank C. Satterlee, Resp’t.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    General Term—Fourth Department.
    Filed November 21, 1891.
    Robert D. Denison et al. v. Caroline Denison et al. George E. Denison, App’lt, v. James L. Denison et al., Resp’ts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Clara A. Lake, Resp’t, v. William Lawton, Impl’d, App’lt.
   Judgment and order affirmed, with costs.


text:
    Mary Hiller, App’lt, v. Catharine Vincent, Resp’t.
   Judgment of the county court and judgment of justice’s court reversed, with costs.


text:
    William W. Hare, App’lt, v. J. K. Follett, Resp’t.
   Motion for leave to appeal to the court of appeals denied.


text:
    Austin O. Ames et al., App’lts, v. The Associated Lace Makers Company, Resp’t.
   Order reversed, with ten dollars costs and disbursements, plaintiff to receive answer in ten days upon payment of ten dollars costs and disbursements, and ten dollars costs of motion.


text:
    Dora Grubert, App’lt, v. The Delaware, Lackawanna & Western R. R. Co., Resp’t.
   Judgment affirmed, with costs.


author: Bischoff, J.

text:
    New York Common Pleas—General Term.
    Filed December 7, 1891.
    Henry B. Sire, App’lt, v. Geo. W. Rumboldt et al., Resp’ts.
    Motion for leave to appeal to the court of appeals.

      A. I. Sire, for app'lt; A. Kling, for resp’ts.
   Bischoff, J.

The only question involved in the appeal herein was as to the admissibility of evidence of a contemporaneous paroi agreement not inconsistent with the terms of a written instrument to affect the latter. That such evidence is admissible was determined by the court of appeals in Chapin v. Dobson, 78 N. Y., 75, which we followed, reference to that case being made in our opinion herein, published in 39 St. Rep., 85. Appellant’s counsel does not undertake to distinguish the present case from that of Chapin v. Dobson, and the only ground for this application, that the question herein determined by us is novel and has not yet received the consideration of the highest appellate court, is, therefore, untenable. The motion should be denied, with costs.

Daly, Ch. J., and Pryor, J., concur.


text:
    The People v. Jas. Byrne, Principal, and Patrick Cunningham, Surety.
    Application to vacate a judgment entered upon a forfeited recognizance.

      L. Hanneman, for pl’ff; Jacob Lerlinger, for dei’ts.
   Bischoff, J.

From the certificate of the corporation attorney accompanying the moving papers, it appears that the judgment entered upon the forfeiture was paid. The motion to vacate and discharge the judgment should, therefore, be granted.

Daly, Ch. J., and Pryor, J., concur.


text:
    The People v. John P. Kerwin et al.

    Application for the remission of a forfeited recognizance, and to vacate judgment entered thereon.

      De Lancey Nicoll, for pl’ff; Howe & Hummel, for def’ts.
   Bischoff, J.

The papers fail to show that the costs and expenses of the proceedings to enforce the forfeiture have been paid. People, etc., v. Lasher, 34 St. Rep., 307. Upon production of the certificate of the district attorney that such costs and expenses have been paid, inclusive of sheriff’s fees, this application should be granted.

Daly, Ch. J., and Pryor, J., concur.


text:
    Frederick Holler et al., Resp’ts, v. Michele Tarchini et al., App’lts. Frederick Holler et al., Resp’ts, v. Filippa Apa et al., App’lts. Frederick Holler et al., Resp’ts, v. Tomasso Giordano et al., App’lts.
   Motion to dismiss appeal for want of prosecution granted, with costs.


author: Per Curiam.

text:
    New York. Superior Court—General Term.
    Filed December 10, 1891.
    William Nelson Cromwell, Assignee, Resp’t, v. William F. Black, App’lt.
    Appeal from order denying defendant’s motion for a further bill of particulars.
   Per Curiam.

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


author: Sedgwick, Ch. J.

text:
    Warren Rosevelt, Resp’t, v. Alexander McGaw, App’lt.
    Appeal by defendant from order of reference.

      Leavitt & Kerth, for app’lt; Wm. G. Bussey, for resp’t.
   Sedgwick, Ch. J.

Order affirmed, with ten dollars costs.


text:
    William Dempsey, App’lt, v. John Heany, Resp’t.
    Appeal from order vacating ah order for the examination of defendant before trial.

      Edmund Luis Mooney, for app’lt; Bernard Metzger, for resp’t.
   Per Curiam.

The learned judge was right in holding that no necessity for an examination was shown. Indeed, take the whole of the affidavit together it appears that the examination was to be used as a preparation for trial.

Order affirmed, with ten dollars costs.


text:
    The New York Life Insurance Co., Resp’t, v. James Aitkin, Executor, App’lt.
    Appeal from part of order allowing defendant to amend answer upon terms.
   Per Curiam.

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


text:
    Filed December 14, 1891.
    Ashner v. Schreiber et al.

   Motion to strike cause from calendar and to affirm order and judgment, with costs, granted, as per order filed.


text:
    Haywood v. Van Cott et al.

   Appeal dismissed, with costs, as per order filed.


text:
    C. Gray Bolton et al., App’lts, v. William Schrieber et al., Resp’ts.
    Appeal from order made at special term, July 23, 1891.

      Smith & Perkias, for app’lts; Johnson & Johnson, for resp’ts.
   Per Curiam.

Order appealed from affirmed, with ten dollars costs.


text:
    James C. Duff, Resp’t, v. Lillian Russell, App’lt.
    Appeal from judgment rendered at the equity term of the court in favor of plaintiff.

