text:
    ISABELLA B. CLUTE, Appellant, v. ADAM EMMERICH, Respondent.

      Certificate of a sale of real estate by a sheriff — when it is presumptive evidence of the facts recited in it — when acertified copy of its record is admissible — 1857, ch. 60 — what is sufficient evidence of a due advertisement by the sheriff — what errors in the sheriff's deed may be disregarded — the deed is presumptive evidence that the sheriff has given the notice required by law.

    Where a certificate of the sale of real estate by a sheriff has been duly filed with and recorded by the proper county clerk, as required by ch. 60 of 1857, such record or a certified copy thereof is evidence of the facts therein contained in all courts and places the same as if the original record were produced, even though the original certificate was not acknowledged by the sheriff, and though no copy thereof was filed in the office of the register of the said county, in those counties in which such an office exists.
    The plaintiff brought this action to recover a certain piece of land in the city of New York to which he claimed title by virtue of a sale, under aD execution issued upon a judgment against the owner thereof, recovered and docketed in Rensselaer county on December 6th, 1804, a transcript of which had been duly filed in the office of the clerk of the city and county of New York, on February 4th, 1865. The plaintiff having proved the execution and delivery to him of a certificate of sale by the sheriff offered in evidence a deed, executed by the sheriff, containing the usual recitals. Both the certificate and deed stated that the sheriff liad sold all the interest the judgment debtor had in the premises on the 6th day of December, 1864.
    The plaintiff then called a witness, who produced a printed notice, subscribed in the name of the sheriff and one of his deputies, of the sale of the premises in the usual form, and testified that he saw it published about a little over six weeks before the sale, in one of the newspapers of the city, though he could not recollect the name of the paper: that he saw a like notice posted in different public places in the city, and that he was present when the sale was made. Upon the defendant’s objection and against the plaintiff’s exception, both the notice produced by the witness and the deed were excluded by the court.

      Held, that this was error.
    That the error made in selling the interest which the judgment debtor had in the land on the day the judgment was docketed, instead of that which he had on the day the transcript was filed in New Yolk could not possibly have misled or injured the defendant, and should have been disregarded.
    That the notice produced by the witness and his testimony were sufficient to have justified the jury in finding that' the sheriff had given due notice of the sale as required by law.

      Semble, that the deed itself was presumptive evidence that the sheriff had performed his duty in giving the notices required by law.
    Appeal from a judgment in favor óf the defendant, entered upon an order dismissing the complaint at the circuit.

      Solomon F. Siggms, for the appellant.

      A. li. Dyett, for the respondent.
   Davis, P. J.:

This was an action.of ejectment to recover possession of certain lands situated in the city and county of New York. The plaintiff’s title is founded upon a judgment, and the execution and sale thereunder.

On the trial the plaintiff produced a judgment roll, in the case of Peter Low against Thomas Hall and William H. Clark, from which it appeared that a judgment was recovered, in the county of Rensselaer, against the defendants named in the roll, for the sum of $1,777.75 damages and costs, on the. 6th of December, 1864, on which day the judgment was duly docketed in the office of the clerk of the county of Rensselaer. The plaintiff also produced a certified copy of a transcript of said judgment, which was docketed in the office of the clerk of the city and county of New York, on the 4th day of February, 1865. The plaintiff farther produced an execution, issued upon said judgment, to the sheriff of the city and county of New York, and received by said sheriff on the 3d of October, 1867, and afterwards returned satisfied by said sheriff, and filed with the return, October 26, 1868. These several documents were received in evidence without objection.

The plaintiff then produced, and offered in evidence, a copy of a certificate made by John Kelly, sheriff of the city and county of New York, of the sale of the premises described in the complaint in this action, to the appellant, certified in due form, by the clerk of the city and county of New York, as having been filed and recorded in'his office November 23,1867.

This certificate qontains recitals, showing, in substance, that by virtue of the execution issued on the above mentioned judgment, the sheriff did, in the manner provided by statute, sell at public vendue, unto Isabella B. Clute, for the sum of two thousand one hundred dollars — she being the highest bidder, and that being the highest price bidden for the same — all the right, title and interest of the said defendant, Thomas Hall, of which he was seized or possessed, on the 6th day of December, 1864, or at any time afterward, of, in and to “the property mentioned,” &c. It further certified that the purchase-money had been paid to him, and that the said purchaser would be entitled to a conveyance of the premises on the 17th of November, 1869, unless the same was sooner redeemed. This certificate was objected to on the ground that it was neither proved nor acknowledged, as provided by statute, and was not recorded in the office of the register of the city and county of New York, and that it was not recorded anywhere at any time; and various other objections. The court at first received the certificate, overruling the objections, but afterwards excluded the same.

The question whether this certificate was admissible in evidence for any purpose, depends upon the construction to be given to the statutes. By section 42 of the Revised Statutes (vol. ii., p. 370), it is provided that “ upon the sale of real estate, by virtue of any execution, the officer making the same shall make out and subscribe duplicate certificates of every sale, containing,

1. A particular description of the premises sold.

2. “ The price bid for each distinct lot or parcel.

3. “ The whole consideration money paid.

4. “ The time when such sale will become absolute, and the purchaser will be entitled to a conveyance, pursuant to law.”

These several requirements are complied with by the certificate in question. The 43d section provided that one of the said duplicate certificates shall, within ten days after such sale, be filed in the office of the clerk of the county, and the other shall be delivered to the purchaser. The 44th section provided that “ such original certificate, upon being proved or acknowledged in the manner required by law to entitle deeds to be recorded, or a copy of such original, duly certified by the clerk in whose office such original is filed, shall be received as presumptive evidence of the facts, therein contained.”

This section, it will be observed, simply relates to proceedings by which such certificate, or a copy thereof, is made presumptive evidence of the facts contained therein; and for that purpose it requires the certificate to be proved or acknowledged in the manner required by law to entitle deeds to be recorded. But the acknowledgment is not thereby made a necessary part of a certificate to be filed in the office of the clerk of the city and county of New York, under the previous sections. A certificate would be perfectly valid under the statutes without such proof or acknowledgment; but it would not be evidence of its own contents under section 44, unless proved and acknowledged as therein prescribed.

In 1'85'T, however, an’act (ch. 60) was passed, entitled “an act relative to sheriffs’ certificates upon sale of real estate,” which seems to supersede the provisions of section 44 of the Revised Statutes above referred to.

That act provides that whenever a certificate of sale of real estate by a sheriff shall be filed in the office of the clerk or register of any county, pursuant to section 43 of the Revised Statutes, it shall be the duty of such clerk immediately to record the same in a book to be kept by him for that purpose, and the same shall be properly indexed in the name of the defendant or defendants in the judgment. It then declares that the record thereof, or a certified copy of such record, shall be evidence of the facts therein contained, in all courts and places, the same as if the original record were produced.

By this act the necessity for proof or acknowledgment is done away with. The official certificate of the sheriff is to be filed, and, upon such filing, recorded. The official act of the sheriff in making the certificate is by the statute made sufficient evidence of its authenticity to require its record without farther proof or acknowledgment, and, when so recorded, a copy of it is made evidence of the facts therein contained. This was fully complied with by the appellants in producing the certified copy of the record.

The objection that it should have been 'filed and recorded in the office of the register, does not. seem to us to be well taken. The statute says the certificate shall be filed in the office of the clerk or register, pursuant to section 43. Section 43 provides only for filing in the office of the clerk of any county, and this new act provides for filing in the office of either the clerk or register. ¿V subsequent provision of the act requiring the same to be indexed in the name of the defendant, &c., seems to show an intention on the part of the legislature not to transfer such certificates to an office where the docket of the judgment, the execution and return of the sheriff, and all proceedings thereon, cannot be found, but to permit, at least, the several evidences of the proceedings by the sheriff to be kept together in the same public office. A contrary construction would probably invalidate a large number, if not ail, official sales of real estate by sheriffs under execution in the city and county of New York. The letter and spirit of the act of 1857 were fully complied with by the appellants on the production of the certified copy of the record of the certificate. We think it should have been received in evidence, and not rejected. .

The plaintiff also offered the deed of the sheriff to the plaintiff, as purchaser at the sale under the execution. The deed contained the usual recitals in such instruments, and amongst other things recited that the said sheriff, on the 16th day of November, 1867, sold the said premises at public vendue, at the vestibule of the City Hall, in the city of New York, in the said county, having first given public notice of tbe time and place of such sale, by advertising the same according to law.

The deed was objected to by the defendant “ upon the grounds that the plaintiff had not proved that the proper advertisement had been published, and the proper notice posted by the sheriff; and also upon the ground that the sheriff had no power or right, under the execution, to sell the right, title and interest of the judgment debtor, Hall, had in. the land described in the deed on the 6th of December, 1864, the day of the entry of the judgment in Kennselaer county; but had the power and right only to sell his right, title and interest which the judgment debtor had on the 4th day of February, 1865, being the day on which the judgment was docketed in the city and county of New York, conformably to the statute and execution.” These objections were sustained, and the evidence excluded.

The plaintiff then offered the certificate and the deed, excluding those parts where they state that the sheriff advertised according to law. These were objected to on the same grounds ; the court excluded them, and the plaintiff excepted.

The plaintiff then called a witness and produced a printed notice subscribed in the name of the sheriff and one of his deputies of the sale of the premises in the usual form; and proved by the witness that he saw this notice published about a little over six weeks before the sale, in one of the newspajiers of the city; that he saw a like notice posted in different public places in the city, that he did not remember in what newspaper he saw the notice, nor that he saw it in more than one ; and that he was present at the time the sale was made. The plaintiff then offered in evidence the notice which had been thus proved. It was objected to, on the ground that there was no proof that it was posted in three public places as required by the statute. The objection was sustained, and an exception duly taken. The plaintiff then offered to prove that Hall, the defendant, was in possession of the premises at the time of the sale and at the time the judgment was docketed, which was objected to, the objection sustained and exception taken. The plaintiff then offered to prove damages and the value of the premises in order to recover for use and occupation, which was objected to and excluded, and exception taken. The plaintiff then rested; and the court, on motion of the defendant’s counsel to dismiss the complaint, on the ground that the plaintiff had shown no title to or right of possession to the land, granted the motion, and the plaintiff excepted.