      Howe & Hummel, for app’lt; Tanderpool, Green & Cumings, for resp’t.
   Per Curiam.

Judgment affirmed, with costs, upon the opinion of the trial judge.


text:
    Filed December 17, 1891.
    Mary T. Constant et al., Ex’rs, Resp’ts, v. The University of Rochester, Impl’d, App’lt.
    Appeal from judgment rendered in favor of plaintiff.

      Martin W. Cook, for app’lt; J. E. Parsons, for resp’ts.
   Per Curiam.

We have examined the record in the light of the opinion of the court of appeals (111 N. Y., 604; 20 St. Rep., 211), and find that the defects in the proof on the former trial have been supphed and that the present record requires an affirmance. For these reasons and those expressed by the trial judge in his opinion, printed on pages 70 and 71 of the case, the judgment appealed from must be affirmed, with costs.


text:
    Edith Kane, Resp’t, v. The Metropolitan Railway Co. et al., App’lts.
    Appeal from judgment rendered in favor of plaintiff.

      Davies & Rapallo, for app’lts; J. A. Weeks, for resp’t.
   Per Curiam.

We have carefully examined the record. The findings were intelligently passed upon, according to prevailing practice, and we have failed to discover any error in the rulings which requires a new trial.

Judgment affirmed, with costs.


text:
    Eliza Whitlock White, Resp’t, v. The New York El. R. R. Co. et al., App’lts.
    Appeal from judgment rendered in favor of plaintiff.

      Davies & Rapallo, for app’lts; G. Willett Van Nest, for resp’t.
   Per Curiam.

We have carefully examined the record. The findings were intelligently passed upon, according to prevailing practice, and we have failed to discover any error in the rulings which requires a new trial.

Judgment affirmed, with costs.


text:
    Lizzie P. Sanford, Resp’t, v. Nathan H. Sanford, App’lt.

      (New York Superior Court,

      General Term,

      Filed December 10, 1891.)

    Divorce—Alimony—Laws 1880, chap. 245, § 3.
    An additional allowance for support of children cannot be granted after the decree is entered in a case commenced in 1888. The provision of subd. 2 of § 3 of chap. 245, Laws 1880, saving from the effect of the repeal by that act all rights, defenses or limitations lawfully accrued or established before the act took effect, relates to something which may he enjoyed and as to which facts exist which give a present right of enforcement, and as the children in 1880 were not entitled to the support as claimed it could not be granted.
    Appeal by defendant from order.

      B. R. Champion, for app’lt; A. Britton Havens, for resp’t.
   Per Curiam.

In 1888 the plaintiff began this action for divorce a vinculo and obtained judgment. The judgment provided that the defendant pay certain money for the support and education of children of the marriage. In 1891 the application below was made for an order that the ■ defendant pay further money for the support of the children.

It is admitted that the respondent was entitled to the order only if § 59, tit. 1, chap. 8, part 2, Eev. S., 2d ed.,154 (148), is to be applied to the case. That section would permit the making of such an order after judgment. The section has been repealed by chap. 245, Laws of 1880, with saving provisions. And it is argued that § 3 of the repealing act saves from the effect of repeal cases like the present. The first subdivision declares that the repeal does not render ineffectual or otherwise impair any proceeding in an action or special proceeding had or taken pursuant to law before this act takes effect. This action was begun in 1888. The action of Erkenbrach v. Erkenbrach, 96 N. Y., 463, and Washburn v. Catlin, 97 id., 623, were begun before the repealing act of 1880. There was no intimation of the particular subdivision of § 3 that saved the proceedings, but the first subdivison was so clearly applicable that it ismot to be decreed that there was any adjudication as to subdivision two that provides that the repeal “ does not affect any other lawful act done or right, defence or limitation lawfully accrued or established before this act takes effect.” Neither the respondent nor the children had any right within the meaning of the section. The section means not a general or political right, but something which may be enjoyed and as to which facts exist which give a present right of enforcement. At the time of the repealing act the children were not entitled to the support they claimed under the application below.

By presumption the defendant had fulfilled his duties and there was no right of action against him.

The order should be reversed and the motion below denied, with ten dollars costs.

Sedgwick, Oh. J, Freedman and Dugro, JJ, concur.


author: McAdam, J. Dugro, J.

text:
    William F. Erving, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (New York Superior Court,

      General Term,

      Filed December 10, 1891.)

    New York citt—Contract—Forfeiture of deposit.
    A forfeiture of a deposit made by a bidder for a contract cannot be enforced under § 65 of the Consolidation Act until he has had written notice that the contract has been awarded to him.
    Appeal from judgment in favor of plaintiff granted on the defendant’s answer.
   The following is the opinion delivered at special term:

McAdam, J.

The defendant advertised, inviting bids for regulating, grading, flagging, curbing and guttering the first new avenue west of Eighth, between One Hundred and Forty-fourth and One Hundred and Fifty-fifth streets, and requiring that each bid be accompanied by a certified check in a sum not less than five per centum of the amount of the bond required, which was $20,000. The plaintiff was the lowest bidder, and the commissioner of public works transmitted the bid, bond and check to the comptroller for the purpose of having the sufficiency of the sureties determined. The defendant alleges that the plaintiff was apprised of the fact that he was the lowest, bidder, and that such apprisal was the award of the contract to him; that the sureties furnished were examined by the comptroller, found not to be satisfactory, and were rejected, and that the plaintiff neglected to present other sureties, whereupon the work was readvertised and let at a higher price than the original bid of the plaintiff, whereby, and in consequence thereof, the deposit of $1,000 was forfeited by force of the provisions of § 65 of the Consolidation Act of 1882. Whether there was such a forfeiture is the question to be determined.