"We think the court erred in excluding the sheriff’s deed. It was clearly admissible for the purpose of showing that the deed had been executed pursuant to a sale made by the sheriff. The sale had been duly proved by the certificate, if we are correct in our ruling in respect to that instrument, and it follows as a matter of course that the plaintiff was at liberty to prove the conveyance to him by the sheriff after the expiration of the time to redeem.

One point of objection was that the plaintiff did not prove the publication and posting of the notices. According to the very sensible views expressed by Mr. Justice Allen in Wood v. Morehouse (45 N. Y., 368, 375), the deed itself was presumptive evidenec that the sheriff had performed his duty in giving the notices required by law. The statute,” says Allen, J., “ imposes the duty of affixing the notices upon the officer making the sale, and subjects him to a penalty of $1,000 for selling real estate without the previous notices prescribed, by the act (2 R. S., 369, § 37). Neglect of duty by a public officer will not be presumed, but must be proved, .... and in'support of his acts the familiar maxim, omma,prmurmmbwr rite esse acta, stands for evidence of the fact in the absence of any other evidence. When a person is required to do an act, the not doing of which would make him guilty of a criminal neglect of duty, it shall be intended that he has duly performed it unless the contrary be shown. (Stabitprcesunyptio donee jprobetmr in eont/ra/ri/am ; Broom’s Max., 429; Jackson v. Shaffer, 11 Johns., 513, per Denio, J.; Wood v. Chapin, 3 Kern., 509.)”

' But if the presumption that the sheriff had done his duty were not sufficient in the absence of all proof to the contrary, we are of opinion that the plaintiff did give evidence enough that such notices were duly posted and advertised according to law. The witness produced, and proved a copy of the advertisement. It was in form an official notice of the sheriff containing all requisite recitals. He swore that he saw it in a newspaper more than six weeks before tbe sale. He also testified that he saw several copies of the notice posted in public places in the city. And although he could not recollect the name of the paper in which he saw the advertisement, and did not distinctly swear that he' saw the notice in three public plaeesjyet we think his evidence was quite sufficient to justify the jury in finding that the sheriff' complied with the statute.

The other objection, to wit, that the sale purported to have been of all the interest that Hall had in the premises on the 6th of December, 1864, does not seem to us of any importance. The sheriff by mistake has taken the date of the docketing of the judgment in Rensselaer county, instead of the date of its docketing in New York. But the sale was distinctly made of all the interest of the judgment debtor on that day or at aMj time thereafter, and it embraced, of course, all interests affected by the docketing of the judgment in New York. It would be a technical and constrained construction to hold that such a mistake would be fatal to the sale and deed, when it is manifest that all the interest possibly sold or conveyed by it would be that possessed by Hall on the date of the docketing in New York or at any time subsequently. Nobody could be misled or injured by such a mistake, and it is the duty of the court to disregard it.

We think the court erred, in the rulings above commented on, and that the judgment must therefore be reversed and a new trial ordered with costs to abide event.

Barrett, J., concurred.

Brady, J., concurred in result.

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


source: Caselaw Access Project

author: Davis, P. D:

license: Public Domain

text:
    In the Matter of the Petition of MARY H. LESTER, to Vacate an Assessment and Sales for an Assessment, &c.

      Section 27 of chapter 383 of 1870 — when the court will vacate the sale, hut not the assessment upon which it loas founded, — 'chapter 308 of 1861, creating the hoard of revision and correction of assessments, is constitutional.

    Section 27 of chapter 383 of 1870, providing that no assessment shall be vacated “by reason of fraud or irregularity in the proceedings to'collect the same, by sale of the assessed premises, but upon proof of such fraud or irregularity such sale shall be set aside, and the respective rights and liabilities of the assessed persons and of the mayor, &c., shall become and be the same as if such sale had not been made,’’ has not been repealed, and it is still the duty of the court in a proper case to vacate the sale and refuse to vacate the assessment.
    Chapter 308 of 1861, transfbrring to a board of. revision and correction of assessments, consisting of the comptroller, the corporation counsel, and the recorder, the power to confirm assessments previously possessed by the common coudcü, is constitutional and valid.
    Appeal from order of a Special Term, vacating a sale, but refusing to vacate the assessment upon which it was based.
    The objections to tbe assessment were that it bad never been .confirmed by the common council, and that upon tbe sale under tbe assessment, interest was charged from the date of the confirmation of the assessment on November 22, 1871, instead of from the date of the entry of the title' of the assessment in the record of the titles of the assessments confirmed, and kept in the office of the clerk of arrears, which last date was January 10, 1872.
    Upon the hearing below tbe court vacated tbe sale, and refused to vacate tbe assessment.

      W. G. Trull and F. M. F&oille, for the appellant.

      F. L. Stetson, for the respondent..
    The hoard for the revision and correction of assessments is a constitutional body. (Matter ’of Roberts, 17 Hun, 559.) The twenty-seventh section of the act, chapter 383, of the Laws of 1870, was not repealed by tbe act, chapter .312, of the Laws of 1874. (Matter of VoorMs, 5 T. & C., 345-348; Matter of Rae, 5 Hun, 456; Matter of Hebreio Asylum, 10 Hun, 116 ; Matter of St. Joseph?s AsyVum, 69 N. Y., 356; Matter of Auohvrrmty, 18 Hun, 324.)
   Davis, P. D:

The court below vacated the sale made under, the assessment, but denied the motion to vacate the assessment. From that denial this appeal is taken. It is urged on the part of the appellant that under the provisions of chapter 312 of the Laws of 1874, where good grounds are shown for vacating a sale, the assessment under which it is made must also be set aside. If this construction of the act were a tenable one, it would be so manifestly unjust that courts would be extremely unwilling to accept it. There would be neither justice nor good sense in holding that an error in the proceedings to collect a lawful assessment should operate to invalidate the assessment itself.

But the provisions of section 27, of chapter 383, of the Daws of 1870, do not appear to have been repealed. One of those provisions is that no assessment shall be vacated pursuant to the said act hereby amended, by reason of fraud or irregularity in the proceedings to collect the same by salé, of the assessed premises; but upon proof of such fraud or irregularity, such sale shall be set aside, and the respective rights and liabilities of the assessed persons and of the mayor, aldermen and commonalty of the city of New York, shall become (and be the same as if such sale had not been made.” (See Laws of 1870, ch. 383, pp. 903, 904.) It was right, therefore, to vacate the sale alone, leaving the assessment to stand in full vigor, as was done by the Special Term.

The only objection made to the assessment is that it was not confirmed by the common council, but by the board for the revision ■ and correction of assessments.' It is asserted that the act transferring ' the power of revision and confirmation to the board of revision and correction is in violation of article 10, section 2, of the constitution of the State.

We see no force in this objection. The power is transferred from one body of local officers to another local body, and it is clearly in the power of the legislature to do that. (Devoy v. The Mayor, 36 N. Y., 449 ; People v. Pinckney, 32 Id., 382; Tone v. The Mayor, 70 Id., 157.) This court held the act creating the board of revision and correction to be constitutional in the Matter of Roberts. (17 Hun, 559.)

It is urged, however, that the recorder, who is made a member of the board, is uot a city but a county officer, and therefore the transfer of power is not to city authorities. The fact is not true, for the recorder is a city officer, with both city and county functions conferred on him by statute. If this were not so, still, as the city and county are identical as political divisions of the State, and the distinction between them is nominal rather than real and practical, it would be straining the provisions of the constitution to hold that conferring power upon an officer in the same locality would be void because some of his lawful functions in their nature pertained to the county rather than the city organization.

We think the order below should be affirmed, with $10 costs, besides disbursements.

Brady and Barrett, JJ., concurred.

Order affirmed, with $10 costs, and disbursements.


author: Brady, J.:

text:
    WILLIAM HERRIES, Appellant, v. THOMAS C. PLATT, and others, Respondents.

      Liability of the stoclchilders of a manufactwing corporation to its laborers— 1848, chap. 40, § 18 — the plaintiffs may release some of the defendants, without discharging the others — 1838, chap. 257.

      In an action brought under section 18 of chapter 40 of 1848, providing that the stockholders of any company organized under thesaid act shall be jointly and severally liable for all debts that may be due and owing to laborers and servants for services performed for the corporation, the plaintiff may, under chapter 257 of 1838, compromise with and release one or more, of the defendants, without affecting his right to recover the balance of his claim from the others.
    Appear from a judgment in favor of tbe defendants, entered upon a verdict directed at tbe circuit.
    This case bas already been before tbe General Term, the decision on that appeal being reported in 13 Hun, 492.

      8. 0. Oour1/ney, for the appellant.

      W. H. Arnoxm, for the respondent Platt.

      James K. Hill, Wing db 81wudy, for the respondent Bostwick.
   Brady, J.:

This action was brought under section 18 of chapter 40 of the Laws of 1848, to recover from the -stockholders of the New York Republican Newspaper Association — a corporation created under the laws of this State — the wages' of certain laborers and employees of the corporation, for the amount of which judgments had been previously recovered against the corporation, and upon which executions had been issued and returned unsatisfied. The defendants, Bostwick, Platt, Wesley and Janet Norwell, interposed answers, admitting the existence of the corporation, and denying that they, held any stock of the company. , After the case was called for trial, and before anything further was done, the defendants Platt and Wesley asked leave to file a supplemental answer, setting up that since issue- joined the plaintiff had been paid certain moneys on account of the claims in suit; that he had accepted the same, and consented to an order of discontinuance against the defendant who had so paid him, and alleging the same as a bar to any recovery herein. The application seems to have been made with due diligence, and it was granted, the plaintiff objecting. The defendant Bostwick made a like application, which was also granted.

Upon the trial it appeared that the plaintiff, after the suit had ■ been commenced, received from one Samuel O. Yanderpoel, $200, and, through his counsel, signed a receipt as follows :

“ Herries v. Vanderpoel, et al.

Received from Samuel O. Yanderpoel, M.D., two hundred dollars in full, for one hundred dollars costs in action, and one hundred dollars for plaintiff, consideration for release, under act of 1838, to said Yanderpoel and George F. Williams, $200.”

The execution of such a discharge was not questioned upon the trial. When the case was closed the plaintiff’s counsel asked the court to direct a verdict for the amount shown to remain unpaid to the plaintiff, which was denied, and an exception taken. The defendant’s counsel moved for a dismissal of the complaint, which was opposed'; whereupon the court said :

The Court. — I do not see how the plaintiff can recover here. The act of 1838 is for the relief of joint debtors. The act, being in derogation of the common law, must be strictly construed, and its application cannot be extended to joint and several debtors. I therefore direct a verdict upon the issues, in favor of the defendant.”

It is quite apparent that if the learned justice presiding in the court below erred in thus declaring the law, there must be a new trial, and that it is not necessary to consider any other question in the case than the one presented. 'None of the other questions springing from the evidence were passed upon by him, and we are unable to say, therefore, what course would have been taken with regard to them; whether the questions of fact in issue, if any, would have been submitted to the jury or ruled upon by him absolutely, or whether any other question of law springing out of evidence about which there was any conflict, woiild have been disposed of either favorably or adversely to the plaintiff; The defendants Platt and Wesley insisted as matters of fact that they were not owners of the stoclr, and never had been, and the defendant Wesley in addition insisted that he had resigned as one of the trustees prior to the creation of the indebtedness which the action was commenced to recover. These legal attitudes in relation to the case were not .considered or in any way disposed of, and we are unable to see that, upon another trial, the facts will not be different or that no change will occur in the relations of the parties to each other, to the company, or to the plaintiff. Therefore, as suggested, the only question which we are called upon to consider, is the correctness of the decision of the court below in taking the case from the jury, and as a question of law deciding it in favor of the defendant.

The act of 1848, section 18, declares that the stockholders of any company organized under the provisions of the act, shall be jointly and severally liable for all debts that may be due and owing to their laborers, servants and apprentices for services performed for the corporation. • -

The act of 1838, chapter 257 (p. 243), authorizes one or more of several joint debtors to compound or compromise their joint indebtedness in discharge of them joint liability, without affecting the liability of the other joint debtors. The act is one entitled for the relief of partners and joint debtors.” It is not confined, .therefore, to partners eo nomine. The fifth section declares that the preceding provisions in reference to copartners shall extend to joint debtors. And the Court of Appeals, in the case of Bolen v. Crosby (49 N. Y. 183), after considering the application of this statute to a liability incurred by the trustees of a corporation'organized under the act of 1848, decided that the release or discharge under the provisions of the act of 1838, would not have the effect to discharge any others than those to whom it was given. It was declared that the release of one of the persons who had become liable was a technical defense to those who were not parties to it, and that the burden was upon them to show that the instrument was such as barred the action against all who were jointly liable.

In this case it appears from the receipt that it was given under the act of 1838; and the plaintiff, having sued all the stockholders, has elected to treat them as joint debtors. The learned justice presiding at the trial also treated them as joint debtors. This was correct. (Dean v. Whiton, 16 Hun, 203.) Applying to the common law rule in reference to the discharge of one (regarding them as joint debtors, which, seems to be their proper relation to the plaintiff), we think that under the act of 1838,'they may compromise their liability without destroying the creditor’s claim as to the others.

It may be said in addition that the act of 1838 is a remedial" statute and ought to be construed liberally. It is in derogation of the common law, it is true, but its object is to .lessen the rigor of the common law, and to relieve the joint debtor if he can make terms with his adversary.

For these reasons we think that the judgment must be reversed and a new trial ordered, with costs to abide the event.

Davis, P. J., and Barrett, J., concurred.

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


author: Brady, J.: Barrett, J.

text:
    JOHN W. GREENE, as Administrator, &c. of DAVID GREENE, Deceased, Respondent, v. JOHN MARTINE and others, as Executors, &c. of THEODORE MARTINE, Deceased, Appellants.

      When the court must continue an action without regard, to the laches of the applicant — Oode of Civil Procedure, § 757.
    Uncier section 757 of the Code of Civil Procedure, as amended in 1879, providing that “in case of the death of a sole plaintiff or defendant, if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to ho continued, by or against his representative or 'Successor ip.interest,” it is the duty of the court to continue the action, if it survives or continues, without regard to whether or not the applicant has been guilty of laches in making the motion.
    .Appeal from a judgment in fav.or of tbe plaintiff, entered upon tbe trial of this action by tbe court without a jury.
    This action was- brought to revive and continue a former action brought by Margaret Greene, executrix of David Greene, deceased, against Theodore Martine, deceased, in which both the original parties have died. '
    Dr. David Greene died on October 19, 1856, leaving a will, in which he appointed his widow, Margaret Greene, executrix. The will was proved, and Mrs. Greene took out letters testamentary, and qualified as executrix. In the year 1857 Mrs. Greene, as executrix, commenced an action in the Supreme Court against Theodore Martine for an accounting and the recovery of such moneys as should be found due. The issues in that suit were referred "to Mr. Jonathan Miller, and the reference commenced before him in May, 1858. Mr. Miller died in that year, and an order of reference was made to Mr. John E. Develin, before whom the trial commenced in December,' 1858, and continued until May 19, 1862. After that, no further proceed ings were had. On the reference the plaintiff presented her proofs and rested; the defendant presented his proofs and rested; the plaintiff offered some rebutting evidence, and the case was not finally closed, but remained with the plaintiff at the last meeting before the referee.
    • Margaret Greene, executrix of David Greene, died on December 2,1863. Theodore Martine, the original defendant, died,in March, 1877, leaving a will in which he appointed the defendants executors. The will was proved, and the defendants qualified. In October, 1877, letters of administration, with the will annexed, upon the estate of David Greene, were issued to John "W. Greene, the plaintiff in this action, and in January, 1878, this suit was commenced 'to revive the former suit in the name of John ~W. Greene, as administrator, against the defendants, as executors of Theodore Martine, and to continue it before the referee to judgment. The defense is .that the plaintiff has been guilty of laches, and that in consequence thereof the defendants have lost the ability to make a proper defense to the suit, if the same should be revived.
    This case was tried at Special Term, in May, 1879,, before the Hon. Chas. H. Van Brunt, who decided that the case was a proper one to be revived, and ordered judgment for the plaintiff.

      G. A. Jackson, for the appellant.

      G. Tillotson, for the respondent.
   Brady, J.:

This action was brought to revive and continue a former action, brought by Margaret Greene, executrix of David Greene, deceased, against Theodore Martine, in which both of the original parties have died.

The action may be regarded as a perfect antique. It was commenced in 1857 ; it was referred, and testimony taken in 1858; the original plaintiff died in 1863 ; the original defendant in 1877; and the present plaintiff procured letters of administration of David Greene’s estate, to which the claim belonged, in October, 1877. He commenced this action for revivor in January, 1878. The learned justice in the court below, after a re-trial, in which the respective parties presented all that they had for his consideration, in reference to the final results, expressed his view as follows:

“ If, in the decision of this case, I follow the decision in the case of Beach v. Reynolds (53 N. Y., 4), the defendant is entitled to judgment. If, on the other hand, my conclusion is controlled by the case of Evans v. Cleveland (72 N. Y., 486), the plaintiff is en titled to the relief asked for. I am unable to reconcile these decisions, and I am bound to follow the latest, as the most recent exposition of the law. Judgment for plaintiff, without costs.”

In the case which he declares makes the latest revelation of the law applicable to such cases, the case of Beach v. Reynolds is considered and declared to be distinguishable. In Evans v. Cleveland it was declared that no mere lapse of time after the commencement of an action at law, will bar the action under the statute of limitations ; and, further, that statute cannot in any case, furnish a defense, unless the action was barred before its commencement, and no mere lapse of time will defeat an application for the continuance of such an action in the name of the representatives of the deceased party; and it was left doubtful whether the rule applied to equity cases. Justice Earl, in delivering the opinion of the court, said : “ The case of Beach v. Reynolds is not an authority against the conclusion thus reached. That was an equitable. action, and the cause of action was there barred before the action was commenced.”

These suggestions explain the difference between the two cases, one of them being an action at law, and the other in equity, and it appearing that in the equity action the cause of action was barred before the action was commenced. This action is one for an accounting, and, therefore, on the equity side of the calendar; but the cause of action was not barred when it was commenced. The progress of the case, it is true, has been marked by great delays, which are to some extent accounted for by a variety of circumstances to which it is not considered necessary particularly to allude. But these delays could have been overcome, and arrested if the defendant in the action had chosen to avail himself of the provisions of the statute which gave him the right to expedite the determination of the action.

It was said in the case of Evans v. Clevland that as an action conld be revived by supplemental complaint only, if the delay had been unreasonable, or in any way damaging to the defendant, the application might be denied.; but that, under section 121, the court may, on the application of the living party, prescribe a time not less than six months, nor more than a year, within which the representative of the deceased paidy must be substituted. “ The living party, therefore, in such a case, has an ample remedy to secure himself against inconvenience or embarrassment without any statute of limitations.”