The award contemplated is more than an apprisal that the 7")laintiff is the lowest bidder; it is a quasi judicial act, formal in its character, involving a determination by the officials of all the facts in the nature of conditions precedent. East River G. L. Co. v. Donnelly, 25 Hun, 614; affirmed, 98 N. Y., 575; People v. Gleason, 121 id., 631; 31 St. Rep., 903.

The act, Laws 1882, chap. 410, § 64, provides that if the lowest bidder shall neglect or refuse to accept the contract within five days after written notice that the same has been awarded to him, or if he accepts, but does not execute the contract and give the proper security, the work shall be re-advertised and relet. The five days written notice required by this section was not given. Section 65 provides that if the lowest bidder shall refuse or neglect, within five days after due notice that the contract has been awarded, to execute the same, the amount of deposit made by him shall be forfeited to and retained by the city as liquidated damages for such neglect or refusal, and shall be paid into the sinking fund of the city; but if the lowest bidder shall execute the contract within the time aforesaid, the amount of his deposit shall be returned to him. The due notice referred to in this section is the written notice referred to in the preceding section.

The sections referred to constitute a revision of the act of 1881, chap. 147, designed to protect the city from loss that might occur by the refusal of the lowest bidder to execute the contract, in the manner and form required by law, after the award thereof by the corporate authorities.

The section creating the forfeiture is penal in its nature, and is to be strictly interpreted. Forfeitures are not favored, and courts adhere to the precise words of the condition to prevent a forfeiture. The plaintiff submitted his bid in good faith, and earned all the consideration the nature of the transaction entitled him to receive. If the bid offered did not meet legal requirements, it might have been disregarded and the contract awarded to the next bidder whose bid satisfied the law. If this had been done, the plaintiff would have been entitled to the return of his deposit, for he was not the lowest bidder in legal contemplation.

If the plaintiff’s bid was the lowest and met legal requirements, then it became the duty of the defendant’s agents to formally award the contract to the plaintiff, and give him the five days written notice of such award. If the sureties were not satisfactory to the comptroller, he should have notified the plaintiff, and afforded him a reasonable opportunity of furnishing others. It was not intended to enforce forfeiture under the section cited, except where it became necessary to protect the interests of the city. There should be no loss to the plaintiff without a reasonable possibility of whatever gains the contract might have afforded." The defendant could acquire title to the plaintiff’s money only by a literal compliance with all the requirements of the statute necessary to produce such a result. The determination of the question left to the decision of the authorities must not be arbitrary or capricious, but judicial in its character and fair.

The plaintiff was not notified of the rejection of his sureties, and was not afforded an ppportunity of furnishing others, so that the plaintiff has not been put in default, nor has the defendant, by forfeiture or otherwise, become the owner of the plaintiff’s deposit. It has been duly demanded, and the plaintiff is entitled to its return, with interest from the time of such demand. These views do not conflict with those expressed in Moore v. Loew, MS. Opinion Com. Pleas, Dec. 11, 1886, aff’d by Gren’l T’m and by Ct. of Appeals, without opinion, 105 N. Y., 666; 8 St. Rep., 909. In that case the contract was legally awarded to Moore, and after his sureties were rejected he refused to furnish others in their place. There was a clear forfeiture of the deposit in that case. Mot so here. The material facts are admitted and there is no issue for the trial term. It follows that the plaintiff is entitled to judgment for $1,000, the amount of the deposit with interest as aforesaid, and the motion therefor must be with costs.

Richard T. Morrison, for resp’t; William H. Glarh, for app’lt.

Dugro, J.

The judgment and order appealed from are affirmed,, upon the opinion of the learned judge below.

Sedgwick, Ch. J., and Freedman, J., concur.


author: Freedman, J.

text:
    Morgan L. Livingston et al., Resp’ts, v. The Manhattan Railway Co. et al., App’lts. Silvia Livingston, Resp’t, v. The Manhattan Railway Co et al., App’lts. Julia Livingston, Resp’t, v. The Manhattan Railway Co. et al., App’lts.

      (New York Superior Court,

      General Term,

      Filed December 10, 1891.)

    Reference—Report—Findings.
    The additional facts which may he found pursuant to the direction of § 1023 need not be inserted in the decision or report of a referee if they are immaterial, or if they have already been substantially covered by the findings contained in the decision or report.
    Appeal by the defendants from an order denying the motion to send back the report of the referee in each of the three actions.

      Davies & Rapallo, for app’lts; Olin, Rives & Montgomery, for resp’ts.
   Freedman, J.

In each of the above entitled actions the defendants moved that the report of the referee be vacated and set aside, and that the action be sent back to the referee, and that he be directed to make a report, including all of the facts found by him, and all the conclusions of law found thereon. The motions-were denied, and the defendants appealed.

Each of these actions was the usual action by an abutting owner for an injunction and for damages by reason of the construction, maintenance and operation of an elevated railroad in front of such owner’s premises. By consent of the parties the actions were referred to a referee to hear and determine the same, and they were so tried. On the trial the plaintiffs and the defendants proposed separate findings of fact and conclusions of law, and submitted them to the referee. He marked on the margin the disposition made of each proposition, and returned the proposed findings to the attorneys of the respective parties. At the same time the referee delivered to the attorneys for the plaintiffs his report in each action made up by himself, in which he found that the plaintiffs were entitled to an injunction and to damages.

It is now claimed, as it was claimed on the motions below, the reports so made up do not contain all the facts found by the referee at the request of the defendants, and that for this reason the reports should have been vacated and set aside and the actions referred back to the referee for a proper report. The claim that the reports do not contain all these facts is, in form, correct.

The first question then is whether the defendants were prejudiced by the omission.

Each report is complete in itself and appears to comply with the substantial requirements of the Code and the practice heretofore observed. It contains a full statement of facts found, a statement of conclusions of law based thereon, and a direction for the appropriate judgment. There were made by the defendants in the case of Morgan L. Livingston fifty-seven requests to find facts and twenty-three requests to find conclusions of law ; in the case of Julia Livingston fifty-five requests to find facts and twenty-four to find conclusions of law; and in the case of Silvia Livingston, fifty-seven requests to find facts and twenty-four conclusions of law.

Of these, many were found as requested with the remark that they had been so found in the report, others were found with a qualification, still others were simply marked “ found,” and the remainder were refused. The referee included in his report in each case all such facts as he deemed necessary to support his conclusions of law. Each report contains twenty findings of fact and eight conclusions of law. The result is a clear, compact and comparatively concise report, identical (except as to dimensions, names, amounts, etc.) in each of the three cases ; a practice to be highly commended, unless the law clearly calls for a different one. Though the three eases are substantially all alike, relating to three contiguous parcels of land, and the differences relating only to names, descriptions, amounts, etc., the defendants’ requests were ingeniously confused so as to be different in each case. After having passed upon them, the referee included in his report of each case all the facts and conclusions of law so found which he deemed material or in any wise calculated to affect the decision.

I -have carefully examined those which were omitted from the roports and found that, in view of the law applicable to this class of cases, they are utterly inefficient to work a result different from that which was reached, provided the findings of fact which were stated in the reports are supported by sufficient competent evidence, which latter question cannot be determined at the present time. In no aspect which can be taken can the defendants lose anything on their appeals from the judgments in these cases by reason of the fact that in each case the findings of the referee are written upon two pieces of paper and not one. The rulings as to the omitted findings appear in his notes on the margin of the requests, and the defendants can file them and print them and have them considered as part of their appeal papers. Their appeal may .be brought both upon the facts and the law, and, if proper steps are taken, they may at the same time have a review of the order denying their motions to send the reports back, and upon such review obtain the relief to which they may then show themselves entitled.

No prejudice by the omission having been established, the only remaining question is whether the defendants, although not prejudiced, have a strict statutory right to the relief demanded by them on their motions.

Prior to the decisions made by-the general term of the supreme court of the first department in Nobis v. Pollock, 23 Abb. N. C., 279; 26 St. Rep., 155, and Schultheis v. McInerny, 37 St. Rep., 537, it was generally considered and believed that no such right exists. The solution of the question depends upon the interpretation and construction of §§ 1022 and 1023 of the Code of Civil Procedure.

Section 1022 prescribes that the decision of the court, or the report of the referee, upon the trial of the whole issue of fact, must state separately the facts found and the conclusions of law, and it must direct the judgment to be entered thereon. Sections 267 and 272 of the old Code also provided that the decision or report should contain a statement of the facts found and the conclusions of law separately.

Under the old Code it became well settled that the statement of facts thus required consisted of a statement of the material facts necessary to support the conclusions of law based thereon, and no more, and that no detailed findings were required specifying the particulars of the general conclusions of fact or explaining the means or processes by which such general conclusions were reached. Avery v. Foley, 4 Hun, 415; Wilson v. Knapp, 42 Supr. Ct., 25; affirmed 70 N. Y., 596; Beck v. Sheldon, 48 N. Y., 365.

In Pollock v. Pollock, 71 N. Y., 137, the court of appeals even held that a decision of the special term consisting of a statement that the court found plaintiff guilty of the adultery as chai'ged in the answer, and of a direction that the complaint be dismissed, was a sufficient compliance with the provision of the Code that the facts and the conclusions of law should be separately found and stated.

Section 1022 of the Code of Civil Procedure has been uniformly interpreted in like manner upon this point, and notably so in Dolan v. Merritt, 18 Hun, 27, and Werfelman v. Manhattan R. Co., 32 St. Rep., 682.

Under the old Code, however, a practice had sprung up not founded upon any requirement of the Code, but upon a rule. Rule 32 of the general rules of practice in force at that time permitted a party, after the report of a referee or the decision of a court, upon the settlement of a case, to present proposed findings of fact, and the judge or referee was thereupon required to pass upon such questions of fact so presented by either party as should be material to the issue. The practice under this rule, in cases where the referee refused to make additional findings, became awkward, and inconvenient. No exception to such refusal would lie, and the remedy of the party aggrieved was by motion in court for an order sending back the report with instructions requiring findings upon questions decided to be material. Rogers v. Wheeler, 52 N. Y., 262.

As shown by Finch J., in Gormerly v. McGlynn, 84 N. Y., 284, this inconvenience was sought to be remedied in the revision which produced the Code of Civil Procedure. By § 993 it was provided that a refusal to make any finding whatever, upon a question of fact as to which a request was seasonably made by either party, is a ruling upon a question of law. If the change had stopped here, its only effect would have been that a new and additional remedy would exist in the case of a refusal to make a finding upon a material question of fact. But the change went further. By § 1023 it was provided as follows:

Sec. 1023. Before the cause is finally submitted to the court or the referee, or within such time afterwards, and before the decision or report is rendered, as the court or referee allows, the attorney for either party may submit, in writing, a statement of the facts which he deems established by the evidence, and of the rulings upon questions of law which he desires the court or the referee to make. The statement must be in the form of distinct propositions of law, or of fact, or both, separately stated; each of which must be numbered, and so prepared, with respect to its length, and the subject and phraseology thereof, that the court or referee may conveniently pass upon it. At or before the time when the decision or report is rendered, the court or the referee must note, in the margin of the statement, the manner in which each proposition has been disposed of, and must either file, or return to the attorney, the statement thus noted; but an omission so to do does not affect the validity of the decision or report.”