Although, perhaps, as already suggested, the case thus referred to leaves the application of the rale declared by it qucere as to equitable actions; nevertheless the whole reasoning of the opinion is a demonstration that no such distinction is designed to be made, because Justice Eakl, at p. 190, says: Section 121 fiumshes a uniform rule for all actions legal and equitable, and now there can be no necessity for' the rale originally adopted in equity, because, as above shown, the living party has ample means to protect himself against unreasonable delay.” Where the cause of action is not controlled by the statute of limitations, and where the, defendant sued has the right to insist upon the appointment of a representative of his adversary dying in the progress of the cause, the charge of laches does not seem to be maintainable, because if he desired a more expeditious determination of the controversy, he could resort to the means suggested to accomplish it. The Legislature, by the provisions of the Code, seem to have established this doctrine, because by section 757 it is provided as follows: In case of the death of a sole plaintiff or defendant, if the cause of action survives or continues, the court must, upon a supplemental summons and complaint, or, in its discretion, upon a motion, if made within one year after decedent’s death, in a proper ease allow or compel the action to be continued by or against his representative or successor in interest.”

This provision of the Code was in existence at the time this action was commenced. In 1879 the Legislature 'amended the section by striking out the words, “ a supplemental summons or complaint, or in its discretion,” and also the words, “if made within one year after the decedent’s death, in a proper case,” leaving the section to read as follows : “ Section 757. In case of the death of a sole plaintiff, or a sole defendant, if the canse of action survives or continues, the court must, upon a motion, allow or compel the action to be continued, by or against his representative or successor in interest.” So that under the existing law, as prescribed by the Code, it seems to be tho duty of the court to continue the action if it survives or continues, upon a motion only to be made for that purpose. This result is doubtless predicated of the right of the living party to compel a determination of the controversy, and does away, therefore, with the doctrine of laches as applicable to such cases.

Under all these circumstances we do not understand how we can interfere with the decision of the court below. It is quite evident from the disposition made with regal’d to costs, that, as a matter of discretion, the amendment would have been allowed, and with the exercise of such a discretion there is nothing in this case to justify any interference.

The judgment should be affirmed, but without costs.

Barrett, J.

I concur in the result. . My views of the effect of the amendment of 1879, to section 757 of the Code of Civil Procedure, were expressed in Coit v. Campbell, 20 Hun, 50.

Davis, P. J,, concurred.

Judgment affirmed, without costs.


author: Ingalls, J.:

text:
    WILLIAM E. GRAY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Indictment — a caption is not a part of it — what objections to it cannot be raised after a conviction, on a motion in arrest of judgment.

    The objection that an indictment has no caption, or that it does not show in what court it was presented or found, cannot be raised after a conviction by a motion in arrest of judgment.

      Writ of error to the Court of Oyer and Terminer of the city and county of New York, to review the conviction of the plaintiff in error of the crime of forgery.

      F. J. Dvpignae, for plaintiff in error.

      B. K. Phelps, district attorney, for defendant in error.
   Ingalls, J.:

The plaintiff in error was tried and convicted in the Court of Oyer and Terminer for the crime of forgery, on the 22d day of May, 1819, and sentenced to imprisonment in the State prison for the term of ten years. The indictment was found in the Court of General Sessions of the Peace, held in and for the city and county of New York, in December, 1869 ; and the prisoner was arraigned in that court, and interposed to the indictment a plea of not guilty. The indictment was sent to the Court of Oyer and Terminer for trial, and after conviction the prisoner moved in arrest of judgment upon two grounds:

• 1st. That the indictment did not show in what court it was presented or found, or that it was presented or found in any court having criminal jurisdiction or jurisdiction of the offense sought to be charged.

2d. That the indictment failed to charge any offense in that it did not describe or characterize the instrument or instruments forged and uttered. The motion was denied, and the same grounds are xxrged in this court for a reversal of the judgment. We are convinced that the plaintiff in error has failed to present a case which w^xxld j ustify sxxch reversal. The omission to state in an indictment the court in which it is found, is not fatal, especially so when the objection is not taken until after conviction. Such statement is usually contained in what is denominated the caption, which really constitutes no part of the indictment, and when the trial is had in the court at which the indictment is foxmd and presented, no caption is required. But when the indictment is sent to a superior court, the clerk of the court attaches a caption which contains the name of the court where the indictment was foxmd, and other facts attending the finding of the indictment. In 1 Wharton’s Criminal Law, § 219, the author says: “ The caption is no part of the indictment; its office is to state the style of the court, the time and place of its meeting, the time and place where the indictment was found.” Again, in section 220 : “ It forms no part of the indictment, and therefore it was no ground for arresting judgment, that the indictment does not- show, in its caption, that it was taken in the State; for it is said while it stood on the records of the court below, it appeared to be an indictment of that court, and when sent to the Supreme Court, the caption of the record of which it is a part officially certified, renders it sufficiently certain. If wholly omitted, in the court below, it is said the indictment may nevertheless be sufficient, as the minute of the clerk upon the bill at the timé of the presentment, and the general records of the term, will supply any defect in such preface.” In 1 Bishop on Criminal Procedure, § 150 (2 ed., § 661), will be found the following: “ The reader therefore perceives, that in England and in those states in which the English practice is followed, the caption is not in any sense a part of the indictment; but on the other hand it is a part of the record, and it may be amended to the same extent as the record in any other place.” 1 Archbold Criminal Practice and Pleading, p. IQ, contains an assertion of - the same doctrine. In 2 Colby’s Criminal Law, p. Ill, the author says: “ It is not usually the practice in this State to attach any caption to the indictment at the time of its finding and presentment; but when an inferior court, in obedience to a writ of certiorari or of error, transmits the indictment to the superior tribunal, it is accompanied with a full history of the proceedings, describing the court before which the indictment was found, the jurors by whoaga it was found, and the time and place when it was found.” Again, at page 112, the author continues: “ While the indictment remains in the Court of Sessions a caption is not necessary j when it is removed a caption must be affixed, and it is the clerk’s duty to affix it, and this whether an entry of the finding be entered in the minutes or not.” (See also People v. Jewett, 3 Wend., 314; People v. Myers, 2 Hun, 6; Barb. Criminal Law, 280.) As we have sfeen, the caption being strictly no part of the indictment, but a part, of the record of the proceedings to be supplied by the clerk in case the indictment is sent-to a superior court, any defect in snch ca2ition may be amended at any stage of the proceedings. (1 Archbold Criminal Practice and Pleading, p. 78, note 1.) “ But though the caption, like the indictment itself, may, if defective, be either quashed by the court or demurred to on the part of the defendant, it differs materially from it, in its capacity of amendment ; for the return to the court is merely a ministerial act, and ministerial acts ma/y he amended at any time according to the common law.” This is supported by a reference to Falknér’s ease, 1 Saunders, 249, and in a note to that case the subject of amendment is very fully discussed. (See also page 99, where the same subject is further discussed by the author.)

Referring to the case at bar, we discover that the return to this court, which is certified by the clerk, contains a complete record including the following:

“ The answer of the judges of the Court of Oyer and Terminer, held in and for the city and county of New York.

“ A transcript of the indictment and judgment- of the court, together with all things touching or in anywise concerning the same.

i!Ye certify under seal of our said court, to the justices of the Supreme Court within mentioned, in a certain schedule to this writ annexed, as within it is commanded.

[l. s.] “ By the Court.

JOHN SPARKS, Clerk.

State of New York, }

City and Covnty of New York, j ‘'

Be it remembered, that at a Court of General Sessions of the peace, holden at the City Iiall of the city of New York, in and for the city and county of New York, on the first Monday of December, in the year of our Lord one thousand eight hundred and sixty-nine, before John K. Hackett, Esq., recorder of the said city of New York, justice of the said court, assigned to keep the peace of the said city and county of New York, and to inquire, by the oaths of good and lawful men of the said county, of all crimes and misdemeanors committed, or triable in the said county, to hear, determine, and punish according to law, all crimes and misdemeanors in the said city and county done and committed.

“ By the oath of WILLIAM II. MEAD, Borema/n?

Then follow the names of the other members of the grand jury by which the indictment was found, and the history of the entire proceedings embracing the conviction and sentence, and containing a copy-of the indictment. So we perceive that in this court a perfect record is furnished under the certificate of the clerk which shows in what court the indictment was found. We cannot doubt but that this com’t, if it were necessary, would have authority to order the record amended, by directing the clerk of the Court of Sessions to attach a proper caption to the indictment. There is, however, no necessity for it, as in any event thp defect could only be regarded as a matter of form, which in no possible way can prejudice the rights of the prisoner. And hence the defect would be cured by'the provision of the Revised Statutes, vol. 2, page 728, § 52, 1 ed., which is as follows: “No indictment shall be deemed invalid; nor shall the trial, judgment, or other proceedings thereon be affected: . . . 4 By reason of any other defect or imperfection in matters of form which shall not tend to the prejudice of the defendant.” It is, in our judgment, too late for the prisoner successfully to raise such a question after conviction, by a motion in arrest of judgment. We have examined the case, People v. Bennett (37 N. Y., 117), which is relied upon by the counsel for the prisoner. And we do not understand that case as deciding upon this question, anything further, than that the indictment in that case, was not obnoxious to even the attempted criticism, because on its face it recited the court in which the indictment was found. The discussion of the question, in the opinions expressed, does not seem to favor the views contended for by the plaintiff in error in this case.

It is further contended that the indictment does not sufficiently describe the instruments claimed to have been forged. The real point of the objection seems to be that the pleader should have given a name to the instruments claimed to have been forged, instead .of calling the court to determine their character and legal effect, from an inspection thereof, as fully set out in the indictment. We cannot doubt but that the indictment. is sufficient in this particular, and to hold otherwise would seem to accord to the merest technicality a potency unsustained by reason, and, we think, unsupported by tbe current of authority. This objection should not prevail if raised by demurrer, much less when asserted in arrest of judgment. (People v. Clements, 26 N. Y., 193; People v. Rynders, 12 Wend., 426.)

We conclude that the conviction should be affirmed.

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

Judgment affirmed.


author: Barrett, J.:

text:
    RICHARD ESTERBROOK, Jr., as Assignee, &c., Respondent, v. JOSEPH W. SAVAGE, Appellant.