In enacting this section the legislature rendered rule 32, as it then stood, inoperative and determined that thereafter all requests should be made before the decision or report is rendered, and that the requests so made should be passed upon at or before the time when the decision or report is rendered. I-cannot find that this new section worked any change in the law, as it then stood, as to the actual incorporation of findings made at the request of either party into the decision or report. While the requests must now be made before the rendition of the decision or report, they may be passed upon either at or before the time when the decision or report is rendered.

Under the familiar rule that in the interpretation or construction of a statute effect must be given, if possible, to every word of the statute, the word “at" cannot be ignored. On the other hand, pursuant to the requirements of the preceding section, the decision or report, when rendered, must state separately the facts found and the conclusions of law, and it must direct the judgment to be entered thereon. It must be complete in these particulars. How then can it be held that additional facts found at the request of either party at the very moment of the rendition of such a complete decision or report, must appear in such decision or report ? I cannot come to such a conclusion and am firmly convinced that, if the legislature had intended to work such a result, language would have been employed which, in unmistakable terms, disapproved of the prevailing practice and prescribed the new method to be pursued.

In a note appended by Mr. Austin Abbott to the report of the case of Nobis v. Pollock, 23 Abb. N. C., 279, the learned annotator arrived at the following conclusions and stated them so well that, in view of their great importance, I shall quote them in full, viz. :

“Mote on the effect of findings of fact. The conflict in the cases, and the diversity of practice on this subject is noteworthy. Under the new procedure, in which, at law as well as in equity, all defenses must be pleaded together in one answer, and in which cross claims are set up by answer instead of cross bill, the cases are very frequent in which complex issues are presented for trial, all of which are material to be tried, but any one or less than all are sufficient to determine the cause. The object of the Code in its present form seems to be to separate the findings which are material to support the conclusions of law and resulting judgment from those which are not material for that purpose, although they were material for the purposes of the trial; and to require the statement in one decision of all that go to support the judgment, at the instance of whatever party made, while those which are made on questions not material to the judgment are to be left in the judge’s allocatur upon counsel’s requests, so that the refusal to find any fact material to the judgment may be reviewed by the party prejudiced thereby.
“ This accords with the principle that a finding or refusal not material to support the judgment ought not to be embodied in the decision in such manner as to be apparently res adjudícala, for a successful party cannot appeal from a judgment in his own favor merely for the purpose of getting rid of a finding against him on a point which proves not material to the judgment.”

The conclusions arrived at by Mr. Abbott are correct as far as they go. It may be well; however, to continue the discussion a little further; and to point out that under the Code of Civil Procedure, as it now stands, it is, in most cases, more expedient to refuse all requests upon immaterial points than to find the immaterial facts. Formerly, as I have already shown, an exception did not lie to a refusal to make a subsequent additional finding under rule 32, but now a refusal to make any finding whatever upon a question of fact, where a request was seasonably made by either party, is, under § 993, a ruling upon a question of law within the meaning of § 992, and as such it may be excepted to under § 992 and reviewed pursuant to § 1346 upon the appeal from the judgment. Upon such appeal the exception fully presents the question whether, upon the whole evidence, the finding should or should not have been made, and such question must be determined with due regard to the rights of the parties. Upon such appeal any order may also be reviewed refusing to send the case back to the referee for further findings, provided the notice of appeal asks for a review of the order. See §§ 1301 and 1316. The same rule prevails both at general term and in the court of appeals, for in a case tried by a judge without a jury or by a referee, both may review the facts as well as the law, and the question whether a certain request for a finding of fact, which was refused, should or should not have been complied with, will always be determined, if raised by an exception to the refusal, with reference to the materiality of the fact involved and its tendency to vary the result. No advantage can be derived, therefore, from findings upon immaterial .facts. If a fact does affect the result in the slightest degree, its proper place is in the body of the decision or report ; but if, under the law as it stands, it cannot affect the result in any way, it should not be found at all.

These remarks are added because of late years a tendency has manifested itself to request detailed findings of all the particulars which go to make up the general facts necessary to be stated, and even of the evidence thereof and of the means and processes by which the general facts are arrived at, and because in many instances it has been found that there is too much willingness and readiness to comply with such useless requests, and that consistency becomes sometimes impaired in consequence thereof. The three cases at bar afford a good illustration. In each the substantial controversy turned upon only two points, namely, the loss of rental value during a certain period, and the permanent depreciation of the fee value, and yet in each case the defendants presented at least fifty-five requests to find facts and twenty-three requests to find conclusions of law. Such practice must be discouraged. It ¡ruts upon trial j udges and referees a work of supererogation which should not be imposed upon them and which serves no useful purpose. While, therefore, it may be technically the duty of a judge or referee to pass upon such requests, that duty will be • fully performed by a specific denial of each and every one of them demanding a fact to be found which either is immaterial or has been already substantially covered by the findings embodied in the decision or report.

I think I have now sufficiently demonstrated that the additional facts which may be found pursuant to the direction of § 1023 need not be inserted in the decision or report if they are immaterial or if they have been already substantially covered by the findings contained in the decision or report, and I close with a reference to the concluding sentence of § 1023, by which it is expressly provided that an omission on the part of a judge or referee to comply with the directions of said section does not affect the validity of the decision or report. No rule of court can, therefore, be made inconsistent with the provisions of that section, for the power to make rules is limited to such rules as are not inconsistent, but in harmony with the provisions of the Code of Civil Procedure. Gormerly v. McGlynn, 84 N. Y., 284.

For the reasons stated the conclusion is unavoidable that, while the court does possess the power to send a case back to the referee for further findings upon material points not covered by the report, or to have findings made specially at the request of either party incorporated into the report, no error was committed by the learned judge below in refusing to send back the cases at bar.

The conclusion reached finds strong support in the opinion of Earl, J., in Redfield v. Redfield, 110 N. Y., 671; 18 St. Rep., 560, and the opinion of Ruger, Ch. J., in Greeny. Roworth, 113 N.Y., 462; 23 St. Rep., 149. Both judges recognize, under the practice prescribed by the Code of Civil Procedure, the continued existence of the two classes of findings hereinbefore discussed. They speak of the findings contained in the body of the decision or report as formal or general findings, and of the additional findings made at the request of either party at time of the rendition of the decision or report as special findings, and they lay down the rule that, in case of any conflict between the formal and special findings, the courts are bound to attempt to reconcile them.

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

Sedgwick, Ch. J., and Dugro, J., concur.


author: Dugro, J.

text:
    Emanuel Steinhardt et al., App’lts, v. Max Beer, Resp’t.

      (New York Superior Court,

      General Term,

      Filed December 10, 1891.)

    Arrest—Fraud.
    A failure to perform an agreement does not raise a presumption that the party intended non-performance at the time he made the agreement.
    Appeal from order vacating an order of arrest.

      Edward Jacobs, for app’lts ; David M. Newberger, for resp’t.
   Dugro, J.

This is an appeal from an order vacating an order of arrest.

No facts are set forth in the papers upon which the order of arrest was granted that show the defendant to have been guilty of fraud.

It appears that he promised to do certain things in order to induce the plaintiffs to part with property. That he so promised with intent to deceive is not stated.

Because he failed to perform his agreement does not raise a presumption that he intended non-performance at the time he made the agreement; retroactive presumptions are not applicable to cases such as this.

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

Sedgwick, Ch. J., concurs.


author: Gildersleeve, J.

text:
    George V. Sims et al., Resp’ts, v. Edward L. Bonner et al., App’lts.

      (New York Superior Court,

      General Term,

      Filed December 14, 1891.)

    1. Costs—Security for—Loches.
    The summons herein was served, in December, 1890, and extensions of time to serve complaint and answer were 'given. Motion for security for costs was not made until July, .1891. 'Held, that defendants were guilty of loches in making the motion, and it was discretionary with the court to grant the motion.
    2. Same.
    Where an action is begun by a non-resident, but thereafter additional plaintiffs who are residents arc brought in by order, the defendant is not entitled to security for costs.

      Appeal from an order denying motion to compel the plaintiff, George V. Sims, to file security for costs.

      Charles W. Gould, for app’lts; Holmes & Adams, for resp’ts.
   Gildersleeve, J.

It is well settled that defendant’s right to demand security for costs, under § 8268 of the Code, from a nonresident plaintiff, is absolute, unless defendant waives that right by loches ; in which case it becomes discretionary with the court to grant the motion upon defendant’s satisfactory explanation of his delay. See Buckley v. Gutta Percha Co., 3 Civ. Pro., 428; Churchman v. Merritt, 50 Hun, 270; 19 St. Rep., 171; Wood v. Blodgett, 15 Civ. Pro., 114; 17 St. Rep., 295; Robertson v. Barnum, 29 Hun, 657; Healy v. The Twenty-third Street R. Co., 1 Civ. Pro., 15; Abel v. Bradner, 15 id., 241; 17 St. Rep., 859; Kleinpeter v. Enell, 2 Civ. Pro., 21; Ryan v. Potter, 4 id., 80. It has also been held that if the plaintiff was a non-resident at the commencement of the action, he is not excused from giving security for costs by subsequently becoming a resident. See Ambler v. Ambler, 8 Abb. Pr., 340. In the present case, assuming the plaintiff Sims was a non-resident of the state at the time of the commencement of the action, of which there seems to be some doubt, was the defendant guilty of lachesin making his motion for security?

There is no very well defined rule as to what constitutes lachesin a case of this kind. The court of appeals, some years ago, held that the motion for security for costs may be made at anj" time before trial, see Gedney v. Purdy, 47 N. Y., 676; but the majority of more recent decisions have held that the motion should be made before the answer is served. See Stevenson v. N. Y., L. E. & W. R. R. Co., 14 Civ. Pro., 384; 16 St. Rep., 787; Robertson v. Barnum, 29 Hun, 657; Hay v. Power, 2 Edw., 494; Weber v. Moog, 12 Abb. N. C., 108. In most of the more recent authorities, the doctrine is laid down that the defendant must act promptly, or he waives his absolute right to security for costs under § 3268 of the Code, and it then becomes discretionary with the court to grant the motion. See Hayes v. The Second Avenue R. R. Co., 4 Civ. Pro., 84; Buckley v. Gutta Percha Co., 3 id., 428, and cases above cited.

In the case under consideration, the summons was served on December 19th, 1890; the defendants appeared on January 7th, 1891; the time to serve the complaint was extended from time to time until it was finally served, on May 9th, 1891, and the defendants’ time to answer was extended to August 1, 1891. The order to show cause why security for costs should not be given was obtained on July 24, 1891, and the motion was finally argued on August 7, 1891. We find no claim that defendants were not aware of the fact, if fact it be, that the plaintiff was a non-resident from the very first. Under these circumstances, the defendants forfeited their absolute right, and it became discretionary with the court to grant the motion.