      Bights of one purchasing land after a judgment in pa/rtition, when the judgment is subsequently set aside — when the purchaser is entitled to a confirmatory deed from his vendor — when an infant is estopped by the recitals contained in a deed made by Ms special gua/rdian.

    In 1834, one Francis Child died, leaving a will, by which he devised certain land to his widow for life, with remainders to his three daughters, Jane Beed, Caroline Savage, and Mary Parsons. In 1845, a decree was made in an action of partition brqught by the widow, by which the lot, to recover which this action was brought, was set ofi in fee to Mrs. Parsons, who died in 1847, leaving an infant daughter, now Mrs. Allen, to whom the lot descended. Subsequently a bill of review was filed by Jane Beed, and a judgment procured setting aside the decree of partition, and all proceedings thereunder. While the bill of review was pending, and in pursuance of an order of the chancellor, made upon the application of the father of Mrs. Allen, then an infant, the lot in question was sold to the widow, who thereafter conveyed it, by a full warranty deed, to the defendant. Mrs. Allen alluded in her answer to the bill of review, to this application, praying that in case a new partition were ordered, the rights of the purchaser • might not be disturbed, and that the lots originally set apart to her mother mif lit., on a subsequent partition, be set apart to her.
    In a second action for partition, to which Mrs. Allen and the defendant were parties, the former put in the usual answer of an infant, and the latter suffered a judgment to be taken by default, in pursuance of the advice of his counsel. By the decree therein, the lot was again set off to Mrs. Allen.
    In an action brought by Mrs. Allen to recover the lot so purchased by the defendant, the latter set up the foregoing facts, and prayed that she be compelled to execute a confirmatory deed of the lot to him.

      Held, that neither the judgment on the bill of review, nor that in the second action for partition, estopped the plaintiff from setting up the equities existing in his favor, but that lie might set them up in this action, and procure herein the affirmative relief to which he was entitled.

      Held, further, that Mrs. Allen was estopped from claiming the land by the recitals contained in the deed of her special guardian, referring to the petition upon which the order for a sale was made, it being alleged therein that she was the owner in fee of the lot to be sold.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    This action was commenced in 1866, by one Josephine Allen, to recover the possession of certain land, in the city of New York, claimed to be wrongfully withheld from her by the defendant. The present plaintiff, who is the assignee in bankruptcy of the said Josephine Allen, was substituted in her place by an order made on the 30th day of April, 1878.

      W. Howard Wait, for the appellant.

      William H. Arnoux, for the respondent.
   Barrett, J.:

This is an action in ejectment, to recover possession of a lot of land in West Forty-seventh street, in this city. The plaintiff’s assignor, Mrs. Josephine M. Allen, had a verdict at the circuit; and from the judgment entered thereon the defendant appeals.

The facts, essential to a proper appreciation of the important questions of law now presented, are these:

One Francis Child died in 1834, seized of certain premises, on the Bloomingdale road, of which the lot in controversy was part. He left a widow, Mary Child, and four children, Abraham Child, Jane Reed, Caroline Frances Savage, wife of the appellant, and Mary Parsons, the mother of Mrs. Allen. In the year 1844 Abra-J ham died intestate and without issue ; Francis Child left a will, the provisions of which need not be stated, further than that, thereunder, Mary Child took a life' estate, and these three daughters remainders. Mary Child subsequently commenced an action in partition, and in October, 1845, a decree was made, fixing the rights of all the parties, and setting off the lot in question, with other property, to Mary Parsons in fee. In February, 1847, Mrs. Parsons died, and this lot descended to her infant daughter, the present Mrs. Allen, as her only heir at law. The partition seems to have been unsatisfactory to some of the parties, for we find that in the month following Mrs. Parsons’ death, Jane Reed filed a bill of review, to which Mary Child, Mrs. Allen, and the present appellant were made parties defendants. This suit subsequently resulted in a judgment setting aside all the previous proceedings. While the bill of review was pending, Mrs. AJlen (then Josephine M. Parsons), by her father, petitioned the chancellor that one of the lots, which by the partition had been set apart to her mother, and upon the latter’s death had descended to her, might be sold. She alluded to this application in her answer to the bill of review, and prayed, that, in case such bill resulted in a new partition, the rights acquired by the purchaser should not be in any manner disturbed, and (evidently in aid of that purpose) that the same lots originally set apart to her mother, should in any such subsequent partition, be allotted to her. Mrs. Allen’s petition was granted; and thereupon, pursuant to an order of the court, the lot in controversy was sold by the special guardian to Mrs: Mary Child, for what seemed to the chancellor, and undoubtedly was, a full and adequate consideration. Mrs. Child thereafter conveyed to the appellant, for the same consideration and. by a full covenant warrantee deed. The legal title to this lot, thus acquired by the appellant, was subsequently swept away by the judgment on the bill of review. That left the entire estate in its original condition. The allotments fell with the rest of the proceedings, and the property was again held in common. While this condition of things divested purchasers (from the individual heirs) of their legal title to lots which had been set apart in severalty under the original partition, it certainly raised a strong equity in their favor. They were clearly entitled either to a return of their purchase-money, or in case of another and valid partition, resulting in a fresh apportionment of the same lots to the same individuals, to confirmatory deeds. This was thoroughly understood by all parties, and shortly after the judgment on the bill of review was rendered, Mrs. Need and her husband filed a petition under the Nevised Statutes for a new partition, to which the appellant, and of course Mrs. Allen, were made parties. The latter put in the usual answer of an infant by her guardian ; but the appellant suffered default, having been advised by his counsel that he could not, in that proceeding, set up the equities between himself and Mrs. Allen with respect to this lot. The result was that the property was again partitioned, and by an arrangement between the commissioners, the parties, and the respective counsel, made with a special view to confirmatory proceedings, the lot in question was set apart to Mrs. Allen. As though in explanation of this allotment, we find in the decree a recognition, in the form, of a recital, of the previous conveyances from Mrs. Allen’s special guardian to Mrs. Child, and from the latter to the appellant.

Upon this state of facts, it would seem as though .a confirmatory deed were almost a matter of course. It is averred that such a deed was readily secured by another purchaser similarly situated, and that Mrs. Allen’s father facilitated the proceedings looking to that end; but that, from motives which, if truthfully stated, were certainly unworthy, he refused to comply with the understanding as to the appellant’s right, and treated his daughter’s title as independent and paramount.

Proceeding to effectuate this injustice, Mrs. Allen commenced against the appellant an ejectment suit for the lot in question. Just here the appellant made what the courts have held to be a grave mistake of practice. Instead of setting up in his answer, as he now does, the special equities to which we have refei’red, he commenced a cross action in which these equities were set forth, and sought therein to enjoin the ejectment suit, and to obtain a decree for a confirmatory deed. The cross action was first tried, and the appellant prevailed upon the merits, the referee, Ex-Judge H. Ulshoeffer, holding that Mrs. Allen was bound by the recitáis in the special guardian’s deed; that the appellant was not estopped by the second partition decree; and that there was ample equity to support the claim for a confirmatory deed. Upon appeal to the general term this judgment'was reversed, and the eomplamd absol/ateT/y dismissed, not upon the merits, but upon the sole ground that the pending ejectment suit could not be thus enjoined; that the equity suit was unnecessary and improper, and that the facts stated in the bill should have been set up in the answer in ejectment. From this an appeal was taken which was heard and decided by the commission of appeals. (Savage v. Allen, 54 N. Y. 458.) The judgment of dismissal was there affirmed, and a motion for a re-argument, subsequently made, was denied. This presents the first question raised upon the present appeal. The doctrine of res adgudñeata is invoked, and it is urged, that the appellant is concluded upon the merits by this judgment of the commission. We must inquire, therefore, what was actually decided by .that court. This is a question of fact, upon which the opinions may be considered. The rale that an appellate court will not look dehors the record, for the grounds of a decision, was of course not applicable below, where the question of res adyudieata was directly involved.. All that the record under consideration shows is, certain findings of fact upon the merits by the referee, a judgment thereon in favor of the plaintiff, an order of the general term reversing that judgment and dismissing the complaint, and a judgment of the commission of appeals affirming the order of the general term. "What was determined by the referee is clear • and well defined. N ot so, however, as to the appellate judgments. So far as the record speaks, they may have proceeded either upon the question of practice, or upon the merits, or both. Under such circumstances it is well settled that extrinsic evidence is admissible to ascertain what was really decided. (Angel v. Hollister, 38 N. Y., 378; Colwell v. Bleakley, 1 Abb. Ct. App. Dec., 400 ; Doty v. Brown, 4 N. Y., 71; Burwell v. Knight, 51 Barb., 267.) As to the general term, the question is entirely free from doubt. From an examination of Mr. Justice Ingraham’s opinion, it appears, as we have already seen, that the case was decided solely on the question of practice, and that the- findings and judgment of the referee upon the merits were not at all considered. The opinion of the commission of appeals was prepared by Mr. Commissioner Reynolds. That opinion commences by concurring with the general term on the question of practice. It does not, however, rest there, but proceeds to express the views of the court upon the merits, holding that by the judgment on the bill of review, and in the second partition suit, Mr. Savage was estopped from any claim of title to the premises in dispute. Upon the motion for a re-argument, an explanatory opinion was filed by the same commissioner, the effect of which, as we understand it, was to place the judgment squarely upon the question of practice, and to leave Mr. Savage free to set up his special equities in the other action. The question of practice was referred to as controlling, while the remarks upon the merits were treated as a mere intimation of opinion for the guidance of the court below in the ejectment suit. A distinction was then drawn between an estoppel as to the legal title, and the right to claim a confirmatory deed because of special equities. “It is also urged,” said the learned commissioner, “ as a reason why he (Savage) did not set up any claim to it in the last partition, that he in fact had no title to the lot, but that he had an equity to compel the defendant to convey the lot to him, if it should in the last partition, (as it was) be set off to her in severalty. It seems sufficient to say that, if he had no title to the lot, no amount of alleged estoppel by judgment could do him any harm, and I think we had the impression that the supposed estoppel prevailed only as to the legal title. It may, indeed, be that any equities he is supposed to have, which could arise against the defendant only after the final decree in partition had been pronounced would not be concluded by the record of that judgment, and if it now be assumed that such is the exact condition of the plaintiff’s right, it makes it only the more certain that he should have interposed, as he might, that affirmative defense in the action of ejectment brought against him and demanded the relief to which he supposed himself entitled; and it furnishes a more satisfactory reason why our judgment previously rendered should not he disturbed.” 'We think it is quite plain, after a careful review of these opinions, that the judgment of the court proceeded upon the question of practice, supplemented by its views on tbe doctrine of estoppel as to the legal title. We are fully persuaded, however, that tbe court did not adjudicate against tbe special equities of tbe bill,. nor against Mr. Savage’s right thereunder to a confirmatory deed.