The addition of two presumably resident plaintiffs affects adversely the defendants’ claim. The action was commenced in the name of George V. Sims alone, who, as the defendants insist, was then a non-resident; subsequently, on April 13th, an. order was entered making G-ulliver and Ellen T. Sims additional plaintiffs, both of whom, in the absence of any claim to the contrary, must be presumed to be residents. See Fisher v. Charter Oak L.I. Co., 14 Abb., N. C., 32; afterwards, and on July the 24th, the defendants make this motion for security. There were then at least two resident plaintiffs, and the defendant must take the case as it stood when they made their motion. Consequently, under § 3270 of the Code, they were not entitled to the security demanded.

For the reasons above indicated, the order appealed from is affirmed, with costs.

Freedman, J, concurs. ■


author: McAdam, J.

text:
    Angelina T. Arthur, Impl’d, App’lt, v. William Schriever et al., Resp’ts.

      (New York Superior Court,

      General Term,

      Filed December 14, 1891.)

    Costs—Death op attorney.
    The right of a successful party to costs is absolute upon the rendition of the verdict, and is not affected by the death of the attorney for the other party pending decision of an application for an extra allowance.
    Appeal from order made at special term, denying a motion made by the appellant to vacate the judgment entered herein on April 13, 1891, and the order granting an allowance of $500 to the defendants.

      Smith & Perkins, for app’lt; Johnston & Johnston, for resp’ts.
   McAdam, J.

The action was tried March 25, 1891, and re-suited in a verdict for the defendants. Upon the coming in of the verdict, the defendants’ counsel moved for an allowance in addition to costs. The trial judge entertained the application, and reserved his decision thereon. On March 28, 1891, James Clinton Bolton, one of the plaintiffs, and the attorney of record for both plaintiffs, died. On April 1, 1891, the trial judge (having no knowledge of the death) decided the pending application, and granted the defendants an allowance of $500. The death of Mr. Bolton did not invalidate the décision. The verdict was rendered before the death of Mr. Bolton, eo instanti et ipso facto the defendants’ right to costs (of which the allowance was part) became absolute. The defendants were not to suffer through the court’s delay. “It is by no means unusual,” says Lord Kenyon, in Pearson v. Rawlings, 1 East, 405, “to make entries of judicial acts mine pro tone." And the reason is given in Crispe v. The Mayor of Berwick, Vent., 90, “there being no default in the party, but a delay which came by the act of the court.” So in Craven v. Hanley, Barnes, 186, it is said “ the party must not suffer by the court’s taking time to consider.” In Lure v. Rest, 10 Mod., 30, a writ of inquiry was executed, and before the entry of judgment, which was delayed by act of the court, the plaintiff died, and it was held that having delayed the entry of judgment, it should be entered up as of the proper term. And so where a party dies after an appeal has been argued and submitted, the judgment thereon may be entered nunc pro tune, as of a day be-lore the death. Beach v. Gregory, 2 Abb. Pr., 203; affirmed, 3 id., 78; Bergen v. Wyckoff, 1 Civ. Pro., 1. And to the same general effect are numerous other authorities. It is not claimed that the allowance was unauthorized or excessive in amount; merely that the order was for the reason stated irregularly made.

On April 13, 1891, an order was made permitting the defendants to enter judgment nunc pro tune as of March 25, 1891, the day on which the verdict was rendered and the motion for an allowance made.

Upon the authority of this order, and the provisions of § 763 of the Code, which permits a party having a verdict in his favor to e.nter final judgment thereon, notwithstanding the death in the interim of the defeated party, the defendants entered their judgment. The costs were taxed without notice. Code, § 3264. On May 13, 1891, Smith & Perkins served notice of appearance, and the costs were retaxed on notice to them. Jurisdiction was preserved, and if, as claimed by the plaintiffs’ attorneys, the defendants should have delayed further proceedings after the verdict until a new attorney was appointed in place of Mr. Bolton, Code, § 65, the failure to observe that provision was at most a departure from prescribed practice and constituted an irregularity merely, which was obviated by the subsequent proceedings had in reference thereto.

First. We have the notice of re-taxation of costs with an admission of due service on Smith & Perkins endorsed thereon, and at the same time was served a copy of the judgment previously entered.

Next. We have the application of the plaintiffs to set aside the judgment, and we have the action of the court thereon, June 1, 1891. The record both as to parties and attorneys .being at that time complete, the court could certainly then have acted upon any application the exigencies of the case required.

If the proceedings taken between the rendition of the verdict and the appointment of Smith & Perkins as attorneys for the plaintiffs constituted a departure from the practice prescribed by § 65 of the Code, the irregularity was one which could have been corrected at the hearing of the motion argued on June 1, 1891, when the record as to parties and attorneys was complete. This being so, the defendants might have invoked the application of the rule which allows a party opposing a motion to amend the defects complained of, without a new motion on his part, when the amendment proposed is proper in itself, and the court can see from the nature of the case that no new facts can be presented to •defeat it. Spalding v. Spalding, 3 How. Pr., 302; Hawley v. Bates, 19 Wend., 632; Whaling v. Shales, 20 id., 673, and kindred cases. To have vacated the judgment, and the next minute reinstated it, would have worked no benefit to the plaintiffs and courts do not encourage sucli circumlocutory practice. The denial of the plaintiff’s motion was tantamount to a new direction that the judgment be entered nunc pro tune as of March 25, 1891, the day on which the verdict was rendered.

No rights have been lost by the plaintiffs and no benefits gained by the defendants.

The judgment has been appealed from by the plaintiffs, so that the questions presented here are purely technical and without substantial merit. It follows that the order appealed from must be affirmed, with costs.

Gilderslbeve, J., concurs.


text:
    George V. Sims, Impl’d, Resp’t, v. Edward L. Bonner et al., Impl’d, App’lts.

      (New York Superior Court,

      General Term,

      Filed December 14, 1891.)

    1. Pleading—Complaint—Action against foreign corporation.
    The complaint in an action alleged that plaintiff was the owner by assignment of certain certificates of stock in a foreign corporation, of which transfer the company had notice; that the corporation instigated an action against the plaintiff’s assignor in a foreign court, in which judgment was recovered by default and said stock sold for a nominal consideration; that the officers of the corporation have wasted its assets and pretend that it. has ceased to exist, and asks that plaintiff’s rights as a stockholder be established and that he have an account. Held, that the complaint made out a cause of action, and the court has jurisdiction thereof.
    2. Discovert—Books of foreign corporation.
    An inspection of the books of a foreign corporation may be ordered;, but if they are in constant use in a distant state sworn copies may suffice.
    3. Parties—Demurrer.
    Where parties are brought in under § 452 of the Code, and no appeal is-taken from the order, the propriety of such order cannot be reviewed on demurrer assigning the misjoinder of the parties added.
    Appeal from interlocutory judgment of the special term overruling a demurrer to the complaint.

      Chas. W. Could, for appl’ts; Holmes & Adams, for'resp’t.
   Per Curiam.

The plaintiff Sims became the owner of three certificates of capital stock of the Montana Improvement Company, a foreign corporation, representing 750 shares of said capital stock of the value of $75,000. The certificates were issued to George Conkling and were by him transferred to Sims, in fulfillment of a contract made by him with the corporation, of which transfer the corporation had timely notice.

The corporation subsequently instigated an action in favor of one Robertson against Conkling, in the courts of Montana, in which judgment was suffered to go by default against Conkling, and on it the sheriff is said to have sold Sims’ stock as the property of Conkling and one Hammond purchased the same for the nominal consideration of $100. The judgment was fraudulently obtained by the procurement of the officers of the corporation and with its consent and connivance, and as part of a conspiracy to defraud Sims.

The officers of the corporation have wasted and appropriated its assets, and pretend that it has ceased to exist or transact business.

The action is brought by Sims on his own behalf as stockholder, and on behalf of all other stockholders. _

_ He prays for a decree establishing his rights as a stockholder and declaring void any certificates issued in place of those held and owned by him, and that he have an account, etc. The defendants having demurred, have for all present purposes admitted the truth of the allegations charged, and these sufficiently state a cause of action. The fact that the stock was not registered in Sims’ name does not disable him from maintaining the action. Ervin v. Oregon, 62 How. Pr., 490. It must be assumed (nothing appearing to the contrary) that the plaintiff is a resident of this state. Fisher v. Charter Oak L. I. Co., 14 Abb. N. C., 32; and § 1780 of the Code gives jurisdiction in an action by a resident of the state against a foreign corporation “ for any cause.” As was said by the court in Ervin v. Oregon R. & N. Co., 62 How. Pr. at p. 492: “ In cases of fraud, breaches of trust or contract, the jurisdiction of a court of equity is sustained wherever the person of the defendant be found, although property beyond the jurisdiction be affected by the judgment.” Citing Gardner v. Ogden, 22 N. Y., 327; March v. Eastern R. R. Co., 40 N. H., 548; Massie v. Watts, 6 Cranch, 148. “It is not important now to indicate the specific relief to which the plaintiff may in the end be entitled. That will depend upon the facts established at the trial. The complaint makes out a cause of action. The relief within the power of the court to grant may be incomplete, and not commensurate with the injuries and loss sustained, growing out of the fact that material interests affected are outside of this jurisdiction", but that affords no adequate reason why an attempt in that direction should not be made. Efforts in such direction frequently afford only approximate justice. In so far at least as the defendant is personally concerned, and the property and assets within this state may be impressed, justice may be accomplished.”

An inspection of the books of a foreign corporation may be ordered, but if they are in constant use in a distant state sworn copies may suffice. Ervin v. Oregon. Co., 22 Hun, 566. This feature is referred to as incidentally bearing upon the remedies enforceable where jurisdiction is obtained against a foreign corporation. The observations made answer the objections that the court has no jurisdiction of the subject of the action, and that the complaint does not state facts sufficient to constitute a cause of action. The next ground of demurrer is that there is a misjoinder of parties plaintiff, in that Ellen T. Sims is made a party plaintiff. The complaint shows that she was made a party by force of an order of the court.

This order appears in the appeal book, has not been appealed from, and remains in full force and effect, and concludes the parties to the extent that she was rightfully brought in under § 452 of the Code. It was certainly not intended that where a party was joined under this section, and no appeal taken from the order, that the propriety of the order could be reviewed on demurrer assigning the misjoinder of the party added. The law has wisely afforded another mode of reviewing the action of the court, and if that mode is not employed, the right to test by demurrer the propriety of joining the party is lost.

The Code provisions, though independent, must be so worked and construed that they may operate in harmony, that orderly rather than chaotic practice may prevail. It follows that the interlocutory judgment overruling the demurrer was properly made, and must be affirmed, with costs.

McAdam and Gildersleeve, JJ., concur.