This brings us to tbe merits. Having thus failed in bis cross action, Mr. Savage, as be should have done originally, set up bis equities in tbe present ejectment suit, and tbe main question is at length fairly and regularly up.. Is be then estopped from setting up these equities by tbe judgments on tbe bill of review or in tbe second .partition action? We really cannot perceive what tbe bill of review has to do with tbe question. Of course, by tbe judgment then rendered, Mr. Savage’s legal title was wiped out. Such was its effect, whether be were made a party to tbe proceedings or not. There were no equities to set up. They did not then exist, for be bad tbe legal title until divested by tbe decree.

Tbe real question is whether be should have set up these equities in tbe second partition suit. He was made a party to that suit, but none of tbe questions between himself and Mrs. Allen were raised by any averments of tbe bill or of her answer. It will also be observed that Mr. Savage’s interest was not that of a joint tenant nor of a tenant in common. His legal title was gone, and bis equity depended upon a fresh allotment to Mrs. Allen of tbe premises in question. He could not properly have set up tbe facts, and prayed for such an allotment with decree over against Mrs. Allen for a confirmatory deed. That would have been entirely anomalous and without precedent in such a proceeding. Although a party in fact be was in law a stranger to tbe partition. Tbe general rule is that partition deals only with joint or common interests. Tbe lands must be in tbe possession of joint owners. All questions respecting tbe legal title of adverse claimants must be settled in an appropriate action. ( Van Schuyver v. Mulford, 59 N. Y. 426 ; Florence v. Hopkins, 46 N. Y., 182; Jackson v. Myers, 14 Johns., 354; Therasson v. White, 52 How. Pr., 62, and cases there cited.) One joint owner cannot, as against tbe others, lawfully convey a specific portion of tbe land. (Broughton v. Howe, 6 Verm., 266 ; Varnum v. Abbot, 12 Mass., 476.) Nor can one who has accepted a contract for the sale of such specific portion, successfully invoke the court in which the partition proceedings are pending, to make such an allotment as will enable him to enforce his contract. ( Wright v. Vernan, 1 Drew. & Sm., 331.) Even as to a tenant in possession, it has been held that his eqwitable elaims are not affected by the judgment in partition, although he appeared and pleaded. (Baylies v. Bussey, 5 Greenl., 153 ; and see Peck v. Chambers, 7 B. Mon., 565 ; Tilton v. Palmer, 31 Maine, 486 ; and Coates v. Street, 2 Ashm., 12.) These rules are not changed by the statute. (2 R. S., 316-332.) Section 15 undoubtedly refers to undivided interests in the premises. This is evident when it is read in connection with the other provisions, as to the pleadings, j>roceedings and judgment. (See §§ 16,18, 29,30, 31.) If the legislature had designed to abrogate the well settled and wholesome rales to which we have referred, and to substitute a system so inconvenient and incongruous as that contended for, not only would specific language have been used, but in addition provisions would undoubtedly have been made regulating the novel procedure and rendering it less embarrassing to the main purposes of the action. We are, therefore, of opinion that Mr. Savage was well advised not to set up his equity in the second partition action, and that, so far from being estopped by the judgment therein, his equity became thereby complete.

Had then Mrs. Allen the right, up.on the confirmation of the fresh allotment to her of the premises in question, to ignore the understanding and to maintain ejectment against the appellant % To this we think there can be but one answer. Such a position was a fraud upon the appellant. What was the original intention of the parties ? Not to quit-claim or release a doubtful “ right, title and interest ” of the infant,, but clearly to vest in Mary Child the entire fee of the premises. For that she paid not only a full and adequate consideration, but actually more than the lot was valued at in the petition. All parties relied upon the partition decree of the Court of Chancery and upon the subsequent proceedings for the sale of this lot. It would be monstrous to permit a vendor thus to take advantage of an informality or irregularity in the partition proceedings resulting in the destruction of title in severalty and the remitting of parties to their original joint interests. Equity and good conscience demanded that upon the proceedings being begun de novo, every proper effort should be made to secure the same allotments, with a view to reinstating the appellant in his just rights. As we have seen, this honest spirit was impressed upon the legal proceedings by the prayer of Mrs. Allen’s answer to the bill of review, and by the recitals in the second partition decree. It was further signified by the parol understanding, which was offered in evidence, and erroneously rejected. These facts constituted a full and sufficient equity, and entitled the appellant to affirmative relief. (See Kellogg v. Wood, 4 Paige, 615, and Edwards v. Varick, 5 Denio, 694.)

But we are also of opinion that Mrs. Allen was estopped by the recitals in her special guardian’s deed to Mary Child. The petition, the proceedings thereon, and the order of the court, are there recited. The facts stated in the petition are thus engrafted upon the deed, and the recital is equivalent to a reassertion in that connection of the ownership in fee. . (Jackson v. Waldron, 13 Wend., 209.) “By referring to the will,” said Mr. Senator Tracy, in that case, “ and thus making the will a parrt of the recital, it effectually recites that the devise toas of a feed (And see Edwards v. Varick, 5 Denio, at p. 680.) There are not many branches of the law more overladen with refinements than this as to estoppels. (See Senator Tracy’s opinion,- in Jackson v. Waldron, ubi supra, from p. 205 to p. 208.) There are certain rules, however*, which appear to be reasonably well settled. A good deal depends upon the intention of the parties with respect to the quality of the estate, as expressed upon the face of the instrument. (Van Rensselaer v. Kearney, 11 How. S. C., 323.) As in the case of quit-claims or releases, where it is evident from the form of the deed that a conveyance of something less than a fee was designed. Where, however, the grantor conveys without title, but with covenant of warranty, he will be estopped, and an after-acquired title will pass to the grantee. (Sparrow v. Kingman, 1 N. Y., 246.) This rests upon the doctrine of avoiding circuity of action. If the conveyance be without covenant of warranty, but distinctly recites ownership in the fee, he is also estopped. (Same case.) This proceeds upon a different principle, namely, that of having thus affirmed title in fee, and such, affirmation being an inducement to contract, it would be fraudulent in the grantor to gainsay or deny it. (Same case, and Pelletreau v. Jackson, 11 Wend., 117; Jackson v. Waldron, ubi sup., 206.) That is this case.

A suggestion was made in the reply as to the trust relation of Mary Child and the appellant to Mrs. Allen’s mother. No evidence was offered in support of this; but as Mrs. Parsons was deceased, the trust relation had terminated, and there was no legal objection to the contract with her daughter. Farther, the transaction was open and above-board; was known to the infant’s father, and was reported to the chancellor, and approved by him.

In the view which we have taken of the case it will not be necessary to give any critical or extended examination to the rulings on the subject of damages. Suffice it to say, that we think the questions addressed to the defendant and the witness Hardman should not have been excluded, and, as it is not improbable that the damages were considerably enhanced in consequence, we think a new trial must necessarily have resulted from that error alone.

Upon the main branch of the case which has been discussed, we do not feel justified in granting, on this appeal, the affirmatme reTAef to which we think the defendant was entitled below.

We will, therefore, confine ourselves to a reversal of the judgment and the award of a new trial with costs to abide the event.

Brady, J., concurred.

Present — Beady and Barrett, JJ.

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


text:
    In the Matter of the Application of JOHN LAMPERT to be discharged from custody on habeas corpus.

      Arrest of a party under an execution, wJvile returning from attendance at a court —remedy of, is by a motion and not by a iorit of habeas corpus — a pa/rty must be in actual custody to authorise such a writ to issue.

      One Lampert, while returning home, after attending at the Marine Court, in a proceeding to which he was a party, was arrested upon an execution against his person issued upon a judgment recovered against him in that court, by one Faendler. After he had given bail for the limits, and been discharged from custody, a writ of habeas corpus was issued to the sheriff, commanding him to briug Lampert before one of the justices of the Supreme Court, to which the sheriff made a return that he was unable to obey the writ, for the reason that Lampert was not in his actual custody. Upon the hearing, at which Lampert voluntarily appeared, an order was made directing that Lampert be released from the execution and discharged from all imprisonment in pursuance thereof.

      Reid, that Lampert was not at the time of the issuing of the writ imprisoned by the sheriff, nor was his bond for the limits such a restraint by that officer as authorized a resort to the writ of habeas corpus.

    That the writ could not be issued to inquire into a mere matter of temporary privilege by which the applicant was exempted from arrest, but. that his remedy for a violation of such privilege was by an ex parte application to the court, before which ho was attending, or to the court out of which the process had issued.
    That the proceedings should have been dismissed with costs.
    Appeal by Charles Faendler, from an order discharging the relator, John Lampert, on a habeas corpus, and by Henry Wehle, said Faendler’s attorney, from an order charging him personally with the costs of the said application; and also from so much of another order in the same proceedings as so modifies the taxation of costs- thereon, as to allow the sheriff the sum of $12.75 as fees upon the arrest.

      Qha/rles Wehle, for the appellants.

      George W. Wilson and George Behrens, for the relator, respondent.
   Barrett, J.:

. While Lampert was returning home, after attendance at the Marine Court, in a proceeding -to which 'he was a party, he was arrested upon an execution against his person, issued out of the same court, at the suit of one Faendler.

He thereupon gave bail for the limits, and was discharged. Subsequently a writ of habeas corpus was issued to the sheriff, commanding him to bring Lampert before one of the justices of this court at chambers. The sheriff made return, in substance, that he was unable to obey the writ, for the reason' that Lampert was not in his actual custody, being on the limits. Instead of a dismissal of the proceeding following this return, Lampert, who appears to have attended volnmta/rihy before the justice, filed a traverse, not denying the facts set up by the sheriff, but giving a history of the arrest, and declaring that he was taken, “ notwithstanding all his objections and protests.” He fails, however, in this traverse, to disclose the nature of these objections and protests, nor does he state therein that he ever claimed his privilege. Upon this, proofs were taken before a referee, who reported, and ultimately the court made the order appealed from, directing that Lampert be released from the execution,” and that the. sheriff discharge him from “ imprisonment in pu/rsua/nce of scdd execution, surrender of bail, or otherwise, as the case may be, resulting from sand execution.” This order, we think, was erroneous. The' relator has mistaken his remedy, and the office of a writ of habeas corpus. He was not imprisoned by the sheriff, nor was his bond for the limits such a restraint by that officer as authorized a resort to the writ. (Dodge's Case, 6 Mart. [La.], 569.)

The same has been held as to persons discharged on bail generally. They will not be considered as restrained of their liberty, so as to be entitled to a writ of habeas corpus, directed to their bail. (1 Bouvier’s Law Dictionary, 574; 3 Yeates, 263; 1 Serg. & R., 356.) It is trae that close confinement is unnecessary; that even words may constitute an imprisonment, if the party be thereby put in subjection; that the place is immaterial, and may be a public highway, as well as a house or prison; in fact, that the office of the writ is to remove all unlawful restraints upon personal freedom. But to remove them, how ? Naturally and primarily, by the production of the body. That is what the statute demands, except in cases of sickness or infirmity. (2 R. S., 564-566, .§§ 27, 33.) Mi*. Hurd says (Hurd on Hab. Corp., 244), that the writ “ deals with present restraints upon the living corporeal man, and it demands his presence before the court face to face with his jailer.” (See also Commonwealth v. Chandler, 11 Mass., 83.)

Whatever may be the special characteristic of the restraint, how ever effected or imposed, it must at least be substantial and real. Mere moral restraint will not do. It should be of such a tangible nature that the court may properly say to the respondent, except in cases of sickness or infirmity, “You corn, bring the body here, if you choose.” In this case, Lampert, as we have seen, was not in the actual custody of the sheriff. In contemplation of law, he had been delivered' into the custody of his bml. (Metcalf v. Stryker, 31 N. Y., 257.) The sheriff could not have compelled the relator to accompany him before the court. To obey, he 'would first have had to seek for and find the relator, and then take him into his custody. This seems like a satire upon the writ. The sheriff very properly returned that the relator was upon the limits, and that he could not produce him. Lampert then produced himself.' Thus, stripped of irrelevant matters, the relator’s attitude amounts to about this. He presents himself to the court upon a writ of habeas corpus, complaining that he is not legally free to leave the city of New York, and substantially praying that the area of his liberty may be enlarged. There is no precedent for such a position. It is very different from such a case as that oí Martin v. Wood (7 Wend., 132), where the object was not to test the main question, but simply to permit the party to appear personally before a justice, without the limits, in exoneration of his surety. There the writ was sustained from the analogy of the case to that of a defendant in custody, who may be brought up on habeas corpus, in order that he may be surrendered in discharge of his bail. Sutherland, J., justified the writ ex necessitate, and likened it, in legal effect, to a habeas corpus ad testificandum.

But this is not the only objection to the proceeding. The office of the writ is to inquire into the jurisdiction of the court, or the validity of the process, but not into a mere matter of temporary privilege. The party, ewndo, m,orando, et redeundo, was under the aegis of the court in which his case was pending. That court would have protected him in a summary way from any breach of his privilege. It is a common and very proper practice, for the sheriff to bring a party, claiming his privilege under such circumstances, at once before the court, from whose presence he has just retired, and have the question then and there settled. Such an application is ex parte. Notice need not be given to the attorney of the party suing out the execution. (Humphrey v. Cummings, 5 Wend., 90; Secor v. Bell, 18 Johns., 52.) “If notice were required to be given,” said Sutherland, J., in the case first cited, “ the privilege would be of no value to either the attorney or his client.” The party may also move the court out of which the process issued. The well-settled practice is, to raise the question by such motion, or by the summary application referred to. The books are full of such motions, while in but two instances, that we have discovered, was habeas corpus resorted to. (Squires’ Case, 12 Abb. Pr., 38 ; Hardenbrook's Case, 8 Id., 416.) In the former, however, a general privilege from arrest was claimed, which, in effect, went to the validity of the process ; while in the latter, the question was not raised, and the prisoner was remanded on other grounds.

The propriety of raising such questions by motion, and the inconvenience which would attend so unusual and unnecessary a resort to the writ, is obvious. The question of temporary privilege is purely collateral. The process itself may be entirely valid, the right to re-arrest absolute and unqualified. Whether the prisoner shall be discharged fot the moment depends upon a variety of considerations. Did he claim his privilege ? Did he waive it ? Did he lose it by deviating from' his route ? Had it terminated ? How unfitting that this great writ should be invoked for the solution of such questions. And where is it to end ? If the privilege of suitors may be thus asserted and defended, why not the right to freedom, of one who has been enticed within the jurisdiction for the purpose of an arrest ? Why, in fact, may not all collateral matters, .upon which the question of holding the arrest depends, be similarly litigated ? It would be but one step further thus to withdraw even the consideration of the merits from the court in which the cause is pending, and to place it in the hands of an officer exercising the functions of a former Supreme Court commissioner; to permit an inquiry in this manner, for instance, into the validity of an order of arrest issued without a proper undertaking, or upon insufficient affidavits.

These considerations are really in the interest of the unlawfully arrested suitor. We have seen, that if he be entitled to his privilege, he may be discharged upon a summary application, ex pa/rte. That, however, is impossible if he resort to the writ, for under 2 R. S., 569, § 46, notice to the plaintiff in the execution, or his attorney, is a pre-requisite to the discharge. This provision for “ the like notice of the time and place at which such writ shall have been made returnable, as is required to be given of special motions,” indigates very clearly that it was not intended to grant the privilege of the writ,where there was a remedy by summary application without notice. Further, the entire scope of the act favors this view. Section 22 provides that persons detained by virtue of any execution, issued upon the final judgment of a competent tribunal, of civil or criminal jurisdiction, shall not be entitled to prosecute the writ. Under section 25, the petition must state that the person is not detained under any such execution, and, under section 40, the party must be remanded, if it shall appear that he is so detained.

Section 41 specially details the cases where the prisoner is to be discharged; but we find therein no reference to such a case as the present, nor provision for any meret/y irregular currest, under lawful <md valid process. The prisoner is to be discharged only (1) when the court has exceeded its jurisdiction; (2) where the original imprisonment was lawful, yet by some subsequent act, omission or event the party has become entitled to his discharge; (3) where the process is defective; (4) where it has been issued in a case not allowed by law; (5) when it is unauthorized; (6) where the prisoner is not in the hands of the proper custodian. This would seem to be decisive of the present case.

But there is still another pertinent provision of the statute, and that is, as to the effect of a dischm'ge upon habeas corpus. The prisoner is not to be again arrested for “ the same cause.” (§ 59.) Now, in the case at bar, what is “the cause” ? Of course the facts which justified the execution. The court below, following the statute, released Lampert from the execution, and from all imprisonment in, pursua/nce thereof, whether resulting from a surrender of bail or otherwise. Thus Lampert could not be rearrested on the execution. The effect, therefore, of this discharge on habeas corpus, because of a breach of the suitor’s privilege, wrould be to depi’ive the plaintiff of his undoubted right to rearrest so soon as the privilege had terminated. (See Humphrey v. Cumming, supra.) The court below did not define “tbe cause” of tbe imprisonment as the disregard of tbe relator’s privilege, and release him specifically from that cause,'without prejudice to tbe mam, cause, to wit, tbe execution. In this view tbe court was borne out by what follows in tbe act; for it is declared that it shall not be deemed “ tbe same cause ” if, “ in a civil suit, tbe party has beefi discharged for am/y illegality im, the judgment or process herein-before specified, and is afterwards imprisoned by legal process for tbe same cause of action.” (§ 59, subd. 3.) How natural it would have been, if really meant, to have added, “if, in a civil suit, tbe party has been discharged for any illegality im, mdleioig the a/rrest upon a valid judgment and execution.” We think it quite clear, therefore, that the statute never contemplated a discharge upon such a collateral ground as that now under consideration, and that tbe proceedings below were without jurisdiction and void.

'Were tbe merits to be inquired into, it would not be difficult to show a failure to claim tbe privilege in a proper manner ; nor can there be any reasonable doubt that there was a waiver. There does not appear to be a particle of evidence that either tbe plaintiff in tbe execution, or bis attorney, specially directed this arrest.' There was, consequently, nothing to warrant tbe imposition of costs against the attorney personally. Tbe conclusion at which we have arrived renders it unnecessary to consider tbe second order appealed from, viz., that as to tbe sheriff’s fees.

Both upon the law and tbe facts, we think tbe orders appealed from should be reversed, with costs, and tbe habeas corpus proceedings dismissed, with costs.

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

Order reversed, with costs, and the habeas corpus proceedings dismissed, with costs.


text:
    CHARLES A. PANZERBEITER, Respondent, v. JOHN H. WAYDELL and others, Appellants.

      An accord and satisfaction must be executed to bar a new action.

    The plaintiff having brought an action against the defendants, upon a doubtful/ claim for a large amount, it was verbally agreed between the parties that the defendants should pay to the plaintiff $150, in consideration of his agreeing to discontinue and settle the suit. The plaintiff thereafter tendered his consent to the discontinuance of the suit, together with a release, but the defendants failed to pay the $150 as agreed. The release and discontinuance were never accepted, nor were they left with the defendants or them attorney.
    The plaintiff then brought this action to recover the $150, averring mutual promises, with fulfillment on his part and a breach on the part of the defendants.
    Held, that the agreement to settle the pending suit, being entirely unexecuted, was not binding upon the plaintiff, and would have been no bar to the original suit, unless executed by the acceptance of the $150.
    That there was, therefore, no consideration for the defendants’promise to pay the $150.
    That the action could not be maintained.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes of the justice before whom the action was tried.

      William A. Boyd, for the appellants.

      Okas. Ho/gedorn and Bioha/rd M. Brwno, for the respondent.
   Barrett, J.:

Taking the view of the facts most favorable to the plaintiff, they amount to this. He had a doubtful claim of large amount against these defendants. This claim was in suit. Thereupon it was verbally .--.greed between the parties that the defendants should pay the plaintiff $150, for a consent of discontinuance and full settlement. The plaintiff tendered the consent of discontinuance together with a release, but the defendants, for reasons which are unimportant in the present discussion, failed to pay him the agreed amount. He then brought the present action, averring mutual promises, with, fulfillment on Ms part and breach on the defendants’. He had a verdict at Circuit for the $150, and from the judgment rendered thereon the defendants appealed.

It is clear that this verdict cannot be sustained. There was no acceptance of the discontinuance and release; nor were they even left with the defendants or their .attorneys. There was, in fact, no intention to surrender these documents without concurrent payment. Mr. Bruno, the plaintiff’s attorney, says he told one of the defendants “ that upon the receipt of the money we would gime Mm a consent to discontinue and a general release.” TMs is a plain case of an accord executory; such an agreement would have been no bar to the original suit, unless executed by the acceptance of the $150. (Mitchell v. Hawley, 4 Denio, 414; Russell v. Lytle, 6 Wend., 391; Daniels v. Hallenbeck, 19 Wend., 408 ; Tilton v. Alcott, 16 Barb., 598; Hammond v. Christie, 5 Robt., 160; Day v. Roth, 18 N. Y., 448.) The promise to discontinue and release was not binding upon the plaintiff. Consequently the defendants were without a consideration for their promise. In the case of mutual and concurrent promises, there must be reciprocity of obligation. (Chitty on Oont., 46.)

The cases cited by the plaintiff (Stewart v. Ahrenfeldt, 4 Den., 189; Russell v. Cook, 3 Hill, 504; Farmers’ Bank of Amsterdam v. Blair, 44 Barb., 641) are not in point. They were actions based upon ewe&uted accords. If, in the ease at bar, the discontinuance and release had been accepted, and, in exchange, the plaintiff had received the defendants’ note for the $150, there would have been no doubt, under these authorities, of the plaintiff’s right to recover upon the note. So, if the $150 had been paid the defendants could have maintained assumpsit for a breach of the promise to discontinue. (Cobb v. Curtiss, 8 Johns., 470.)

Nor is the present action within that class of cases referred to in Tilton v. Alcott, ubi sup., where the courts have regarded “the new agreement, not as an accord, but as a substituted agreement.” There the mutual stipulations must be in the nature of a new consideration, as in Billings v. Vanderbeck (23 Barb., 546). Here there was nothing but an entirely unexecuted agreement to settle a pending suit, which under all the cases is no bar.

The complaint was demurrable. It did not state facts sufficient to constitute a cause of action. The motion to dismiss upon the plaintiff’s opening, and again at the close of the plaintiff’s case, should have been granted. The exceptions to the refnsal to dismiss were well taken. It follows that'the judgment must be reversed and a new trial ordered, with costs to abide the event.

Beady, J., concurred.

Present — Davis, P. J., Beady and Baeeett, JJ.

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


author: Baeeett, J.:

text:
    ADAM MOSER, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellants.

      An attendant upon the Marine Court of New Yorh is an. officer thereof — chapter 382 of 1S70 — chapter 582 of 1870 — when the respondent cannot produce before the appellate court, documenta/ry evidence to sustain the judgment.

    An attendant of the Marine Court of the city of Mew York holds an “office ” within the meaning of that term, as used in section 3 of chapter 382 of 1870, prohibiting any increase in the salaries “ of persons then in office, or their successors.”
    Where, upon the trial of an action brought by one, claiming to have been appointed an attendant upon the Marine Court, under a particular act, to recover the salary attached to such office, his attention is specifically called to the fact that he has failed to prove an appointment thereunder, he cannot, upon the hearing of an appeal taken by the defendant, from a judgment rendered against it, introduce documentary evidence to prove that in fact he was appointed thereunder.
    Appeal from a judgment in favor of the plaintiff, entered on a verdict directed at the Circuit.

      W. G. Whitney, for the appellant.

      Jacob A. Gross, for the respondent.
   Baeeett, J.:

The plaintiff was appointed an attendant of the Marine Court, on or about the 1st of April, 1868. His salary was fixed at $1,200 per annum, which has been fully paid in monthly installments of $100. Iiis present demand is for an additional sum of $25 per month, which he claims under a resolution of the board of supervisors, passed in the year 1870, fixing the salaries of these attendants at $1,500 per annum. After the adoption of that resolution the pay-rolls were made out as formerly, and the plaintiff regularly receipted each month for $100 in full. He did this, however, under protest, and always demanded the additional sum. The resolution in question covered the attendants of the Supreme Court, the Superior Court, and the Court of Common Pleas, as well as of the Marine Court. It seems to have been adopted in the face of the prohibition, against increasing the salaries “ of persons then in office or their successors,” contained in chapter 382 of the Laws of 1870 (§ 3). That the plaintiff was a person “ then in office,” within the spirit of the act, and the mischief aimed at, cannot well be doubted. Besides, these court officers are not in any just sense servants of the judges. Their number, appointment and salary are regulated by law. Them duties, e. g., the preservation of order, and the care of juries, are public, well defined and by no means menial. They have nothing to do with the cleaning or heating of the court-rooms. Such functions are performed by subordinate employees of the city. The weight of authority favors this view. (Sweeny v. The Mayor, 5 Daly, 274; affirmed, 58 N. Y., 625 ; The People v. Nostrand, 46 N. Y., bottom of p. 381; Rowland v. The Mayor, 44 N. Y. Super. Ct., 559 ; Bouvier, title “ Office ;” Burrill’s Dic., title “ Office;” and see the able and elaborate MS. Opinion of Chief Judge Daly in Clark v. The Mayor.) In Wines v. The Mayor (9 Hun, 659) it was thought that Sweeny v. The Mayor was shorn of part of its authority by certain remarks of Mr. Justice Allen in two later cases. (Holley v. The Mayor, 59 N. Y., 166, and Brennan v. The Mayor, 62 N. Y., 365.) We agree with Chief Judge Daly in his analysis of these two cases (in Clark v. The Mayor), and as the Wi/nes case has since been affirmed without any suggestion that the court intended, in either the Holly or the Brennan case (where indeed the question was not necessarily involved), to overrule the direct authority of Sweeny v. The Mayor, we must conclude that the latter is still unshaken.

It is insisted, however, that so far as the Marine Court is concerned the prohibition in- question was removed by an act having special reference to that court, which was passed a few days later (May 2, 1810). The language of this act (Laws of 1810, ch. 582, § 3) is as follows :

“ Sec. 3. The existing provisions of law relative to the appointment of the clerk, his assistants and deputies, are continued in force. The court shall have power to appoint such other assistants, stenographers, interpreters and attendants as the board of supervisors may from time to time, Toy resolution, authorize to be so appointed, who shall respectively be paid at such rates as may be fixed by the said board of supervisors.”

This undoubtedly authorized the supervisors to fix the salaries of such other attendants as, under tibe cmthority of thei/r resolution, might subsequently be appointed by the court. The difficulty with the plaintiffs case is, that he did not show any such appointment. He rested upon his original appointment in 1868. His attention was specially called to the omission by the fourth ground upon which the defendants moved to dismiss his complaint. He now seeks to cure the defect of proof by offering ns, upon the present appeal, an extract from the proceedings of the board of supervisors of December, 1811. Hnder these circumstances, such evidence cannot, properly be now received. It was held in the Wines case (10 N. Y., 614), that for the purpose of upholding a judgment, formal proof of an appointment could be given on the argument of the appeal. This was for the reason that no attention had been called to the defect, ujpon the trial, the appointment having been assumed throiighout. Here, there was a motion to dismiss on the specific ground, which was overruled and an exception taken. Non constat but if the proof had been put in, the defendants would have met it by other evidence. The ease cannot be retried in this manner upon an appeal. Further, we have looked at the document' and are by no means clear as to its supposed conclúsiveness. It appears that the Marine Court distinguished between appointees under prior laws, and the “ other ” attendants authorized by the act in question. They are placed in separate lists. In the one, the appointments purport to be made by the judges alone. In the other, the act is specifically referred to, the appointments are styled “additional,” and are made “ subject to tlie confirmation of the board of supervisors.” Wines was among these additional appointments, which accounts for the ruling in his case. The plaintiff was in the other list, and it does not appear that he was confirmed by the board, or indeed that the hoard was ashed to confirm him. The list of independent appointments would seem to have been furnished, not for official action thereon, but for the information of the hoard, so that being thus apprised of the number of attendants then in office, the supervisors might judge advisedly as to the propriety of confirming the proposed, list of additional officers. It is such other or additional attendants, so appointed by the court under the authority of the supervisors’ resoT/wbion, who are to be paid at rates to be fixed by the board. But even if tbe plaintiff were included in the action of the board, his rights thereunder would date but from the confirmation in December, 1871, which fact of itself would seem to necessitate a readjustment of the damages.

In any view of the case, there should be a new trial, with costs to the appellant to abide the event.

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

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